England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
MANCHESTER CIVIL JUSTICE CENTRE

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		5th July 2010

Lord Justice Munby:

Mr. Justice Langstaff will give the first judgment.

Mr Justice Langstaff:

1. On 2 December 2009 the appellant appeared for trial before the Wrexham Magistrates Court charged with one offence of theft. What transpired before the court has given rise with this application for judicial review. It is alleged by the appellant that what occurred was such as to deprive him of a fair trial or at least to give the appearance that there had not been a fair trial.
2. The basic facts were these. He was accused of an offence of theft from a car. He had no recollection, he claimed, of what had happened on the night that the theft occurred; he had been too drunk to recall. There was no direct evidence against him in the sense that anyone saw him enter the vehicle and take the property from within it which was said to have been taken, but according to the owner it came from the glove box within the car. Within the glove box there had, said the owner, been a bag of sweets. The bag of sweets was left within the car after the theft. On it was a fingerprint. The fingerprint matched that of the defendant.
3. At trial submissions were made to the magistrates that this was an insufficient basis upon which to convict and that, for various reasons expressed forensically by Mr Finney who appeared on his behalf, the magistrates should acquit. At the conclusion of the case the magistrates retired. Shortly after that they requested the assistance of their clerk. What happened thereafter is set out principally in the affidavit filed by Mr Robinson, the clerk concerned. We pay tribute to him for what is a clear, full and frank affidavit. It is exactly as we would expect from a clerk acting in a fully professional manner. What he said was that, after the justices had retired for 20 minutes, they requested that he join them. I quote:

"The Chairman advised that it was their intention to find [the defendant] not guilty on the basis that 'there was no evidence that he had actually taken the items'. I must have reacted with surprise because I was asked if I 'had concerns'. I reminded the Justices that [the defendant's] fingerprint had been found on the bag of mints which had been in the glove compartment from which the items specified in the charge had been stolen, he admitted being in the relevant immediate locality during the period when the items were taken, and there had been no evidence of any innocent association between Mr Cooper and the vehicle, or the bag of mints, save that, in his evidence, he stated that he 'has shopped at Marks and Spencers, and does eat sweets'."

I interpose to say his evidence, or the evidence of the loser, was that the sweets came from Marks and Spencer's. Returning to what Mr Robinson says:

"I further reminded the Justices that Mr Cooper's evidence was that he could not remember the events of the night in question because of the amount he had had to drink, and they were entitled to assess his credibility in that regard. I also reminded them that Mr Cooper had not adduced any evidence in support of his version, for example, evidence from his uncle.

I advised the Justices that matters of fact were generally their province, and their province only, but that I was entitled to advise them as to their decision if I felt they had come to a conclusion which was perverse, or unreasonable, in the light of the evidence. I advised the justices that their finding in this case, in my view, came very close to being perverse and unreasonable, and that they should exercise caution. I told them they would have to give reasons for their decision in open court."

4. Mr Robinson returned into court. He told the advocates -- Mr Finney for the appellant, Ms.  Bell for the Crown Prosecution Service -- what had transpired. He repeated to them that he had formed the view that the decision to which the magistrates had indicated they were minded to come was not, as he saw it, one which had strayed beyond the boundary of proper decision making into territory where it necessarily would have been perverse so to find.
5. That account is essentially consistent with the statement that we have seen prepared by Elizabeth Bell, the solicitor for the Crown Prosecution Service, and it confirms the contents of Mr Finney's witness statement made on behalf of the appellant before us.
6. The magistrates returned into court, not to hear any further argument or submissions, nor were they invited to do so: they came back into court and convicted.
7. The point taken by Mr Connor, who appears here for the appellant, is that a magistrates' clerk is obliged to leave matters of fact to the justices. There is, he submits (and I agree), a clear distinction between matters of law on which the clerk is entitled to, and should, advise, and matters of fact which are the exclusive province of magistrates. A clerk must not enter into the fact-finding decision; it would be wrong to do so. The fact-finding decision is that of the magistrates alone. Mr Connor draws our attention to the fact that, viewed broadly, what happened here was that a clerk invited in to see the justices, no doubt with a view to drafting the reasons for the decision which on the facts they had reached -- that is, in this case, that the appellant was not guilty -- then said words and behaved in such a way that there was discussion between the clerk and the magistrates which caused them to change their mind. This, he submits, has every appearance of the clerk entering into the decision-making process, if indeed that is not what actually happened.
8. A practice direction in respect of justices' clerks was issued on 2 October 2000 by Lord Woolf, Chief Justice (to be found at [2000] 1 WLR 1886). He, with the concurrence of the President of the Family Division, set out that it was the responsibility of the legal adviser to provide the justices with any advice they might require properly to perform their functions whether or not the justices had requested that advice, on questions of law; questions of mixed law and fact; matters of practice and procedure; the range of penalties available; any relevant decisions of the superior courts or other guidelines; other issues relevant to the matter before the court; and the appropriate decision-making structure to be applied in any given case. In addition to advising the justices it was his responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons. The Practice Direction then goes on to note (paragraph 4) that a justice's clerk or legal adviser must not play any part in making findings of fact. It adds that he may assist the bench by reminding him of the evidence, using any notes of the proceedings for this purpose. The practice direction is clear that if the justice's clerk gives any advice to a bench he should give the parties or advocates an opportunity of repeating any relevant submissions prior to that advice being given. If it is given in private he should report that advice to the parties, and the advice should be regarded as provisional and clearly stated to be so. The adviser should subsequently repeat the substance of that advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or, if it is varied, the nature of the variation.
9. That practice direction has support, if it needs support, in the speech of Lord Hoffman in a case relating to an appeal from Scotland under therefore different provisions relating to summary trials (see paragraphs 39 and 40 of Clark v Kelly [2004] 1 AC 681).
10. On the material before us what appears to have happened is that Mr Robinson went to see the justices at their request, as it was entirely proper for him to do. They told him, on the material before us, of the conclusion as to fact which they had reached: that was that the appellant should be acquitted of the offence. Something about his reaction plainly then led to a discussion. With the benefit of hindsight we have little doubt that Mr Robinson or someone in his position should have avoided being sucked in to the discussion which then followed in all too understandable a way. It amounted (though, we acknowledge, viewed in retrospect) to him having participated in decision-making, which it was not his function to do; that was entirely for the magistrates. This was not a case, as he himself acknowledged, in which it could be said that the decision to which the magistrates proposed to come was one which was necessarily perverse. It is a tribute to Mr Robinson's honesty and frankness that he acknowledges that to us and that he acknowledged that at the time to the defence advocate and prosecution representative.
11. Accordingly, what happened had every appearance (and probably the reality) that what the magistrates' court clerk had to say about facts changed the mind of the magistrates in other than open court, which is where a trial should be conducted, with the result that the magistrates changed their decision which they had reached, which was theirs alone to come to.
12. Secondly, if the road had been embarked upon unwittingly, as appears to have been the case here, it should have been disengaged from at the earliest opportunity and in any event regarded as provisional in accordance with the practice direction. It is not our position here to say anything about the practice direction other than to note that such a direction should be closely followed. If it is followed to the letter then it is unlikely that any problems will arise in practice. For the reasons I have given, this case is one in which sadly they did, but it leaves me with no alternative but to say that this application for judicial review must necessarily succeed. What happened did not have the appearance of fairness which it required to have, nor, I think, did it involve actual fairness in that the decision-making body alone should have reached the decision which was critical, and it did not alone reach it.
13. The conclusion, in my view, is that the decision of the magistrates must be quashed. The order which I would regard as appropriate, noting that the magistrates imposed a conditional discharge for twelve months together with a compensation order of £185 and £200 costs, is that that order must be quashed. The compensation has, we are told, been paid and part of the sum toward costs. There is a balance of £175 outstanding. So far as compensation is concerned, I have little doubt that the sum paid over may have been spent or used by the loser. My view is that the proper order is to the effect that that compensation order may be pursued for its repayment before the divisional court, provided that notice is first given to the victim of the theft which occurred (whoever did it) so that the loser may make such submissions as he wishes if he regards it as appropriate to do so, and that compensation should not otherwise be enforced. The costs which have been paid should be repaid to the appellant.

Lord Justice Munby:

14. I agree with my Lord and there is nothing that I can usefully add. The order will accordingly be that the application for judicial review succeeds; that the decision of the justices quashed, as is the order for costs. Insofar as the claimant has already paid any part of those costs to the court; those costs as paid shall be repaid to him; and that, insofar as he seeks the repayment by the victim of the sum of £185 by way of compensation, that is a matter which he will pursue if he wishes by application to the divisional court on notice to the victim.
15. Is there any other form of relief, Mr Connor, which you seek?

MR CONNOR: My Lord, the only matter is costs. I am instructed that Mr Cooper has had the benefit of a representation order and legal aid certificates, but my solicitors were concerned that there was a period where he may not have been covered between the 31 March and 17 May this year, and in seeking confirmation from the Legal Services Commission that period was covered. Perhaps if your Lordships were to make costs order or representation order at this stage to ensure that period was covered that would deal with it.

LORD JUSTICE MUNBY: We cannot make a costs order against the magistrates.

MR CONNOR: No.

LORD JUSTICE MUNBY: So the only order we could possibly make would be a further representation order. Is something which is open to us to make?

MR CONNOR: I presumed it was. Perhaps if your Lordships were to make the order to cover that period, if necessary, because it may already have been covered. My instructing solicitors were seeking confirmation that it was, but haven't received that confirmation. I spoke to my instructing solicitor this morning and this is the application that he wished me to make.

LORD JUSTICE MUNBY: I mean, the award of public funding in a criminal matter such as this preceding the administrative court or the divisional court is governed by, is this right, the criminal legal aid regulations, not the civil legal aid regulations, and hence the representation order. Is the representation order normally granted by the Legal Services Commission or by the court?

MR CONNOR: It can… I have certainly in the course of appeal where a representation order has been made by ...

LORD JUSTICE MUNBY: By the court ...

MR CONNOR: By the court, yes.

LORD JUSTICE MUNBY: Sorry, remind me what is the period in relation to which there is a question as to whether ...

MR CONNOR: The question mark relating to the period is 31 March to 17 May. A further certificate was granted on 17 May.

LORD JUSTICE MUNBY: And what happened between those two dates?

MR CONNOR: Well, ... I am not aware of a breakdown of what work would have been done during that period. I do apologise, my Lord, I don't have that information. I can only think that some work was done, otherwise the application would not need to be made.

LORD JUSTICE MUNBY: Well, Mr Connor, the proceedings for judicial review were issued on 5 March, at a time when you tell me were not in the potential gap?

MR CONNOR: Yes.

LORD JUSTICE MUNBY: My Lord gave permission on 10 May, and on 17 May the representation order was renewed or extended.

MR CONNOR: Yes.

LORD JUSTICE MUNBY: So the gap would appear to represent a period during which the matter was before the court and in circumstances where there was nothing for the claimant's legal representatives to do.

MR CONNOR: No, my colleague's skeleton argument is basically after that period …

LORD JUSTICE MUNBY: Yes.

MR CONNOR: I am just checking with Mr Finney's statement ... My statement is actually undated, so I can't assist my Lord on when that statement made.

LORD JUSTICE MUNBY: Well, that statement certainly was in the papers as capable of being for consideration for permission.

MR CONNOR: Yes.

LORD JUSTICE MUNBY: Yes, because my Lord's order helpfully contains a recital and it is showing that there were before him the documents lodged by the claimant, Mr Robinson's affidavit, Miss Bell's statement and the letters from the magistrates.

MR CONNOR: Yes.

LORD JUSTICE MUNBY: And there is nothing in the papers to suggest to me that, following the lodging of that material and the date of my Lord's order, there was anything which the court required to be done by your instructing solicitor.

MR CONNOR: No, my Lord. I have to accept that, I think, in the circumstances. I cannot see any work that could have been done within those dates.

LORD JUSTICE MUNBY: Well, Mr Connor, I think unless you want to press the matter further, we are not inclined to make any order in relation to your client's costs.

MR CONNOR: I am grateful my Lord, thank you.

LORD JUSTICE MUNBY: Thank you very much for your assistance, Mr Connor.

Court adjourned, then reconvened.

MR CONNOR: My Lord, can I apologise.

LORD JUSTICE MUNBY: No, Mr Connor, I think the problem is perhaps we did not make ourselves absolutely clear. We have quashed the conviction and with that both the costs order and the order for compensation must equally fall…

MR CONNOR: Yes.

LORD JUSTICE MUNBY: ... which I think is your major concern. So far as concerns costs which have already been paid, to the extent they have been paid, then we will also make an order, if needed, providing for their immediate repayment.

MR CONNOR: Yes.

LORD JUSTICE MUNBY: So far as concerns compensation, although we have quashed the compensation order, as my Lord indicated in his judgment, there may be some question which the victim would want to raise, and in those circumstances it seems to us that although we quashed the compensation order we do not make an order for repayment here and now, and if your client wishes to recover the sums paid in satisfaction of the compensation order then he must do so on application to the divisional court and on notice to the victim.

MR CONNOR: My Lord, thank you, I am grateful for that clarification.

LORD JUSTICE MUNBY: Our thinking was this, that there may be circumstances in which the victim can argue we express no view as to whether that argument would be successful or not, but where the victim might wish to argue, because he spent the money ...

MR CONNOR: Yes.

LORD JUSTICE MUNBY: …then for some reason he might wish to argue it would be inappropriate to order him to repay.

MR CONNOR: My Lord, yes.

LORD JUSTICE MUNBY: That was why it seemed to us to be fair to give the victim at least the opportunity of making representations if he wished to do so….

MR CONNOR: My Lord, yes.

LORD JUSTICE MUNBY: …and before we make an order for repayment.

MR CONNOR: I am very grateful.

LORD JUSTICE MUNBY: Does that meet your concerns?

MR CONNOR: It does thank you very much, my Lord.