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
		3rd November 2009

1. MR JUSTICE DAVID CLARKE: The claimant is Ryan Tinnion. With leave he seeks judicial review of two decisions of Mr Recorder Bayliss, sitting in the Crown Court at Reading, namely (a) his refusal to permit the claimant to call two witnesses at the hearing of his appeal against conviction, and (b) his subsequent refusal to state a case for the opinion of this court on the ground that the application was frivolous. We will return to the question of remedy later.
2. On 3rd July 2008 in the Maidenhead Youth Court, the claimant was convicted of an offence of dangerous driving. His defence was that he was not the driver of the car involved and had been wrongly identified by the witnesses called by the prosecution. He had, at the material time, been driving his car elsewhere, accompanied by two friends. He had given a similar account in interview following his arrest, but neither in that interview nor in his evidence in the Youth Court had he named the two friends, nor did he seek to call them to give evidence in the Youth Court, evidence which would have been in the nature of alibi evidence.
3. Having been found guilty in the Youth Court, he appealed to the Crown Court against that conviction. Such an appeal is by way of re-hearing before a judge and justices. This appeal was heard by Mr Recorder Bayliss sitting with justices. The prosecution witnesses gave their evidence again. The claimant gave his evidence, this time naming the two friends he said he had been with who were Jack Rexworthy and David Sinclair. Thus far, the appeal hearing had proceeded in a conventional manner.
4. The claimant's counsel then called, or attempted to call, the first of those two witnesses, intending to go on to call the other. As a matter of fact, no defence statement, and therefore nothing in the nature of alibi notice, had been served. The prosecution in those circumstances, through Miss Dodd, appearing for the prosecution responding to the appeal, sought time to check the antecedents and any other material which may have been of value in cross-examining those witnesses. Counsel was prepared to proceed with the hearing. She had asked for time. It appears, however (and she confirms that this is her recollection), that she was content that the witnesses proceed to give their evidence so long as whilst those enquiries were made they did not leave the building and would be available to be recalled for further cross-examination if those enquiries produced anything of value for that purpose. The prosecution were not seeking to adjourn the hearing altogether, were not seeking to abort the hearing, and were only asking for a matter of the necessary minutes in which those checks could be undertaken.
5. The Recorder, however, ruled that the evidence of the two witnesses was inadmissible and ruled that the witnesses could not be heard. We will return shortly to his reasons for doing so. The hearing continued. The claimant's appeal was dismissed and so his conviction stood.
6. Thereafter, his solicitors asked the Crown Court to state a case for the opinion of this court, pursuant to section 28 of the Supreme Court Act 1981 and Part 64.7 of the Criminal Procedure Rules. Correspondence ensued, culminating in the court's formal refusal with written reasons dated 25th November 2008, prepared by Mr Recorder Bayliss. In that document he recited the history. He commented that in the lower court the claimant had not provided the names of the alibi witnesses, nor a defence statement "as required by section 11(2)(f)(iii) of the Criminal Procedure and Investigations Act 1996". He commented further that no notice of alibi or witnesses had been given for the purposes of the appeal to the Crown Court.
7. In paragraph 7 of the document refusing to state a case he said this, under the heading "Reasons for refusing to admit the evidence of Jack Rexworthy and David Sinclair":

"The court declined to admit the evidence of these two witnesses for the following reasons --

(a) It was clear that the issue in the case was the credibility of Mr and Mrs Cox who the defence said . . . had falsified the allegation, as against the credibility of the appellant.

(b) Counsel for the appellant, in answer to a question from the Bench, said that the witnesses were being called as alibi witnesses.

(c) No notice had been given to the Crown of the intention to call those two witnesses as alibi witnesses. They had not been named when the appellant had been interviewed. They had not been called in the court below. The Crown had had no opportunity to check their antecedents or other matters which might have gone to their credibility. To have enabled the Crown to make those checks would have involved aborting the hearing of the appeal at a very late stage.

(d) The Court had formed the view that Mr and Mrs Cox were both credible witnesses and that the grounds for asserting that they had concocted the allegation against the appellant, and thereby committed perjury, were not credible. The Court had formed a contrary view in respect of the appellant."

8. In my judgment, this reasoning cannot be supported. There are two points at which it falls down. Firstly, none of the reasons given amounts to any proper basis for ruling the evidence inadmissible so that it could not be called or heard at all. Even if the Recorder had been right to hold that the claimant was under a requirement to provide a defence statement, either in the Youth Court or in the Crown Court on appeal, with details of his alibi witnesses, it does not follow that the failure to comply with this requirement rendered the evidence inadmissible. The sanction against a defendant who fails to give such notice is not that a witness cannot be called, but that adverse comment can be made and cross-examination can be conducted, and that the court or jury may draw such inference as is proper from the failure to give such notice (see section 11 of the Criminal Procedure and Investigations Act 1996 as now in force). It may be that the Recorder was thinking back to the time when leave of the court was required before a defendant in the Crown Court could call an alibi witness where no notice had been served.
9. The Recorder gave the further reasons which we have read. In my judgment, the reason given at paragraph (d) (and in this I agree with the single judge who granted permission) is manifestly bad. It demonstrates that the court had prejudged the very issue which it had to decide as a fact finder and did so before all the admissible evidence on that issue had been given.
10. The Recorder also appears to overstate the case, where he says that allowing the witnesses to give evidence, and therefore allowing the Crown to check the matters they wished to check, would have led to the hearing being aborted. That does not seem to accord with what we are told did in fact occur. That is enough to demonstrate that this court must intervene.
11. The second point, with which I deal very shortly, is that it seems clear, and the Crown agree, that the Recorder was wrong to hold that this claimant had been under a requirement in the Youth Court to provide that defence statement. Thus, this was not a case subject to the compulsory procedure but only to the voluntary procedure governed by section 6.
12. Accordingly, this court must intervene. There is nothing to be gained by directing the Recorder to state a case, since he has set out his reasoning in the decision letter. The second remedy sought in the application was a quashing of the decision to exclude the evidence of the two witnesses. In principle this would be right, but it would leave the proceedings in an uncertain limbo and at this court's invitation, and without objection from the interested party, the prosecution, Ms Hall has applied to amend her application for judicial review to encompass an order quashing the decision of the Crown Court by which it dismissed the appeal. I will make that order. This would not quash the conviction by the Youth Court where it is not suggested that any irregularity occurred. The conviction therefore subsists and, in my judgment, the proper remedy is a direction to the Crown Court that the appeal be reheard and that it be listed before a different judge and justices. That hearing will, of course, be dependent on the availability and willingness of the prosecution witness to say give evidence for a third time, and we fully understand the position in which this places them. If they are not available and willing to give that evidence then the Crown will no doubt be constrained to offer no evidence on the rehearing, but we anticipate that it is likely that this appeal will be reheard on its merits. I would let the order go accordingly.
13. LORD JUSTICE ELIAS: I agree. I have some sympathy for the court below. They plainly found Mr and Mrs Cox impressive witnesses and no doubt were irritated by the allegation that these individuals had deliberately falsified the allegation against the defendant. Having said that, they cannot finally reach a view as to credibility of witnesses until they have heard all the evidence. Plainly, for the reasons given by my Lord, this evidence ought to have been admitted and the witnesses ought to have been heard. Thank you very much.
14. MS HALL: My Lord, there are two applications. Firstly, for the detailed assessment of a public funding certificate and secondly, I make the application that my learned friend made in the previous proceedings for a defendant's costs order, not just for the costs of the application in May, but the applicant in this case has been paying a contribution towards his public funding certificate, so I ask for a defendant's costs order to get that back.
15. LORD JUSTICE ELIAS: We will make that order.
16. MS HALL: I am grateful.