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
		16 January 2007

1. MR JUSTICE DAVID CLARKE: The Crown seek judicial review of decisions of the Uxbridge Magistrates' Court on 26th April 2006 which culminated in the acquittal of Mark Gore who was then before the court as a defendant and who appears before us as an interested party. He had been charged with assaulting his wife occasioning her actual bodily harm. There had been a number of preliminary hearings before the magistrates but this was the date for the trial of that case. The decisions which the Crown seek to review were the court's refusal to grant an adjournment of the trial because of the absence of the complainant, and then the court's refusal to admit her police statement as evidence pursuant to the hearsay provisions of the Criminal Justice Act 2003. Mr Gore has not been represented before us but has attended and has briefly addressed the court, something which he told us he had not expected to be invited to do; but we have been happy to hear what he has to say. The Magistrates' Court have acknowledged service but have decided to make no submissions.
2. The case which the Crown intended to present to the magistrates was that Mr Gore, a man of previous good character, had assaulted his wife during a row at the end of a night out, slapping and repeatedly punching her, causing significant bruising, which was photographed when the complainant reported the matter to the police some four days after the event. On the day of that complaint the defendant was arrested and was interviewed under caution. He made certain admissions of hitting his wife but qualified those by reference to defence of another.
3. The application for an adjournment came about in this way. There had been some question in advance of the trial about the complainant's willingness to proceed. The Crown Prosecution Service or the police lost touch with her for a time, but contact was re-established and the court was told that the case was ready for trial. On the day, however, she did not attend, though the police officer witnesses did. The solicitor representing Mr Gore told the court and the CPS that she had been sectioned under the Mental Health Act and admitted to the Riverside Unit at Hillingdon Hospital. Subsequent enquiries by the Crown confirmed that and it was in those circumstances that the adjournment was sought.
4. Counsel for the Crown told the magistrates that the complainant had been spoken to previously and had signified her willingness to attend court. The court was told the nature of the case. Reference was made to the photographs and to the admissions made by the defendant in interview. The application for an adjournment was opposed by the defence, indicating that the admissions were disputed, referring also to the complainant's earlier intimation that she was not prepared to attend court. At this, the justices refused the application for an adjournment, indicating that they did not consider it in the interests of justice to adjourn. No further reasons were given, and this is the first part of the claim for judicial review.
5. The power of a magistrates' court to adjourn proceedings is to be found in section 10(1) of the Magistrates' Court Act 1980. The court is called upon to exercise a judicial discretion. It is well-establish that this court will not interfere with the exercise of such a discretion unless it was plainly wrong. The court should be particularly slow, in my judgment, to interfere with a decision to refuse an adjournment. It is increasingly emphasised to magistrates both in decisions of this court and indeed in their training provided by the Judicial Studies Board and by the clerks to justices and legal advisers, that there have been over the years far too many adjournments and far too many ineffective mention hearings, and that applications for adjournment should be scrutinised with great care. But the court is also required to have regard to the overriding objective of the Criminal Procedure Rules that criminal cases be dealt with justly, which includes in particular acquitting the innocent and convicting the guilty.
6. In this court in Crown Prosecution Service v Picton [2006] EWCH Admin 1108, Jack J, giving the judgment of the court, referred to earlier cases: Aberdare Justices ex parte Director of Public Prosecutions [1990] and Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 and said this:

"The following points emerge: (a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.

(b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.

(c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent convicted. With a more serious charge the public interest that there will be a trial will carry greater weight.

...

(e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh."

There is then a reference to fault on the part of one party or the other which does not arise here, and then:

"(g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why."

Then there is a reference overall to the need for all the circumstances to be taken into consideration.

7. Applying these principles to the present case, the question is whether the circumstances here were so exceptional that, in the light of the material before them, the justices were plainly wrong in refusing the adjournment. The arguments in favour of that view are that the complainant had been expected to attend and only did not do so because of her compulsory admission to a psychiatric unit, a factor which Mr Gore was the only person before the court who was aware of it; that this was the first date on which the trial was listed for witnesses to attend and that there was no suggestion of specific prejudice to the defendant arising from an adjournment which would initially have been only for so long as was necessary to obtain a forecast of how long she would remain unfit to give evidence.
8. Despite these arguments, I would hold that this was a decision within the justices' discretion and which they were entitled to make. If, on the other hand, the inevitable result of the adjournment had been that the prosecution must collapse without further ado, I would have taken a different view because there was a strong public interest in the prosecution continuing and no specific prejudice to the defendant. But at the time they made that ruling this was not set in stone. Enquiries were still being made at the hospital. No final position had been reached as to whether the complainant's attendance at court might be secured.
9. The second part of the application, however, relates to the refusal to permit the Crown to adduce the complainant's statement and what she said to the police officer under section 116 of the Criminal Justice Act 2003, the hearsay provision. That application was the only application open to the prosecutor before the magistrate in the afternoon, once the adjournment had been refused in the morning and once it had been confirmed that she would not be coming. By the time the application was made, a police officer had ascertained that she was indeed in hospital, had been told orally that she was unfit to give evidence and had made arrangements for a written statement from the doctor to be provided very shortly. But the prosecuting advocate was not able to develop that argument very far because the defence advocate objected, submitting that the course now being taken was a deliberate manipulation of the process of the court to circumvent the justices' earlier ruling; and it seems clear that that submission found favour with the justices who remarked in terms that they were not prepared to alter their earlier decision and were not prepared to wait for the short time necessary for the written evidence of unfitness to be provided.
10. In my judgment it was wrong, and plainly wrong, to refuse the hearsay application at that point, even before the statement of the doctor which had been promised had arrived. It seems to me that the justices did not apply their minds at all to the principles set out in section 116, which is a quite separate process. This was a quite separate application to the earlier application for an adjournment. The Crown were not seeking, as the justices thought, or seem to have thought, to re-open the refusal of an adjournment, but were trying to deal with the situation as it was then as a result of the refusal.
11. Section 116 of the 2003 Act provides specifically for the admission of a written statement of a witness unavailable through ill-health. On such an application the court must consider the matters set out in section 116(4) and the interests of justice. The witness statement had been taken on 26th July, the same date on which photographs were taken. The defendant was able to challenge the contents of the statement by giving evidence, and his ability to do that was not hampered. This is not to say that adducing the written evidence would been an ideal form of trial, but it would have been a good second best which would, in my judgment, have enabled the trial to proceed without unfairness to the defendant.
12. Taking the view as I do that the end result, namely the defendant's acquittal when no evidence was offered following the refusal of that second application, was plainly wrong because the merits were never considered by the justices, I prefer to base my judgment on the decision to refuse the hearsay application rather than on the refusal of the adjournment in the morning. But the result is the same.
13. The rulings having been given, no evidence was offered and Mr Gore was acquitted. It is therefore not enough for this court to quash the decision to refuse the hearsay application because that would leave the acquittal intact. The Crown must seek a further order quashing the acquittal itself. The availability of that remedy is now well-established. It was considered at length by this court in the Birmingham Magistrates case [2003] EWHC 2352, and it is not necessary to review the authorities once again. Though there were factors in the Birmingham Magistrates case which might have given the Crown, at least in theory, other possible courses of action than simply to offer no evidence, this court held that the decision to offer no evidence was, in reality, the only practicable decision, and therefore went on to quash the acquittal.
14. In the present case it is clear that the Crown's decision did flow directly from the refusal of the hearsay application because that left them unable to present to the court the complainant's evidence in any form and it was on her evidence that the case depended. I would therefore quash the decision to refuse this application and with it the acquittal of the defendant.
15. LORD JUSTICE SCOTT BAKER: I agree. The acquittal will therefore be quashed and the case returned to the magistrates to be reconsidered.