England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		21st April 2005

1. LORD JUSTICE BROOKE: I invite David Steel J to give the first judgment.
2. MR JUSTICE STEEL: This is an application for judicial review, permission having been granted by the Single Judge. The claimant challenges the decision of District Judge (Magistrates' Court) Riddle, sitting at Woolwich Magistrates Court on 19th November, whereby the claimant, having pleaded guilty to a charge of assault on a member of the court security staff, was sentenced to four months' imprisonment. The challenge is based on allegations of procedural impropriety, in reliance on which the claimant seeks to quash the conviction and his sentence.
3. The application was filed on 13th December 2004 and served on the Woolwich Magistrates' Court and upon the Crown Prosecution Service as an interested party. The defendant, in the form of the judge at Woolwich, who had conducted the hearing, was anxious to have legal representation. However, that has not proved forthcoming. The judge has provided a witness statement together with a written argument. The Crown Prosecution Service served no acknowledgment of service, but at a very late stage instructed counsel, Mr John Hardy, for whose written and oral submissions I am grateful. But given that no acknowledgement of service was filed by the Crown Prosecution Service, the unusual state of facts, as emerges from the evidence filed by the claimant, stands largely unchallenged.
4. On 19th November 2004, the claimant appeared before District Judge Riddle to enter a plea of guilty in respect of a charge of burglary. He was represented by Mr Melvin of counsel, who had been instructed by Miss Bailey of Coninghams, a firm of solicitors, although she was not herself present at the hearing. The claimant asked for a large number of other matters to be taken into consideration, and as was inevitable the District Judge committed the claimant for sentence at the crown court. There appears to have been an application by Mr Melvin on his client's behalf that the claimant should not be sent back to Her Majesty's Prison Belmarsh. The judge made it clear that he had no jurisdiction on that topic. According to a statement furnished by the District Judge, as the claimant left the court he shouted: "Don't touch me" and "Barrister help me". The statement goes on: "I had a good view of the dock and no violence, force or assault of any sort took place." The claimant was then ushered out of the dock into the small holding area where there was an incident in the course of which the claimant head-butted a Michael Smith, a Senior Custody Officer employed by Premier Prison Services.
5. The claimant's account of this event is set out in his statement at paragraphs 5 to 9:

"5. After the hearing, I was being taken out of court and I gave the senior officer my hand to be handcuffed. I turned my head to speak to my solicitor and my throat was grabbed, my head was smashed against the wall by a premier officer.

6. In reaction to this and in defence against any further assault, I headbutted the officer.

7. I was then rushed to the ground and was punched in the face by the officer, my lip was opened and bleeding.

8. A female officer then pulled me to my feet by my hair and then, again pulling on my hair, pulled me down. This forced me into a double over position and I received a punch to the side.

9. I was then placed in a cell for over 2 hours. I was in handcuffs throughout this time which left marks on my wrists as they were cutting into me. I also had a sharp pain in the left-hand side of my face, causing headache and earache."

6. We should add that there is no statement from Mr Smith in the papers before us.
7. Mr Melvin was still in court and heard the commotion, although he could see nothing. He immediately went to the cell area where there was still a lot of noise and commotion and "was advised by the cell staff to attend once Mr Morris had calmed down." Mr Melvin then goes on to say this:

"I was told they would inform me when this was the case and assumed all was well."

He accordingly left the court for another trial, leaving a message for Miss Bailey as to the outcome of the hearing and the fact that there had been some form of incident with a security guard.

8. The claimant's account continues as follows:

"10. I asked to see my solicitor and a doctor straightaway. I was eventually told that my solicitor had left and that I would see the Duty Solicitor. I was not given the option of seeing my own solicitor and I do not think that any efforts were made by the court to inform them what had happened.

11. I was constantly subjected to threats and taunts from the officers saying, 'Belmarsh can't protect you.' Every time that I was moved within the court building, I was subjected to intimidation and verbal threats by the security officers. There were at least six of them around me at any one time .I feel particularly vulnerable because I was the victim of a serious assault by a male inmate at HMP Wandsworth. I have also been threatened and assaulted by prison officers during my time in custody.

12. I was not formally charged or interviewed about this matter.

13. I saw the duty solicitor instead of my own. I was told that I would be charged with common assault and taken into court that afternoon. I pleaded guilty because I felt intimidated by the officers at court, I felt that I had no other choice.

14. I went into court and I pleaded guilty to the charge of

common assault. I was sentenced immediately, to a custodial sentence of four months' duration.

15. The doctor saw me hours after the incident and after I had been in court for this matter. The doctor recorded my injuries."

9. That last observation is confirmed by a medical report, that we have in the papers, which records the fact that the doctor was called at 12.17, but did not arrive in fact until 16.47, some time after the hearing. The note reads:

"Declares that he has been pushed against a wall. Is complaining of headache - on examination swelling of upper lip and lump on top of the head."

10. The claimant challenges this outcome as wanting in due process in two respects: first, that the Tribunal was not impartial from an objective standpoint. Put another way a fair minded and informed observer having considered the facts would conclude there was a real possibility that the Tribunal was biased. Secondly, that the circumstances in which the claimant appeared before the court were unfair and an abuse of process, and that the Tribunal should have declined to hear the case at that time and venue. Again, put another way, a fair minded and informed observer would have found the arrangements for the hearing unsatisfactory and disadvantageous to the accused.
11. There is a significant degree of overlap between these two contentions. In particular, those factors said to support lack of objective impartiality were also prayed in aid as further indicia of the want of due process in the conduct of the proceedings. I start by giving consideration to the factors which are prayed in aid with regard to lack of objective impartiality. It seems possible to summarise them in four principal headings:

(i) Whilst the incident did not occur in the court room, it began in the court and continued immediately in the lobby directly outside the dock area and accordingly the disturbance could properly have been treated as a contempt of court.

(ii) The judge himself witnessed the earlier exchanges in the incident and furthermore, as his statement is at pains to point out, he saw no assault, despite having a good view of the dock and despite the cry of 'Don't touch me'. The inference I draw is that he had established an adverse view of the claimant's credibility with regard to the circumstances of the incident (a factor that might be of some materiality in regard to sentence).

(iii) The District Judge asserted that he did not know the complainant by name, but as regards appearance he puts it on the basis that:

"I do not know if I would recognise his face. I do not know if his duties bring him into court or if he normally remains in the cell area."

The reality, as it seems to me, is that the complainant was a security officer at the court, was a regular presence there in the past and would continue in that capacity in the future. In short, the District Judge was bound to encounter the complainant and his colleagues in the court in the future in a context where it would be inevitable that the appropriateness of any sentence would be discussed if only among the security staff themselves.

(iv) Such direct involvement in the incident, and with the staff of whom the complainant was a member, would present apparent, if not actual, difficulties in considering an appropriate sentence. In this regard it is of some note that despite an immediate plea the sentence of four months is but one third less than the maximum sentence available.

12. It was Mr Hardy's submission that want of objective impartiality could not arise in circumstances where there was an unambiguous and unequivocal plea of guilty, but only if there were issues of fact which needed to be determined by the Tribunal. As I understood it, Mr Hardy accepted that it would have been improper for District Judge Riddle to have conducted a trial of the assault charge either that day or at any time, not least because he had been a witness to part of the assault.
13. For my part I am unpersuaded that such a neat distinction can be drawn. Even when there is a plea of guilty, a Newton hearing may be required. In any event, the assessment of sentence, having proper regard to matters of mitigation and aggravation together with the assessment of criminality, and so on, are all processes that require an impartial and unbiased balance.
14. In this regard the proper approach, in my judgment, is set out in the recent decision of the European Court of Human Rights in Kyprianou v Cyprus, 27th January 2004. The case concerns some remarkable exchanges between counsel and a court which had led to a short but immediate term of imprisonment for contempt. I quote from paragraph 37 of the judgment:

"The court considers that in situations where a court is faced with misbehaviour on the part of any person in the courtroom which may constitute the criminal offence of contempt, the correct course dictated by the requirement of impartiality under Article 6 (1) of the Convention is to refer the question to the competent prosecuting authorities for investigation and, if warranted, prosecution, and to have the matter determined by a different bench from the one before which the problem arose. In fact, with the exception of Cyprus, this is the practice in the High Contracting Parties to the Convention as regards behaviour which constitutes the criminal offence of contempt of court."

15. For my part I discern no distinction in principle between a situation in which misbehaviour in court is to be treated as contempt and misbehaviour is going to be treated as involving a charge of a substantive offence. It is to be noted in this connection that in referring to the practice of the High Contracting Parties, the court had observed in paragraph 21 of the judgment their understanding of the position, at least as then, in the United Kingdom:

"In the United Kingdom, on whose legal system Cyprus based its own laws and practice regarding contempt of court, a Practice Note was issued by the Lord Chief Justice in May 2001 [2001] 3 All ER 94), according to which a) if an offence of contempt is admitted and the offender's conduct was directed to the magistrates 'it will not be appropriate for the same bench to deal with the matter', and (b) in the case of a contested contempt, 'the trial should take place at the earliest opportunity and should be before a bench of magistrates other than those justices before whom the alleged contempt took place ..."

16. Again I detect nothing to distinguish between a guilty and not guilty plea. Mr Cunningham, the solicitor advocate engaged by the claimant, has told us that his own experience of assaults on court staff being dealt with in the Magistrates' Courts, accords with this general practice, that they are invariably dealt with by another court. There was, in my judgment, not the slightest difficulty in achieving this objective in the present case.
17. Mr Cunningham does not, however, stop there because he invites the court to go beyond the submission of want of impartiality and seeks to persuade the court to conclude that the circumstances in which the case was investigated, offends against accepted laws of justice and propriety. In this respect he prays in aid the following matters which, in my judgment, make good his underlying submission:

(i) The incident was investigated by the Police Liaison Officer attached to Woolwich Court. He himself would have been personally acquainted with the complainant and in that respect lacked independence.

(ii) No attempt was made to interview the claimant let alone discern whether he was making, as he purports to do now, a counter allegation of being attacked and fending off that attack by way of self-defence.

(iii) The claimant had asked for medical assistance. As I have already recorded, the doctor was called at 12.17 but he did not arrive for some hours. No allowance was made for this, nor was the court even informed about the delay.

(iv) The charge was preferred by the Crown Prosecutor. There is no evidence that it was put until the claimant emerged at the hearing.

(v) The complainant was simply provided with the services of the duty solicitor. No attempt was made to contact the claimant's own counsel or solicitor who had been engaged in the case, out of which the charge of assault arose, by reason of the disappointment on the part of Mr Morris to the judge not intervening in the proposal to send him to Belmarsh. Significantly in this respect his barrister had this to say in his statement:

"11. I was not given any indication by cell staff that a charge would be put or that I needed to stay for any further proceedings.

12. I saw a member of cell staff who, with the benefit of hindsight, I presumed to be the complainant and he did not say that a complaint would be made.

13. I did not speak with the duty solicitor at any stage whilst I was at court.

14. I was not asked for my contact details by any court staff before I left the court or given any indication that I would be required to stay by any staff at court."

(vi) The claimant was obviously, in my judgment, in somewhat of a delicate position (both in the cells and in the dock) surrounded by colleagues of the complainant. Indeed, it was his case that he had been attacked both on this and on an earlier occasion and was treated, as emerges from the statement that had been prepared by his solicitor, as a person who was somewhat vulnerable.

(vii) Strangely the District Judge did not even realise that the case, when it was called on, was connected with the earlier hearing. He was not informed as much and only began to realise the connection after the plea had been taken and the facts were opened.

18. The District Judge points out in his statement that he did ask whether an adjournment for reports was required. But this is no substitute for consideration of a hearing before another court, or at least another Bench. By the same token, I unable to accept the submission of Mr Hardy that as an experienced litigant in both the criminal and civil fields the claimant could have been expected to overcome any difficulties created by the overall impact of the circumstances, that I have set out, by taking the initiative himself to seek the recusal of District Judge Riddle, or to seek to dispense with the services of the Duty Solicitor.
19. It is not, as I understand it, controversial that an application under section 142 of the Magistrates' Courts Act, or an appeal to the crown court, are necessary let alone adequate substitutes for the present proceedings. For my part I would accord the relief sought, namely the quashing of this conviction.
20. LORD JUSTICE BROOKE: In the normal course of events the speedy transaction of criminal business is to be applauded, but the dispatch of criminal business by the courts must not only be driven by consideration of economy and efficiency: it must also be fair. For the reasons given by David Steel J, with which I agree, what happened in the Woolwich Crown Court that afternoon, in the chain of events which began with the commotion which could be heard by everyone in court, continued with Mr Morris's counsel not being permitted to see his client in the cells before he had to leave for another professional engagement; and culminated four hours later with Mr Morris being sentenced to a four month term of imprisonment, without anyone making any attempt to make contact with the solicitors or counsel who had represented him that morning, despite his requests to that effect, cannot be properly categorised as fair.
21. I agree that his conviction should be quashed. It will be for the prosecuting authorities to decide whether he should be tried again on this assault charge.
22. Mr Hardy, who appeared for the CPS, suggested that we might consider declining to make a quashing order because Mr Morris might have sought relief in the Magistrates' Court or in the Crown Court on appeal. But the issues raised by this application are pre-eminently fit for the High Court to consider and I would not decline relief on those grounds.
23. Finally, I wish to make some observations about the representation of the respondents in this court. The Woolwich Magistrates Court was served with the defendants to the claim and the CPS was served as an interested party. A witness statement by the District Judge, with a very helpful annex containing argument, was filed on behalf of the defendant. So far as I am aware, the interested party did not file an acknowledgment of service and made no observations and compiled no evidence, even after Wilson J granted permission to apply for judicial review on 3rd February 2005. So far as I am aware, as of yesterday morning the Administrative Court Office had received no information that the CPS had any interest in the case at all.
24. Mr Coningham, who appeared for Mr Morris, told us that his solicitors had made a number of unsuccessful attempts to encourage the CPS to become interested in the proceedings. Three days ago, on 18th April, the Administrative Court Office received a letter written by the legal adviser to the Greenwich Magistrates' Court, dated 12th April, in these terms:

"I write at the request of District Judge Riddle with regard to the above matter. I understand that a hearing date has been fixed for the 21st April.

The Court regrets that they will not be represented at the above hearing and wishes the Judge to know that this is not out of any discourtesy. The District Judge has requested that the Court be represented but the request has been refused by the Department of Constitutional Affairs.

Should the position be altered in any way once the court have sight of the applicant's skeleton argument counsel will attend the hearing."

25. This letter was shown to me when I rose from court at 1pm yesterday and I see that I made this note on it:

"I saw this letter for the first time at 1pm today (20th April). It is, in my view, very desirable that the Court should hear argument from counsel in accordance with District Judge Riddle's request, particularly as it appears that the application, which raises important issues of law, will otherwise be unopposed."

26. Unknown to me, events had in fact moved on. On the same morning the Administrative Court received a further letter from the Greenwich Magistrates' Court in these terms, dated 18th April:

"I write with regard to the above, which is listed for hearing on the 21st April. This court has now had sight of the applicant's skeleton argument and would have wished to make further representations but, unfortunately, as previously stated, funding cannot be made available.

If the court thought that it would benefit from oral argument we would be happy to approach the DCA again in order to assist."

27. It may be that the reason why this letter took two days to arrive is that it was incorrectly addressed to the Administrative Office and was not sent by e-mail, or any other equally fast method of communication.
28. However that may be, it also appears that entirely as a result of the spontaneous activities of the District Judge, who was understandably concerned that no representations were going to be made by anybody in response to the claimant's complaints, that the CPS were persuaded to move from their previous stance of total inertia. The Court Office was informed that the CPS was now ensuring that they at least would be represented at the hearing. We are deeply grateful to Mr John Hardy for accepting instructions and for giving great assistance to the court at such short notice. If he had not appeared we might well have been obliged to adjourn the hearing.
29. This unhappy saga seems to indicate that the following matters require urgent attention :

(i) There should be a protocol, preferably an agreed protocol, that makes it clear to members of the judiciary charged with unfairness as defendants to judicial review proceedings, when they may reasonably be expected to have, or be entitled to, representation at public expense at a High Court hearing challenging their behaviour, and when they may not.

(ii) If there is ever any question of a judge in such circumstances being denied the representation he has sought for a substantive hearing, the department who denies him funding support should take effective steps to ensure that the respondent's case is effectively presented at the hearing before the court, whether by the prosecutor or by an advocate to the court instructed by the Attorney General.

(iii) It appears not only from this case but from the case which we heard at the beginning of today, that the CPS appear, at a relatively low level, not to be treating High Court proceedings in which they are an interested party with the seriousness that they often deserve. In the earlier case it was entirely unclear to the Court whether the CPS had in fact been served with the proceedings as an interested party, partly because of the obscure terms in which the Certificate of Service was filed.

30. In any event matters sometimes go astray by post. At the very least, the Court would suggest that it would be appropriate for the CPS as a matter of courtesy when it receives judicial review claim forms served on it as an interested party to communicate to the court that it acknowledges it has been served and to indicate whether it wishes to take any part in the proceedings and if not, why not. In the present proceedings again the CPS took no active steps at all, so far as I am aware, until yesterday in a case which, on the face of it, raised an important point of law, in which they were the prosecutors. But for the recent activities on the part of the District Judge, it appears that the Crown would have gone altogether unrepresented.
31. Understandably, in the emergency which had arisen because the Department of Constitutional Affairs had decided, at a late stage, to deny the defendant case the funding it requested. Mr Hardy saw the District Judge himself before appearing in court in order to ensure that at such extremely short notice he was equipped with all the points that might properly be made to the court. The court is very well aware of the funding difficulties which confront public bodies these days, but I hope very much that the matters, to which I have referred can be given proper attention in the appropriate quarters.
32. The conviction is therefore quashed.
33. MR HARDY: There are three matters. Can I invite your Lordships to consider making an order of remittal to the lower court? I am conscious that of course it is open to those who instruct me to recommence proceedings. Your Lordships have quashed the conviction but nevertheless our respectful submission is that the proceedings were properly initiated.
34. LORD JUSTICE BROOKE: The proceedings still stay initiated.
35. MR HARDY: I go no further than to issue the invitation. I do not seek to urge your Lordships.
36. LORD JUSTICE BROOKE: I took the view that if the proceedings stay initiated the proceedings are still in being. All we have done is to quash the disposal of them so that they remain in being.
37. MR HARDY: I am very grateful. What your Lordship has already said will clarify in the transcript the precise position.
38. The second matter is that in the light of your Lordship's observations may I invite your Lordship to direct an expedited transcript. If I may say so, it is very much in the light of your Lordship's observations that this matter will be fully reported. In the event that it is not, a full transcript on an expedited basis will be of great assistance to me in particular, and others who have to advise those who instruct me as to the proper protocol to adopt in respect of judicial review applications relating to matters that leave Magistrates' Courts.
39. LORD JUSTICE BROOKE: Unless I am advised by the associate that we do not have the funding to order an expedited transcript, I am happy to make that direction.
40. MR HARDY: Certainly and I hope your Lordships will forgive me for making what is essentially an observation. It is the Crown Prosecution Service's case that where a District Judge seeks legal representation from the Department of Constitutional Affairs, it should be properly assumed by that department. He does not do so whimsically or lightly, and that absent any contravening factors legal representation should be granted. I hope your Lordships permit me to make that observation. With great respect the position that the District Judge found himself in was quite intolerable in this case.
41. LORD JUSTICE BROOKE: All I would observe about that is I make two observations. The first is that I have already made my own observations internally to a very senior member of the judiciary about the need to get a clear protocol set out so that judges understand when they can reasonably be expected to intervene (?) and when they cannot. The second is that it may be that this is a matter for the Law Officers to make representations to the Lord Chancellor, or, if appropriate, see the Minister about it. The position as shown to us is rather pass the parcel.
42. MR HARDY: I am very grateful. I hope your Lordships will not think me impertinent. That is not the position that is adopted, in my respectful submission, by those instructing me.
43. MR CONINGHAM: Might I briefly raise the issue of the costs? Mr Morris has been in receipt of a certificate of public funding. I am, of course, aware that it is not appropriate to make any order for costs against a court. I am not sure whether it would be appropriate to seek them against an interested party. I do not press that.
44. LORD JUSTICE BROOKE: Normally want we make is a defendant's costs order. If it is going to amount to the same thing we would not make it.
45. MR CONINGHAM: The only order I might seek is an order for costs from central funds.
46. LORD JUSTICE BROOKE: That is right, an applicant's costs order. I better have a word with the associate. The costs of the applicant I am told by the associate may be met out of Central Funds. If I have got that wrong, we will have to put it right. In the old days we simply did not bother, it would have been paid by public funds.
47. MR CONINGHAM: Indeed, it just enables funds to be available to another civil applicant.
48. LORD JUSTICE BROOKE: So far as I am aware, this is a criminal case. We can make an order whether the successful applicant receives the costs from Central Funds. I am remembering the Divisional Court practice I looked at two or three years ago. The associate is still confidently advising me that I can make the order.
49. MR CONINGHAM: There is one very small additional point: there was reference to a sexual assault that Mr Morris suffered whilst in prison. I wonder whether, in the circumstances, because of the possible reporting of the case, it might be a case where his initials can be put in the judgment. As he remains in prison for some time and clearly as he was a victim in that case, I am not sure what the outcome was but whether, because of the personal detail referred to in the judgment, it would be appropriate for his full name to be published in any transcript.
50. LORD JUSTICE BROOKE: The nature of the assault does not really matter. If it is referred to as a serious assault would you still want anonymity? (pause). Steel J is quite happy to rewrite it as "serious assault". On the whole, we are disinclined to order anonymity if we can find some other way of dealing with it.
51. MR CONINGHAM: Indeed, I am most grateful.
52. LORD JUSTICE BROOKE: We are extremely grateful to both the applicants for that. We will rise for a moment.