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
		7 October 2008

1. LORD JUSTICE SCOTT BAKER: I ask Aikens J to give the first judgment.
2. MR JUSTICE AIKENS: In this case the claimant seeks an order quashing the refusal of District Judge Harrison, sitting at the Doncaster Magistrates' Court, to grant an order to reopen the case of Miss Dagmar Blick, pursuant to section 142 of the Magistrates' Court Act 1980. The order of the District Judge refusing the application was made on 9 November 2006. The application for judicial review was made on 21 February 2007. Permission to seek judicial review was granted by Sullivan J on 13 April 2007. It is a matter of great regret that there should have been a lapse of 18 months from the date of permission being granted until the full hearing before this court today.
3. The case arises out of a summons that was issued by the Doncaster Metropolitan Borough Council against Miss Blick and her co-defendant, Mr David Thomas. The summons was issued on 11 January 2006. The summons alleged, as against Miss Blick, that she had committed nine offences concerning the Horse Passport Regulationss 2004. The allegations were that Miss Blick had failed to apply for passports for horses; had failed to apply for particular pages of passports upon bringing horses into England; and had sold horses without a passport.
4. The return date of the summons was 21 March 2006 However, neither Miss Blick nor her co-defendant appeared on that date. The case was adjourned for the summons to be re-served. On 27 April 2006, Miss Blick and her co-defendant appeared in court and both were represented by Mr McLaren of Rix McLaren Solicitors. The matter was adjourned until 25 May 2006 so that instructions could be taken from the defendants by their solicitor. On 25 May 2006, Miss Blick and her co-defendant entered "not guilty" pleas to all charges. The matter was then adjourned until 29 June 2006 when there was to be a pre-trial review. Miss Blick was directed to attend court for that pre-trial review.
5. A pre-trial review did take place on 29 June, but Miss Blick did not attend. However, her solicitor did so and he asked the court to give directions in Miss Blick's absence. The case was refixed for a further hearing, not a trial, on 10 August 2006. Miss Blick was directed to attend court on that date. A further hearing did take place on that date, but in fact she did not attend court. Her solicitor was present and at that hearing a trial date of 11 and 12 September 2006 was fixed. A letter advising Miss Blick of these dates was sent to her at the address held on the court file. This address, I understand, was in fact that of Mr Thomas.
6. At the time Miss Blick had had a relationship with Mr Thomas. This lasted until about July 2006. The relationship was turbulent and it appears it ended in July 2006 with Miss Blick moving from Mr Thomas's address. I am prepared to accept that correspondence addressed to her was not passed on to her after that relationship ended. Miss Blick unfortunately did not, apparently, inform the Magistrates' Court that she had moved from her previous address.
7. The evidence of Miss Blick's current solicitor, Mr Charles Donald Rode, is that Miss Blick was not aware of the trial date of 11 September. There is no contrary evidence and I am prepared to accept that that was, indeed, her state of mind, although the solicitors acting for her must have appreciated the trial dates. Rix McLaren in fact came off the record as Miss Blick's solicitors on 6 September 2006. That was because they had not been put in funds for the forthcoming trial.
8. On 8 September 2006, at about 4.40pm, Miss Blick's co-defendant, Mr Thomas, contacted her and told her that he could not afford the solicitor's legal fees and so she would have to represent herself at the forthcoming trial. Mr Rode's evidence is that Miss Blick was told by Mr Thomas, erroneously, that the trial was due to take place on 12 and 13 September 2006. Miss Blick contacted a solicitor on 11 September, which was, she thought, the day before the trial was due to start. That solicitor told her that he did not deal with this type of case. She then consulted Mr Rode.
9. She attended Mr Rode's office in the afternoon of 11 September 2006 and he contacted the Magistrates' Court to notify it that his firm was instructed on her behalf. The court informed him that, in her absence, Miss Blick had been convicted that day of a number of charges in the summons, although some had been dismissed.
10. A Magistrate's Court has power to proceed to trial in the absence of the defendant, pursuant to section 11(1) of the Magistrates' Courts Act 1980. An application to reopen the case, pursuant to section 142 of the Magistrates' Courts Act 1980, was lodged with the Magistrates' Court. On 9 November 2006, the matter was heard by District Judge Harrison, who had heard the case on 11 September 2006. District Judge Harrison refused the application.
11. Section 142 of the Magistrates' Courts Act 1980 provides as follows in subsection (2):

"Where a person is [convicted by a magistrates' court] and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may ... so direct".

12. The judge was asked to give written reasons for her refusal and she did so on 24 November 2006. In those the judge sets out the fact and then makes three principal points, which are the reasons for her decision. First, the judge concludes, on the evidence before her, that Miss Blick had not acted "with all due diligence in the circumstances presented to her", because she had failed to attend court and had failed to notify the court of her change of address. Secondly, in considering the question of "the interests of justice" the judge pointed out that this involved not only the defendant, but also other parties. The judge said that the matter had "now been adjourned several times with the attendant cost to the public purse". The judge also states that on 11 September the prosecution did not have the relevant witness in court and so several of the matters and the summons had to be dismissed. Thirdly, the judge deals with the point made on behalf of Miss Blick, that if there had been an application to adjourn the case on 11 September it is likely that it would have succeeded.
13. The written reasons of the District Judge continued:

"If that had been the case then the prosecution would also have been given the opportunity to call the missing witness in respect of this matter. The fact that they were placed in a position where they were unable to do so has caused prejudice to them."

14. The judge therefore concluded that it was not in the interests of justice to grant the order to reopen the case. The District Judge has made a subsequent statement in which she has elaborated on her reasons for not granting the order sought. In my view those are not relevant to our consideration of whether the present application should be allowed or not. This court has to go on the reasons given at the time of the decision, not on any further or more elaborate thoughts expressed some six months later in the light of an application for judicial review of the decision, and the reasons given in November 2006.
15. Before us Mr de la Poer has made a number of submissions. First, he submits that the primary test is not as the judge appeared to think: whether or not the defendant, now the claimant, had "acted with all due diligence, as the circumstances appeared to her." Mr de la Poer made some submissions on the facts. He also drew our attention to a number of authorities, in particular, R v Gwent Magistrates' Court, ex-parte Carey [1996] JP 160, page 613, which he distinguished on the facts, and the case of R v Dewsbury Magistrates Court, ex-parte K [1994] The Times, 16 March 1996. He submitted that in the present case it was clear that there was no intention, on the part of the claimant, not to appear at the trial, and that was evidenced by the fact that she went to solicitors. He points out that this was the first listing of the trial, and that any problems that there were on the part of prosecution witnesses is not something that was the fault of Miss Blick.
16. Section 142 of the Magistrates' Court Act, by its terms, stipulates that the court has to consider "the interests of justice" when deciding whether or not to grant an application, after a conviction, that the case should be reheard again before a different court of magistrates. It is clear from the decision of this court in R v Ealing Magistrates' Court ex-parte Sahota JP 162, page 73, that if a Magistrates' Court hears an application under section 142 it must take into account all relevant considerations, and must not take into account irrelevant ones. Although the Magistrate's Court has a broad discretion under section 142 with which this court will not lightly interfere, this court will do so if the decision of the Magistrates' Court is based on irrelevant considerations, or is unreasonable in the sense established by the Wednesbury Corporation case and subsequent authorities.
17. In my view, Mr de la Poer is correct in submitting that the judge was wrong to take the question of whether the claimant had acted with "all due diligence" as the primary test of whether or not to make the order under section 142. The judge also made two bad points as to the course of the proceedings. It was incorrect to say that the trial had been adjourned "with consequent expenses on the public purse". The only trial date fixed was that of 11 September. Furthermore, the problems of the prosecution on that day, caused by the non-appearance of witnesses, had nothing to do with the fact that Miss Blick was not present. The decision of the prosecution to continue, despite the lack of witnesses, was, I presume, entirely its choice.
18. It was therefore wrong of the judge to suggest that the absence of Miss Blick on 11 September had caused the prosecution to be put in a position where it was unable to call a missing witness, so that Miss Blick's absence had caused prejudice to the prosecution.
19. Lastly, I accept the submission of Mr de la Poer that the District Judge apparently failed to take account of the interests of the claimant. These interests do not figure in the reasons of the District Judge at all. As Mr de la Poer pointed out, it is clear from the decision of this court in ex parte K that the inconvenience of the court can never outweigh the interests of justice. A defendant should have the opportunity of defending a serious charge of the sort in the present case. Ex parte K was serious in the sense that it was an allegation of burglary of a dwelling-house. Nevertheless, the allegations in the present case are serious, as far as Miss Blick is concerned, and, as I say, her interests do not appear, on the face of it, in the written reasons of the District Judge.
20. I conclude, therefore, that the District Judge's decisions were based primarily on a false test; took into account two irrelevant considerations, and failed to take into account a relevant consideration. The decision was, therefore, fatally flawed and cannot be upheld. I would therefore grant the order sought.
21. LORD JUSTICE SCOTT BAKER: I agree. We therefore quash the order of District Judge Harrison, set aside the appellant's conviction and direct that the case be heard by a different judge.
22. MR DE LA POER: I wonder if I can briefly trouble you with the issue of costs. I appear today under a public funding certificate: civil legal aid in short. Those who instruct me were covered under that order from 9 June 2007 when it was granted. After there was some confusion as to whether Clarion Solicitors were able to do civil legal aid work, this being ancillary to a criminal matter. They are entitled to receive public funding. They were covered under the Legal Aid Certificate up until the reasons were given on 24 November 2006. What is not at all clear is whether for the period between 24 November 2006 and 9 June 2007, there was any public funding in place. That is a crucial period because it was during that period that the claim for judicial review was settled by them and put before the court. I wonder whether your Lordship will be good enough to indicate, for the avoidance of doubt, that those instructing me were covered under a public funding certificate for that period?
23. LORD JUSTICE SCOTT BAKER: It is obviously desirable they should have been covered. Have we power to do that? Can it be backdated, or what is the position?
24. MR DE LA POER: I am instructed that the original application was submitted in December 2006. Those who instruct me inform me it is their understanding that it can be backdated to the date of submission. Therefore, perhaps my application, more narrowly put, is that your Lordship direct that it is backdated to the date of submission of the application.
25. LORD JUSTICE SCOTT BAKER: Do we have power to do that?
26. MR DE LA POER: I fear your Lordship has asked me a question that I ought to know the answer to, but I cannot give a definitive reply to.
27. MR JUSTICE AIKENS: Mr de la Poer, could you do the necessary research and then let us have the submission on paper?
28. MR DE LA POER: I would be delighted to do that.
29. LORD JUSTICE SCOTT BAKER: If you can persuade us we have the power, we will do it.
30. MR DE LA POER: I am very grateful. It may be that that indication will be sufficient for the legal services to review their position. It may be that they think an application is necessary. In the event, they do not think they can do that, would your Lordship give us 14 days to do that?
31. LORD JUSTICE SCOTT BAKER: I think by Friday week, which is the last day we are sitting together.
32. MR JUSTICE AIKENS: So we can consider it, please make sure it reaches us well before the Friday, otherwise it will become lost in the system and we will not be able to consider it before this constitution disappears.
33. MR DE LA POER: I will let you have it by the end of the week.
34. MR JUSTICE AIKENS: Thank you very much.