England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		2nd February 2006

1. LADY JUSTICE HALLET: Owen J will give the first judgment of the court.
2. MR JUSTICE OWEN: On 16th June 2005, the claimant was convicted of an offence of assault occasioning actual bodily harm at the Sutton Coldfield Magistrates' Court. He now applies for judicial review of the decisions made by the magistrates in the course of the trial with the leave of the single judge.

The factual background

3. In December 2001, the complainant befriended the claimant when he was a serving prisoner through a radio programme called Jail Mail. She corresponded with him, and he moved in with her on his release in November 2003. The claimant alleges that she soon became intimidated by the claimant because of his verbal and physical violence and his drinking. She left her home on 8th July 2004 and only returned when the claimant had himself left and been allocated a flat. Their relationship resumed, and on 23rd October 2003 they were visiting friends together and returned to the claimant's flat in the early hours of the morning. The claimant was drunk and during an ensuing argument allegedly assaulted the complainant. He then fell asleep.
4. She left at 4pm the following day when the claimant was asleep. The complainant says that her injuries were photographed by a friend three days later on 26th October. She did not report the matter to the police until 19th November.
5. The claimant was arrested and interviewed on 10th December. He was not represented. He said in interview that he had no recollection of the incident, nor could he recall seeing any injury on the complainant's face. He is also reported as saying that he could not say anything bad about Sarah (the claimant) and that she does not tell lies.
6. The claimant was charged on 21st March 2005 and bailed to appear before the Sutton Coldfield Magistrates' Court. The first court hearing was on 23rd March when he entered a plea of not guilty. On 14th April, there was a pre-trial review hearing in the course of which the parties were asked the standard case management questions, in particular, whether either party would seek to introduce hearsay or bad character evidence. The prosecution answered that question in the affirmative. The trial date was then fixed for 16th June.
7. By notices dated 13th June, the prosecution applied first to adduce evidence of the claimant's bad character, and secondly gave notice of intention to adduce the statement of the complainant in evidence. The notices were received by the Magistrates' Court on 14th June and by the claimant's solicitors on 15th June: the eve of the trial.
8. At the hearing on 16th June both applications were opposed but both were allowed. The prosecution therefore read the witness statement made by the complainant and adduced evidence of two previous convictions of the claimant. Having found that on the evidence there were no disputed facts, the court found the claimant guilty. He was committed to the Birmingham Crown Court for sentence, but has yet to be sentenced as the proceedings before the Crown Court were stayed pending the determination of this application.
9. The claimant now seeks to quash the decisions to admit the claimant's previous convictions and to permit the prosecution to read the complainant's statement under section 116(2) of the Criminal Justice Act 2003.

Ground 1: bad character

10. There are two strands to the challenge to the decision to admit the bad character evidence. First, as is acknowledged by the interested party (the CPS), there was a failure to comply with the rules as to the time for service of notice to adduce evidence of bad character, and it is submitted that the court ought not to have extended time. Secondly, it is submitted that when considering the application to extend time the court ought not to have taken account of the particulars of the previous convictions in question. As to the first, the Criminal Procedure Rules 2005, which came into effect on 4th April 2005, prescribed the form in which, and the time limit within which, the notice of intention to adduce bad character evidence should be given. Rule 35(4) is in the following terms:

"(1) A prosecutor who wants to introduce evidence of a defendant's bad character or who wants to cross-examine a witness with a view to eliciting that evidence, under section 101 of the Criminal Justice Act 2003 must give notice in the form set out in the Practice Direction to the court officer and all other parties to the proceedings.

(2) Notice under paragraph (1) must be given-

(a) in a case to be tried in a magistrates' court, at the same time as the prosecutor complies or purports to comply with section 3 of the Criminal Procedure and Investigations Act 1996;"

The remainder of subsection (2) is not relevant. Rule 35(8) provides that:

"The court may-

(a) allow a notice or application required under this rule to be given in a different form, or orally; or

(b) shorten a time-limit under this rule or extend it even after it has expired."

11. Section 3 of the Criminal Procedure and Investigations Act 1996, to which reference is made in rule 35(4), makes provision for the initial duty of the prosecution to disclose material: primary disclosure. It now transpires that in fact the primary disclosure, or rather compliance with the rules by notification to the defence that there was no material to disclose, was not given until early May: the 5th or the 9th. It appears that all parties were under the misapprehension that in fact there should have been compliance at an earlier date, but, in any event, it now seems clear that that date in early May was the date by which the application to adduce bad character evidence should have been made.
12. Mr Bishop QC, who appears for the claimant, submits that failure to comply with the relevant rule is not to be lightly overlooked. He invited our attention to the overriding objective of the Criminal Procedure Rules. The rules lay down a comprehensive code designed to achieve the overriding objective of dealing with criminal cases justly by, inter alia.

"1.1(i)(b) dealing with the prosecution and defence fairly-

(c) recognising the rights of the defendant, particularly those under Article 6 of the ECHR, and

...

(e) dealing with the case efficiently and expeditiously."

13. Mr Bishop submits that it is crucial that at this early stage in the life of the Code a culture of non-compliance should not be permitted to take root. That is a proposition with which, for my part, I wholeheartedly agree. He further submits that the necessity of strict compliance is particularly apposite in proceedings in the Magistrates' Court where the large volume of routine cases may encourage a lax approach to the requirements of the Code, and that, for reasons of public policy, the court should only exercise its discretion to extend time under rule 35(8) in exceptional circumstances, where it has been provided with sufficiently good reasons as to why the prosecution could not comply with the mandatory time limit.
14. The first point to be made is that time limits must be observed. The objective of the Criminal Procedure Rules "to deal with all cases efficiently and expeditiously" depends upon adherence to the timetable set out in the rules. Secondly, Parliament has given the court a discretionary power to shorten a time limit or to extend it even after it has expired: rule 35(8). In the exercise of that discretion the court will take account of all the relevant considerations, including the furtherance of the over-riding objective. I am not persuaded that the discretion should be fettered in the manner for which the claimant contends, namely that the time should only be extended in exceptional circumstances.
15. In this case there were two principal material considerations: first the reason for the failure to comply with the rules. As to that a party seeking an extension must plainly explain the reasons for its failure. Secondly, there was the question of whether the claimant's position was prejudiced by the failure.
16. The reason advanced for the failure was that the police had made every effort to discover the facts of the previous convictions, but were not able to do so until 7th June. For my part, I have reservations as to the adequacy of that explanation. In my view a court would ordinarily wish to know when the relevant enquiries had been initiated, and in broad terms why they have not been completed within the time allowed. Any application for an extension will be closely scrutinised by the court. A party seeking an extension cannot expect the indulgence of the court unless it clearly sets out the reasons why it is seeking that indulgence. But importantly, I am entirely satisfied that there was no conceivable prejudice to the claimant, bearing in mind that he would have been well aware of the facts of his earlier convictions; secondly, that he was on notice on 14th April that there could be such an application; and thirdly, that there was no application for an adjournment on 16th June from which it is to be inferred that the claimant and his legal advisers did not consider their position to be prejudiced by the short notice.
17. In those circumstances I am not persuaded that the Justices erred in the exercise of their discretion to admit the evidence of bad character, notwithstanding the failure to comply with the rules. This was not a decision at which no reasonable bench of magistrates properly directed could have arrived.
18. The second limb of the challenge to the decision to admit the evidence of bad character is that in considering the application to extend time the Justices took account of the details of the convictions in question. As to that, Mr Bishop points to the evidence from the claimant's solicitor, Mr Mohammed Naser, who had the conduct of the case before the Magistrates' Court. At paragraphs 41 to 43 of his witness statement he says:

"40. The Prosecution then made their second application to admit bad character. The first hurdle was to convince the Court that it was right that the application should be heard out of time."

Then:

"41. The Court Clerk permitted the Court to receive the actual particulars of the Defendant's previous convictions and also advised the Court that they must bear in mind the serious nature of the offence when considering whether they should permit a Prosecution application out of time.

42. I submitted that the Court should not have details of the Defendant's convictions when considering an application out of time. The Court should limit itself to hearing reasons as to why my application is out of time.

43. The Court Clerk insisted that her advice was correct and gave the previous convictions to the Court to consider."

19. The first point made in response by Mr Parker QC, who appeared for the interested party is that there is in fact no evidence that the Justices took the details of the conviction into account when deciding to grant an extension of time. That is acknowledged by Mr Bishop whose complaint is essentially as to the appearance of unfairness. He does not assert that the justices in fact took these matters into consideration when arriving at their decision, nor are there any grounds for doing so.
20. Mr Parker relies on paragraph 8 of the document headed "information to assist the Administrative Court", which was annexed to the acknowledgment of service filed on behalf of the respondent. It is in the following terms:

"The application was dependent on the circumstances of the commission of the previous convictions, ... to which the application related and that information was not received by the CPS until the 7th June 2005 from the police. The court was told that the police had made every effort to discover the facts of the previous convictions but had not been able to do so until that date.

The court allowed the application for the bad character application to be considered 'out of time', and in doing so stated:

We consider that the CPS submitted the application as soon as they could and therefore allowed the application for bad character to be made."

21. It is clear that the Justices must have been aware of the facts of the conviction and in that context Mr Parker invited our attention to the prescribed form of application to adduce evidence of bad character, which has to be completed both with details of the convictions that it is sought to adduce, and where appropriate with the application to extend time. But there is an important distinction to be made between being aware of the facts of a conviction and taking those facts into account in arriving at a decision as to whether or not to extend time. It is the type of situation with which Justices are familiar. Where an application is made to adduce bad character evidence before a Magistrates' Court, the Justices will, of necessity, hear details of the conviction in order to rule on the application. If the application fails they will put the convictions out of mind when they hear the case. The fact that they know the details of the previous convictions does not disqualify them from discharging their role as fact finders in the trial.
22. Thus, in my judgment, it cannot be inferred from the knowledge of the facts of the conviction, that the Justices took those facts into account in considering the application to extend time. I find nothing in the material before us to indicate that they took those facts into account in arriving at their decision, and accordingly, in my judgment, that limb of the challenge also fails.
23. In those circumstances it is not necessary to rule on the supplementary argument advanced by Mr Parker that if the Justices had in fact taken account of the facts of the convictions, they were entitled so to do as they were entitled to consider the strength of the application when considering whether or not to exercise their discretion.

Ground 2- Hearsay

24. I turn then to the second limb of the application: the hearsay argument. It is submitted on behalf of the claimant that the Justices erred in permitting the prosecution to adduce the evidence of the complainant by reading her witness statement dated 19th November 2004. In that statement the complainant gave no indication that she was unwilling or reluctant to give evidence, but in a further statement, made on 6th June 2005, shortly before the trial, she said:

"I do not wish to come to court to provide that evidence [the evidence contained in her original statement] personally though, through fear of Paul locating me by my appearance at court.

Since the assault, I have taken great steps to establish a new life and to make a break from Paul. This has involved me going into a woman's refuge and moving more than once in an attempt to become untraceable to Paul.

I have attempted to break off all ties with the friends that I had, that were friends common to both Paul and myself, unless they were friends I could trust, to my knowledge this has been successful.

I have gone to the lengths of not providing the Police with a contact address, I only contact them by phone just in case my location becomes known through their paperwork.

I know that the courts and the police would do all they could to help and protect me, but Paul and his friends will be at court and once I leave the court there is no one that can stop them following me and finding my location.

I am still fearful of Paul and as a single person have both myself and my son to think about."

Under section 116(1) of the Criminal Justice Act 2003:

"116(1)-In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied."

The relevant condition of subsection (2) is as follows:

"(2)...

...

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence."

"(3) For the purposes of subsection (2)(e) 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard-

(a) to the statement's contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and.

(d) to any other relevant circumstances."

25. According to paragraph 12 of the "Information to assist the Administrative Court" in granting the application, the court stated that:

"The application was made under S116(2)(e) CJA 2003

Considering the above information we are satisfied that the complainant is in fear of the offender and for that reason she has decided not to attend court to give evidence.

We have considered S116(4): Special measures are not appropriate in this case in view of the fears of the complainant. We are of the opinion that it is in the interests of justice for the statement to be admitted in evidence in view of the serious nature of the offence, the photographic evidence, evidence of a recent complaint, and the interview of the offender, which is not disputed."

26. It is submitted on behalf of the complainant that the Magistrates' Court ought to have scrutinised the extent, nature and the basis for the alleged fear and, in the light of those findings, to have addressed the question of whether satisfactory measures could have been put in place to assuage the complainant's fears. Mr Bishop argues that according to her statement her fear was of being followed from the court by the claimant, or his friends, so enabling him to discover her current address. He suggests that that fear could have been overcome by arrangements being made by the police to transport her to and from the court in such a manner as to ensure that her address was not revealed.
27. It is submitted that in considering whether to allow the statement to be read, the Justices should have considered the effect of its being admitted on the overall fairness of the trial. That is plainly correct. Mr Bishop goes on to submit that the effect of admitting the evidence was to deprive the claimant of the opportunity of testing the sole or main evidence against him and that in consequence he was denied a fair trial. In support of that proposition he directed our attention to the Strasbourg jurisdiction under Article 6(3) which provides:

"Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him..."

28. He drew attention in particular, to the decision in Luca v Italy (2003) 36 EHRR at 46 and to paragraph 40, which is in the following terms:

"As the Court has stated on a number of occasions (see, among other authorities, Isgro v Italy, judgment of 19 February 1991, Series A no. 194-A, p 12 [paragraph 34 and ITALICS Ludi, cited above, p 21 [paragraph] 47), it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 [paragraphs] 1 and 3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6..."

29. The relevant Strasbourg decisions were analysed in detail in R v Sellick v Sellick [2005] EWCA Crim 651 in which the judgment of the court was given by Waller LJ who drew the following propositions from his analysis:

"(i) The admissibility of evidence is primarily for the national law;

(ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and 3(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;

(iii) It is not necessarily incompatible with Article 6(1) and 3(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.

(iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question of whether the trial was fair."

30. Waller LJ went on to consider the question of whether there was a fifth proposition to be distilled from the Strasbourg jurisprudence. At paragraph 51 of his judgment he said this:

"The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.

52. The question we have posed to ourselves is as follows. If the European court were faced with the case of an identified witness, well-known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no 'counterbalancing' measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jury's attention to aspects of that witnesses' credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European Court would nevertheless hold that a defendant's Article 6 rights had been infringed. In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of Article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with Article 6(1). We for our part see no difficulty in such a clear case.

53. More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J's state of mind on Lee in the instant case). In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant's Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be 'got at' the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg."

31. In his skeleton argument Mr Bishop advanced a proposition distilled from paragraphs 51 and 52 of Waller LJ's judgment namely, if the court is satisfied that a witness is in fear of giving evidence because of intimidation by or on behalf of the defendant, the admission of that evidence without cross-examination does not necessarily infringe the defendant's Article 6 right to a fair trial. That distillation appears to me fairly to reflect the relevant passages in the judgment, but it has always to be borne in mind that as Waller LJ observed at paragraph 38 of his judgment in Sellick:

"... the question whether Article 6 has been infringed is very fact sensitive."

32. I also bear in mind the words of caution to be found in the judgment of Leveson J in the Court of Appeal (Criminal Division) in R v Kenneth Arnold [2004] EWCA Crim 1293:

"30. We cannot leave this case without sounding a word of caution. The reference in Luca to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this Court concerned with the conduct of criminal trials is likewise. Inevitably, applications under section 23 will follow but this judgment should not be read as a licence for prosecutors. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read. Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendant's Article 6(3)(d) rights; even if it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved."

33. But in this context we were also referred to another decision of the Court of Appeal (Criminal Decision) in R v Campbell, [2005] EWCA Crim 2078 in which the court held that:

"There was no principle that where evidence represented the sole substantial evidence in the case against the defendant, it should never be admissible under s 23 of the 1988 Act because the interests of justice test could not be satisfied. Provided that all the requirements of the provisions were fully and properly considered, it could not be right, where compelling evidence was the sole or decisive evidence, that the admission in evidence had to lead automatically to a defendant's right to a fair trial under Article 6 of the European Convention on Human Rights being infringed."

As Lord Phillips LCJ said in R v Xhabri [2005] EWCA Crim 3135 at paragraph 44:

"Article 6(3)(d) does not give a defendant an absolute right to examine every witness whose testimony is adduced against him. The touchstone is whether fairness of the trial requires this."

34. What then were the factors relevant to the determination of the application before the Justices? Firstly there was evidence before the Justices in the complainant's second statement, to which I have already made reference, that she is in fear of the defendant. As a consequence of his behaviour to her she has gone into a women's refuge, and moved more than once in an attempt to become untraceable. Her fear has resulted in her breaking off all ties with friends common to her and the claimant. It has resulted in her feeling unable to give her address to the police lest it be revealed accidentally. Secondly, they were entitled to consider the serious nature of the case. The interests of justice require that serious assaults in which injury is caused are resolved by a trial where it is possible to hold a trial that is fair to both sides, rather than being dismissed or discontinued without a trial on the merits because the victim does not give evidence through fear. Thirdly, there was photographic evidence, the admissibility of which was not challenged, that showed that the complainant had injuries to the face and neck that were consistent with the assault described in her statement. It supported her account of how her injuries were sustained.
35. Fourthly, when interviewed under caution the claimant admitted that he was at his flat with the complainant at the time that she alleged that the assault took place, and that he was drunk. He was the only other person present, and accordingly if the complainant sustained injuries on that occasion, then he was the only person who could have inflicted them. It is also to be noted in this context that the essence of the case was put to the defendant in interview and he had the opportunity to comment upon it. Finally, in interview the claimant admitted that the complainant was someone who did not lie, and who would not have made a statement alleging that he had assaulted her if he had not done so. He conceded that he could not say whether he had or had not committed the offence. He accepted that she had left on the afternoon of the following day and had never seen him since.
36. Those were all matters that were expressly taken into account by the Justices in arriving at their decision to admit her evidence in that form: see paragraph 12 as above. The Justices were also obliged to consider what, if any, special measures could be put into place to assuage the complainant's fears. It can be seen from the information that they had provided that they did so.
37. The arrangements upon which Mr Bishop now seeks to rely are not special measures within the relevant sections of the Youth Justice and Criminal Act 1999. Whilst in retropect it might have been sensible to have made enquiries as to what, if any, other arrangements could have been made to convey the complainant both to and from court so as to insure her against the risk of the defendant tracing her, I do not consider that the Justices can be criticised for failing to embark upon such an investigation when that question was not raised before them.
38. In my judgment the Justices were entitled to exercise their discretion in the way that they did on the information before them. It cannot be said that the balance that they struck between the interests of the defendant and of the complainant was a balance at which no reasonable Tribunal could have arrived. It follows that I do not consider that their decision rendered the trial process unfair. It therefore also follows that I would dismiss this application.
39. LADY JUSTICE HALLET: I agree for the reasons given by my Lord, Owen J. I also wish to associate myself with his observations on the duty of all parties to comply with the provisions of the Criminal Procedure Rules 2005 and the duty of a court to scrutinise, with care, any failure by the parties to comply with those rules. Thank you very much, gentlemen. Anything consequent?
40. MR PARKER: For the avoidance of any doubt I assume that the stay is lifted.
41. LADY JUSTICE HALLET: Certainly.
42. MR PARKER: Can I take some instructions on the question of costs, please? We have legal aid. I am not sure if any consequential orders need to be made in relation to that.
43. LADY JUSTICE HALLET: Do you not need assessment?
44. MR BISHOP: May I have one of those?
45. LADY JUSTICE HALLET: Whatever the usual order is.
46. MR BISHOP: May I ask for the usual order, my lady.
47. LADY JUSTICE HALLET: Certainly, Mr Bishop.