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
		11th June 2009

1. MR JUSTICE WILKIE: This is a claim for judicial review brought by Janice Melanie Nadour to review a decision of the Chester Justices taken on 24th June 2008 refusing to grant her an adjournment at the commencement of a trial in which she was charged with theft and going equipped. Following the adjournment refusal, the trial proceeded. She was convicted but as yet sentence has not been passed.
2. The circumstances giving rise to the application were that on 28th March the police were called to the Cheshire Oakes retail park in Ellesmere Port and there the claimant and another woman, Katrina Vyse, were arrested on suspicion of theft and going equipped to steal. That followed, on the next day, with the claimant being charged with the offences to which we have referred.
3. Just before that, on 29th March, Katrina Vyse had similarly been charged with an offence of theft and going equipped. On that day, 29th March, Katrina Vyse pleaded guilty to each charge. The claimant pleaded not guilty and a trial was eventually fixed following a further appearance on 15th April, the trial to take place on 24th June at 10 am.
4. Katrina Vyse had not only in her interview agreed that she was guilty of the offences charged, but had exculpated, on her account, the claimant from being involved in the commission of these offences. Effectively they had been charged on the basis of joint enterprise. Miss Vyse had provided on the same day a handwritten document "to whom it may concern" confirming that she acted alone in the matter. Armed with that, at the case progression hearing on 15th April, the court legal advisor noted that it was anticipated by the defence that they would call as witnesses not only the claimant but also Katrina Vyse. She had consented to be referred to as a defence witness and had orally confirmed to the claimant's legal representative that she would be willing to attend the trial and to give evidence on the claimant's behalf.
5. Unhappily, on 24th June, the witness, Katrina Vyse, did not appear and efforts to contact her by using a telephone number that she had given solicitors and the claimant were unavailable. By mid-morning when the matter was ready to be tried, she had still failed to attend. An application was made by counsel that the trial be adjourned to allow the defence to call the witness. He accepted that he had no explanation for the non-attendance, but submitted that the defence had no reason to suspect that she would fail to attend. The failure to attend was not the fault of the defendant. Miss Vyse had already pleaded guilty to the offences in any event. That application for an adjournment was objected to by the prosecution on the basis that there had been no explanation for the witness's absence and the court could have no confidence that an adjournment would remedy the problem. Counsel for the claimant accepted that if on a second occasion Miss Vyse did not attend for no good reason then any application to adjourn on that subsequent occasion would be doomed to fail.
6. There was also an absence from court of some evidence in the form of a DVD. Both parties agreed that that did not necessitate an adjournment of the trial because it did not show any relevant events.
7. The bench retired to consider the application. On its return, the claimant's counsel noted that the Chairman of the bench said in effect that the reason for the refusal was the need for expedition and the need for a speedy trial. Subsequently, the legal advisor, Susie Jane Maddocks, spoke to the Chairman of the bench for his recollection of the reasons he had given for refusing the application. Although the Chairman could not specifically recall the words he used in open court, he did have a note of what he had written whilst in retirement considering the application which he showed to the clerk who recorded the comments. She in turn informed counsel for the claimant of the contents of the note which reads:

"Time for trials is very tight. It is in everyone's interest to proceed with trial expediently [by that he must have meant 'expeditiously']."

8. There is a witness statement which has been served by Miss Maddocks. She has confirmed everything which the claimant has said about the reasons given in court, and more importantly the reasons set out in the Chairman's notes. She says that the bench were well aware of the relevant law and guidance, and in particular were made aware of the case of CPS v Alan Picton [2006] EWHC 1108 (Admin), in which the Divisional Court, in a judgment given by Jack J, having reviewed the earlier authorities, brought together the proper approach identified in those earlier cases when an adjournment is sought in a series of enumerated paragraphs. Those include the following:

"(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."

9. Included in the witness statement of Miss Maddocks there is a brief commentary as to the approach which she asserts the Magistrates took in what she described as "a logical approach". In particular, at subparagraph (e) she said this:

"The Justices did not enquire as to the availability of the next available trial date should they agree to adjourn the trial at the request of the defence. The Justices were aware that the dates of the two offences to be tried were 28th March 2008 and the trial was listed nearly some three months following that date."

She also noted that the information provided by the defence was unsatisfactory and that the court was aware of its duty to balance the interests of the defendant and the victim.

10. We have no doubt that Miss Maddocks, as a professional and able legal advisor, would have reminded the Justices of the relevant authorities and of the matters which they should consider. However, she was not privy to the considerations themselves, and it is plain from the note that the Chairman took during the course of their considerations that the only matter which weighed with them was the fact that time for trials is very tight and it is in everybody's interests to proceed with the trial expeditiously. That accorded with the reason given by the Magistrates when they returned to court to announce their decision. It is highly significant, in my judgment, that the Magistrates did not enquire as to the next available trial date and therefore, on that basis, seemed entirely to have failed to consider the history of the matter, the extent to which a trial would be delayed, the extent to which that would prejudice the prosecution on the defence application.
11. In our judgment where, as is the case, the factors which the Magistrates should consider are clearly set out in a convenient form which is well known to the legal advisors, and they manifestly, as here, fail to have regard to them and only have regard to one to the exclusion of all others, it cannot then be said that the conclusion to which they come is one which was reached by them properly directing themselves. It therefore follows that we are driven to the conclusion, notwithstanding the fact that we should be very careful before interfering with the exercise by a trial court of its discretion in such a matter, that this decision to refuse the adjournment should not stand. We therefore quash that decision. It necessarily follows from that that the conviction which followed upon the trial following the refusal of the adjournment should also be quashed and the matter should be remitted to the Magistrates' Court for them further to consider it.
12. LORD JUSTICE STANLEY BURNTON: I agree. As indicated, the matter will be remitted to the Magistrates' Court to be heard by a fresh bench or District Judge. Thank you very much.