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
		18th November 2008

1. LORD JUSTICE TOULSON: I will ask Mr Justice Forbes to give the first judgment.
2. MR JUSTICE FORBES: In these proceedings the claimant, Mr John Taylor ("Mr Taylor"), seeks appropriate relief by way of judicial review of the decision of Deputy District Judge Nicholls ("the District Judge"), sitting at the Southampton Magistrates' Court, to adjourn the summary trial of Mr Taylor on 20th January 2008. Permission to apply for judicial review was granted by Lloyd Jones J on 6th June 2008.
3. Mr Taylor faces a single allegation of failing to provide information leading to the identification of a driver, contrary to section 172 of the Road Traffic Act 1988. On 17th July 2007 Mr Taylor pleaded not guilty to that charge by post. The matter was duly listed for summary trial on 27th September 2007 at the New Forest Magistrates' Court.
4. On 11th September 2007 Mr Taylor's solicitors wrote to the court and confirmed that the prosecution was being put to strict proof of its case and that it would be required to prove that Mr Taylor had relevant information that he had not supplied. The letter went on to state that the statement of the witness Sarah Nixon, who provided evidence that an offence of speeding had occurred, was accepted. However, the statement of Mr Martin Wells, which dealt with the procedures within the Safety Camera Unit, was expressly not accepted and the witness was fully bound for trial.
5. On 12th September 2007 there was a pre-trial review at which the prosecution made no mention of any hearsay application and indicated that it was ready for trial.
6. On 26th September 2007 the prosecution completed primary disclosure and served an application to adduce hearsay evidence. The hearsay evidence referred to in that application was: (i) the photographic image of a vehicle allegedly exceeding the speed limit and (ii) a copy notice of intended prosecution and requirement for information under section 172 of the 1988 Act ("the copy NIP").
7. At court the next day, shortly before the trial was due to begin, a copy of the application and the final part of primary disclosure was handed to the defence. The trial did not take place on that day, however, because it was double listed with another matter that was considered to be of higher priority and was expected to take the remainder of the day. However, the defence confirmed orally on that occasion that it took issue with the service of the notice of intended prosecution, the timing and substance of the hearsay application, and the nature of Mr Taylor's association with the car in question.
8. It is to be noted that the copy NIP was dated 4th December 2006. Attached to it was a copy certificate of posting dated 14th May 2007, confirming that Mr Taylor had been served with the notice of intended prosecution on 4th December 2006 by first class post. However, the copy NIP did not have attached to it a document, which is headed "notice of intended prosecution postage manifest" ("the postage manifest"), that recorded the postage of the notice of intended prosecution to Mr Taylor on 4th December 2006 and which emerged later (see below).
9. On 27th November 2007 at the Southampton Magistrates' Court, the prosecution's contested hearsay application was heard and leave was given to adduce both items in its application. Accordingly, so far as is material to this judgment, leave was given for the copy NIP to be adduced in evidence.
10. On 30th January 2008 the trial began. The prosecution opened its case, read the statement of Sarah Nixon, as agreed, and then called Mr Wells to give evidence. During the course of his evidence in chief he sought to exhibit the postage manifest, also dated 4th December 2006, to which I have just referred. It appears that this document had neither formed part of the prosecution's case as disclosed to the defence, nor was it to be found in the prosecution's schedule of unused material, nor, as I have indicated earlier, had it been attached to the copy NIP.
11. At the end of Mr Wells' evidence in chief, the defence informed the District Judge that the postage manifest had come before the court without any prior notice or disclosure having been given to the defence. The District Judge therefore allowed the defence a few minutes to look at it. However, it is said, and I accept, that no application to adduce hearsay evidence was made by the prosecution in respect of the postage manifest, although the defence objected to its admission into evidence as hearsay evidence.
12. In the course of his cross-examination, Mr Wells confirmed that he had not supervised nor had he taken part in the posting or despatch of any notice of intended prosecution or section 172 requirement relating to Mr Taylor. Mr Wells also accepted that it was not his signature on the postage manifest. He gave evidence that according to the records it had been a Mr Mills, the office manager at the Camera Safety Unit, who had signed the postal manifest on 4th December 2006. He confirmed that Mr Mills had made no statement and was not a witness in the trial. Thereafter, following re-examination and without making any application to adjourn, the prosecution closed its case.
13. I observe in passing that, as it seems to me, the postage manifest was plainly hearsay evidence that was admissible under the provisions of the 2003 Criminal Justice Act and, indeed, under the earlier legislation relating to the admissibility of certain types of hearsay evidence.
14. No evidence was called by the defence. In the course of the defence closing submissions three main points were made. The first of these was that the prosecution had not been able to prove service of the notice of intended prosecution. The second was that the prosecution had failed to exhibit any evidence that Mr Taylor had been in a position to comply with the section 172 requirement. The third was there was no evidence that Mr Taylor had any relevant information to divulge in any event.
15. From his various questions and remarks, it became clear that the District Judge did not accept either the second or the third point. However, it is said that it appeared that he saw some force in the submissions relating to service. As a result, the District Judge sought further submissions from the prosecution with regard to that aspect of the case. In response, the prosecution submitted that the postage manifest proved service of the notice of intended prosecution. However, the prosecution did not seek an adjournment of the case.
16. Despite the prosecution stance, the District Judge remained concerned about the question of service and the adequacy of the evidence relating to that aspect of the matter. So it was that he suggested to the prosecution the possibility of an adjournment to enable the prosecution to take a statement from Mr Mills in order to be able to prove the postage manifest, the information contained therein and, thus, the service of the notice of intended prosecution. The defence objected to such a course of action and submitted that an adjournment at such a stage in the proceedings and for such a purpose was wholly inappropriate and wrong in principle. After rising briefly, the District Judge then invited the prosecution to apply for an adjournment. The prosecution duly did so and the District Judge adjourned the trial to 20th March 2008. It is that decision that is the subject of challenge in these proceedings.
17. On behalf of the claimant, Mr Elton put forward three grounds of challenge to the District Judge's decision to adjourn: first, that the proceedings gave the appearance of bias on the part of the District Judge; second, that the decision itself was wrong in principle; and third, that the decision to adjourn was not in the interests of justice.
18. Turning to the first ground, Mr Elton submitted that the District Judge had fettered his discretion by showing bias in favour of the prosecution or, on an objective appraisal, had acted so as to give rise to that possibility in the mind of a fair-minded and informed observer. Mr Elton relied on three main matters: (i) the admission of the postage manifest into evidence, despite the failure of the prosecution to attach it to Mr Wells' section 9 statement or to give notice of intention to adduce it as hearsay evidence at any stage; (ii) the District Judge's interruption of the defence's closing submissions to suggest an adjournment, despite the fact that the prosecution itself did not make any application to adjourn; and (iii) the grant of the adjournment itself for the purposes of addressing the problem of service in such circumstances and at such a stage in the proceedings.
19. It was Mr Elton's submission that for these three reasons a reasonable bystander would conclude that the District Judge was prepared to go to almost any length to convict Mr Taylor by entering the arena in the way that he had.
20. I cannot accept that submission. Given the technical nature of the position adopted by the defence with regard to service and the absence of any positive case that service had not been effected, it seems to me that the District Judge was doing no more than identifying the nature of the problem and exploring the way in which it could be properly addressed in the interests of justice. In my view, there is absolutely no substance in the suggestion that anything done or said by the District Judge gave the appearance of bias on his part.
21. Next, Mr Elton submitted that the decision to adjourn was unlawful and wrong in principle. He submitted that the issues in the claimant's case had been communicated to the court and the prosecution in good time, and that the claimant's case had included the point with regard to service. Mr Elton contended that absent ambush, deliberate obfuscation or opportunist point-taking by the defence and absent the prerequisite for granting an adjournment, as summarised in the case of Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin), the decision was wrong in principle. Indeed, he submitted that the effect of granting the adjournment was to reward the party at fault, namely the prosecution, and was therefore perverse.
22. Again, I cannot agree with that submission. It is worth repeating the observations of Jack J in his judgment in Picton at paragraph 9:

"In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 (then as Lord Bingham CJ). 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 acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.

(d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.

(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.

(f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment.

(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.

(h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen."

23. I would adopt those observations with gratitude and apply them to the circumstances of this case as appropriate.
24. I reject Mr Elton's submission that in granting the adjournment in this particular case the prerequisites for doing so, as set out in that passage to which I have just referred, were not met. In my view, as Keene LJ observed in Picton:

"A decision to adjourn or not is par excellence a matter of discretion for the court in question, and is not likely to be interfered with by this court."

25. In my judgment, nothing put forward by Mr Elton persuades me that the District Judge exercised his discretion wrongly in this case, given the highly technical nature of the defence point, as already indicated.
26. Finally, Mr Elton submitted that it was not in the interests of justice to grant the adjournment in question. He stressed that the burden of proof is upon the prosecution to prove its case, not upon the defence to prove the contrary. He argued that the prosecution had failed to prove an essential element of its case against the claimant, an element that must be proved in every prosecution under this section unless the point is conceded, namely service of a notice of intended prosecution within the prescribed time limit. Mr Elton contended that, by suggesting the adjournment, it was clear that the District Judge was not sure that the prosecution had proved such service. Otherwise, the proposed additional evidence would be otiose. It was therefore Mr Elton's submission that the prosecution had failed to prove an essential element of its case and the District Judge had rewarded this failure, in effect, with a second chance to enable the prosecution to do so.
27. Mr Elton argued that to act as the District Judge did in this case was therefore wholly incompatible with the requirement to deal with defence fairly, to recognise the rights of the defendant and to deal with the case expeditiously. In those respects, he suggested the prerequisites of Picton had not been met.
28. Again, I do not agree. At the risk of appearing to repeat myself, I am satisfied that the course taken by the District Judge in this case was comfortably within the scope of his discretion to grant an adjournment in order to ensure that a highly technical point as to service was fully and properly dealt with on the evidence.
29. For all those reasons, therefore, I would dismiss this application.
30. LORD JUSTICE TOULSON: I agree.
31. MR FORSTER: My Lord, there is the question of costs. I know I was not called upon, but if I could hand up a statement of costs for summary assessment. I have provided one to my learned friend. (Handed)
32. LORD JUSTICE TOULSON: Has this been served?
33. MR FORSTER: Yes, my learned friend has it.
34. LORD JUSTICE TOULSON: Yes.
35. MR FORSTER: My Lord, I apply for the sum set out there. Obviously I was not called upon, but the matter was of some complexity and I prepared a large bundle of authorities and two skeleton arguments.
36. LORD JUSTICE TOULSON: Yes.
37. Mr Elton.
38. MR ELTON: My Lord, this was served this morning. I have no one here from those instructing me. I cannot object in principle. I would greatly object to the quantum from my own experience. I would not address you about my learned friend's....
39. MR JUSTICE FORBES: Are you telling us that you have not had an opportunity to consider the schedule of costs?
40. MR ELTON: It was handed to me just before the court sat this morning and no one is with me at court this morning, not knowing whether I was going to be called upon to deal with this matter. My Lord, I do not object in principle. I would have asked that the court put it off for taxation on another occasion. (The Bench conferred)
41. LORD JUSTICE TOULSON: Yes. Do you want to say any more?
42. MR ELTON: No, my Lord.
43. LORD JUSTICE TOULSON: What we will do is order that the application be dismissed with costs. The total figure seems to us on its face probably reasonable, but we are conscious that Mr Elton has been confronted with this at the last minute and has not had an opportunity to take instructions. What we will therefore do is to order that the claimant pay the defendant's costs in the sum claimed, that is £3,929.65, but also direct that this order not be perfected for 14 days. If within that 14 days the claimant wishes to make representations on the point, he is at liberty to do so in writing and we will consider the matter on paper, together with any response.
44. MR ELTON: I am grateful, my Lord. There is just one thing. Of course it is not the defendant, it is the interested party.
45. LORD JUSTICE TOULSON: Interested party, you are quite right.
46. MR ELTON: It may make little difference to the outcome.
47. LORD JUSTICE TOULSON: It makes no difference to the outcome, but exactly so.
48. Thank you very much for your argument.