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
		12 March 2010

1. MR JUSTICE CRANSTON: This application for judicial review raises the issue of the extent to which Magistrates' Courts can reverse earlier decisions made at the pre-trial stage. In this case the claimant, Mr Jones, challenges a decision of the Redhill Magistrates' Court to grant an adjournment on a renewed application to adjourn made by the Crown Prosecution Service. The previous day another bench at that court had refused an application to adjourn.

Background

2. The background in brief is this. In mid-February 2009 someone broke into the clubhouse at the Horne Park Golf Club, Surrey. The manager had discovered a damaged door, a broken window and traces of blood. No property was missing. A sample of blood was taken by the police. That led to the initial identification of the claimant. Subsequently he was charged with a non-dwellinghouse burglary under Section 9 (1) (a) of the Theft Act 1968. On 17 April he pleaded not guilty. A trial was fixed for 14 July. Meanwhile a blood sample had been sent to a laboratory for further analysis.
3. The prosecution had two witnesses: the golf clubhouse manager and the arresting officer. Both witnesses were agreed between the prosecution and defence. The only evidence to link the claimant with the burglary would be the report from the laboratory about the DNA in the event that there was a positive match. The claimant accepted that he had been at the clubhouse on several occasions for social purposes. His uncle lives in the village half-a-mile away from the golf club. However, the claimant denied the offence.
4. On 13 July 2009 Celia Record of counsel was prosecuting in other cases, unconnected with this matter, at Redhill Magistrates' Court. During the afternoon she was handed a fax from the Crown Prosecution Service dated 10 July 2009. That fax asked her to seek an adjournment of Mr Jones' case because, by reason of an error on the part of the Crown Prosecution Service, the blood sample evidence was not yet available. The fax in evidence before us is on one page and it appears that Miss Record had only one page. However, the fax page which is before us indicates that there were other pages. On behalf of the claimant there was speculation that the other five pages may have been elsewhere, for example, left on the fax machine.
5. Miss Record has made a statement for the purposes of these proceedings where she recalls that she only had the fax and either a case summary or the charging decision. Accordingly although she was able to summarise the facts of the case to the justices, she was not in a position to elaborate on the reasons for the DNA evidence not being available. Nor was she able to assist at that stage with when the DNA evidence would be ready to be served on the defence and the court. She made clear to the magistrates that the absence of the DNA evidence in admissible format could be fatal to the prosecution case if the trial date - in other words the following day - was maintained. However, the bench was unsympathetic and declined her application to adjourn the case.
6. On the following day - 14 July - the trial was to begin. There was a different bench of magistrates. On that occasion the prosecution was represented by Julian Hunt, a barrister. Unlike Miss Record, he had the benefit of a full file of evidence, a folder of correspondence and the previous court endorsements. He renewed the application to adjourn made the previous day. In doing so he made reference to the case chronology, the memorandum sent by the police following the hearing on 17 April 2009, the strength of the evidence and the likely timeframe within which a statement relating to the DNA could be anticipated. In his recollection he advised the court that the statement would be obtained within two to three weeks, although the recollection of Mr Haines, counsel representing the claimant, was that the period of six weeks was mentioned. That appears consistent with a subsequent statement from the forensic scientist.
7. It was by now evident that the fault - the absence of the DNA evidence - lay not with the Crown Prosecution Service, as Miss Record had assumed, but with the police. A request had been made by the prosecution for the police to submit an up-graded file with a full file of evidence, to include the forensic statements in respect of the DNA. The police did not take action on that request for the up-grade, which had been sent to the officer in the case. As I have indicated, on the renewed application for an adjournment the bench was sympathetic and it was granted.

The Law

8. As a result of the Courts Act 2003, Sections 8A and Section 8B were inserted in the Magistrates' Court Act 1980. The explanatory memorandum makes clear that these provisions track provisions obtaining in the Crown Court as a result of the Criminal Procedure and Investigations Act 1996, in particular Sections 40 and 41 in Part IV of that Act. The explanatory memorandum sets out the import of the new sections, that magistrates can make binding pre-trial rulings, where, it is in the interests of justice, until the case is disposed of or sent to the Crown Court.
9. Section 8A applies in the case of a pre-trial hearing, defined in sub-sections (1)-(2). Section 8A (3) provides as follows:

"(3) At a pre-trial hearing, a magistrates' court may make a ruling as to any matter mentioned in sub-section (4) if —

(a) the condition in sub-section (5) is met

(b) the court has given the parties an opportunity to be heard, and

(c) it appears to the court that it is in the interests of justice to make the ruling."

Section 8A (4) confines the applicability of the section to matters involving the admissibility of evidence and other questions of law relating to the case. There is a further condition relating to the applicability of the section contained in sub-section (5): before making a binding ruling, a magistrates' court must give the parties an opportunity to be heard and, when a defendant is unrepresented but wishes to be represented, must consider whether to grant legal representation at public expense. Sub-section (6) provides that a ruling may be made under the section on an application by a party to the case, or of the court's own motion.

10. Section 8B provides that rulings under Section 8A have binding effect from the time they are made until the case against the accused is disposed of. That involves acquittal or conviction, if the prosecution decides not to proceed with the case or if the information is dismissed. Sub-section (3) empowers the Magistrates' Court to discharge or vary a ruling under Section 8A:

"(3) A magistrates' court may discharge or vary (or further vary) a ruling under section 8A if —

(a) the condition in section 8A (5) is met

(b) the court has given the parties an opportunity to be heard, and

(c) it appears to the court that it is in the interests of justice to do so.

(4) The court may act under subsection (3) —

(a) on an application by a party to the case, or

(b) of its own motion.

(5) No application may be made under sub-section (4)(a) unless there has been a material change of circumstances since the ruling was made or, if a previous application has been made, since the application (or last application) was made."

11. Before the introduction of Sections 8A and 8B into the Magistrates' Court Act by the 2003 legislation, R v Newham Juvenile Court ex p E (a minor) [1986] 1 WLR 939 had recognised a similar rule in common law. That was a case where the justices heard submissions and made a decision not to exercise their power to commit a 16-year old for trial on indictment, but to proceed summarily. He was released on bail, committed further offences and then appeared before a differently constituted bench. The justices on the second occasion were of the opinion that the previous decision to try the defendant summarily was not an informed decision and therefore was no decision. They purported to reverse it. The matter came before this court which decided that the second decision could not be supported. It was held that once a properly constituted bench of magistrates had considered all the factors placed before the court and had ordered a summary trial, a differently constituted bench had no power to re-examine the decision on the same facts.
12. In the course of his decision Steven Brown LJ said at page 946 B that justices, like every other court, must exercise their discretion judicially. It was not merely a matter of discretion but a matter of power:

"In my judgment the whole scheme of the Act suggests that they do not have that power [ie power to reverse a decision taken earlier] before embarking upon a hearing. Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re-examining the case afresh on the same material. It seems to me that they may well have had the opportunity of taking a different view from that taken by their colleagues in the light of the new and additional factors which have emerged since 20 September" [ie the further offending by the defendant].

However the justices had not proceeded on that basis:

"It seems to me that this was simply a different view formed on the same facts by a differently constituted bench" (946 E).

13. McCullough J agreed. He said (at page 947 D to E):

"But in a case where trial on indictment has been decided upon it is in my opinion open to the justices to review that decision at any stage up to the start of their inquiries by the justices. Such a review will be permissible in the case if a change of circumstances has occurred since the original decision was taken and also circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of a court."

He went on to give specific examples of a change of factual circumstances with later, more serious offending, or where the court was told that the offending by the defendant was more serious than originally believed.

14. The Newham Juvenile Court case was applied in R (Acton Youth Court) ex p Director of Public Prosecutions [2000] 2 Crim LR 75. That was a case involving an issue of evidence. The youth court had made an order that the victim could give evidence in-chief by video recording and the remainder of her evidence by television link. When the case came to trial before a differently constituted bench the defendant successfully applied to have the order of the first bench reversed. The Director of Public Prosecutions then applied to quash that decision, submitting that it was a decision which no reasonable bench could make and that it was inappropriate to set aside the original order.
15. The defendant in that case argued that a recent decision of the European Court of Human Rights - T v United Kingdom [2000] 2 All ER 1024 - constituted a change of circumstances which justified the second bench in setting aside the earlier order. This court allowed the appeal and held that the decision of the European Court of Human Rights could not constitute changed circumstances. Longmore J invoked the Newham Juvenile Court decision: paragraph [15]. Laws LJ agreed, and said:

"26 ..... It is necessary for the efficacious administration of justice to take a strict approach to the power of a lower court to revisit and revoke an order earlier made by itself. Clearly there must be some power to do so in the interests of justice. It arises, as my Lord has indicated, where there is a change of circumstances. Plainly that must be a change of relevant circumstances.

27 I would expect that cases in which an earlier existing circumstance, not drawn to the attention of the Court at the first hearing, would justify the court in later overturning its first decision would be most infrequent."

16. Subsequently in R (on application of Watson) v Dartford Magistrates' Court [2005] EWHC 935 the earlier jurisprudence was applied in the case of a re-visited decision on adjournment. In that case, on the last working day before the defendant's trial the prosecution applied for an adjournment because two of their witnesses were unavailable. The application was refused. On the first day of the trial the prosecution repeated its application and this time it was successful. This court held that the magistrates had been in error in granting the adjournment since there was no change of circumstances. The Acton Youth Court case, and in particular the decision of Laws LJ, was applied by Mitting J who gave the first judgment, with which Sedley LJ agreed. In particular, Mitting J pointed out that there were no reasons given in relation to both decisions by the magistrates, both the decision to refuse the adjournment and the decision of the following day to grant it.
17. Similarly in R (on application of F) v Knowsley Magistrates Court [2006] EWHC Admin 695 this court found that the magistrates were in error in revisiting a decision to adjourn. At the initial application the Crown Prosecution Service requested that the trial date be vacated because they had not received a full file of evidence. That application was refused. The case remained listed for trial that afternoon. In the afternoon the prosecution was represented by a different prosecutor who renewed the application for an adjournment. The application was identical to the application made in the morning.
18. Sullivan J, who gave the first judgment of the court, invoked the Acton Youth Court case and referred as well to the decision in R (On application of Watson) v Dartford Magistrates' Court. He said that the issue for the district judge was whether there had been a change of relevant circumstances between the morning and afternoon. The prosecution had conceded that there was no change of circumstances: paragraph [11]. In the light of that he reached the conclusion that I indicated. Latham LJ agreed.
19. The final case is Brett v Director of Public Prosecutions [2009] EWHC 440, [2009] 1 WLR 2530 where the first judgment was given by my Lord, Leveson LJ. That was a case involving the admissibility of evidence. The defendant in that case had been charged with driving whilst over the prescribed alcohol limit. At that hearing the prosecution had applied for the evidence of the analyst to be given under the hearsay provisions, on the basis that she was living abroad. She had not been warned and it was not reasonably practicable to secure her attendance. At trial, the deputy district judge considered that he was bound by that ruling and refused to hear further argument on the issue of admissibility. One aspect of the case stated was whether the district judge was correct.
20. This court allowed the appeal. It referred to Sections 8A and 8B of the Magistrates' Court Act 1980. It held that there was no question of the pre-trial ruling binding the deputy judge in relation to the trial. At the trial very different considerations obtained compared with the pre-trial hearing, in particular relating to the attendance by the analyst and securing her evidence since - by then - the prosecution could well have obtained her attendance: paragraphs [14] and [15].
21. My reading of the authorities is that the Newham Juvenile Court case recognised a common law principle that a lower court has limited power to re-visit and to revoke a previously made order although it can do so in the interests of justice, in particular, in changed circumstances. In the Acton Youth Court case Lord Justice Laws was, in my respectful view, correct to identify the efficacious administration of justice as a central legal policy behind the rule. The efficacious administration of justice encompasses the particular concern of limiting a lower court in re-visiting too readily a previous decision. Closely associated is the public policy of encouraging those involved in the criminal justice system to marshall their cases efficiently and expeditiously so that limited resources are best employed.
22. Other aspects of the interests of justice are identified in the Overriding Objective of the Criminal Procedure Rules. The Overriding Objective refers to the need for criminal cases to be dealt with justly. That includes not only the efficient and expeditious dealing with cases but also other considerations such as the acquittal of the innocent and conviction of the guilty, dealing with the prosecution and defence fairly, recognising the rights of the defendant, respecting the interests of witnesses and victims and keeping them informed of the progress of cases, ensuring that appropriate information is available to the court when applications for bail and sentence are considered, and dealing with the case in ways which take into account the gravity of the matter, its complexity, the severity of the consequences for the defendant and others, and the needs of other cases.
23. In the Acton Youth Court case Lord Justice Laws identified a change of circumstances as one part of the interests of justice. In my view the metes and bounds of a change of circumstances are most aptly drawn by McCullough J in the Newham Juvenile Court decision. It encompasses not only a change of objective circumstances such as in Brett, but also the situation where, although the objective circumstances have not changed, they are now brought to the attention of the court for the first time.
24. It is obvious that in many cases the matter of whether pre-trial rulings are binding will now need to be addressed specifically by application of Sections 8A and 8B of the Magistrates' Court Act 1980. Those provisions address directly the extent to which pre-trial orders of magistrates are binding. Sections 8A and 8B would not apply to the situation in the Newham Juvenile Court case because they only bite once the decision has been made that a summary trial will occur. There the issue under the spotlight was whether there was to be a summary trial. But the Acton Youth Court case would now fall within the terms of Section 8A (4) (a), since there was an issue as to the admissibility of evidence. Brett was decided under the new provisions. That leaves Watson and Knowsley Magistrates' Court, both decided after Section 8A and Section 8B came into force. In neither case did the court address the implications of the new legislative provisions but instead applied the common law rule. One can understand that, since it would be straining the language of those provisions to assert that an application for an adjournment to vacate a trial date could properly be described as falling within Section 8A (4) i.e. was a question relating to the admissibility of evidence or a question of law.
25. In my view we must assume for the present that the common law rule remains. We heard no argument to the contrary. As I have said, in my view the parameters of the interests of justice test identified by Laws LJ in the Acton Youth Court case are now measured not simply by changed circumstances but by reference to the Overriding Objective. Each case, as the authorities clearly show, will be fact sensitive.

The Claimant's case

26. In his arguments on behalf of the claimant, Mr Haines contends that under the common law rule there has been no change of relevant circumstances between 13 July and the following day. The prosecution on the second occasion did not offer any further information which could be considered a change of circumstances. Moreover, the bench did not justify its decision to grant the adjournment on the basis of any change of circumstances.
27. In his submissions Mr Haines analysed the statement by Mr Hunt, who represented the Crown Prosecution Service at the time of the second application. In his statement Mr Hunt explained that he referred to the case chronology, the memorandum sent to the police following the hearing on 17 August, the strength of the evidence and the likely timeframe within which a statement relating to DNA could be anticipated. In Mr Haines' submission these matters were in effect placed before the first bench of magistrates on the previous day by Miss Record. She referred the bench to the case chronology. She also indicated that in relation to the strength of evidence the prosecution case would be fatally flawed if DNA evidence was not available. In Mr Haines' submission, the memorandum sent to the police, and the likely timeframe, did not add in any significant way to what was before the bench the previous day. In Mr Haines' submission this case was different from the circumstances discussed in the Brett case, where a re-visited decision was justified because there was a fundamental piece of information which had not been available to the previous court. Although Mr Haines accepted that in this case the agreed facts indicated that the prosecution's application on 13 July was not particularly detailed, the legal adviser's notes from the following day showed that the application was similarly sparse in character. Mr Haines contended that what could have been done on 13 July was for the prosecution to make a telephone call to the Crown Prosecution Service headquarters in order to make one last attempt to explain the absence of DNA evidence and to offer a possible timeline for its availability. All the information, in his submission, was available within the Crown Prosecution Service. So most, if not all, the circumstances were before the first bench, in particular the centrality of the DNA evidence.
28. In any event, in Mr Haines' submission, even if the justices on the second occasion were justified in reversing the decision made the previous day, by reason of changed circumstances, that was not evident in their reasons. It was, in summary, a different decision on the same facts.

Conclusion

29. In my view there were, in this case, the changed circumstances demanded by the common law enabling for the magistrates to reverse the earlier decision. Moreover, in my view it was in the interests of justice for the decision to adjourn to be made on 14 July. As I said earlier, the interests of justice encompass, but are not exclusively defined by, changed circumstances.
30. In my judgment the changed circumstances were, first, that it was now clear that the error lay with the police and not with the Crown Prosecution Service. The submissions by Miss Record on 13 July had placed the blame on the Crown Prosecution Service itself. That may have influenced the decision that the magistrates made to refuse the adjournment. The following day counsel for the prosecution was able to explain that the fault lay with the police.
31. Importantly, on 14 July, the matter was far from stale. Some of the authorities involve facts where there had been a series of decisions by magistrates and the matter had been adjourned more than once. That was not the case here. The trial was listed for 14 July. The application was made on 13 July. The alleged offending was still relatively recent. Admittedly the magistrates did not explain fully the reasons for their decision on 14 July, but it is perhaps a counsel of perfection for the bench to have spelt out in detail the reasons for reversing the order of the previous day. In my view there were changed circumstances and it was in the interests of justice for the bench on 14 July to reverse the earlier decision.
32. None of what I have said is to give encouragement to poor initial applications, which have to be supplemented later by applications to remedy the defect. The efficient and expeditious conduct of justice mandates that matters not be regularly re-visited. Courts must not tolerate inefficiencies on the part of the Crown Prosecution Service or anyone else. As the Criminal Procedure Rules make clear, the duties set out in the Overriding Objective, notably the efficient and expeditious handling of cases, are duties imposed on all participants in the criminal justice system. Each and every one must contribute to achieving that.
33. LORD JUSTICE LEVESON: I agree.
34. MR HALLOWES: As I understand it, this will be re-listed in the lower court and it will be finally resolved.
35. LORD JUSTICE LEVESON: Yes. Mr Haines and Mr Hallowes, thank you very much for your attendance. Mr Haines, you served the interests of your client as well as possibly could be done.