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
		26 February 2007

1. MR JUSTICE DAVIS: This is a challenge, brought with permission previously granted by the single judge, to a decision of District Judge (Magistrates' Court) Morrison, sitting at Peterborough Magistrates' Court, on 24 May 2006. By that decision the district judge declined to stay proceedings as being an abuse of process.
2. The proceedings in question were charges of what may be called benefit fraud against the defendant, Mr Hussain, those charges having been brought on 2 September 2005. In due course, as appears from the information put before this court, there was a pre-trial review and it was indicated at that stage on behalf of Mr Hussain that there would be no issue of law arising at all and the only issue would be one of dishonesty.
3. The matter came on for summary trial on 15 February 2006 at Peterborough Magistrates' Court before three lay justices. The legal adviser to the court on that occasion was Mr Guy Torrance. The Crown Prosecution Service was represented by Mr Masters and counsel (not being Mr Bruce who is appearing before us today) appeared on behalf of the defendant Mr Hussain. Very shortly after Mr Masters had been starting to open the case, it appears that Mr Torrance intervened raising a point of law and indicating, in effect, that Mr Hussain had no case to answer so far as the formulated charges were concerned. It appears that this point having been raised and pursued by Mr Torrance, counsel for the defendant then, as it were, jumped on the band wagon and supported that argument. In the event, the justices retired to consider the position.
4. During the period of their retirement Mr Masters found an authority which showed that the view taken by Mr Torrance was mistaken. The justices came back and were so informed. The position ultimately was that the trial was then adjourned on the footing that it was part heard. There had been some debate as to whether the case should properly be regarded as one which was a part-heard matter. Again it was said that this was Mr Torrance's view and at all events that was the view the justices then took. The reality was that the trial had, in truth, never got off the ground at all.
5. Later that day Mr Masters, who was clearly unhappy at what had happened as a result of Mr Torrance's interventions, sent an e.mail to Mr Crowley, the chief Crown Prosecution Service lawyer for the area. The e.mail was headed up as the subject being "Torrensed in trial again". Mr Masters summarised what had happened that afternoon in the same matter. He stated in his e.mail that the matter had gone to pre-trial review where the prosecution and defence, in the presence of a competent clerk, had indicated that there were no questions of law. Mr Masters went on to complain that in the event that had ceased to be the position taken by the defence in the light of Mr Torrance's intervention when the matter came on for trial and, in effect, protested at the Crown being "ambushed" in the fashion that had occurred. Mr Masters went on to complain about the amount of time that was, as he said, "wasted" as a result of Mr Torrance's mistaken understanding of the situation. Further complaint was made by Mr Masters, including the fact that, on the advice of Mr Torrance, the matter was treated by the justices as a deemed part-heard hearing rather than enabling the matter to be heard afresh (much more quickly) by a new bench and, as it may be, a different legal adviser.
6. Mr Masters at the end of this lengthy e.mail then set out his concerns. The first was that, as Mr Masters said, it was becoming a somewhat regular occurrence that trial courts were being invited to ignore what was happening at a previous PTR (pre-trial review). He made comments on that. Secondly, he made the suggestion that the magistrates should be instructed by "Fred" - that is Mr Davies, Deputy Clerk to the Justices - that applications for adjournments by the Crown in such circumstances should be looked upon favourably. Thirdly, he said this:

"Guy should be told to pull his head in. A whole afternoon was wasted by this pointless exercise. Some Crown witnesses who were sitting at the back of the court thought it was like watching a pantomime."

The fourth point was a complaint about the procedure being allowed to be regarded as a part heard hearing. The fifth point was this -

"Perhaps consideration should be given to making an application to disqualify Mr Torrens from sitting in this case as clerk for perceived bias. This may help him think next time."

7. Mr Crowley responded to Mr Masters on 16 February 2006 by e.mail. That stated, amongst other things:

"The last time I complained formally about Guy I was kicked out for lack of evidence. However I am prepared to formally complain again but not on this document as it is. Can you re-word and depersonalise it ..... Let's make it look like a considered complaint not an angry whinge."

He went on to make comments about adherence being needed to the Rules and other comments about what had happened.

8. On 20 February it appears that Mr Crowley had a meeting on an entirely unrelated matter with Mr Daber, Clerk to the Cambridgeshire Justices. At that meeting Mr Crowley handed over what he thought was probably a copy of the e.mail of Mr Masters dated 15 February 2006, taking the view it was best not discussed openly on that particular occasion. Mr Daber, having had a chance to consider that, then responded by e.mail to Mr Crowley. He wrote, amongst other things:

"As I understand it, you are more interested in exploring the wider issue of the robustness of PTRs and whether courts should permit deviation from indications given at that stage than the narrow issues arising in this particular case. That said, and apart from anything else, I can't understand why Guy regarded the case as part heard .....

On the wider issue, I am inclined to agree that there is an important principle at stake here, namely that PTRs should be conducted robustly and that parties should generally be considered bound by agreements reached at them ..... "

There is then a suggestion as to discussing an appropriate formula that "we could spread amongst our respective troops".

9. Thereafter the position was discussed in the form of e.mails between Mr Crowley, Mr Daber and Mr Masters. In effect, Mr Crowley asked if he could notify Mr Masters of Mr Daber's communication. That was agreed. When that was communicated to Mr Masters he said this by e.mail dated 23 February 2006:

"No problem Richard. To make it clear though I have nothing personal against Guy, outside of court I find him quite easy to get along with. Thank you for your prompt attention and I am more than happy with whatever you deem appropriate."

In due course Mr Crowley sent an e.mail to Mr Daber, also on 23 February 2006, stating:

"Spoken with John. Content you raise it with Guy in your own way."

10. The resumed hearing took place on 16 March 2006. On that occasion Mr Guy Torrance was not in fact the legal adviser to the court. Instead, there was present Mr Fred Davies, the Deputy Clerk to the Justices. It is said that the prosecution did not know, and had not been expecting, that there would be some legal adviser other than Mr Torrance present. The position also was that this was essentially a new hearing even though, in point of form, it was treated as a part-heard hearing from the previous occasion.
11. On that particular occasion the defence objected, stating that there had been an abuse in that Mr Torrance was no longer present; and it was queried why that was so. It was stated by Mr Davies that reasons for that could be given later on application but they would not be given in open court. In the event, the defendant and his advisers did not seek formally to apply later as to what those reasons were. Instead, they sought to have all proceedings against Mr Hussain stayed as being an abuse of process, the defence having subsequently been made aware of the various e.mails to which I have made reference. It was that application for a stay that came before District Judge Morrison on 24 May 2006.
12. Before the district judge was a witness statement of Mr Crowley. Mr Crowley set out in that witness statement the background, including the various e.mails which he exhibited. He made clear that one of the matters he was principally concerned with was the impact of what had happened on the pre-trial review. Mr Crowley said that after the various e.mails had been exchanged he had not been aware of any further developments in connection with the case until he was contacted after the adjourned hearing on 16 March 2006. Mr Crowley gave oral evidence before District Judge Morrison.
13. District Judge Morrison, in the course of his written ruling, then said this with regard to the evidence:

"In the absence of any explanation before me the only conclusion I can reach, which I do, is that Mr Torrance was replaced by Mr Davi[e]s as a result of the complaint about Mr Torrance conveyed to Mr Daber in the 15 February 2006 e.mail. I accept that Mr Crowley did not intend that to be the outcome. I accept that he did not consider that might have been the outcome ..... "

14. Mr Bruce, counsel who came before us today on behalf of the defendant, was, at least in his written argument, disposed to criticise some of the district judge's conclusions of fact in this regard. But it is sufficient for me to say that, in my view, the district judge was fully entitled to accept Mr Crowley's evidence and make the findings that he did.
15. The district judge then went on to refer to various authorities cited to him which included, amongst other things, R v Sittingbourne Justices ex p Stickings and Another, 29 April 1996 (unreported), to which I will come, and then made this finding:

"I do not consider, in this case that there had been any serious abuse of power nor an unfair manipulation of Court procedures."

16. It is possible to deduce from at least some of the observations contained in the written arguments by counsel on behalf of Mr Hussain that there is a general wariness on the part of some court users as to the alleged closeness of the relationship between the Crown Prosecution Service, on the one hand, and the Peterborough Justices, on the other hand. At least that is the position adopted by Mr Bruce on behalf of this defendant. Mr Bruce, in his written arguments, has in fact seen fit to refer to what he asserted appears to be, as it is alleged, "a cosy and close relationship" between the Crown Prosecution Service and Peterborough Magistrates' Court. Reference is also made both to the circumstances being "suspicious" and the e.mails are described as "clandestine communications". All this is somewhat highly charged language. Certainly there can be no question of any bad faith here.
17. There has been cited to us a number of authorities. We do not have to refer to all of them. In R v Horseferry Road Magistrates' Court ex p Bennett [1994] AC 42, one issue related to the power to stay for abuse of process. In the course of delivering his speech Lord Griffiths said at page 63:

"Provided it is appreciated by magistrates that this is a power to be most sparingly exercised, of which they have received more than sufficient judicial warning ..... it appears to me to be a beneficial development ..... However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures."

18. In R v Beckford [1996] 1 Cr App R 94, a decision also arising in circumstances very different from the present, in giving the judgment of the court, it was said by Lord Justice Neill at page 100:

"The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities:

(a) Cases where the court concludes that the defendant cannot receive a fair trial;

(b) Cases where the court concludes that it would be unfair for the defendant to be tried.

In some cases of course the two categories may overlap."

This is, of course, an approach also adopted in numerous subsequent decisions by reference to Article 6 of the Convention.

19. Mr Bruce placed particular reliance on a decision of the Divisional Court in the case of Stickings (mentioned above). Mr Bruce submitted that the principle laid down by that case governed this particular case. However only a brief consideration of Stickings shows it to be a case on facts very different from the present. In that particular case the bench of justices had in the course of an on-going trial made a particular ruling as to the admissibility of certain evidence, having received advice from the clerk then in court. The prosecuting authority did not like that particular ruling and thought it might have implications for other cases. Accordingly, it made an approach to the senior clerk at that court. That senior clerk then intervened as a result of that approach, and himself approached the bench concerned and tendered certain advice and appeared at the next court hearing. In the light of that advice tendered - and it is right to say that both the prosecution and defence were first notified of the position - the previous ruling as to admissibility was then reversed by the justices. In such circumstances the Divisional Court, unsurprisingly to my mind, intervened.
20. Mr Bruce was disposed to draw a wide general principle resulting from the facts of that particular case. But it has to be pointed out that that - I might emphasise - was in the context of an approach being made by a justice's clerk not previously involved in the case which resulted in a previous ruling which had been given by justices then being reversed. Mr Bruce cited in particular from the judgment of Lord Justice Pill (page 9):

"I understand that concern and the wish of the Branch Crown Prosecutor with his general responsibilities, to discuss a significant point on the administration of justice with the Clerk to the Justices. However to do so in relation to a specific case, where a ruling against him had been made and where there was to be a further hearing was, in my judgment, wrong."

A little further on at page 10, Lord Justice Pill said:

"In my judgment the procedure which I have described does create a sense of unfairness and, indeed, unfairness to an extent that the court should intervene." See also the comments of Mr Justice Newman at page 11 of the transcript of the report.

21. That language, in my view, shows quite clearly that even if there is some element of unfairness it does not follow that the court will necessarily intervene on an application for judicial review or otherwise. The unfairness must be such, and to such an extent, that the court should intervene: and that of course will depend on the facts and circumstances of each particular case. Indeed in the course of argument before us Mr Bruce accepted as much; rightly so, in my opinion.
22. Mr Bruce necessarily had to concede that a fair trial could still have continued to be available to Mr Hussain. The reality was that the hearing on the second occasion before the justices was, in substance, an entirely new trial.
23. Accordingly Mr Bruce confines himself, by way of argument, to the second category put forward by Lord Justice Neill, namely, was it unfair for the defendant to be tried? With respect to Mr Bruce's arguments, it seems very hard to identify why that could be said in this particular case. As the district judge found, there was no intention on the part of Mr Crowley to bring about the result that there be a different legal adviser at the renewed trial hearing: that is to say, there was no intentional manipulation. Nor did the change in legal adviser have any impact on any previous ruling or decision previously given: which distinguishes this case from Stickings. In essence, Mr Bruce's argument came close to saying that where the Crown Prosecution Service corresponds with justices with regard to an on-going case without notifying the defendant, which communication has (even if not intended) some effect on the conduct of that case, then necessarily and in all circumstances there will be such an abuse as to require the court to intervene and stay the proceedings. That simply is not a tenable proposition as a matter of general principle.
24. In my judgment, the district judge, having made the findings of fact which he had made and was entitled to make, was perfectly entitled to draw the conclusion that he did draw that there was here no serious abuse and that there was no unfair manipulation of the court proceedings such as to require a subsequent court to intervene by granting a stay. In my view, that was a decision properly open to the district judge. It involved no error of law, no misunderstanding of Stickings, and cannot moreover be described as a perverse or an irrational decision.
25. Accordingly this challenge fails.
26. I would however wish to add this. It was perhaps unfortunate, as it seems to me, that the Crown Prosecution Service chose to pursue this complaint in the way that it did during the currency of these proceedings. That with hindsight was unwise. In the event, no unfairness resulted. But it would have been much better if this sort of point had been raised, as it seems to me, after these proceedings had been concluded and perhaps also eventually aired by some other means: for example at a court users' meeting or something like that.
27. In the result, in my judgment this claim should be dismissed.
28. LORD JUSTICE LATHAM: I agree.