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
		21 January 2008

1. MR JUSTICE OWEN: On 7 April 2006 the claimant, Michael Stephen Nicola, a young man now 20 years of age, appeared before the Enfield Youth Court for the trial of four charges: unauthorised taking of a conveyance; driving whilst disqualified; driving without insurance; and driving without reasonable consideration. The trial was adjourned on the application of the prosecution, and the claimant applies for judicial review of the decision to adjourn, seeking an order that the decision be quashed and that verdicts of not guilty be entered.

The factual background to the application

2. The offences the subject of the charges on which the claimant was to stand trial were alleged to have been committed on 6 February 2006. On the following day (7 February) the claimant and his co-accused, Sean Clayton, who was charged with allowing himself to be carried in a vehicle taken without consent, appeared at the Enfield Youth Court where they both pleaded not guilty. The trial was fixed for the afternoon of 7 April 2006.
3. The claimant was granted bail on stringent terms, namely a condition of residence, a curfew from 8pm to 7am and a requirement that he report daily to a police station. There was an uneventful pre-trial review on 16 March.
4. When the case was called on at 2pm on 7 April, neither the claimant and his co-defendant, nor the prosecution witnesses were present. The court adjourned for 15 minutes for enquiries to be made. Shortly after that adjournment, the claimant arrived at court; and when the court reassembled, his explanation for his late arrival, namely that he had been looking after his younger siblings, was given and apparently accepted by the court. The co-defendant did not appear and a warrant was subsequently issued for his arrest. But the Crown prosecutor then informed the court that he was unable to proceed because his two witnesses, both police officers, had failed to attend.
5. According to the affidavit sworn by the Chairwoman of the Bench, Ms Hazel Miall, the prosecutor informed the court that both officers had been correctly warned, and he was at a loss to understand why they had failed to attend. He then asked for time in which to make enquiries as to whether or not they were on their way to court. His application was granted. When the court reassembled, the prosecutor informed the court per Ms Miall's affidavit:

"... that he had made some enquiries, and confirmed that the two witnesses had been warned to attend court. He could not say why they had not done so, nor whether they were on their way."

6. Mr Hook, who represented the claimant both before this court and before the Enfield Youth Court, has a somewhat different recollection of what was said by the Crown prosecutor. He recalls that he was unable to give a full explanation for the non-appearance of the witnesses, suggested that there had been an administrative error behind the failure to warn them, and that one of the witnesses had left the Police Service. But Mr Hook frankly concedes that his recollection may not be reliable against the affidavit evidence of the Chairwoman of the Bench.
7. Mr Hook has also helpfully produced today the attendance note made by counsel who appeared for the co-defendant, Mr Clayton. It is a commendable record of what happened at court; but does not take matters any further so far as the issues with which I am concerned. In any event, the Crown Prosecutor then applied for an adjournment, conceding that if it were not granted, he would be compelled to offer no evidence.
8. The Chairwoman's evidence as to the application is in the following terms:

"The Crown Prosecutor made an application to adjourn the trial to another day. He said that it was in the interests of justice to adjourn the case. The offences with which the defendant, Mr Nicola, had been charged were serious. They involved taking a high value motor vehicle without the owner's consent, driving it whilst disqualified, driving it without due care and attention, and driving it with no insurance. The Prosecutor's case was that Mr Nicola had driven the car whilst disqualified, flagrantly disregarding the order of the court. The trial had only been listed once (today's date), and had not been ineffective before. He went on to say that there was no explanation for the failure of the Prosecution's witnesses to attend, which was unusual, given that they were police officers who had been warned to attend. It was in the interests of justice that the court heard the evidence and determined whether the defendants were guilty or not. If the court refused to grant the Prosecution's application, the Prosecution case in relation to Nicola would collapse, because the Prosecution would be compelled to offer no evidence."

9. Mr Hook objected to an adjournment, arguing, according to the Chairwoman's affidavit, that:

"... it was for the Crown to ensure the attendance of their witnesses. His client, Mr Nicola, was ready to proceed and he should not have the case hanging over him for longer than was necessary."

10. Her evidence continues:

"10. I deliberated with my two colleagues on the Bench and we all unanimously decided to grant the Prosecution's request for an adjournment for the reasons given.

11. I announced that the case would be adjourned because it was in the interests of justice that it should be adjourned.

12. The Bench was not asked to explain or amplify our decision to adjourn. We were not referred to any case law, to assist us in coming to our decision, by either the Prosecution or the Defence."

11. Some time later, Mr Hook says towards the end of the afternoon, one of the two missing police officers arrived at court. According to the Chairwoman's evidence:

"He said that he had not been aware until that day that he was required to attend court, and had come to court as soon as he realised his attendance was required. He informed the court that the second police officer, who had been expected to attend, had been transferred to the Manchester Police Force from the Metropolitan Police Force, and that that may have accounted for his non-appearance."

12. The Bench nevertheless decided not to revisit its decision to adjourn the case. By that time it was too late in the day for the trial to begin.
13. Those are the facts that give rise to this application. Permission to apply for judicial review was granted by the single judge, and the application came before this court on 18 July 2007. Neither the first interested party (the Director of Public Prosecutions) nor the co-defendant appeared or were represented. Mr Hook, at the invitation of the court, sought an adjournment so that further information could be elicited from the Crown Prosecution Service. The reason for extending that invitation to Mr Hook was explained by Nelson J in the following terms.

"It seems to us, as at present advised, that it is not fair for the claimant to be driven to base his application for judicial review on the facts which were told to the justices and formed the basis of their decision when subsequent events before the court rose that day made it at least possible that that information was incorrect. What the correct situation was ought, if possible, to be determined. The claimant ought to have the advantage, if advantage it turns out to be, of demonstrating to this court that the justices, through no fault of their own, took their decision on an incorrect basis of fact. How this court might then answer the question posed remains undecided, but it ought to depend, at least in part, upon the facts as they were, not necessarily as they were believed to be."

14. Nelson J also observed that the court could not compel the Crown Prosecution Service to give evidence to the court, but continued:

"... but we do invite the Director of Public Prosecutions to make available to the court - it need be in no more than a written statement - such information as is able to be assembled as to the steps taken, and the implementation of the steps taken, to warn the Crown's witnesses to be present at 2 pm on 7 April at Enfield Magistrates' Court."

15. Nothing has been forthcoming. The court is therefore faced with the unresolved conflict between the Chairwoman's evidence that the Bench was told by the Crown Prosecutor on two occasions that the witnesses had been warned, and her evidence as to what she was told by the police officer who attended at court, namely that he had not been warned of the hearing date. That is a highly unsatisfactory situation. It leaves the claimant in the difficult position, identified by Nelson J, of not knowing whether or not the Bench determined the application to adjourn on an erroneous basis. It is to be regretted that the first interested party has not taken up the opportunity to resolve that conflict.
16. How then is that issue to be resolved? In my judgment, it is clear that, at the very least, a doubt was raised by what the court was told by the police officer as to whether the witnesses had been warned or not. It follows that in deciding the application for the adjournment on the basis that it did, the magistrates may well have been acting on an erroneous basis.
17. In his comprehensive written grounds for judicial review, Mr Hook has helpfully drawn attention to a number of authorities on the question of whether an adjournment should or should not have been granted. In Crown Prosecution Service v Picton [2006] EWCA 1108 Admin, Jack J conveniently summarised the propositions to be drawn from the earlier authorities. It is not necessary for me to set them out. But one of the authorities from which Jack J drew those propositions was a decision of the Divisional Court in R v Hereford Justices [1998] QB 110 in which the court considered a number of applications for the review of procedural decisions by magistrates, two of which concerned adjournments. At page 127, Lord Bingham (then Chief Justice) said:

"It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances.

This court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties.

... applications for adjournments must be subjected to rigorous scrutiny."

18. The requirement of close scrutiny of an application for an adjournment was strongly endorsed by the Court of Appeal, Criminal Division in R v Khodr Chaaban [2003] EWCA Crim 1012 in which Judge LJ said at paragraph 36 of his judgment:

"Virtually any adjournment produces inconvenience for someone. What used to be described as an adjournment culture, if it ever existed, is a thing of the past. Adjournments have to be justified. If at all possible, they must be avoided. Proper case preparation is required from both sides. When asked to consider an adjournment, the judge must closely scrutinise the application, and, unless satisfied that it is indeed necessary and justified, should refuse it."

19. In this case, as I have already indicated, the appearance of the police officer late in the day, and his statement to the court that he had not been warned to attend, at the very least raised a significant doubt as to what had been said to the court in support of the application for an adjournment earlier that afternoon. In the light of what the police officer said, the court, applying the appropriate degree of scrutiny to the application, ought to have re-opened the question of the adjournment and to have sought a full explanation from the Crown Prosecutor as to what precisely had happened with regard to the warning of witnesses. The failure on the part of the Bench to re-open the question of the adjournment, and to make the appropriate enquiries of the Crown Prosecutor at that stage, had the consequence that the decision to adjourn was apparently made on an erroneous basis. That, in my judgment, is sufficient reason for it to be quashed.
20. Given the time that has elapsed since the hearing in April 2006, it is plainly not appropriate to remit the matter back to the Magistrates' Court for their reconsideration. It is therefore necessary to consider whether the application for an adjournment would have succeeded had the magistrates determined it upon the proper basis, namely, as it appears to me, that the witnesses had not been warned.
21. In those circumstances, the court would have had to take full account of a number of considerations: first the overriding requirement for expedition in the prosecution of criminal proceedings; secondly that it is in the public interest that criminal proceedings should be adjudicated upon, thirdly the degree of seriousness of the offences in issue; fourthly the prejudice to the appellant of an adjournment. It would defer resolution of the charges against him and prolong the period for which he was to be subject to stringent bail conditions; and fifthly the question of whether there was a valid basis for the application for an adjournment. Had it addressed that question, the court would inevitably have come to the conclusion that the only reason why the prosecution was not in a position to proceed was the failure to warn its witnesses. Thus, the purpose and effect of the application for an adjournment was simply to rescue the Crown Prosecution Service from the consequences of its own neglect.
22. As Mitchell J observed in Walden and Stern v Highbury Corner Magistrates' Court [2003] EWHC 708 Admin at para 17:

"The longer courts tolerate the sort of inefficiency which seems, in each of these cases, to be the explanation for the failure of the witnesses to attend court on the date fixed for the hearing, the longer it will continue."

23. Furthermore, the court would have had to consider whether in fact it had been misled as to the true position, and if so, why. Taking full account of those considerations, the court would, in my judgment, have concluded that the adjournment should not be granted, with the inevitable consequence that the charges would have been dismissed. I would therefore quash the decision to adjourn and enter verdicts of not guilty on each of the charges.
24. LORD JUSTICE LATHAM: I agree. It seems to me that the fact that the prosecution has not sought fit to put before this court any material to support the assertion apparently made by the advocate appearing for it at the beginning of the hearing can be treated by this court as eloquent testimony of the prosecution's inability to give a proper explanation for the failure of the witnesses to be present at the time.
25. In those circumstances, there is only one proper solution to this, which is the solution which is proposed by my Lord.
26. Mr Hook?
27. MR HOOK: My Lord, I am legally aided, but I am conscious of my duty that legal aid funds should be saved if they can be. For that reason I wonder whether it is appropriate for me to apply for costs out of central funds or costs against the Crown in the circumstances that have arisen in this case.
28. LORD JUSTICE LATHAM: As far as costs out of central funds are concerned, there is a circularity in that which I am not entirely comfortable with. There is a sort of circularity if it is against the prosecution as well, but in the light of the fact that they have failed to provide us with any explanation, what I suggest is that we make an order that the prosecution should pay the costs, to be taxed if not agreed, but that they have seven days within which to submit in writing any representations as to why they should not pay the costs. If they do, then you are to have seven days in which to respond.
29. MR HOOK: My Lord, yes, I am grateful.
30. LORD JUSTICE LATHAM: Thank you very much.