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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Crown.Prosecution Service v City of London Magistrates' Court & Anor [2005] EWHC 3205 (Admin) (20 December 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/3205.html
Cite as: [2005] EWHC 3205 (Admin)
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2 |
||
B e f o r e :
MR JUSTICE CRESSWELL
____________________
| CROWN PROSECUTION SERVICE | (CLAIMANT) | |
| -v- | ||
| CITY OF LONDON MAGISTRATES' COURT | (DEFENDANT) | |
| CORDELIA GILL | (INTERESTED PARTY) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR S FIDLER (instructed by Stephen Fidler & Co) appeared on behalf of the INTERESTED PARTY
The DEFENDANT did not attend and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE HOOPER: This is an application for permission to apply for judicial review to challenge two decisions made in the City of London Magistrates' Court; the first on 7th June 2005 and the second on 6th July 2005.
- In November 2003, an investigation began into the activities of the interested party, Cordelia Gill, and her alleged use of certain cheques. That investigation led to what appears on the papers to be a prima facie case of fraud involving some £107,000.
- On 16th November 2004 a bench sitting at the City of London Magistrates' Court, acting as examining Magistrates for the purposes of section 6(1) of the Magistrates' Courts Act 1980, was inquiring into the nine charges that had been brought against Miss Gill. Representations were made on her behalf that the prosecution had not complied with section 5(d) of the Magistrates' Courts Act 1980 which, so it was argued, required the prosecution to inform the court and the defence of the Crown's intention to rely upon hearsay evidence that might be admissible under section 23 or 24 of the Criminal Justice Act 1988. Miss Gill was discharged.
- On 7th February she was summoned to attend the same court in respect of the same allegations. On 2nd June 2005 the Crown put before the court a 10-count draft indictment. The court declined jurisdiction and held that the matter was only suitable for trial at the Crown Court. The committal hearing was then adjourned for five days. It resumed on 7th June 2005. On that occasion, Mr Fidler for Miss Gill again submitted that the Crown had not complied with section 5(d) of the Magistrates' Courts Act 1980. There was argument at the hearing as to whether any such notice was required because of the repeal of section 23 and section 24 of the Criminal Justice Act 1988 by the Criminal Justice Act 2003, that repeal coming into effect on 4th April 2005.
- The court, however, found that section 5(d) of the Magistrates' Courts Act 1980 had not been repealed and decided that it still applied. The court therefore discharged Miss Gill on eight out of the nine charges. There was one further charge which was not dependant upon hearsay evidence and the committal proceedings in respect of that charge were adjourned to be resumed on 6th July. On that day, the court ruled that it amounted to an abuse of process for the Crown to seek the defendant's committal and the defendant was discharged.
- On 7th September 2005 an application for judicial review was filed on behalf of the Crown Prosecution Service in respect of the two decisions of 7th June and 6th July. It is accepted by Mr Fidler that the application was in time. He submits, however, that permission should not be granted because that application was not made promptly, and he submits that because of the way that the prosecution has conducted this case, Miss Gill has suffered prejudice. Mr Fidler rightly concedes that the difficult arguments addressed by the court on 7th June raise an arguable point of law. He submits, however, that permission should not be granted for an additional reason. He submits that the finding of the Magistrates' Court on 6th July as to abuse somehow affects all of the charges. I, for my part, see no merit in that argument at all.
- Thus, it is necessary for me then to turn my attention to the principal argument raised by Mr Fidler, namely that the proceedings in this court were not initiated promptly. We have the benefit of a witness statement from Mr Guy Fitzmaurice who is a Senior Crown Prosecutor in the Southwark Trials Unit. He sets out in that witness statement the history of this matter. He first of all decided that he should not start on the process of preparing an application for judicial review until after the second hearing on 6th July. He took the view that if the Magistrates on that occasion had committed Miss Gill for trial on that one charge, then the prosecution could have obtained an order to permit the amendment of the indictment to add the charges upon which Miss Gill had been discharged. Mr Fidler raises an issue about that, but it is clear on the authorities, in particular Osieh [1996] 2 Cr.App.R 145, that there are circumstances where the procedure envisaged by Mr Fitzmaurice could be taken. Certainly, that was the view that he took.
- The other course which Mr Fitzmaurice could have decided to follow was to make an application for a voluntary bill to a High Court judge. The view was taken that given that Miss Gill had been discharged on all counts, the fairer route enabling full argument was to proceed by way of judicial review. In fact, alongside the judicial review proceedings an application for a voluntary bill has been made, but that has been held in abeyance until the outcome of these proceedings. Again, in my view, that was a conclusion which Mr Fitzmaurice was entitled to reach, albeit that others might have reached a different conclusion.
- Following the hearing on 6th July, Mr Forrest then started the work to prepare the judicial review proceedings. Much of the legislation which is in issue in this case has already been examined by the Court of Appeal Criminal Division and there is no doubt at all that it is extremely complex and difficult to follow. Without in any way considering the merits of the case, it is at least, on the face of it, strange that section 5(d) of the Magistrates' Courts Act 1980 was not itself repealed along with the other legislation. Counsel's advice was needed. The period with which we are concerned was during the summer. Counsel had to draft not only the judicial review proceedings but also the application for a voluntary bill. The application for a voluntary bill itself required a considerable amount of work in order to prepare what is a substantial document in a manner which could be easily understood by a High Court judge coming to review the matter.
- In my judgment, the Crown Prosecution Service, in the circumstances of this case, did initiate these proceedings promptly. Mr Fidler made a further point about the effect on Miss Gill of what appears to be a wrong statement made to the Magistrates' Court. That, it is said, has prevented her from recovering her property. I see merit in that argument. For all these reasons, I would grant the Crown Prosecution Service permission to apply for judicial review.
- MR JUSTICE CRESSWELL: I agree. I too would grant permission for the reasons given by my Lord. Given the history to which my Lord has referred, in my view this matter should be heard as soon as practicable.
- MR KEITH: I am very grateful. As your Lordships will know, we made an application for expedition. In my skeleton I have invited your Lordships to abridge time for service of any detailed grounds of defence now that permission has been granted. The customary period is six days. Would your Lordships invite the interested party to serve any more detailed grounds --
- LORD JUSTICE HOOPER: Do you want to serve any more grounds?
- MR FIDLER: I am content with the 14 days.
- LORD JUSTICE HOOPER: So this should be listed as soon after the start of the next term as possible. The court have to get to grips with that hugely complicated legislation plus the various commencement orders.
- MR KEITH: It may be that we will get a dispute between my learned friend and myself as to what is now in force and what is not, therefore it may boil down to a fairly straightforward argument as to statutory construction as to how the section should now be read.
- MR JUSTICE CRESSWELL: Could you seek to agree a document setting that out?
- MR KEITH: We will attend to that, my Lord.
- LORD JUSTICE HOOPER: If you would draft a document which is very much along the lines of your skeleton argument, setting it out in great detail. Mr Fidler, if you would simply say, "Yes, I agree", then it isolates the issue. The issue is whether section 5(d) has any application given that the underlying structure has been removed, if that is the issue.
- MR KEITH: We will do that. My Lord, if my learned friend wishes to file any evidence could he also do that within 28 days.
- MR FIDLER: I do not have my lay client here.
- LORD JUSTICE HOOPER: Well, 14 days.
- MR FIDLER: There are two requests I would make. The first is the document from my learned friend we were talking about just now, if that could be served in 14 days to outline the issues.
- MR KEITH: Certainly.
- MR FIDLER: The second is this. Can I ask that the matter is listed for the first date after the 14th January?
- LORD JUSTICE HOOPER: Yes, of course. The first practical date after 14th January which is convenient to both of you. How long shall we allow?
- MR KEITH: Half a day, my Lord.
- LORD JUSTICE HOOPER: What about the property? Can you sort that out?
- MR KEITH: I made an offer to my learned friend. There are documents here. The vast majority are either evidence in this case or relate to the commission of further criminal offences. We can return originals in some instances and retain copies. It is, I think, for my learned friend's evidence, it is the cash or the absence of cash. The difficulty is £1,000 or so was seized. There is simply no way in which one can reasonably reach the conclusion that it is solely legitimate. There is clearly a suspicion as to the source of those funds. It really is impossible to return it.
- In relation to the national insurance card, marriage certificate, the US documents, there are further enquiries underway. Therefore, whilst I understand that the interested party is in some difficulty, I would observe that the real difficulty that she has, based on the evidence from the college, is that she seems to be unable to continue to do her thesis because of lack of money. There is no bar on her working in England, but I do not see why the return of the US Green Card is necessary for the purposes of staying in England, working here and sustaining herself.
- LORD JUSTICE HOOPER: We have no jurisdiction. We are simply trying to meet some of Miss Gill's concerns. You have made the offer and we want to say no more about it.
- MR FIDLER: I am grateful, my Lord.
- LORD JUSTICE HOOPER: I think the bundle for the hearing could be considerably shorter. We have odd bits here.
- MR KEITH: Could your Lordships return all the bundles now if you would be so kind. The voluntary bill, if I succeed in my application I would invite the judge to reconstitute to the single judge. Under the current procedure rules it is necessary for the court to have before it that large bundle.
- LORD JUSTICE HOOPER: We will hand them back and you can sort them out.