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
		21st April 2008

1. LORD JUSTICE LATHAM: On 16th November 2006, in the Crown Court at Cambridge, these two claimants were bound over to keep the peace on specific terms in the sum of £5,000 each. They had been prosecution witnesses, indeed the complainants effectively, in the trial of one of the interested parties, Mr Norman, at the end of which they were bound over. Mr Norman had been charged with two counts: firstly, assault occasioning actual bodily harm on the first claimant; and, secondly, battery on the second claimant. It was the culmination, and clearly the judge hoped the ultimate culmination, of a long running dispute between the two claimants, perhaps amongst others, and the interested party, Mr Norman.
2. During the course of the hearing counsel on behalf of Mr Norman asked for permission to call evidence as to the alleged bad character of the two claimants and was given permission to do so by the judge. As a result, during the course of the hearing, there was evidence as to the background to the dispute which was at least capable of redounding to the discredit of the two claimants.
3. The circumstances made it the sort of case in which clearly the judge would consider whether or not binding over parties to the dispute would ultimately be a proper solution to the difficulties that had arisen between them. At the end of the day of 15th November, after he had, in effect, sent the jury home for the evening, and before continuing his summing-up the next day, the judge called counsel for the prosecution and for Mr Norman into chambers. In the course of that particular meeting, which has been transcribed, he indicated that he had in mind binding over the claimants and, if he was acquitted, Mr Norman.
4. The consequence of that was, although it is not entirely clear by whom, the claimants were asked to return to court on 16th November which they did. The judge concluded his summing-up. Thereafter, in accordance with what had been discussed on the afternoon before, Mr Myatt, then prosecuting counsel, went to see the claimants. They had a meeting in a room at the Cambridge Crown Court.
5. At that meeting a trainee solicitor, Mr Kelton, was present. He was a trainee with the firm of solicitors who had been acting for the claimants in respect of the civil proceedings, which were simmering behind the scenes, in relation to the dispute between the claimants and others and Mr Norman. He had been sitting in during the course of the criminal trial clearly for the purposes of taking a note in case that was material to the civil proceedings to which I have referred. He was not instructed by the claimants in relation to the criminal trial in any formal sense of the word. He had, in fact, been identified as being connected to and concerned with the claimants during the course of the hearing. He had obviously been making notes whilst listening to the evidence which attracted the attention of the judge who asked him who he was and he identified himself and said that he was from the firm of Richard Buxton. When asked if that firm was acting on behalf of the claimants, he said yes. Be that as it may, he was there on the morning of 16th November and went into the meeting, as I have indicated, with the claimants and Mr Myatt.
6. Mr Kelton has produced two, in fact now three, witness statements, but two are the substantive ones upon which the claim was based and Mr Myatt has produced his own witness statement. They purport to tell the story of what happened at that meeting. Mr Kelton's recollection is that essentially Mr Myatt told the claimants that the judge was minded to make a binding over order of both them and Mr Norman. The following paragraphs take up the story as he saw it:

"6. The prosecution barrister then presented the choices available to the clients. He said that they could only be bound over to keep the peace if they consented to do so. However, if they did not consent to do so, they would be in contempt of court and could be subject to imprisonment.

7. The clients enquired what a binding over order would entail. The barrister advised that CCTV surveillance could potentially amount to a breach of the peace depending on the circumstances. The judge was unlikely to define specific conditions of compliance in the order. The orders would be confined to the individuals they were made against. There would be a substantial fine for breaching the binding over orders.

8. The barrister told the clients that they could either make the choice between consenting to being bound over and being in contempt of court on their own, or they could seek legal advice. I clearly understood this to mean that the clients could seek legal advice specifically about the choice between consenting and being in contempt. I remember thinking that this was a harsh choice.

9. In the event, Mrs Turner and Mrs Harlow-Hayes decided that they did not need to take legal advice on the choice between whether to consent to being bound over or being in contempt of court. They decided there and then to choose to consent.

10. At no point during the meeting was there any indication that the clients had any right to contest a binding over order. In the circumstances, at the end of a four day trial and with the jury presently out to return its verdict, it certainly did not occur to me, and I doubt very much it occurred to the clients, that there was any opportunity or right to contest the proposed binding over orders."

7. He then went on to say that after Mr Myatt had left he himself asked the clients whether they understood the consequences of the choice put before them and consented to being bound over:

"They informed me that they felt it had been a harsh choice, and they had no option but to consent to being bound over."

That recollection is supported by a handwritten note that he prepared for the purposes of the file.

8. Mr Myatt's recollection is different but not to a very substantial extent. He says that he certainly would never have said that breaking the order would result in a fine, because he was, having been a justice's clerk, fully conversant with the form of the recognisance which imposes the sanction. As far as independent legal advice and the position of the claimants as far as choice was concerned, he said:

"Whilst I accept that in all probability I did not explicitly tell the two sisters that if they sought independent legal advice then that advice might be to challenge the basis upon which the bind overs were being contemplated, I do not feel that it was incumbent upon me to do so given the limited nature of my role in the discussions as indicated above: I was not there as their legal adviser and I made that point abundantly clear."

9. In accordance with the conclusion to which the claimants came, as indicated by Mr Kelton, they, when summoned into court by the judge after the acquittal of Mr Norman, expressly consented to being bound over. It is, however, important to note that the opening words by the judge to Jean Harlow-Hayes were as follows:

"Well, let me ask you first of all, Jean Harlow-Hayes, is it right that you have had explained to you what I have in mind and I can't impose a bind over unless you agree to it? Do you agree to such a course?

A. (inaudible)."

But it is quite apparent from what is said thereafter that she had then indicated her assent, as did the other complainant, Mrs Turner.

10. The judge then explained why he considered that a bind over was appropriate, and, indeed, the transcript makes it clear that he gave full and proper reasons for making a bind over order. He then indicated, as he was required to, the precise basis upon which the bind over was intended to bite in relation to these two claimants and then set the recognisance without further questions at £5,000 for each of them.
11. The claimants say that the judge went wrong in two respects. Firstly, in relation to the procedure he adopted in making the bind over order he failed to obtain consent from the two claimants in the sense of informed consent upon which he could properly rely. Secondly, even if he was right to have come to the conclusion that a bind over order was appropriate, he should have made some enquiry as to the means of both claimants before setting the recognisance at £5,000.
12. In my judgment, the judge here did indeed fall into error in both respects. The position was that the only basis upon which he could conclude that there was true consent here was by pure implication from the fact that Mr Myatt had seen the two claimants. He knew nothing of the detail of what had passed between Mr Myatt and the two claimants, or between Mr Myatt, the two claimants and Mr Kelton, or between the two claimants and Mr Kelton. In dealing with the matter by consent in circumstances such as this it seems to me that it is essential that the judge should himself ask the relevant questions and give the relevant warnings and state to those liable to be made the subject of the bind over what the consequences would be and that they should have the opportunity to, firstly, consider whether they wished to dispute the making of the bind over, and, secondly, and perhaps more important, to obtain legal advice to that effect.
13. Here, the judge did not do any of those things. The material that we have makes it clear, and we are prepared to accept it, that the two claimants did not appreciate that they had the opportunity to dispute the appropriateness of a bind over. It may well be, even if they had disputed it at the time, and if we quash this order, if and when they dispute it subsequently, the judge will conclude that a bind over order remains by far the most appropriate disposal in this case. But the claimants must have an opportunity at least to consider whether they want to dispute any of the material upon which the judge proposes to make a bind over order. The judge can then come to a conclusion as to the appropriateness of a separate enquiry over and above the evidence that he has heard, or simply indicate that, as far as the evidence is concerned, that has already satisfied him that a bind over order is appropriate. But in this case the claimants were never given that opportunity to ask the judge to consider the matter on that basis. They should have been.
14. As far as legal representation was concerned, the position was that certainly the judge would appear to have appreciated that they had had available somebody to advise them, but he did not know the basis upon which the decision had been reached. He was not, in my judgment, entitled to conclude that the claimants knew their full entitlement to dispute the matter at that time. As I say, the matter would have been far better dealt with by the judge himself putting the appropriate questions and setting the appropriate scene to the claimants themselves. Quite apart from anything else, that would have been in open court where there would have been a transcript and there would be absolutely no dispute about what had been said.
15. For the reason I have given, I do not consider that the procedure adopted here was fair in the sense that we could conclude that the consent was a consent upon which the judge could properly act at that time. Quite apart from that, which of itself is sufficient for us to quash the decision, the judge, even if he had material upon which to come to a conclusion about the means of the claimants, should, in my judgment, have at least made some enquiry as to their means in order to ascertain whether any assumptions that he was making were in fact correct and give an opportunity, accordingly, for the claimants to make submissions in that respect as well.
16. It follows that in both respects the complaints made by the claimants are made out and the decision must be quashed. The appropriate order, in my judgment, is for the matter, therefore, to be remitted the Crown Court for the judge to consider in the light of any representations that are made on behalf of the claimants: firstly, whether or not there is any need for any further evidence, other than the evidence already heard; secondly, on whatever basis he finds the relevant facts, whether on those facts a bind over order remains the appropriate disposal in this case; and then, finally, whether, in the light of any representations made as to means, the figure of £5,000 remains the appropriate figure for the recognisance. I would accordingly quash the Crown Court decisions and remit it in those terms.
17. MR JUSTICE UNDERHILL: I agree.
18. MR HARRISON: My Lord, may I raise one matter and that is this. Obviously Mr Norman, on the basis of your Lordship's judgment, Mr Norman obviously remains bound over. My Lord, in my submission your Lordship, having found that there were procedural irregularities, are entitled also to quash the bind over of Mr Norman and send that back before the Crown Court. My Lord, I say that because in my submission it is clear from all the evidence before the court that the order was effectively made by the judge in a spirit of mutality because he considered it was right.
19. LORD JUSTICE LATHAM: Mr Harrison, I am extremely sympathetic to that argument. My concern is whether I can do it. There is no application before us to quash that bind over order. The bind over order is not a conjoined order. If you see what I mean.
20. MR HARRISON: Well, my Lord --
21. LORD JUSTICE LATHAM: I am willing to hear submissions because I am sympathetic to the position.
22. MR HARRISON: Certainly I can point your Lordships to parts of the evidence. It is clear that the order --
23. LORD JUSTICE LATHAM: I fully understand that.
24. MR HARRISON: -- although I have not made application, because the second interested party wished the applicants to remain bound over, that was the principal thrust of my submissions. But in my submission it is unjust that Mr Norman should remain bound over at this stage and in my submission your Lordships can hear my application, although it is late, to quash Mr Norman's bind over.
25. LORD JUSTICE LATHAM: That is a different order. If what you are asking us to do, not on the basis of the claim as presented, to accept out of time an application for leave to apply for judicial review, to give you permission and then to quash, then that is procedurally probably the thing you ought to be asking us to do.
26. MR HARRISON: That is what I do apply to do, to make application to this court late to apply to quash --
27. LORD JUSTICE LATHAM: There is no way you can do that without undertaking to put before the court appropriate documentation.
28. MR HARRISON: I will certainly do that.
29. LORD JUSTICE LATHAM: Well, before we go any further, I will ask Mr Farmer and Mr Southey what they have to say about it.
30. MR FARMER: I am bound to say, my Lords, sympathetic or not it does not sound very satisfactory. Your Lordships have given a judgment and analysed particular things so far as these claimants are concerned. In this particular case, although Mr Norman was absent, Mr Harrison was addressed directly by the judge and my learned friend Mr Harrison is very familiar with the law, as he has demonstrated, and it is a proper inference that Mr Harrison fully and properly advised his client on the various aspects of the law.
31. LORD JUSTICE LATHAM: Yes, I am not for the moment suggesting -- but I do think we can help Mr Harrison in the way he wants. I have suggested a way but have not said that is what we will do. There is pretty clear evidence -- material that the consent that was given by Mr Norman was on the basis of the consents given by the claimants.
32. MR FARMER: But, my Lord, the sequence, if we look at the sequence as to who consented first --
33. MR UNDERHILL: Not only was that the sequence, Mr Farmer, but counsel had asked the judge in terms beforehand could it be in that sequence so that his client would know before he made up his mind that the others were going to be bound and the judge said "I quite see why you want that", or words to that effect.
34. MR FARMER: It was like a conditional consent. I will consent if do you that, otherwise you are stuck with a full hearing. It is an in terrorem. It does not sound a happy way forward, because as a completely stand alone point, there is little doubt, if you read the transcripts, that not only was it appropriate in the case of Mr Norman, but there was no serious dispute that it was appropriate in the case of Mr Norman. And such proceedings -- these proceedings have been running for a very long time. If that be my learned friend's, Mr Harrison's, advice, it would be perfectly proper for Mr Harrison to launch his own application, saying, if you grant them, grant me. To throw it in at a minute after midnight is not very happy, particularly as we know that the grounds on which the claimants have got a rehearing do not apply to him. His one point of the argument would be, if you do not bind over the other two, then it would be wrong to bind me over. That would be his one point of argument in front of the Crown Court if this were allowed.
35. MR SOUTHEY: I am not sure it would be appropriate for me to say very much.
36. LORD JUSTICE LATHAM: We are asking for help.
37. MR SOUTHEY: I was going so say that in that spirit, perhaps of -- there are two things that, perhaps, suggest that the course suggested on behalf of Mr Norman is a proper course. One is that, of course, if it is quashed as it refers to Mr Norman it perhaps gives the crown court judge the greatest discretion. It means he can perhaps do justice, if he feels it appropriate, by saying the passage of time means I would find it difficult to try this matter and the reality is that perhaps I should let everyone potentially start again.
38. LORD JUSTICE LATHAM: Start again. That had crossed my mind.
39. MR SOUTHEY: And the second point --
40. LORD JUSTICE LATHAM: Particularly in the light of the fact that he may, I don't know, like to know a little bit about what has been going on since November 2006.
41. MR SOUTHEY: Absolutely. He may decide given what -- essentially the passage of time, that it actually isn't appropriate to bind anyone over and it gives him discretion to do that if that were appropriate.

(Pause)

42. LORD JUSTICE LATHAM: What we propose to do, Mr Harrison, is on your undertaking to put before the court an appropriate application for permission to apply for judicial review and an extension of time, which will be premised simply and solely on the basis that your client's consent was given on the basis of there being consent on the part of the claimants.
43. MR HARRISON: My Lord, yes.
44. LORD JUSTICE LATHAM: And with such an application being supported by an appropriate witness statement to that effect from your client, then I propose to say very shortly, on receipt of such an undertaking, I propose that we extend time, we grant permission to apply for judicial review and we make an order quashing the bind over order in your client's case and remit it to the Crown Court to be dealt with at the same time as and on the same basis as the orders which were quashed in relation to the claimants.
45. MR HARRISON: Much obliged, my Lord.
46. MR FARMER: Would your Lordships hear from me a moment? Would your Lordships lay down a strict timetable because the Crown think it appropriate to get back absolutely as soon as possible. I certainly had in mind next week. But there should be a strict timetable otherwise it can't be in front of the crown court until the condition precedent order has been satisfied. So could we say, perhaps, five days to do it?
47. LORD JUSTICE LATHAM: To do what?
48. MR FARMER: For my learned friend to file his papers.
49. LORD JUSTICE LATHAM: Absolutely. Mr Harrison, how long will it take you?
50. MR HARRISON: I will draft it today.
51. LORD JUSTICE LATHAM: Seven days?
52. MR HARRISON: If your Lordship would give me seven days I will be satisfied.
53. LORD JUSTICE LATHAM: Then you can have seven days.
54. MR JUSTICE UNDERHILL: I agree.
55. LORD JUSTICE LATHAM: If those documents are not before the court in seven days, or don't comply with the undertaking, then the order falls by the way side.
56. MR HARRISON: My Lord, yes, I do follow that. The one thing I was thinking when you gave those directions, is that the present statement of Mr Norman was before the court and effectively does deal with the matter in relation to, as he saw it, the question of mutality, and I ask the question whether it is necessary --
57. LORD JUSTICE LATHAM: You look at it and see if you want to do anything else, Mr Harrison. You look at it and see if it covers the point.
58. MR SOUTHEY: Just one final point, which is the question of costs. Obviously the claimants have limited means. They were required by procedural fault to go to expensive proceedings. Our primary position would be that costs -- the majority of the costs should come from central funds under section 16 of the Prosecution of Offences Act. The only matter the court may wish to consider is that some of the costs have increased by addressing, effectively, representations made on behalf of the interested parties. Although we have never sought to argue that the interested parties did not have a role to play, at the time the interested parties effectively sought to argue that it should have been rejected and have gone beyond, in our submission, observation of the proceedings and have actually taken a particular position. We don't say that all the costs should be borne by the other parties, but simply that our primary position is the costs should come from central funds.
59. LORD JUSTICE LATHAM: I think that is the right order.
60. MR HARRISON: Would your Lordship consider a similar application in relation to the second interested party?
61. LORD JUSTICE LATHAM: Yes, not in relation to today. You can have costs from central funds in relation to your own application. But you came here to oppose an application which has succeeded.
62. MR HARRISON: My Lord, we came here -- on the other hand, in my submission, it was wholly right that the second interested party should come here to assist your Lordships in relation to what happened and particularly to assist your Lordships in relation to the question as to whether, effectively, these orders were made on the basis of, if you like, mutality, which, in my submission, is the basis on which your Lordships have now said that the binding over order in relation to Mr Norman should be quashed.
63. LORD JUSTICE LATHAM: Mr Harrison, I understand the attractiveness, in one sense, of your putting it that way. I would have been more sympathetic if we had had a timeous application from you, which was pressaged on the basis that, if Mr Southey's application succeeded, then you would wish to have your claim dealt with. There was no such application and I think you must take it that your presence here today was to oppose Mr Southey.
64. MR HARRISON: My presence here today, overwhelmingly, was to try to assist your Lordship to say that the Crown Court, in any event, has power to make the binding over order without consent, which is the ex parte Jude point, on which your Lordships have not made any judgment.
65. LORD JUSTICE LATHAM: We have not. There was no reason for doing that because the --
66. MR HARRISON: I follow that.
67. LORD JUSTICE LATHAM: -- because of the procedural point. But that means that there is no justification for you getting costs is all I am saying, Mr Harrison.
68. MR HARRISON: Your Lordships have not ruled on the ex parte Jude point in all the circumstances. If I was right about that, if you had looked at all the merits, and had then found that, in any event, overwhelmingly --
69. LORD JUSTICE LATHAM: What we said is, we do not think that that was a point which assisted in disposing of this application.
70. MR HARRISON: I follow that. I make the point on the basis of the merits generally rather than the matters which actually decided the application at the end of the day. On the merits.

(Pause)

71. LORD JUSTICE LATHAM: No, Mr Harrison. Thank you all very much indeed.