England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16th February 2005

Wednesday, 16th February 2005

1. MR JUSTICE WALKER: Justices have an undoubted jurisdiction to stay criminal proceedings where continuation of those proceedings would be an abuse of process. On 15th June last year Justices sitting at the Magistrates' Court at Hereford exercised that jurisdiction in a matter where Marie Rosenthal was informant and Amanda Jane Wiles was a defendant. Marie Rosenthal laid the relevant information on behalf of Herefordshire District Council. That Council appeals by way of Case Stated. The short point in the case is whether the Justices could reasonably have concluded that they should exercise that jurisdiction.
2. Relevant pre-trial correspondence has been annexed to the Case Stated. From this, it can be seen that on 3rd March 2004 solicitors for the defendant, Amanda Wiles, wrote to the Council stating that their client had made a telephone call to the housing department in connection with payments that had been made into her account. Such a call may have been highly relevant to the proceedings which were eventually to come before the magistrates. That is because the charge which the defendant faced was one of failing to give prompt notification of a change of circumstances affecting here entitlement to benefit. The letter of 3rd March asked the Council to confirm that they had a record of this telephone call and that either a witness would be in a position to confirm that it was made and its purpose, or else a full note and memorandum made by the person who took the call could be produced. The Council replied on 5th March to the effect that investigations would be made. On 8th March the defendant's solicitors sent a defence statement in the case to the Council. This said, among other things, that while the defendant had not notified Herefordshire County Council direct of the change in her circumstances following the sale of her house, she had contacted the Working Families Tax Credit authorities, believing that that information would be passed on to the Council. She received a letter from the Council in April 2003 informing her that overpayments had been made, and she believed that letter to be confirmation of the fact that the Council was aware of her change in circumstances.
3. A second aspect of the charges concerned payments made to the defendant by her husband. Her defence statement said that she did not then and does not now believe those payments could be described as maintenance payments, and she added that she had submitted copies of her bank statements showing receipt these payments.
4. The statement said that at the time she was under stress from the breakdown of her marriage and the errors which she made were due to genuine mistakes of her understanding of the system. There was no intention of seeking to obtain any benefit to which she was not entitled.
5. In addition to enclosing the defence statement, the letter of 8th March pointed out that this led to obligations regarding secondary disclosure. The letter suggested that the most appropriate way to deal with secondary disclosure would be for the defence solicitors to attend the Council offices by appointment to inspect any file, whether paper or electronic, relating to the defendant's claim for housing and council tax benefit.
6. On 10th March 2004 the Council replied. They pointed out that no disclosure had so far taken place and suggested that both primary and secondary disclosure be dealt with at once. Any documents that the defendant's solicitors wished to have copies of would be supplied. The letter added that most of the material would be held electronically only, continuing:

"I will be in touch with two or three dates suitable for inspection. As it is, the request is unduly wide, would it be possible to narrow the search, for example namely particular documents or areas of interest?"

7. The letter continued to add some observations about the legal position on the charges which I do not need to deal with.
8. On 19th March the Council sent a letter to the defendant's solicitors dealing with the request made on 3rd March. In that regard a statement from Jerry Stoehr was enclosed. On the same date the defendant's solicitors replied to the Council's letter of 10th March. They noted what had been said about primary and secondary disclosure. Nothing further appears to have occurred until 12th May. On that date the defendant's solicitors wrote to the Council, asking to hear from them in connection with the question of disclosure. There appears to have been no response to that letter. Accordingly, on 8th June 2004 the defendant's solicitors wrote to the Council, stating their intention to apply to the court at the hearing that proceedings should be stayed as to continue with them would amount to an abuse of process of the court.
9. I should interpose to state that the court hearing had for some months been fixed for 15th June 2004 and so was now only a week away. The defendant's solicitors enclosed a skeleton argument. This document set out the history and continued:

"12. In the premises the Defence submit that the District Council has failed to comply with the provisions of the Criminal Procedure and Investigations Act 1996 in that:-

(a) It is not clear to the Defence in the light of the letter [of 10th March] whether the District Council has complied with its statutory duty of disclosure in accordance with Section 3 of the Criminal Procedure and Investigations Act 1996.

(b) Following service of the Defence Statement dated 8th March 2004, the District Council has failed to comply with its duty of disclosure set out in Section 7 of the Criminal Procedure and Investigations Act 1996.

(c) And in so failing to comply with its duty of disclosure it has prejudiced the Defendant and it would be unfair to the Defendant if this trial were to proceed.

13. The Defendant therefore applies for:-

i. An order that these proceedings should be stayed because of the prejudice to the Defence, the length of time that has elapsed since the alleged commission of the offence, the fact that no loss has been sustained by the District Council and the continuing cost to the Legal Aid Fund of continuing the proceedings, or

ii. An order that the District Council shall within 28 days comply with the requirements of Section 3 and Section 7 of the Criminal Procedure and Investigations Act 1996."

10. If there was some apparent inertia on the part of the Council up to 8th June 2004, the defendant's solicitors' letter of that date appears to have galvanised the Council into action. They replied on 10th June 2004. That was a Thursday, with the trial due to begin the following Tuesday. They apologised in these terms:

"I apologise that the issue of primary and secondary disclosure has not been concluded."

11. The letter went on to say:

"I have now had confirmation from the disclosure officer that there is no primary disclosure, namely any material which in the prosecutor's opinion might undermine the case against the accused. There is one item of secondary disclosure, namely prosecution material which might be reasonably expected to assist the accused in her defence as disclosed by your defence statement dated 8th March 2004. I enclose a copy of that item, a memo from an Elaine Stilwell, with this letter.

In the circumstances can you please confirm whether or not you intend to pursue the abuse of process argument further. Most particularly, if you do, we would ask you to indicate most precisely how and why the preparation of your client's defence has been prejudiced by our omission. If an adjournment is required arising from this disclosure, then the prosecution would not oppose any application for one."

12. What happened after that, and in particular at the hearing on 15th June, is explained by the Justices in the Case Stated. The letter of 10th June did not deter the defence from making the promised application to stay. The defence went through the correspondence. They told the court that there had been no satisfactory reply. They had made requests to go and view the electronic equipment as regards issues relating to these proceedings. The only response was a limited reply in the letter of 10th June.
13. The submission made to the Justices was that the District Council had failed to comply with its statutory duty of disclosure and by not complying with its duty of disclosure had prejudiced the respondent and it would be unfair to the respondent if the trial were to proceed. The Case Stated adds that the respondent applied for the proceedings to be stayed because of prejudice to the respondent, the length of time that had elapsed since the alleged commission of the offence, the fact that no loss had been sustained by the District Council, and the continuing cost to the Legal Aid Fund of continuing proceedings.
14. Turning to the law, paragraph 3 of the Case Stated set out what had been said by the Council in answer to the defence application. In particular, the well known case of R v Derby Justices ex parte Brooks [1985] Cr App Rep 164 had been relied upon. This held that in order to stop a case on the grounds of abuse of process it was necessary for Justices to be satisfied either that there was a misuse of court process so as to deprive the defendant of a protection afforded by law or so as to take unfair advantage of a technicality, or that there had been prejudice to the defence by delay which was unjustifiable, for example because it was not warranted by the complexity of the prosecution case or by action by the defendant or by a difficulty in effecting service. Reliance had been placed upon the fact that there was no primary disclosure and that the secondary disclosure had been dealt with as referred to in the letter of 10th June.
15. The legal advice received by the Justices is set out at paragraph 4 of the Case Stated:

"Justices can halt a prosecution on the grounds of abuse of process but the parameters are set quite narrowly; it must not be used to exercise a disciplinary function over the prosecution, or of whether the prosecution has been instituted oppressively or unfairly. The minimum requirements for a fair hearing at criminal trial are: (i) the defendant had to understand what he is said to have done wrong; (ii) the court has to be satisfied that the defendant, when he has done wrong by act or omission, has the means of knowing that was wrong; (iii) the defendant has to understand what defences, if any, were available to him; (iv) the defendant has to have a reasonable opportunity to make relevant representations if he wishes; and (v) the defendant has to have the opportunity to consider what representations he wishes to make once he has understood the issues involved. The defendant therefore has to be able to give proper instructions and to participate by way of providing answers to questions and suggesting questions to his lawyers in the circumstances of the trial as they arise."

16. The legal advice continued by setting out the relevant passages from R v Derby Magistrates' Court ex p Brooks, which I have summarised earlier. The legal adviser then added that the prejudice, in a case of a defendant being prejudiced in the preparation or conduct of defence in a manner which was unjustifiable, must be serious to the extent that no fair trial can be held. The case cited for that proposition by the legal adviser was A-G's Reference (No 1 of 1990) QB [1992] at page 630. It is part of the line of cases which establishes the proposition that a stay will not be granted where the trial process is itself equipped to deal with the matters complained of.
17. The legal advice continued:

"The essential question is whether a fair trial is possible. Late delivery of evidence, even in breach of a court order, might cause delay but a fair trial may still be possible. Late notification of potential witnesses might not prejudice an accused if the witnesses are unlikely to be of use to [that accused]."

18. In those circumstances, the Justices described their reasoning process as follows:

"6. Having consider the representations, we found that there had been an abuse of process by the appellants [that is to say the Council]. Letters were submitted by the respondent [that is to say the defendant] requesting information. The appellants had responded but in essence no information was forthcoming. Requests were made to view the electronic files; this request was not acceded to.

We were referred to the case of R v Derby Justices ex p Brooks (1984) by both the appellants and our clerk. We found that the respondent was prejudiced by the delay and this was unjustifiable. This delay was not due to the complexity of the case. The respondents requested information on a number of occasions; this was not forwarded to them. We therefore dismiss the case on the grounds of abuse of process."

19. There are immediate problems with the description by the Justices of the reasoning process which they adopted. The first and most obvious problem is that the Justices make no express finding that the prejudice to the defendant was so serious that no fair trial could be held. Indeed, it is conceded by Mr Moys, who appears today on behalf of the defendant to the Magistrates' Court proceedings, that this was not a case in which it could be held that no fair trial was possible. I am sure that that concession was right. Applying the decision in A-G's Reference (No 1 of 1990), any difficulty that arose from the undoubtedly late letter of 10th June, and any inadequacy in disclosure, could have been dealt with by the trial process, in particular, by granting an adjournment if the interests of justice so required.
20. The second problem is that the Justices simply failed to identify what prejudice arose. It may be implicit in the Case Stated that they agree with the submissions on behalf of the defendant that disclosure had not been adequately carried out. Mr Moys today has drawn attention to the second sentence of the letter of 10th June. I quoted it earlier. I would not read that sentence as indicating that there is yet further disclosure to be dealt with subsequent to that letter. The second sentence is simply apologising for the fact that until the sending of the letter of 10th June, disclosure had not been concluded. It is true that in earlier correspondence the Council appears to have agreed that it would permit electronic inspection. I do not read the letters as constituting an unconditional agreement in that regard. Indeed, the Council had asked that the request be narrowed. In any event, on the face of it, there was nothing to stop the Council from properly reaching a conclusion that it had fulfilled the obligations of a prosecutor and that in those circumstances, while an offer had been made in the past, there was no need to make available electronic documents for inspection.
21. Mr Moys sought to save the decision of the magistrates by relying on the other ground on which criminal proceedings may be stayed as an abuse of process of the court. I have already mentioned the reference made in the ex p Brooks case to manipulation by the prosecution or misuse of the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality.
22. In his skeleton argument, Mr Moys cited the speech of Lord Lowry in Bennett v Horseferry Road Magistrates' Court and anor [1994] AC 42. The relevant passage is at page 74.

"... I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of the court to try a person brought before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct ..."

23. Having regard to that explanation of the law, I turn to the Case Stated in order to attempt to discern any reliance by the Justices on there having been something which offends the court's sense of justice and propriety. I do not find considerations of that kind in paragraph 6 of the Case Stated, the relevant paragraph which sets out the reasoning of the Justices. They have found that there was a failure to comply on time with the rules, at least implicitly if not explicitly. When describing their conclusion in the light of the R v Derby Justices case, they say that they found that the respondent was prejudiced by the delay and that that was unjustifiable. This is plainly not concerned with the question of offence to a sense of justice and propriety, but rather with the question on the other limb in ex p Brooks of delay on the part of the prosecution.
24. Accordingly, I conclude that this decision of the magistrates was not a decision open to them in law. It seems to me for these reasons that I must give the following answers to the questions for the opinion of the court:
25. Question A: Were the Justices correct in determining that the prosecution's failure to make disclosure in accordance with the Criminal Procedure and Investigations Act 1996 amounted to an abuse of process in that the defence were prejudiced in the preparation or conduct of their defence?
26. Answer: No, in that the Justices do not appear to have applied their minds to the question whether any relevant prejudice could be mitigated by the trial process, for example, by the granting of an adjournment.
27. Question B: Whether there is evidence upon which a Magistrates' Court, properly directed, could come to its decision?
28. Answer: The evidence described in the Case Stated would not warrant such a decision on the grounds identified by the magistrates. I stress that these answers are based on the factors described by this bench of magistrates.
29. The answers that I have given to these questions do not fetter any new bench of magistrates before whom this matter may come in the future. I will hear counsel as to any consequential orders.
30. MR TUCKER: Would your Lordship direct that the decision of the magistrates be reversed under section 28 of the Supreme Court Act?
31. MR JUSTICE WALKER: Mr Moys?
32. MR MOYS: I cannot object to that application.
33. MR TUCKER: Would your Lordship further order costs for the appellant to be paid out of central funds?
34. MR JUSTICE WALKER: Mr Moys?
35. MR MOYS: Again, I do not think I can object, if that is the appropriate order.
36. MR JUSTICE WALKER: There is no application against you for costs. It is out of central funds.
37. MR MOYS: Yes, I am grateful.
38. MR JUSTICE WALKER: I shall make that order.

[Note: At the request of both counsel, an order was also made remitting the case to a differently constituted bench of justices.]