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
		15th March 2006

1. LORD JUSTICE LATHAM: This is an application for judicial review of the conviction of this applicant, on 24 May 2005, of an offence under section 169A of the Licensing Act 1964. The Justices discharged the applicant conditionally, after the conviction, for 12 months.
2. The underlying facts relating to the conviction were that the claimant is, or was at the relevant time, an employee of Asda Stores and was, on 27 January 2004, working in the alcoholic beverages section of the store when a

15 year old girl, who had been trained as a test purchaser, entered the store and sought to purchase some alcohol. The claimant served her with alcohol without questioning her age and took her money and gave her change. She was, at the time, wearing covert video and audio equipment and had been instructed to carry out that purchase by a Mr Clarke, who is an Underage Sales Enforcement Officer with the interested party, the London Borough of Newham. The evidence accordingly against the claimant was the evidence of the girl, supported by the video and audio recording which had been made when she made the purchase.

3. The claimant was seen that same day and asked about the purchase: he said that he was of the view that she was 18 years of age. That, indeed, was the account that he repeated when he was subsequently interviewed under caution, on 29 April 2004, and formed the basis of his defence throughout the proceedings. The defence, provided by section 169A(2), reads as follows:

"It is a defence for a person charged with an offence under subsection (1) of this section [that is selling intoxicating liquor to a person under eighteen], where he is charged by reason of his own act, to prove -

(a) that he believed that the person was not under eighteen; and

(b) either that he had taken all reaonable steps to establish the person's age or that nobody could reasonably have suspected from his appearance that the person was under eighteen."

4. It follows that the applicant's defence, it being accepted that he had not asked any questions in relation to the girl's age, was that nobody could reasonably have suspected from the girl's appearance that she was under 18. In accordance with their usual practice the council had taken digital photographs of the girl on the day in question immediately before she went out to make the purchase in question. We have three, which are photocopies of the colour photos which were before the magistrates at the time of the trial.
5. It is important to follow the progress of this prosecution because that is relevant to the issues which ultimately had to be dealt with by the magistrates. Despite the fact that the test purchase was made in January 2004 and the claimant was interviewed in April 2004, which, in itself, interpolated a delay that, in the circumstances, seems to be a delay which should have been avoided, the information was not laid and the summons was not issued until 26 July 2004. It will therefore be seen that that was one day before the time limit for prosecution expired. Those delays, for reasons we need not detail, were not the fault of the prosecutors.
6. Nonetheless it behoved all those involved to ensure that the proceedings were thereafter dealt with speedily. In fact what happened was that on 13 August 2004 the summons and the prosecution bundle was sent to the claimant. Included in the prosecution bundle was the statement of the girl in question, which was dated 27 January 2004, and was accompanied by the appropriate request under section 9 of the Criminal Justice Act 1967, that the statement be one which could be admissible as evidence to the like extent as oral evidence. It met the conditions for such a statement to be admissible. It purported to be signed by the girl. It contained the appropriate declaration to the effect that it was true, to the best of her knowledge and belief, and it was tenderred in evidence on the claimant with the indication that it would be relied upon. Subsequently there was no notice served on the Council objecting to the statement being tenderred in evidence under the section within the seven days provided in section 9(2)(d).
7. Indeed there was no request for the attendance of the girl either on 8 September 2004, when the claimant made his first appearance at the Stratford Magistrates' Court, nor on 9 December 2004 when there was a pre-trial review. The first indication given that the claimant wished the girl to attend was a request made on 16 March 2004, which was some five days before the date fixed for trial, namely 21 March 2005. We understand that was as a result of advice given by Mr Wormald, who has appeared for the claimant today, which was the first time on which he had been asked to consider the papers and advise as to the appropriate course to take at the trial.
8. He took the view, hence the request, that it would be vital for the appellant's defence under section 169A(2) that the girl be made available before the magistrates so that they could assess whether the appellant could establish the defence under section 169(a)(ii), namely that her appearance was such that nobody could reasonably have suspected that she was under 18.
9. Suffice it to say, for the purposes of this judgment, the Council declined to make her available indicating that as a matter of policy they did not call underage witnesses. It has to be said that in the papers themselves there would appear to be some uncertainty about the precise nature of that policy. It cannot have been in quite the terms set out in some of the documents, namely that in no circumstances would such a witness be called, because clearly if the appropriate notice was served under section 9 of the Criminal Justice Act the Council would be obliged either to call such a witness or to seek to establish the case otherwise, which might well be impossible. Nonetheless, however, one can readily understand a policy to the effect that in general, subject to being required to do so by the court, the evidence of underage witnesses should be read in accordance with the provisions of section 9.
10. At the commencement of the trial, on 21 March 2005, Mr Wormald first made a submission which has been characterised in the claimant's case as being, in effect, an application to stay the proceedings as an abuse of the process of the court. In his witness statement the Chairman of the Bench, to whom that submission was made, indicated that it was not, in his view, strictly an application to stay the proceedings for abuse of process, but was an application that one way or another the girl should be called as a witness and that her evidence should not be read under section 9.
11. Whatever may have been the precise nature of the submission, it is plain that Mr Wormald was making it abundantly clear that in his view the appellant's defence required the attendance of the girl in order for him to be able fairly to put his defence before the court. The court's decision was in the following terms:

"We have listened to all parties in these proceedings. It is clear that the Section 9 statement of the test purchaser was properly served and no objection was taken at the time of service. There has been a history of correspondence regarding the test purchaser. The London Borough of Newham has said that information which has not yet been supplied by them will be supplied during the course of the trial.

In the circumstances, given that the request for her to attend was only made recently the application is refused and the case can go ahead with the section 9 statement."

12. Part of what is said in the formulation of the decision relates to the fact that in addition to requiring the girl to be there, in order that her appearance could be assessed by the magistrates, was a submission that there was evidence in relation to her training and instructions that she could give which might be material.
13. The Court having determined that the evidence of the girl could be led by way of the section 9 statement, Mr Wormald then submitted that it should nonetheless be excluded, pursuant to the provisions of section 78 of the Police and Criminal Evidence Act 1984, on the basis that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it. Again the basis of his submission is clear, namely that his client could not adequately and properly put forward his defence under section 169A(2) unless the Court was given the opportunity to see the girl and make an assessment of the validity of his contention that he he had no reason to suspect that she was under 18. The court's decision was given in the following terms:

"We have been given an account of the contents of the section 9 statement and we do not accept that its admission would have an adverse effect on the fairness of the proceedings. The Bench is content that the London Borough of Newham policy and its reasons for not calling test purchasers has been known to the defendants (Claimants) solicitors throughout these proceedings. The application is refused."

14. The case therefore proceeded on the basis of the written statement of the girl.
15. The appellant's case before us today is essentially that the Court was wrong to have, first, declined to stay the proceedings as an abuse of process and, second, to have ruled that the section 9 statement could be admitted on the grounds that its admission would not have an unfair effect on the proceedings.
16. As to the first submission that this was, in some way, an abuse of process, it seems to me, leaving aside for the moment whether or not that was, in truth, the nature of the application to the Court by Mr Wormald, that there is no justification for concluding that there was any abuse of process. The position was that, in essence, the court was being asked whether or not the section 9 procedure was available. The answer to that was it was. The requirements of section 9 had been complied with. It seems to me that the nub and thrust of the complaint in this case must be directed to the decision under section 78. The question accordingly was whether or not admitting the evidence of the girl by way of reading her statement created such unfairness that it was wrong to have declined to accede to the claimant's submissions in that regard. The appellant's position was fully protected by section 78. It certainly did not, in these circumstances, require any further protection by praying in aid an argument by way of abuse of process. So the question is whether or not the Court could be said to have been wrong in law in declining to exclude that evidence.
17. In my judgment there was nothing wrong in law with the decision that the Court reached. It was perfectly entitled, as it clearly did, to take into account the fact that the application had been made so late. The fact of the matter is that this was a case which involved the evidence of a young person who if she was to give evidence needed to give her evidence as close to the time of the events that she was giving evidence about as could possibly be achieved. From the Council's point of view, there was no indication given in the September hearing or the December hearing that she was going to be called to give evidence. So in that regard one can accept that they did not consider that the case should be brought on promptly at that stage by reason of the fact that she was likely to be required to give evidence.
18. However, it certainly behoved the claimant if he wished her to be called, first, to give an indication as soon as possible and then to make submissions to ensure that the proceedings were brought before the court sufficiently swiftly that the evidence that she gave was fresh in her mind, and secondly, both parties needed to ensure that the passage of time had not affected her appearance in such a way as to mean that any comparison between her appearance at the time of trial and her appearance at the time of the alleged offence could have been so affected as to make a comparison of no real significance.
19. The position that was reached by the time of the request was that 14 months had passed. That, in my judgment, rendered any attempt to make a sensible comparison between her appearance at trial and the appearance at the time of the alleged offence impracticable. The fact is that the photographs of the girl at the time of the offence were available to the Court. Accordingly, in so far as it was a part of the appellant's case that a comparison could, and should, be made between her appearance at the time and the claimant's belief as to her age, the photographs provided the test evidence.
20. In my judgment, in those circumstances, by reason first, of the fact of delay, and secondly, the consequence of delay in the way that I have described, the Court quite properly concluded that the admission of her evidence in written form, coupled with the material that it had by way of photographs, did not unfairly deprive the appellant, in the circumstances, of his opportunity to raise a defence under section 169A such as to entitle us to conclude that the Courts' decision was irrational or otherwise wrong as a matter of law.
21. In my judgment the Court was perfectly entitled to take the view that in March 2005 the appellant could fairly put forward the defence that he wished to put forward and that the request to call the girl was accordingly not one which should be acceded to, bearing in mind, in particular, the lateness of the request. Different considerations may well have applied had a request been made at or near the time of the commencement of the proceedings, even if they were made outside the 7-day period in section 9(2)(d), but that was not the case here. Accordingly, in my judgment, this claim must be dismissed.
22. MR JUSTICE SULLIVAN: I agree.
23. LORD JUSTICE LATHAM: Thank you very much for your material.
24. MR ROY: May I make a couple of points on behalf of the interested party? Your Lordship has commented that the delay by the council was at least unfortunate. Can I just ensure for the record that it is known that on 27 January a letter was handed to Mr Verma asking him to attend for an interview. He failed to respond to that letter. He was written to again on 5 February and he failed to respond. He was written to on 5 March. He agreed to attend on 29 April. It was not the London Borough of Newham's fault that the interview did not take place until 29 April.
25. From then on those instructing me, and those instructing my learned friend, entered into long correspondence because there was a linked case. Large quantities of paper were submitted by those to my learned friend which had to be gone through. That resulted in the very late, indeed only just in time information being laid. It would be unfortunate if those instructing me felt that this court was criticising them for not having this matter proceeded with quite as experditiously as it could have done.
26. LORD JUSTICE LATHAM: I think there are two points to be made in response to that, Mr Roy. I take on board what you say entirely about the fact that not all delay can be laid at the door of the Council. I shall ensure that the correct draft will reflect that fact. I still take the view that where you have potential witnesses who are children you have to take a rather more robust attitude to the decision-making process. It is as simple as that. Until such time as the statements have been submitted and you might have hoped, perhaps even guessed, that you might be able to deal with the matter under section 9, but you could not guarantee it, the defence under subsection (2) is one which seems to me requires the prosecution and the defence, in cases such as this, to make sure that matters progress sufficiently swiftly. To make sure that there is a sensible opportunity for the defence to be run, and not one which takes place in 14 months after the event. That is my comment.
27. MR JUSTICE SULLIVAN: I agree.
28. LORD JUSTICE LATHAM: It may feel as though one is being overcritical, but I do not know, to what extent, you have been reading the judgments of this court over the last five or six years in relation to children. Things have not progressed swiftly enough where children are concerned, either as defendants or witnesses. It is very important that we try and put the skids under everybody as much as we can.
29. I will make sure that what I hope will result in a judgment which does not unfairly criticise your clients.
30. MR ROY: I am very grateful.
31. MR JUSTICE LATHAM: Although you will probably be a better judge of that ultimately than me.I will do my best. Are there any other orders you wish to make? So we simply dismiss the claim.