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 WC2A 2LL
		13 July 2007

1. MR JUSTICE TREACY: These two cases are applications for judicial review of decisions to adjourn proceedings on the application of the prosecution. In each case the hearing took place on 25 May 2006 before Abergavenny Magistrates' Court. Each applicant faced an allegation of speeding; each was represented by Mr Sonn, a solicitor.
2. The offences arose from speed restrictions imposed by different road traffic orders. In Robinson's case the order was a 2003 order and in Fine's case a 2005 order. Nothing turns, before us, on the content of the orders. It is well established that the justices have a discretion to adjourn proceedings pursuant to Section 10 of the Magistrates' Court Act 1980. This court will be very slow to interfere with such decisions (see dicta of Lord Bingham in R v Aberdare Justices [1990] 155 JPR 324 and R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110). The relevant principles have been referred to in a number of authorities and we have them in mind. Amongst relevant factors are the need for close scrutiny, the desirability of progressing summary proceedings, the question of whether a party seeking an adjournment is at fault, the convenience of the court and the need to do justice.
3. It is necessary to give some history regarding each case. I start with that of Robinson. On 9 September 2005 an information was laid relating to the alleged offence of 16 April 2005. Mr Robinson pleaded guilty by post. The justices informed him that they were considering disqualification. Mr Robinson consulted Mr Sonn. On 7 November 2005 the solicitor wrote to the court seeking to vacate Mr Robinson's plea. In that letter the solicitor referred to the fact that he had obtained a 2003 order. To my mind, having seen the correspondence, the clear implication was that there was to be a defence based on the validity or applicability of the order although the letter did not expressly say this. The court vacated the plea. It set the date of trial for 24 February 2006.
4. In January 2006 Mr Sonn notified the Crown Prosecution Service ("CPS") and the court that the witness statement of Police Constable Williams, the sole evidence served by the Crown, could be read and that the trial would take half-an-hour. Police Constable Williams' statement included this passage:

"I have attended a course of competence in the use of Lastic speed detection equipment. This equipment consists of an LTI 20:20 TS/M speed detection device linked to a video recording system. The device is Home Office approved for enforcement purposes."

5. On 24 February 2006 Mr Sonn contacted the court. He said that he was unwell and so the case was taken out of the list for that day. A pre-trial review was set for 15 March 2006.
6. On 15 March 2006 the court received a fax from Mr Sonn indicating that no prosecution witnesses were required and that the likely trial duration was half-an-hour. No additional information was provided in relation to the issues in the case. The court on that date felt that it had insufficient information to be able to set a trial date, so it adjourned the matter for a further pre-trial review to take place on 29 March 2006. The court sent out a notice. It was sent directly to Mr Robinson as opposed to being sent to Mr Sonn. The notice set out the reasons for the adjournment, and the setting of the pre-trial review for 29 March, in these terms:

" ..... to deal with any outstanding issues and, if necessary, make directions so that your trial can proceed. If you do not attend you may not be allowed to raise any issue on the day of trial that should properly have been dealt with at pre-trial review."

7. On 29 March 2006 Mr Sonn faxed a letter to the court shortly before 9 am. I infer from that that he must have been in contact with his client Mr Robinson and been made aware of the contents of the letter notifying the adjournment from 15 March. In this fax of 29 March Mr Robinson gave an increased estimate for the time of trial; he now put his estimate at one hour. But no other details were given of any issues which the defence wished to raise. Despite the absence of any additional information, the court fixed a date for trial. It was to take place on 25 May 2006. On 15 May 2006 Mr Sonn spoke to Mr Pugh of the CPS. He was told erroneously that the CPS had served all its evidence. It does not appear that, beyond inquiring whether the CPS had served all its evidence, Mr Sonn volunteered any additional information as to the nature of the issues in the case.
8. On 17 May Mr Sonn sent a letter to the CPS. He requested a copy of the notices which were published at the time of the making of the 2003 order. The court received a copy of this letter on 23 May. Again it might seem from this documentation that the issue which was proposed to be pursued by the defence trial related to the validity of the 2003 order. It has in fact emerged at this hearing that what Mr Sonn proposed to do was not to challenge the validity of the order but to challenge whether there had been traffic signs in place which were a necessary condition of the applicability of the order. That, it appears, is revealed in these proceedings for the first time today. A further letter was sent by fax on 23 May 2006 by Mr Sonn indicating that since the requested copy of those notices had not been received and since the Crown had failed to comply with its obligations under Section 3 of the Criminal Procedure and Investigation Act, the trial was unlikely to take place on 25 May. Mr Sonn requested that the court vacate the trial date. The request to vacate the trial date was placed before a legal adviser who refused to exercise his administrative powers to vacate the trial.
9. On 25 May 2006 the Crown Prosecution Service and Mr Sonn attended court. Neither Mr Fine nor Mr Robinson was present at court; they did not have to be. It is plain therefore that what Mr Sonn intended to do, had the trial gone ahead, would have been to put the Crown to proof of its case as opposed to adducing any positive evidence in support of any defence.
10. The Crown asked for an adjournment. Miss Murphy, the advocate, conceded that the Crown was at fault in having failed to comply with the requirements of the CPIA and, more importantly, that whilst there was a properly completed Section 20 notice, that is a notice under the Road Traffic Offenders Act 1988, on her file, the same had not been served on the defendant. There is a statutory requirement that the notice be served at least seven days prior to the hearing. Miss Murphy made her application making those concessions about the Crown's failures. However she submitted that the Crown had been under the impression from the time of the receipt of the letter in November 2005 that the issues for trial in some way related to the validity of the 2003 order. She submitted to the court that that impression was confirmed by the request made for copies of notices to be published in relation to the order received shortly after 17 May.
11. Mr Sonn asked the justices to rule that the trial should proceed. He told the justices that he was no longer pursuing any issue in relation to the notices published concerning the making of the 2003 order. He said he wanted the trial to proceed on the facts of the case. He also submitted that at no time had he indicated that there was any issue regarding the validity of the order. On my reading of the correspondence, anybody receiving it would have had the clear impression that the contrary was the case. His submission was, in essence, that the Crown was at fault, that the Crown was not ready to proceed with its case and acknowledged that in the absence of a Section 20 notice it could not prove its case on the day. Therefore he submitted that the adjournment should be refused, it being the responsibility of the Crown to be ready to present its evidence on the day fixed for trial if it wished to prove its case.
12. In the course of making his submission, Mr Sonn referred to the decision of this court in Director of Public Prosecutions v Cheshire Justices [2002] EWHC 466 Admin. He cited to the justices a passage of the judgment of Lord Justice Rose in that case, where he said:

"There was, as it seems to me, no obligation before the justices in relation to a case of this kind to make known to the prosecution in advance what the defence was going to be ..... It was for the prosecution to be in a position to deal with whatever defence arose."

13. In their response to the applicant's case the justices say that they were well aware of the need carefully to examine requests to adjourn cases. They say that they were clearly of the view that Mr Sonn, acting on behalf of Mr Robinson, had, to use their words, flown in the face of advice given in the case of Director of Public Prosecutions v Mohindra [2004] EWHC 90, a case to which I will come shortly. They took the view that despite the pre-trial review hearings there had been a failure by the defence to indicate what the issues to be raised at trial were.
14. The reference to the case of Mohindra is a reference to a decision of this court which considered the Auld Report - that is the Criminal Courts Review - and the decision of the Court of Appeal (Criminal Division) in R v Gleeson [2003] EWCA Crim 3357. It is most convenient for our purposes to cite passages from the decision in Gleeson. At paragraph 35 of Gleeson, Lord Justice Auld said:

"But, just as a defendant should not be penalised for errors of his legal representatives in the conduct of his defence if he is unfairly prejudiced by them, so also should the prosecution not be frustrated by errors of the prosecutor unless such errors have irremediably rendered a fair trial for the defendant impossible. For defence advocates to seek to take advantage of such errors by deliberately delaying identification of an issue of fact or law in the case until the last possible moment is, in our view, no longer acceptable given the legislative and procedural changes to our criminal justice process in recent years."

At paragraph 36 Lord Justice Auld went on to cite paragraph 154 of chapter 10 of the Report of the Criminal Courts Review. In the passage cited he observed that a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.

15. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.
16. I well appreciate that the observations in Gleeson relate to a trial on indictment where there had been a failure by the defence to identify issues in the defence statement under the CPIA. It seems to me that the approach exemplified in Gleeson is of general application. The justices plainly had this authoritative guidance in mind.
17. The court concluded that there was no real prejudice to the defendant Mr Robinson caused by the failure of the Crown to serve the notice under Section 20 in time, particularly in the light of the acceptance by the defence of Police Constable Williams' witness statement. This implied that there was no issue to be taken in relation to the equipment used and the readings which it produced in detecting the alleged speeding offence. The court considered that in those circumstances the history of the matter was a relevant factor to be balanced against the need for speedy summary justice, and that the court should have regard to the need for an appropriate inquiry as to whether the guilty should be convicted or the innocent should be acquitted.
18. The justices accordingly adjourned the case from 25 May and fixed a pre-trial review for 28 June 2006. In giving their decision the justices said:

"This is a complicated matter. We have given careful consideration to what has been said to us. We accept what the prosecution have said and consider that the matter needs to be adjourned."

Those were brief reasons; they have been expanded on in the affidavit of the chairman. I accept that what the chairman said by way of the affidavit genuinely represents the considerations which the justices had in mind and which they summarised in those brief oral reasons given in the court room on 25 May.

19. Mr Fine's case was then called on and it followed a similar course. It is not necessary to recite the whole history of those proceedings. It is right to observe that Police Constable Harris' statement, in similar terms to those of Police Constable Williams, had again been accepted by the defence well before trial and only one other Crown witness was required to attend, Mr Cox. On 23 May Mr Sonn faxed a letter to the court and the CPS seeking an adjournment of the hearing of 25 May. He indicated a challenge to the validity of the 2005 order and a need to make further inquiries about it with the Welsh Assembly Government. The terms of his letter anticipated a CPS agreement to the adjournment. The court's legal adviser declined to exercise his administrative powers to vacate the trial date fixed, thus leaving it to the court to make a decision on any application to renew.
20. Miss Murphy was the advocate for the CPS. When the case was called on she asked for an adjournment. She referred to the letter of 23 May and said that the CPS needed time to research what she said was a complex issue as to whether the order had validly been made by the National Assembly of Wales. Mr Sonn opposed the application for the adjournment. He indicated that although the letter of 23 May had raised the issue as to the validity of the 2005 order, he had in the intervening period, namely 24 May, managed to speak to a responsible person at the Welsh Assembly and was satisfied that the order was valid. So he said he was not pursuing any application to adjourn and would not challenge the validity of the order. He submitted that the trial should proceed as originally envisaged, and he submitted that the Crown was at fault. It had failed to comply with the provisions of the CPIA and again it had failed to serve a notice pursuant to Section 20 of the 1988 Act.
21. The Crown acknowledged that it was at fault in those respects. The Crown said that it had assumed that the case would be adjourned. It said that because of the terms of the letter which it had received on 23 May it had de-warned its witness and for that reason too could not proceed. The submission was made, frankly, that this was an ambush with Mr Sonn initially seeking an adjournment to consider a complex legal matter, then attending court and dropping that argument and insisting that the trial proceeded on a different basis.
22. Mr Sonn reiterated that it was the duty of the prosecution to be ready to proceed. He indicated to the court that if the Crown were taking the stance which they were then he would renew his challenge to the validity of the 2005 order. He did this notwithstanding the earlier concession he had made that there was nothing in the point about the validity of the order. The court's response was to say that if the validity of the order was again in question the case would have to be adjourned in order for the Crown to have time to investigate and consider that matter. At that Mr Sonn apparently riposted to the court that those comments which he had made had been made "tongue in cheek" and he urged that the trial proceed without any reference to the question of validity of the 2005 order.
23. Unsurprisingly in those circumstances with the various manoeuvres which had taken place before it, the court found itself in a very difficult position. It had been initially minded to adjourn the case for reasons similar to those given in the case of Mr Robinson. Faced with Mr Sonn's changing stance in relation to the validity or otherwise of the 2005 order, it felt that in order for there to be a fair trial with proper consideration given to the issues in the case there was an additional reason for adjourning the case. For those reasons the justices adjourned the case until 28 June 2006.
24. Mr Brookes, the chairman on 25 May, in the course of his affidavit, has made it plain that it is a not infrequent experience at his court, which no doubt deals with many traffic offences, for defence solicitors to raise issues on the day of trial which cause time estimates to be greatly exceeded or cause adjournments.
25. Mr Sonn's argument is that he was entitled to keep his cards close to his chest, that he was entitled to expect that his cases would proceed on 25 May, that the CPS were at fault in failing to serve their Section 20 certificates in good time prior to the hearing and that it was their failures which necessitated the adjournment application. He submits that the justices failed to give proper scrutiny to his applications as they were bound to do. He says that if they had given appropriate consideration to the matter they would have refused both adjournments since the Crown was not ready on that day to proceed with its case. He says that the justices had wrongly taken into account the history of the matter and in particular the defence approach to the case. He said that since these crimes were essentially victimless crimes and involved criminal allegations of a relatively minor matter that those were additional factors which should have led the justices to refuse the Crown's application.
26. It seems to me that the approach to the conduct of litigation in the Magistrates' Court has dramatically changed since the observations were made in Cheshire Justices upon which Mr Sonn relied. First, we have absorbed the Auld Report and in particular those matters highlighted at paragraph 154 of chapter 10. Secondly, we have seen the adoption of the Auld Report principles in the cases of Gleeson and Mohindra referred to already. Thirdly, we have the Criminal Procedure Rules which themselves flow from the Auld Report.
27. The Criminal Procedure Rules 2005 came into force on 4 April 2005. The overriding objective is that criminal cases be dealt with justly. That involves and includes acquitting the innocent and convicting the guilty. Each participant in the conduct of the case must prepare and conduct the case in accordance with the overriding objectives. That includes at once informing the court and all parties of any significant failure by another party to take any procedural step. It includes responsibility for early identification of the real issue in the case and the obligation actively to assist the court in fulfilling its duties, including early identification of the real issues and co-operating in the progression of the case. I have to say that it seems to me that Mr Sonn, on 25 May and prior to that date, lost sight of his responsibility under those rules in the way that he approached these cases. Some of what took place appears to me to run contrary to the modern approach. In my judgment, the observations in Cheshire Justices upon which he relied should not now be relied on by defence advocates in those circumstances in Magistrates' Courts.
28. In my judgment, although the CPS were plainly at fault in failing to have served their Section 20 certificates in time, in each case the apparent identification of other issues by the defence shortly before the hearing had deflected their attention elsewhere. Nothing in this judgment is to be taken as a licence for the CPS to fail to attend to the necessity of proving its case or for the need for justices to subject applications to close scrutiny. But the mere fact of CPS failure cannot be determinative of an application to adjourn. There may be many cases, day in and day out, up and down the country, where justices are refusing applications where the Crown is not ready to proceed with its case. That is because the Court's decision is within its discretion having regard to the circumstances of the individual case. In my judgment, the justices were entitled in this instance to look at what had occurred before and by 25 May in assessing the situation on the day.
29. In the case of Robinson I hold that their decision was within the proper range of their discretion for the reasons which they have identified and which I have referred to earlier in this judgment. In the case of Fine I reach an identical conclusion. I add that the justices must have been fortified in their decision by the way in which the application by the CPS was dealt with by Mr Sonn. It must have brought home to the justices that what was taking place was an exercise which owed more to opportunism and arid technicality than a desire to achieve the overriding objective that the case be dealt with fairly on its merits, properly investigated.
30. I would therefore reject both of these applications for judicial review.
31. LORD JUSTICE HUGHES: I agree. The justices in the exercise of their discretion might possibly, validly, have refused the Crown's application for an adjournment on the basis that it was their own error that had caused it and that a great deal of court time was likely to be wasted if it were granted. Equally, they were plainly entitled to say that in these particular cases an adjournment would better serve the purpose of achieving a trial on its merits than a refusal of an adjournment.
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