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
		22nd February 2006

Wednesday, 22nd February 2006

1. MR JUSTICE OUSELEY: This is an application for judicial review to quash the decision of Horseferry Road Magistrates' Court on 30th September 2005 whereby the court adjourned the trial of a summons against the claimant for driving with excess alcohol. The claimant seeks leave to amend that claim to add a declaration and a prohibition order relating to witnesses who failed to attend, an order that the refusal to dismiss the case be quashed and asking the court to take account of subsequent proceedings. I give leave for that amendment.
2. The various applications were opposed by Miss Culling. Miss Culling tells me that she was instructed by the Crown Prosecution Service on behalf of both the Crown Prosecution Service and Horseferry Road Magistrates' Court. A letter of 14th February 2006 from Her Majesty's Court Service addressed to the Administrative Court and written by Mr Dharmesh Patel, the legal adviser to the court who had been involved in some of the proceedings in this case at Horseferry Road, said that the Justices would not be formally represented at today's hearing but that the Crown had instructed Miss Culling who has kindly agreed "to represent the court's interest in the appeal."
3. There was no formal Acknowledgment of Service on the part of either the Magistrates' Court or the Crown Prosecution Service, although Mr Patel had put in a statement dated 6th December 2005 in response to the application for permission to apply for judicial review. Permission was not granted until 24th January 2006 and those observations were taken into account by Burton J who granted permission.
4. The Magistrates have put in no skeleton argument or witness statements until the morning of the hearing. So far as I am concerned, there have been statements provided by what are said to be the two lay magistrates who sat on the hearing of 30th September 2005. One statement is dated 20th February 2006 and the other is undated but was written a week earlier. The District Judge who dealt with the case on 13th December 2005 has put in a statement dated 17th February 2006. I have given Miss Culling permission to appear in this case on behalf of those whom she says are her clients, notwithstanding the lateness with which they have dealt with matters and the lack of application beforehand for permission to appear in view of the absence of an Acknowledgment of Service.
5. I confess to being startled to find, as on what she tells me I must do, that counsel for the Crown Prosecution Service and counsel for the Magistrates' Court are one and the same. I would not have thought it appropriate anyway and even less so in a case where it is contended that the court has been unduly favourable to the prosecutor for there to be that apparent community of interest. The allegation is implicit in relation to two hearings and explicit in relation to a third. It may be that there has been some confusion which at the last minute it has not been possible for Miss Culling to resolve, but I have to say, if what she tells me is right, I do not think it should happen.
6. The relevant facts can be stated as follows. On 19th July 2005 the claimant was charged that on the 5th June 2005 he drove a motor vehicle having consumed so much alcohol that the proportion of it in his blood exceeded the prescribed limit of 80 milligrams in 100 millilitres of blood. It was said on the analyst's certificate that the total was 81 milligrams in 100 millilitres of blood, that is to say he was over the limit by one milligram in 100 millilitres.
7. There was a hearing on 5th August 2005 before Horseferry Road Magistrates' Court at which the case was adjourned to 19th August for a plea to be entered. The plea was not guilty; that hearing was attended by solicitors, counsel and the claimant. The District Judge asked to know what the defence was, and was told by counsel that the claimant did not accept the blood analysis. It had been indicated on the hearing of 5th August 2005 as well that blood analysis was a likely issue. In view of the minor excess, that is scarcely surprising.
8. The District Judge on 19th August then fixed the trial date for 30th September 2005, even though at that date, no statements of the police officers or of the analyst had been served. It is said by Miss Christodoulou, the solicitor for the claimant, in her witness statement, that that date was fixed without reference to the convenience of the defence but was fixed by reference to the convenience of the prosecution. That assertion is not challenged in evidence on behalf of any party. There was a debate as to how long the hearing should be and the District Judge was plainly reluctant to accept the estimate of Miss Calder that it could take as long as three-quarters of a day. He fixed it for one and a half hours. The date he gave was 30th September 2005 and he refused an application on the part of the defendant that it be put a little later on because the claimant's wife was expecting a baby during the week of 30th September 2005.
9. Having refused that request, according to Miss Christodoulou's witness statement, he said that if the case did not go ahead that day a likely consequence would be a wasted costs order. Mr Patel's statement indicates that what District Judge Evans said was that if there were to be an application to vacate the trial to have a longer time than the one and a half hours, a question of wasted costs against the defence would be a very live issue. Either way, it is clear that the Judge, in making the various decisions he did, was determined to hold the defence to a timetable and date that was not in the too far distant future.
10. It must have been plain from that hearing, if not the previous one, that the defendant was taking issue with the blood analysis and that if that issue were to be dealt with, the analyst's presence or, if not presence, at least a statement explaining more fully how the analysis had been arrive at was going to be required.
11. There was some subsequent correspondence between the Crown Prosecution Service and the defendant. It had been indicated by the Crown Prosecution Service at the hearing on 19th August, when the analyst's certificate was not accepted, that a section 9 statement would be provided for the consideration of the defendant, no doubt hoping that a section 9 statement might forestall the need for any attendance on the part of the analyst.
12. On 12th September 2005 the claimant's solicitors wrote to the Crown Prosecution Service, saying that:

"Accordingly, we wish to remind you that at the last hearing on 19th August 2005 we notified you that we do not accept the analysis certificate in this matter. Your representative indicated that you would send us section 9 statement for our consideration. So far we have not received this and look forward to hearing from you in due course."

13. On 20th September the solicitor sent a letter to the Magistrates' Court saying that they had not been provided with a Certificate of Readiness but they themselves were ready for trial. No section 9 statement was forthcoming at any stage from the Crown Prosecution Service or the analyst.
14. The day of trial came. The claimant attended with solicitors and counsel. Counsel was privately instructed and paid, as were solicitors. The prosecution attended without any witnesses. The evidence of Miss Christodoulou is that that case came on before three Justices. The prosecutor told the court that the police officers were not present because they had not received warning. The warning notice had been sent to the wrong police station. It was explained to me, though it is not possible to be sure whether that was said to the Magistrates' Court, that that was because there was a new system in place for warning police witnesses as to when they were required. The statements of each of the lay Justices refer to an error, without referring to it being an error created through this new warning system. It was also clear that the analyst had not been warned either. The prosecutor explained that when he had looked at the file the day before, he had realised that the analyst was required but felt that with such short notice it would be unreasonable to expect her to attend, coming from Lancashire, so he sought an adjournment.
15. The evidence at this stage begins to diverge to some extent. Miss Christodoulou's statement says that when Miss Calder started to address the court, objecting to the adjournment, she explained some of the history to the defence requirement for the analyst to attend. It is clear that there was discussion about whether District Judge Evans had made any directions. I assume that means directions as to when the case should be heard and as to which witnesses should attend. It was the legal adviser who responded, in my judgment correctly, that District Judge Evans had not made directions as such about those matters. Miss Christodoulou's statement then says that the Chairman very briefly spoke to the other Justices and when Miss Calder attempted to continue addressing the Bench, referring to the comments made by District Judge Evans about wasted costs, the Chairman said they were not interested in those comments as they were not directions and that they were going to grant the adjournment. This was before counsel said that she had not finished addressing them. There were further points that she wished to make but they would not allow her to speak any further.
16. The evidence of Mr Patel is that he had told the Justices in advance in their retiring room of the estimate that Miss Calder had given that about two hours would be required for the hearing, having reduced it from half a day when he initially had spoken to her. The Justices, when dealing with the adjournment, had been told by Miss Calder about the correspondence, had been told that the trial was set without canvassing defence dates to avoid, and had then turned to deal with the comments made by District Judge Evans. Essentially, he says that Miss Calder was carrying on about those points when the Justices had said that they did not want to hear about them any further. It is clear from the statements of the two Justices that they did not wish to hear any more from Miss Calder about the observations which she said were made by District Judge Evans about the case proceeding on 30th and his warning in relation to wasted costs were it not to do so. As I have said, there is some debate about precisely what it was that District Judge Evans had actually said on that day, but it is clear he was keen for the case to go ahead.
17. The Justices do not appear to have had certain points raised before them by the Crown Prosecution Service. The provisions of section 16(4) of the Road Traffic Offenders Act 1988 envisage that a certificate is not admissible in evidence to prove the proportion of alcohol in the blood if the accused, not later than three days before the hearing, has served notice on the prosecutor requiring the attendance of the analyst. It is clear that that section does not envisage oral notice as being sufficient to operate section 16(4). One cannot serve oral notice. It is arguable that the letter of 12th September did not constitute notice for those purposes because its terms are not so explicit. It appears not to have been suggested, however, by the Crown Prosecution Service that they were unaware that the defendant wanted the analyst to attend. It was not suggested that the absence of a clear and formal section 16(4) notice was the reason for the analyst not attending or for the prosecutor not applying his mind to that point at an earlier stage. So far as can be seen from what the prosecutor said, there was no suggestion on his part that there was any failing on the part of the defendant which had led to the absence of the analyst on that day.
18. With those points in mind, I turn then to what are said to have been the reasons for the adjournment. Miss Christodoulou's statement says that there were no reasons given orally for the adjournment. Mr Patel's statement, without being very explicit, says that the Justices set out their reasons for not granting a wasted costs order. It was not just a question of saying that the defence wanted the analyst. Of the two Justices only one, the Chairman, implies without saying that the reasons were given orally in court; they could equally well, on her statement, have been given privately to Mr Patel for him to record.
19. There are curiosities in the evidence in a number of respects. I say that because there is even a debate as to how many Justices there were. Miss Christodoulou is clear in her statement that there were three. Miss Calder, permissibly on this occasion telling the court her recollection, said that there were three. The two Justices say in their statements that there were two. Mr Patel does not refer to the issue at all.
20. I then turn to what the Justices say were the reasons, whether they were said to Mr Patel or merely kept in their minds or vouchsafed in public. The Chairman says that they agreed to the adjournment:

"Taking into consideration this being the first trial hearing, the interests of justice and that the defendant wanted to have the analyst present, we deem that no prejudice would occur and that a fair hearing would be promoted if we granted an adjournment to a new trial date."

21. The other says that it was because it was the first trial date and, in the interests of justice, since the defendant wanted the analyst to be present and there would be no prejudice, the trial was adjourned. Mr Patel says that the adjournment was because of delay in the case which was attributable to both parties and in the interests of justice.
22. It is, of course, not a matter of statutory requirement that reasons be given publicly for the grant of an adjournment, though, given the importance of even-handedness in this matter, it has become, rightly, a common practice that reasons are given briefly and publicly for decisions of that sort.
23. There are a number of authorities which deal with the bases upon which the exercise of a power to adjourn in section 10(1) of the Magistrates' Court Act 1980 may be exercised. For these purposes, I need do no more than refer to the speech of Lord Justice Bingham, as he then was, in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 when he said at page 127E:

"... [the] court will intervene where defendants have been deprived of a opportunity to present their case because of their own unavoidable absence ... or the inability to call witnesses whose evidence went to critical issues of fact."

24. The question of whether an adjournment should be granted cannot be dealt with by hard and fast rules.

"The guiding principle must be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances."

25. He referred in other places to the problem of last minute adjournments depriving other defendants of speedy trials and a need to subject applications for adjournments to rigorous scrutiny. Those sentiments have been echoed in other cases, for example, Essen v DPP [2005] EWHC 1077, Sedley LJ, paragraph 37.
26. The submissions by Miss Calder in relation to the grant of the adjournment are that the Justices did not subject the prosecutor's reasons to scrutiny at all. The problems were created by the inactions and errors of the prosecutor. The claimant, contrary to what the Justices appear to have thought and to what Mr Patel records, was blameless. The consequences of the prosecution's failure meant delay in the trial coming on. Other relevant circumstances were that the claimant would have to pay more costs because he was privately represented and the case involved a driver who was only one milligram per 100 millilitres over the limit. The absence of formal directions by District Judge Evans should not be allowed to obscure the fact that he had been seeking to impose on the defendant a speed of hearing and date which was not convenient to them and had been fixed to reflect the prosecution's convenience; but the boot appeared to be on the other foot when the prosecution wanted time. There were also complaints made about the fairness of the hearing which the Justices gave to Miss Calder.
27. For present purposes, I do not need to reach a view on whether or not the hearing given to Miss Calder was fair. There are always differences of perception possible about whether an advocate is outstaying her welcome on a particular point rather than dealing with the issues that concern the Magistrates. I do not regard the grant of the adjournment as flawed simply because there may have been no reasons given in public for its grant in the circumstances of this case. What the reasons referred to by the Magistrates and Mr Patel do, however, is make clear that the Magistrates proceeded on a significantly false basis. The primary false basis upon which they proceeded was that the defendant was in some way to blame. That that is part of their thinking can be seen from the references by Mr Patel to delay attributable to both sides, to the references to it being the defendant who wanted the analyst there, and the interests of justice. The reality is, however, that the defendant was not to blame in this context.
28. True it is, as Miss Culling points out, that it could be said that the provisions of section 16(4) had not been activated by the oral notice at the two previous hearings and by the letter of 12th September 2005. That submission is, however, undermined by her acceptance that a later letter which also did not explicitly require the attendance of the analyst was regarded as sufficient to activate section 16(4). This was a letter written on 26th October 2005, following the adjournment in which the solicitors said that they would not accept a section 9 statement. This was seen as adequate although it did not refer in so many words to section 16(4) or to the requirement that the witness attend.
29. But more importantly, it is clear from what was said and what was not said at the hearing that the prosecutor accepted that there was a failure within the Crown Prosecution Service to notify the police in the right way, whether it is said that that was because of the new system or not is really neither here nor there. It was also accepted by the prosecutor implicitly that the absence of the analyst was the prosecution's fault and there had been no suggestion, and still has been no suggestion, that the defendant contributed at all to the delay. The prosecution was obliged and the Magistrates were obliged in their reasons to grapple with those points. They did not do so. It is clear they proceeded on an equality of blame where there was no true equality of blame. It is, of course, possible to say that section 16(4) should have been deployed more specifically, but the essential responsibility for the adjournment lay with the prosecutor.
30. That meant also that the Magistrates did not have regard to the significance of a further adjournment for the defence costs in the case, costs which might be recoverable if the defence were successful, but would be rather more problematic if they were unsuccessful. It is also clear that the Magistrates would have needed to bring into account the gravity or otherwise of the offence in deciding that further delay in its summary trial was warranted. The insistence by the Magistrates that this was the first trial hearing has, of course, some force but they ought, if I may respectfully say so, to have considered the import of what they were being told about what District Judge Evans had said. They misunderstood what Miss Calder was saying or trying to say, which was different from what Mr Patel was telling them. District Judge Evans was clearly of the view that the defendant might be interested in delaying proceedings and was prepared to impose a date and timetable that was not altogether to the defendant's liking but was nonetheless satisfactory for the prosecutor. The point being made by Miss Calder (if what she said about District Judge Evans' comments was right) is not simply that fairness would require a more Draconian attitude towards the prosecutor; it was that the prosecution had, in the light of that, a specific obligation to get themselves in order and the court had no business being other than strict with them.
31. Accordingly, I have come to the view that the Justices' decision on 30th September 2005 was flawed in law and I quash it. I do not take the view, however, that this is a case in which the Magistrates would have been bound in law to refuse the adjournment. It would have been possible for them, having considered the arguments fully, to have come to the view that, notwithstanding that this was not the defendant's fault, nonetheless, the circumstances and the absence of a formal section 16(4) notice meant that this was a case that should go off for a new trial date to be fixed. I do not know whether they would or would not have done that. I simply comment that this is a case in which such a conclusion would not have been irrational and unlawful.
32. The question that then arises is what is the significance of that for any relief which Miss Calder seeks? Neither counsel were able to offer any assistance as to what the implications of that might be.
33. I turn then to the subsequent events. Through a series of hearings in October and finally through a hearing on 31st October, a trial date was fixed for 13th December at 2pm. The purpose of there being two earlier hearings and this hearing on 31st October was to fix a trial date at which all relevant parties would attend with their witnesses and the matter would be fought out.
34. On 21st November, that is some three weeks after the trial date had been fixed, the claimant issued these judicial review proceedings. Although in the course of those proceedings a stay had originally been sought, the claimant made it clear before 13th December that he was not seeking a stay of the Magistrates' Court proceedings; after all they might have proceeded and resulted in a favourable result and the application for judicial review would have become redundant. However, on 29th November the prosecution wrote to the Magistrates' Court, saying that the analyst was not available on 13th December because she had a prior court engagement in the north of England. Not surprisingly, the claimant wrote objecting to the application for an adjournment and asked the High Court to stay the application for judicial review pending the outcome of that application and wrote to the prosecution in the same terms.
35. There then appears, on 8th December 2005, to have been a communication between the Magistrates' Court and the Administrative Court in which the legal adviser says he was told that the application for permission to apply for judicial review or the application for judicial review would be dealt with on 13th December 2005, the same day as the trial. Whether Mr Patel misunderstood or whether that is what he was told, the fact is that that was wrong and no date in relation to these judicial review proceedings has ever been fixed for 13th December 2005.
36. However, in consequence of Mr Patel's understanding of the position, District Judge Evans considered that the adjournment sought by the Crown Prosecution Service should be granted. He told the Crown Prosecution Service that that was so about 8th December. But the position so far as the defendant was concerned appears to have been less clear because his solicitors were still enquiring of the Magistrates' Court as to whether their suggestion, that the application for an adjournment should be dealt with in court before 13th December, was being taken up. At all events, by 9th the solicitors did know that the adjournment had been granted and on that date they sent a fax to the Magistrates' Court, saying that the District Judge had made a decision on an erroneous basis and, by a fax received by the Magistrates' Court on 12th December, Miss Calder pointed out that there was similarly an error.
37. Miss Christodoulou's witness statement says that the court then relisted the matter on 13th December 2005 as a trial. District Judge Purdy, before whom the matter came, does not say one way or the other whether the matter was listed for a trial or for further directions or simply for a mention, although, as I say, Miss Christodoulou's witness statement makes perfectly clear that that is what she is saying happened.
38. On that day the prosecution attended but they attended again without witnesses. They did not attend with the three police officers in question because they had been, to use the language, dewarned and there was no time for them to be rewarned to attend for 13th. The analyst did not attend, but it is clear that the prosecution did not contend before District Judge Purdy that the reason the analyst was not attending now was because of the confusion over the adjournment; she was not there because she was in Fleetwood.
39. The District Judge was then presented with Miss Calder's offer to make section 10 admissions which would obviate the need for the police officers' attendance, leaving the prosecutor in the position of seeking an adjournment because the analyst was not there in circumstances where the reason the analyst was not there had nothing to do with the confusion over the Administrative Court's hearing of this matter, supposedly on 13th December. The District Judge took the view that that smart piece of footwork was not going to persuade him to hear the matter and dismiss it. He adjourned it further, taking the view, in many ways understandably, that the problems had been created by the confusion, which at least Mr Patel had got into and then had got Horseferry Road Magistrates' Court into. In truth, that only affected the attendance of the police officers whose attendance, it appears to have been accepted, was obviated by the section 10 admissions.
40. I observe, in parenthesis, that District Judge Purdy appears to have been concerned, and rightly so, with why those section 10 admissions could not have been made earlier, some months before, and why on the following day when he heard the matter for directions they could not continue to be made. Whatever criticism may attach to the defendant and his team in that respect does not, however, really grapple with the particular issue before District Judge Purdy, which was whether he should grant an adjournment to the prosecutor in substance because the analyst was not there for a second time.
41. The decision of 13th December is not before me for review. Miss Calder simply asks that it be taken into account in deciding what to do. So I do not propose to quash the decision of 13th December 2005. But I do observe that the circumstances in which the police did not attend and the circumstances of the offer of the section 10 admissions appear potentially to have caused District Judge Purdy to lose sight of the basic point which was that the analyst was not there because the prosecution had failed to make sure that the analyst could be there.
42. I am told by Miss Culling, and I am not in a position to dispute it at all, that the way in which the availability of non-police experts is dealt with when cases are fixed is, seemingly, to fix a date without regard to the availability of those witnesses unless, by chance and exceptionally, their availability is known and then to see if those witnesses can attend the fixed date. I confess to finding it surprising that that is regarded as effective case management but perhaps it gives rise to difficulties in a sufficiently small number of cases for it not in reality to be a problem, but in this instance it was a problem. The application for an adjournment on that account was made nearly a month after the date had been fixed and just two weeks before the new trial date.
43. The District Judge also failed to have regard, albeit unbeknown to him, to the real background to the adjournment application. It was, in reality, the second occasion on which the prosecution had failed to attend with the analyst and on this occasion, on Miss Culling's own acceptance, the prosecutor knew that the analyst had to be there. If District Judge Purdy's decision had been the first adjournment, it is understandable that he might have done what he did because a confusion between courts would not normally redound to the disadvantage of either party if it could possibly be avoided. But it must be remembered that that confusion did not cause the analyst's absence. I entirely accept that the District Judge was not aware of the full background to the adjournment on 30th September and inevitably he was not aware of my conclusions about it, but the position so far as the defendant is concerned is neither fair nor satisfactory.
44. There has been an unlawful decision on an adjournment which might lawfully have been granted, but might lawfully have been refused, in September. There has been a decision in December which did not have regard to a number of considerations, although I cannot and do not quash it. This was the second trial hearing; prosecution failures had largely caused both to be abortive (though if the analyst had been present but not the police, the section 10 admissions might have been refused). The consideration of the second adjournment was flawed because the first adjournment decision was flawed. The prosecution in reality was being given a leeway denied to the defence with no certain prospects of costs redress. The offence involved a minimum excess. The matter is now due for hearing on 28th February 2006, some four months after it should have been resolved, on the stern words of District Judge Evans. All of that is largely down to the Crown Prosecution Service.
45. As I said, neither counsel offered a great deal of assistance in relation to the remedies that should be granted in these circumstances because of the grant of the first adjournment which was unlawful but which it would not have been irrational to grant. I take the view that in the light of the then circumstances and the way in which the case has developed or, perhaps more accurately, not developed, that the appropriate course is this. I shall stay the Magistrates' Court proceedings for all purposes except for the prosecution making an application for the dismissal of the charges. If it chooses not to do so, the matter is stayed.
46. MISS CALDER: I am obliged, my Lord. Could I ask for costs out of central funds, the defendant's costs?
47. MR JUSTICE OUSELEY: Miss Culling, is that the appropriate order?
48. MISS CULLING: It is, my Lord.
49. MR JUSTICE OUSELEY: Yes, the defendant's costs out of central funds.
50. MISS CALDER: I am obliged, my Lord.