England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		1 March 2010

MR JUSTICE NICOL:

1. This is an application for judicial review of decisions of Deputy District Judge Joanna Lyons sitting at the Hendon Magistrates' Court on 6 April 2009. The claimant was granted permission by Ouseley J to apply for judicial review on 10 August 2009. In his order Ouseley J gave permission on ground 1 and refused permission on grounds 2 and 3. It has not been entirely easy to work out the learned judge's intention in making that distinction by reference to the documents in the case. Accordingly, I have allowed the claimant some latitude to make submissions to me on all the matters that he wishes.
2. Deputy District Judge Lyons was trying a summons against the claimant which charged him with common assault by beating one Anthony O'Donnell on 10 September 2008. In brief, the claimant, acting in person, asked for the summons to be stayed as an abuse of process because, he said, the police had not made adequate disclosure of CCTV footage of the scene where the assault had taken place and of the custody suite at the police station, and/or had tampered with the footage, and/or had taken insufficient steps to obtain the CCTV footage from third parties.
3. The matter had come before the Hendon Magistrates' Court on two earlier occasions. The first, on 5 February 2009, had been before Deputy District Judge Ikram. He had directed that the CCTV of the street scene was to be served on the claimant in a playable format on a Windows DVD player or in DVD playable format by the prosecution within seven days. In the course of that hearing there had been some comment about the CCTV and the use which the prosecution intended to make of it. The notes made by the legal adviser to the magistrates' court are not entirely clear. The record says that the CCTV covers the time relevant to the incident. Shortly before that there is another note which says on one account "Prosecution definitely rely on CCTV but properly served on defence". On another reading, that same note should be transcribed as "Prosecution don't rely on CCTV but properly served on defence" (my emphasis). The second alternative makes rather better sense of the clause "but properly served on defence", which would be entirely superfluous if the prosecution did intend to rely on the CCTV.
4. The matter then came before the Hendon Magistrates' Court on 31 March 2009, when District Judge Newton presided. He made further directions. Before doing so there was further discussion about the CCTV coverage. In the course of the hearing the District Judge appears to have said that it was accepted by both parties that the CCTV covered the incident. The District Judge is recorded as saying, "The CPS will be relying on the CCTV". District Judge Newton's directions then included these provisions:

"(1) Viewable copy of the full 14 minute CCTV from the Moon public house [to be disclosed];

(2) Enquiries to be made about the CCTV, if any, at Phone Need, 8 Varley Parade, and investigations regarding CCTV, if any, if CCTV to be disclosed;

(3) Same applies for Cost Cutter. If exists to be disclosed."

(The CCTV referred to in paragraph 1 of those directions from the Moon public house was acknowledged to exist, although its relevance is not entirely clear. It was unclear whether there was CCTV from 8 Varley Parade or Cost Cutters or from alternative cameras.) The directions continued that any criminal convictions of the three civilian witnesses were to be supplied. Enquiries were to be made as to the existence of any CCTV of the custody suite during the claimant's arrival at the police station.

5. Those orders having been made, the claimant was perturbed to discover on the morning of 6 April 2009, when the trial was due to start, that the only CCTV footage that was disclosed to him appeared to show not 14 minutes, which is what his understanding had been of the relevant period, but merely one minute. He was told that Cost Cutters had been investigated and that it was not trading at the time. There was no other CCTV at the third suggested venue, 8 Varley Parade. No CCTV of the custody suite had been obtained, no request having been made.
6. Those circumstances prompted the claimant to submit that the summons should be stayed as an abuse of process. He submitted that the police had not made adequate disclosure of the CCTV footage of the scene where the assault had taken place, or of the custody suite at the police station, and/or that the police must have tampered with the footage, and/or had taken insufficient steps to obtain CCTV footage from third parties.
7. Deputy District Judge Lyons heard evidence in connection with the claimant's application to stay the proceedings as an abuse of process from the officer in the case, PC Gipps. He gave evidence that he had checked the CCTV from the Moon Under Water public house (its full name). He said that it showed somebody taking a photograph with a flash. What he handed over was what he retrieved. He did not shorten or tamper with it. It had been passed over to an IT officer to convert the video from the format in which it was taken from the public house to a format that could be more readily read as a DVD. He gave evidence that Cost Cutters had closed down at the time. He had not been provided with any CCTV from the custody suite. He did not know how long it was kept for.
8. When he was cross-examined by the claimant, PC Gipps denied copying or tampering with the CCTV from the Moon Under Water public house. He explained how it had been necessary to convert the format in which that CCTV footage had been provided. He said that the only relevant part was less than a minute. He personally had not been present at the custody suite when the claimant had been brought in.
9. Deputy District Judge Lyons has provided a written note of her decision in relation to the abuse of process argument. She recorded the claimant's submissions that the original DVD obtained from the pub had been 14 minutes long and had now been reduced to one minute. She recorded his submission that he believed the police were biased against him and had decided to charge him against the CPS's advice. He had argued that the CCTV evidence from the custody suite would assist him in relation to that issue. The had claimant argued that the police had failed to conduct an effective and prompt investigation into his case and had claimed that they had failed to investigate properly by failing to take details from witnesses at the scene, and had failed to seize all available CCTV evidence. If the case went ahead he had said he would be denied a fair trial and his rights under article 6 of the European Convention on Human Rights would be violated. He said he needed further time to conduct enquiries of his own as the evidence provided was untrue.
10. The Deputy District Judge recorded her findings as follows:

"8. I found as a fact that neither the Police [nor] the Prosecution tampered with CCTV evidence taken from the Moon Under Water public house.

9. There is no evidence to suggest that the Police decided to charge the defendant against the advice of the CPS and I found no evidence of any bias against the defendant in the conduct of the investigation. I do not consider the CCTV evidence of the custody suite of any relevance to this issue.

10. I found that the Police investigated this case effectively and promptly. I found that the Police took all reasonable steps to secure relevant CCTV evidence in relation to this case.

11. I consider that the defendant can have a fair trial in accordance with his article 6 rights. I consider that the Police have provided sufficient disclosure of previous convictions of prosecution witnesses and the defendant has had adequate time and facilities to prepare his defence.

Summary

I find that it is fair to try the defendant and that he can receive a fair trial. Accordingly I do not find that there is an abuse of process in this case."

11. The claimant then submitted that the Deputy District Judge should recuse herself. He submitted that there would be an appearance of bias if she proceeded with the trial. He claimed that that was because the Deputy District Judge had acted unfairly when PC Gipps had given his evidence. He referred in particular to the evidence that PC Gipps had first given, that he was unaware of there being, or possibly being, CCTV coverage at 8 Varley Parade. The note which he has subsequently provided of the exchange between the witness and the Deputy District Judge went this way:

"PC GIPPS: I was not aware that there was CCTV at Phone Need, 8 Varley Parade.

DEPUTY DISTRICT JUDGE LYONS: Are you sure you did not go back to Varley Parade?

PC GIPPS: I didn't.

DEPUTY DISTRICT JUDGE LYONS: Maybe you went but you may have forgotten. Think about it.

PC GIPPS: I didn't go back there because I didn't think there was any use.

DEPUTY DISTRICT JUDGE LYONS: Or you went back the day after but you cannot remember?

PC GIPPS: Yes. Come to think about it, I think I went back a couple of days later to check for CCTV.

DEPUTY DISTRICT JUDGE LYONS: So you went back to Varley Parade two days after the incident to check for CCTV. Is that correct?

PC GIPPS: Yes."

The claimant relies on that to show that the Deputy District Judge was going beyond her proper role of asking additional questions of a witness and intend prompting the witness to give answers that were adverse to him (the claimant). He also argued that because of her ruling on the abuse of process application, it would not appear to be fair for her to go on and conduct the trial itself.

12. The Deputy District Judge ruled on that application in these terms:

"This is a trial in relation to an allegation of common assault. The trial has reached the stage where there has been a contested abuse of process argument at which evidence was called and submissions heard. I have found against the defendant and given my reasons for this. The application itself did not relate to the merits of the substantive case.

This is an application by the defendant for me to [recuse] myself from further conduct of this trial on the grounds of bias. He claims:

1. That I have demonstrated a bias against him in the conduct of these proceedings. Specifically he claims that this bias has been demonstrated by interruptions and biased questioning on my part.

2. That I have prejudged the substantive case by ruling against [him] in the abuse of process application.

The defendant refers to the relevant test:

'having ascertained all the circumstances which have a bearing on the suggestion that the judge or justice was biased, would those circumstances lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased?'

I have considered the defendant's submissions and measured my conduct of the previous abuse application against that test. I take the view that I have not demonstrated bias against the defendant in the course of my conduct of these proceedings.

The application is therefore refused."

13. Having ruled against the claimant on that matter, the Deputy District Judge then wished to proceed with the trial. The first witness was called. There is a difference of recollection as to what then happened. The Deputy District Judge's account was this:

"The first witness was called. The claimant shouted out loudly that he wanted to make an application. The claimant was very aggressive. He said in open court that the reasons that the DDJ gave were 'ridiculous' and that as a professional judge the DDJ could not have reached such decisions. The claimant told the DDJ she was 'in contempt'. The claimant shouted that the DDJ was a 'biased judge'. The DDJ rose from the proceedings as she did not want to become embroiled in an argument. The claimant was given time to calm down. The DDJ returned to the court. The claimant continued his tirade in a louder and more aggressive manner. He repeated that the DDJ was biased, shouting 'you are a biased judge' and enquiring which law school the DDJ had attended. The DDJ again retired from the courtroom.

The DDJ was given advice by the legal adviser. She was shown and consulted text books. The DDJ did not wish to commence formal contempt proceedings as it was in the interests of the administration of justice to commence the trial. The DDJ found that the common law gave her power to exclude the claimant from the courtroom. She requested the legal adviser to provide the claimant with a copy of this authority whilst she was out of court. This was done. At 16.00 the DDJ resumed her sitting and warned the claimant that if he continued his behaviour he would be excluded from the courtroom and the trial would continue in his absence. The claimant stated the DDJ had no power to do this. The DDJ told him to desist from his behaviour or leave. The claimant continued to talk over the DDJ and said 'I am talking. You must not interrupt me'. The claimant said he had another application to make. The DDJ asked him what it was, but the claimant started to shout and speak over the DDJ. The DDJ asked him to remain silent or leave the court-room. The claimant did neither. The DDJ made the order excluding the claimant from the court-room. The DDJ then again retired. The police were called and the claimant was escorted from the courtroom. The trial then commenced. The order made by the DDJ excluded the claimant from her courtroom. The claimant was not excluded from the remainder of the court house."

14. The claimant's account is that he did not behave in an aggressive manner. The decision to exclude him was communicated to the claimant by the court clerk. He did not wish to antagonize the Deputy District Judge by taking detailed issue with her account in his Claim Form or in his reply. However, he does accept that he was anxious that he should be seen to be making all efforts to pursue his objection to the Deputy District Judge continuing to sit so as to preclude any later argument that he had not sufficiently pressed his case.
15. In any event, the court continued with the summary trial. The claimant was unrepresented. The notes of the hearing prepared by the court clerk show that the Deputy District Judge questioned the prosecution witnesses. She put to the principal prosecution witness the claimant's case so far as she was aware of it. The trial, as was expected, went over to a second day. Again there is a difference of accounts. The claimant's account is that he went to the court house but was told that he was not to be permitted to enter the courtroom. He went at about 10am or 10.30am and again about 2pm.
16. The statement of the Deputy District Judge, which is attached to the court's Acknowledgement of Service says:

"On 7 April the defendant did not attend. The usher left the court on several occasions to see if he had reappeared but had not done so. The defendant was aware that this trial was listed for two days and I determined to continue the case in his absence. I then went on to hear the remainder of the evidence which consisted of evidence from the three police officers. At 11.00am I decided that there was a case to answer.

At 11.30 the defendant had still not reappeared and was not outside the court. Had the defendant reappeared I would have invited him to come into the courtroom and apply to be readmitted to the proceedings. In the circumstances I determined to continue the case in the defendant's absence."

17. The defendant court says that on 6 April the claimant was given a copy of the Deputy District Judge's written reasons which stated that he could apply to be readmitted to the court at any time provided that he agreed to change his behaviour.
18. As I understand it, although the Deputy District Judge found proved the facts in the charge against the claimant, he has not yet been sentenced for the offence. He has, though, lodged an appeal to the Crown Court pursuant to the suggestion of Sir Thayne Forbes, who first considered this matter on the papers. The Crown Court has agreed to adjourn the hearing of that appeal pending the outcome of the present proceedings.
19. The claimant alleges that the refusal to find the proceedings an abuse of process was unlawful. He submits that on two previous occasions the magistrates had considered the full CCTV footage to be relevant. Consequently, the full 14 minutes ought to have been disclosed to him in order for the prosecution to be fair. Correspondingly, he submits that when on 6 April full disclosure had not taken place because he was given only one minute of the CCTV coverage, Deputy District Judge Lyons ought to have recognised that that inadequate disclosure meant that the proceedings against him would be unfair and she should therefore have stayed them. In addition, he submits that the explanation given by the police as to the non-production of CCTV footage from other cameras is inadequate, and that that, too, should have led the Deputy District Judge to conclude that the continuation of the prosecution was an abuse of process.
20. In my judgment there is a short answer to this part of the claim. It is this. The Deputy District Judge heard live evidence from PC Gipps. In addition, she heard the claimant make oral submissions. However, it is the live evidence from the police officer which, in my judgment, is most material. Having heard that live evidence the Deputy District Judge made the findings that she did and which I have recorded. It would be very unusual for a court sitting in this jurisdiction to conclude that such factual findings after hearing live oral evidence were in some way not open to the judge in question. Although the claimant appeared in person before Deputy District Judge Lyons, he has demonstrated by his submissions before me today that he has considerable forensic skill in presenting his arguments. I have no doubt that he was able to take full advantage of the opportunity that he had to cross-examine PC Gipps. The Deputy District Judge had to make factual findings as to whether the police had indeed tampered with the CCTV footage from the Moon under Water public house, or had indeed failed to take proper steps to recover other CCTV footage of these events. She made those factual findings. In my judgment those are findings which cannot be set aside as being erroneous in law.
21. Having made those findings, it is clear that it was open to her to draw the conclusions that she did, namely that the claimant could be fairly tried and that it would be fair to allow those proceedings to continue. She was well aware, because the claimant reminded her, no doubt forcibly, of the views that had been taken by the two judges on the earlier occasions. However, those were views that were expressed without the benefit of hearing PC Gipps give evidence and in any event could not bind Deputy District Judge Lyons. She had to reach her own conclusions, and she did. In my judgment the claim that the ruling as to abuse of process was legally flawed does not succeed.
22. I turn to the question of whether the Deputy District Judge should have recused herself. The claimant accepts that she correctly posited the legal test. Indeed, she took that test from the submissions, as I understand it, which he himself had made. He submits that she could not, consistently with a proper application of that test, decide that it was right for her to continue to try the matter. Again, in my judgment it was open to her to conclude that the test which I have recited, and which I accept is the proper test, did not preclude her from conducting the trial. I have not heard her answer to the quotation which I have given above from the claimant's own notes of the questioning of PC Gipps by the Deputy District Judge, but it is clear that she was aware that part of the claimant's grounds for asking her to recuse herself was the way in which she had conducted the questioning of that officer. A judge is entitled to ask additional questions, particularly when one party is unrepresented. The difficulty this court faces is in not having a very clear picture of precisely how that questioning went. The version that is given by the claimant is not reflected in the notes that were taken by the clerk, but I accept that the clerk did not take a verbatim record and no great conclusion should be drawn from that omission. The matter that this went to -- the question of whether or not PC Gipps had investigated the existence or otherwise of CCTV coverage from No 8 Varley Parade -- in a sense was at the periphery of the matters which the Deputy District Judge had to consider. The central point was whether the police had tampered with the footage from the CCTV camera of the Moon under the Water public house. In my judgment it was open to the Deputy District Judge to answer the question

"having ascertained all the circumstances which have a bearing on the suggestion that the judge or justice was biased, would those circumstances lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased?"

in the negative.

23. I turn to the decision to exclude the claimant from the hearing. As was said in R v Haywood, Jones and Purvis [2001] EWCA Crim 168, the court has a discretion in this regard, but in order to act consistently both with English common law and article 6 of the European Convention on Human Rights, the court should be slow to exclude a defendant from this trial and continue in his absence. That is particularly so if the defendant is unrepresented. Giving the judgment of the court, Rose LJ said:

"22. ....

....

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

....

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion about the absence of a defendant;

....

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

...."

Those principles were approved by the House of Lords in R v Jones [2002] UKHL 5 at paragraphs 13 and 14, subject to a qualification that does not bear on the extract from the Court of Appeal judgment to which I have just set out.

24. Clearly where a defendant is unrepresented it is a serious matter for him to be excluded from the proceedings. Where he would be likely to give evidence or may be entitled to give evidence on crucial matters, the significance of excluding him is ratcheted up yet further still. All of this was manifestly obvious to Deputy District Judge Lyons. However, having said all of that, there does come a point at which a defendant's (even an unrepresented defendant) disruption to the proceedings means that a judge has no choice but to exclude the person concerned from those proceedings. Although the claimant disagrees with the precise terms of Deputy District Judge Lyons' account of what took place, he does agree that he was persistent in pressing his wish to maintain his objection to the Deputy District Judge continuing to hear the matter. He was anxious that he should not later be criticised for failing to take advantage of an opportunity to make his objection known.
25. Whatever the motivation, any party appearing before a court, whether through a legal representative or on their own, must recognise that it is the responsibility of the judge to conduct the proceedings. Litigants may be disappointed or resentful of rulings which the judge has made. They may feel strongly that those rulings are wrong. But the court process can only operate if the litigants against whom a ruling has been made accept that that is the ruling which the judge has given. For that ruling to be challenged, recourse must be had (if it is available) to some other court. It is not a proper means of conducting either civil or criminal litigation to attempt to persist in talking or making some application to the judge who has ruled that the matter has been disposed of.
26. In those circumstances I conclude that the objection to the exclusion of the claimant does not give him grounds for legal challenge by way of judicial review.
27. I have observed already that the claimant has brought an appeal to the Crown Court. Such an appeal will be by way of rehearing. All factual matters can be gone into again before the Crown Court if the claimant so wishes. Those matters will include his concern that the proceedings are an abuse of process because of the various matters to which I have alluded. In this sense the claimant is better off than if he had made a challenge to the decision of the magistrates' court by an appeal by way of case stated. In those circumstances a claimant must choose between an appeal to this court by way of case stated, or an appeal to the Crown Court by way of rehearing. It has not been necessary in the circumstances for me to consider whether, even if the claimant was right, it would be proper to grant relief because of the existence of that alternative remedy, ie a remedy of appeal by way of case stated. I would simply set down a marker that this court is, and will be, careful not to allow judicial review to be used as a means by which consequences normally attendant on an appeal by way of case stated can be avoided.
28. This claim is dismissed.

THE CLAIMANT: My Lord, I would request that a transcript is provided at public expense.

MR JUSTICE NICOL: Mr Ezeugo, transcripts are available if they are paid for, but are you asking for a dispensation that they should not be paid for?

THE CLAIMANT: Yes, my Lord. You have refused my claim and you know my circumstances.

MR JUSTICE NICOL: I do not know what your circumstances are, Mr Ezeugo, but I will allow you to have a transcript of my decision without having to pay for it yourself.

THE CLAIMANT: My Lord, I would ask for permission to appeal.

MR JUSTICE NICOL: Well, this is a criminal cause or matter, is it not, Miss Hummerstone?

MISS HUMMERSTONE: Yes, it is.

MR JUSTICE NICOL: An appeal from here lies to the Supreme Court, does it not?

MISS HUMMERSTONE: Yes, it does.

MR JUSTICE NICOL: And in order to appeal from the Administrative Court to the Supreme Court, you need a certificate of a point of public importance.

THE CLAIMANT: My Lord, this case raises serious issues.

MR JUSTICE NICOL: Thank you.

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