England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
LEEDS ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		3rd March 2010

JUDGE LANGAN:

1. There is before the court an application for permission to apply for judicial review which was directed by His Honour Judge Kaye QC to be dealt with at an oral hearing.
2. The application is brought by Mr David Smith. The defendant is the Wakefield Magistrates' Court, the first interested party is the Leeds Crown Court, and the second interested party is the West Yorkshire Trading Standards Service: none of these has not participated in the proceedings. The intervener is the Secretary of State for Culture, Media and Sport. The Secretary of State has been represented by counsel who has, like counsel for the claimant, produced helpful written and oral submissions.
3. The decisions which are sought to be judicially reviewed are three in number and are set out in the claim form. First, there is a decision made by the Wakefield Magistrates' Court to accept certain pleas of guilty by the claimant to offences with which he had been charged under sections 9 and 10 of the Video Recordings Act 1984. Second, there is a further decision made by the Wakefield Magistrates' Court thereafter to commit the claimant to the Crown Court for sentence. Third, there is the sentence imposed on the claimant by the Crown Court.
4. Concealed behind that short recital of the decisions which are challenged there is a lengthy and somewhat unusual history. I can begin with the relevant statute, which is the Video Recordings Act 1984. That is described in its long title as an act to make provision for regulating the distribution of video recordings and for related purposes. Various offences were created by the Act. They included these offences: under section 9, supplying or offering to supply a video recording containing a video work in respect of which no classification certificate has been issued; and under section 10, possession of a video recording containing a video work in respect of which no classification certificate has been issued for the purpose of supplying it.
5. The claimant carried on two businesses on a trading estate. One of those business involved the sale of what are euphemistically called "adult videos." A representative of the West Yorkshire Trading Standards Service called at the claimant's premises on a date which must, I think, have been early in 2005 for the purpose of making test purchases. The upshot of that visit was the issue of a number of summonses against the claimant for offences contrary to sections 9 and 10 of the Statute which I mentioned a few moments ago. Three summonses related to the supply of video recordings of unclassified work; five summonses related to possession of such recordings for the purpose of supply.
6. Those summonses came before the Wakefield Magistrates' Court on 17 June 2005. The claimant pleaded guilty. The court took the view that its own sentencing powers were inadequate in the circumstances and committed the claimant to the Leeds Crown Court for sentence. The claimant came up for sentence at the Leeds Crown Court on 5 August 2005, when on each of the eight charges which I have mentioned he received a sentence of four months imprisonment concurrent but suspended for 18 months.
7. Pausing there, those custodial sentences, albeit suspended, may seem surprising given first that the claimant was a person of previous good character, and second that there was considerable personal mitigation in that some time previously the claimant had been the victim of an assault in which he had suffered quite serious brain injury. The explanation for the sentences may well lie in the nature of the videos which were supplied. They were not really what might be called run-of-the-mill adult videos. They appear from the titles of several of the videos, which are to be found in the papers and which I do not propose to read into this judgment, to have been videos of a particularly disagreeable kind.
8. From that point one can fast forward to the summer of 2009. In the summer of 2009 it was discovered by the Department for Culture, Media and Sport that certain provisions of the Video Recordings Act 1984, including sections 9 and 10, constituted technical barriers to trade under the Technical Standards Directive 83/189/EEC. The effect of this in European Law, as incorporated into the law of the various parts of the United Kingdom, was that the offences created by sections 9 and 10 would be unenforceable unless three months' notice of the enactment had been given in advance to the European Commission. By an omission made on the part of those in charge of the relevant government department at the relevant time, no such advance notification had been given. It followed that, at any rate from the time when this matter became public in the late summer of 2009, any person charged with an offence under sections 9 or 10 could raise non-notification by way of defence and thereby in effect stultify the prosecution.
9. Jumping ahead agin, both the Government and Parliament have taken steps to rectify the situation. On 10 September 2009 due notification was given to the European Commission and on 21 January 2010 Parliament enacted the Video Recordings Act 2010. Under this Act, various sections of the 1984 Act, including sections 9 and 10, ceased to be in force but were immediately re-enacted.
10. Soon after the Government had issued a press release about the situation regarding the 1984 Act, the claimant became aware of the situation. His date of knowledge was 3 September 2009. He had previously been advised by a solicitor or person purporting to be a solicitor who turned out to be unsatisfactory. He attempted to communicate with that gentleman again but failed to get in touch and on 5 November 2009 he instructed those who are now acting for him. He obtained public funding for judicial review proceedings on 4 December 2009 and the claim form was issued on 6 January 2010.
11. I thought at the beginning of this hearing that the question of time was going to lie at the heart of the debate today. That has turned out to be a misconception on my part. On any footing the claim form has been issued late but Mr McGuinness QC, appearing for the Department of Culture, Media and Sports, has adopted a commendably lenient approach to the question of delay. Although Mr McGuinness did not make any formal concession on the point, his approach was that he would not raise any strenuous opposition to my extending the time for applying for judicial review if I were satisfied that the claimant had a good arguable case. But, says Mr McGuinness, I do not get to that point because the judicial review claim is one which, if it went to a substantive hearing, would be bound to fail.
12. Before I look at that submission I should say that I accept that the only remedy possibly available to the claimant in this case is by way of judicial review. He would not be in a position to appeal even out of time to the Crown Court from his conviction by the Magistrates' Court, for the simple reason that the conviction was based on a plea of guilty. He would not be able to appeal even out of time from the Crown Court to the Criminal Division of the Court of Appeal, because the proceedings before the Crown Court did not relate to a trial on indictment. Judicial review is accordingly his only possible remedy.
13. The question before me is similar to one which has had to be considered on many occasions by the Criminal Division of the Court of Appeal. The relevant situation is one in which a conviction was entirely proper at the time of trial on the basis of the law as it was then understood, but the assumption as to the state of the law was thereafter shown to be wrong. The convicted defendant then applies to the Court of Appeal for leave to appeal out of time so as to enable him to challenge his conviction. On the basis of the cases to which I shall refer in a moment, the practice of the Court of Appeal is to allow such applications only where substantial injustice would be done by permitting the conviction to stand.
14. The first of the two relevant recent authorities is R v R & Others [2007] 1 Cr App R 10. There the law as I have just stated it, with the central test of substantial injustice, was reiterated in a lengthy judgment delivered by Hughes LJ. Hughes LJ pointed out that successive Lords Chief Justices have adopted the same test. Hughes LJ cited many of the earlier authorities and in particular the decision of the court in R v Hawkins [1997] 1 Cr App R 234 in which Lord Bingham of Cornhill CJ reviewed the authorities and then said this:

"That practice may on its face seem harsh. On the other hand, the consequences of any rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions. If such convictions were to be readily reopened it would be difficult to know where to draw the line or how far to go back . . . It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the reopening of convictions recorded in such circumstances. Counsel submits - - and in our judgment submits correctly - - that the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done."

15. The other relevant decision is that of the Court of Appeal in R v Cottrell; R v Fletcher [2008] 1 Cr App R 7. The judgment of the court was delivered by Sir Igor Judge P. The President adopted precisely the same approach to that adumbrated by Hughes LJ in R and by Lord Bingham of Cornhill in Hawkins. What is interesting and indeed remarkable in the Cottrell and Fletcher decision is the citation with approval of the decision of the Supreme Court of Ireland in A v The Governor of Arbour Hill Prison [2006] IESC 45. The facts of that case were extreme. A had pleaded guilty and been convicted of a sexual offence. In a later case the Supreme Court had declared that the statutory provision creating the offence was inconsistent with the provisions of the Constitution. In Irish law the statute was therefore invalid. A complained that his conviction was null as dependent on a law which did not exist and should be set aside on that ground. The Supreme Court rejected that submission. It relied on the need to preserve final verdicts based on what had been presumed or acknowledged to be constitutional at the time. The Chief Justice said that it was only where one might find some extreme feature of an unusual case that the court might be required for wholly exceptional reasons to quash a conviction obtained in the circumstances which I have mentioned.
16. It seems to me that a court hearing a substantive application for judicial review in this case could do no more than, and indeed would be bound to, apply by analogy the decisions to which I have just referred. Put another way: if the case is won in which after trial on indictment the Court of Appeal would give leave to appeal out of time and quash the conviction, then the Administrative Court should quash a similar conviction which had been obtained before a Magistrates' Court. If on the other hand the case is one which, had the trial been on indictment, the Court of Appeal would have refused permission to appeal out of time, the Administrative Court should correspondingly refuse the remedy of judicial review. Mr Jones, counsel for the claimant, rightly reminds me (the reminder is one which comes in this court more often from those appearing for defendants on judicial review applications) that I am not at this strage concerned with an investigation of all the merits of the case. The analogy, he says, is with an application for summary judgment in civil proceedings. I fully accept, indeed am happy to take on board, that analogy. I ask myself whether the prospect of success in judicial review proceedings can be said to be realistic or should be characterised as no more than fanciful. In my judgment, in the particular circumstances of this case, the answer is in the latter sense.
17. The convictions of which the claimant complains are old ones. There is no dispute whatever as to the acts done by the defendant. The offences cannot be regarded as merely regulatory. The nature of the videos sold made the offences, in a word, reprehensible. With regard to the last point, the passage which I cited from Lord Bingham in Hawkins is highly material. There the Lord Chief Justice referred to a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently. I see absolutely no prospect, if this were a case before the Court of Appeal after trial on indictment, of leave to appeal out of time being given. Similarly I see no prospect on a substantive hearing of a judicial review application of the convictions being quashed. Accordingly, I have come to the conclusion that the application for permission to apply for judicial review must be refused.