CO/9450/2005 
Neutral Citation Number: [2006] EWHC 1108 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 8th May 2006
 
B E F O R E:

LORD JUSTICE KEENE 
MR JUSTICE JACK 
 
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CROWN PROSECUTION SERVICE
Appellant

‑v‑ 

ALAN PICTON
Respondent 
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MR STEPHEN CHIPPECK (instructed by Crown Prosecution Service, Priory Gate, 29 Union Street, Maidstone ME14 1PT) appeared on behalf of the Appellant
MR MARK DACEY (instructed by Messrs Hatten Wyatt & Co, Gravesend DA11 0PF) appeared on behalf of the Respondent
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J U D G M E N T 
1.	LORD JUSTICE KEENE:  I shall ask Mr Justice Jack to give the first judgment.
2.	MR JUSTICE JACK:  This is an appeal by case stated from the decision of the Dartford Magistrates' Court on 1st August 2005 to refuse the prosecution an adjournment.  The prosecution witnesses were not present and the outcome was that the case was dismissed.  The question posed by the magistrates in the case stated is whether they could properly have refused the adjournment requested.  The discretionary power of the magistrates' court to adjourn a trial is provided by section 10(1) of the Magistrates' Courts Act 1980.  If the decision of the magistrates was a proper exercise of that discretion, this court will not interfere.
3.	The information was laid on 9th February 2005.  By it the respondent to the appeal, Alan Picton, was accused of common assault.  The case against him alleged that on 12th December 2004 he had assaulted a woman named Janet Cogger by punching her in the back, grabbing her and pushing her into a bush.  It was alleged that he had then threatened her.
4.	The first hearing was on 25th February 2005 when the respondent pleaded not guilty and a pre‑trial review was fixed for 18th March.  On that day a trial date of 1st August was fixed starting at 10.00am for a full day's hearing.  It was agreed that three prosecution witnesses would be called and one prosecution witness's evidence could be read.  The respondent was to give evidence, together with four other witnesses in his defence.  All of this was set out on the pre‑trial review form, copies of which were provided to both parties.  The prosecution witnesses were subsequently warned to attend on 1st August, but at 2.00pm instead of 10.00am.  This was because on the prosecution side the time had been recorded as 2.00pm instead of 10.00am.  There was no explanation as to how this came about.  It was a surprising error to make in the circumstances.  When the situation became apparent the magistrates permitted the prosecution to see how soon their witnesses could attend.  The court was informed that they could be at court "about lunchtime at the earliest".  The prosecution then applied for an adjournment to allow the witnesses to attend on that day or, alternatively, for an adjournment to a new trial date to be fixed by the court.  The adjournment was opposed on behalf of the respondent.
5.	The magistrates had another case listed for trial for the whole day, that is to say they had been double listed, and after they had dealt with the present case they commenced that trial.  It ended unexpectedly at the end of the morning when the alleged victim declined to give evidence.  There was a third trial listed for the afternoon, and so the court had been treble listed for the afternoon.  The third trial went short when unexpectedly the accused pleaded guilty.  These developments were of course unknown to the magistrates when the present case was called on as their first trial and they declined an adjournment.  If they had adjourned the trial to a new date, because of the pressure on the court list it might not have been heard until at least January 2006.  If it was heard in January 2006 the adjournment would have been for over five months and the trial would have taken place over a year after the alleged assault.
6.	The submissions heard by the magistrates in relation to the adjournment were as follows.  The prosecution submitted that in the interests of justice the trial should be adjourned until later in the day when it might go part heard, and then to a new date.  The allegation was of violence and the interests of the victim required the adjournment.  Although the prosecution had made an unfortunate error it would be unreasonable to refuse an adjournment.  A wasted costs order could be made against the appellant.  As the court was double booked, the magistrates had to make a choice which trial to hear.
7.	It was submitted for the respondent that the appellant was unreasonably at fault in misrecording the starting time in the circumstances.  Because of that error the court would start the second trial which would mean that there was insufficient time to progress the trial in the present case that day.  Any adjournment whether till 2.00pm or to another date would mean significant delay, and would not be in the interests of justice.
8.	The magistrates were referred to the relevant authorities.  They concluded that the prosecution failure was unreasonable; that in accordance with R (Walden and Stern) v Highbury Corner Magistrates' Court [2003] EWHC 708 (Admin) the request for an adjournment should be subject to rigorous scrutiny; that in accordance with Essen v Director of Public Prosecutions [2005] EWHC 1077 (Admin) they should consider carefully whether it was right to rescue the prosecution from the consequences of its own neglect; that in accordance with Walden and Stern to do so would encourage such failings; that the interests of the accused and his witnesses had to be considered as well as those of the victim; that on any basis if they granted an adjournment there was likely to be significant delay before the trial could be completed; and, finally, that given the unreasonable failure of the prosecution and balancing the interests of the victim and the accused and the likely delay, it was not in the interests of justice to grant an adjournment until later that day or to a new trial date.
9.	In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 (then as Lord Bingham CJ).  The following points emerge:
 (a) A decision whether to adjourn is a decision within the discretion of the trial court.  An appellate court will interfere only if very clear grounds for doing so are shown.
 (b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.
 (c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted.  With a more serious charge the public interest that there be a trial will carry greater weight.
 (d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.
 (e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.
 (f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault.  If that party was not at fault, that may favour an adjournment.  Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment.
 (g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.
 (h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap.  The court's duty is to do justice between the parties in the circumstances as they have arisen.
10.	In my judgment the magistrates here adopted a proper approach to the exercise of their discretion in the circumstances which faced them.  The main point that was made by Mr Stephen Chippeck on behalf of the Crown Prosecution Service was that the magistrates should have adjourned the case until later that day.  He submitted that the court should have re‑examined the estimate, decided that the case would go shorter than a full day and determined that they might have begun to hear the witnesses at 1.00pm having adjourned early for lunch.  It does not seem that it was suggested to the magistrates that the case would go shorter than had been estimated.  In my view the magistrates had no reason to think at that point that they would be able to hear the case if they adjourned it to lunchtime because of the other trial, but, even if they had taken a chance on that, the case would have had to have been adjourned part heard with a long interval before it was resumed.  That would have been most undesirable.  It was plainly within the magistrates' proper discretion to decline that course.  That is sufficient to determine the appeal.  I would add that, for my part, I also think that the magistrates' decision was the correct one.  I would answer the question posed by the case stated "yes". 
11.	LORD JUSTICE KEENE:  I agree.  A decision to adjourn or not is par excellence a matter of discretion for the court in question, and is not likely to be interfered with by this court.  Here the justices had to make a judgment on whether, if they adjourned until lunchtime, it was likely that a further hearing date would still be required.  They had, as my Lord has indicated, no reason to question the time estimate of one day fixed at the earlier pre‑trial review.  In addition, their conclusion that there would be significant delay if the trial went part heard was one properly open to them.  That sort of delay would have been very undesirable, and the justices were fully entitled to take that consideration into account and allow it to weigh heavily in their deliberations.
12.	I too can see no basis for regarding their decision as Wednesbury unreasonable or as reflecting any error on their part.  The question posed in the case stated is:
"Could a reasonable bench of Justices, properly directed as to the law, and in the circumstances of this case have properly refused to grant the adjournment requested by the Appellant?"
The answer to that question is "yes".
13.	I too would dismiss this appeal.
14.	LORD JUSTICE KEENE:  Thank you very much gentlemen.
15.	MR CHIPPECK:  Thank you.
16.	MR DACEY:  My Lord, may I ask for public funding assessment? 
17.	LORD JUSTICE KEENE:  Yes, you are entitled to that.
18.	MR DACEY:  I am obliged.
19.	LORD JUSTICE KEENE:  Thank you very much indeed. 
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