QUEEN'S BENCH DIVISION
SITTING AT CARDIFF CIVIL JUSTICE CENTRE
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE BEATSON
MR JUSTICE HICKINBOTTOM
| THE VALE OF GLAMORGAN COUNCIL
|- and -
|THE LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE
Mr Sam Grodzinski QC and Mr Tim Buley (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 8 June 2011
Crown Copyright ©
Lord Justice Elias :
This is the judgment of the Court.
"To ensure that there is an efficient and effective system to support the carrying on of the business of … magistrates' courts."
"The Lord Chancellor may provide, equip, maintain and manage such court houses, offices and other accommodation as appear to him appropriate for the purpose of discharging his general duty in relation to the courts."
These are therefore broad and general powers. They neither require any consultations before court houses are opened or closed, nor do they seek to identify the considerations which the Lord Chancellor must take into account when making such decisions.
The 2010 consultations.
"HMCS is committed to providing a high quality court service within a reasonable travelling distance of the communities that use it, while ensuring value for money to the tax payers.
HMCS currently operates out of 530 court houses – 330 magistrates' courts, 219 county courts, and 91 Crown court centres. However, the number and location of these does not reflect changes in population, work load or transport and communication links over the years since many of them were opened. This has resulted in some courts sitting infrequently and hearing too few cases. Some buildings do not provide suitable facilities for those attending or are not fully accessible for disabled court users. A number of magistrates' courts do not have secure facilities for prisoners. Other agencies with whom we work across the justice system are also put under strain by the need to work at a number of different courts in the same area, some of which are in close proximity to each other.
When public finances are under pressure, it is vital we eliminate waste and reduce costs. This consultation sets out how we believe we can best meet the justice needs of the communities in each area and invites comments on whether work from the courts we propose to close could be moved to nearby courts which have sufficient capacity and, in the majority of cases, better facilities. By using these courts more efficiently we hope to save public money while also improving the services we provide for court users." (page 3)
"The speed of case, outcome, the quality and efficiency of the service we provide and an environment which commands respect for the justice system and the safety and comfort of court users, are much more significant to delivery of effective local justice across the communities in England and Wales." (page 4)
The position of the Barry Magistrates' Court.
The Responses to the Consultation.
(1) It was contended by a number of consultees that the Cardiff Magistrates' Court did not have the capacity to receive all the work from Barry. Indeed, the Senior Presiding Judge raised concerns on that point. The response was that there were twelve courts at Cardiff with two additional courtrooms available if necessary; that the combined workload would produce a utilisation rate of 81% for Cardiff; and that tribunal work in the region would also be listed, to give a total utilisation rate of 87%.
(2) It was suggested that Barry could be utilised more fully by, for example, introducing tribunal work, using it as a coroner's court or as a council tax court, or for training, or by providing a family court. The response was that this could not justify keeping the court open since there were other premises available for each of these purposes. As to family work in particular, it was noted that this could be accommodated in the Cardiff Civil Justice Centre (and we were told that in fact a decision to do so has recently been made).
(3) It was pointed out that the Barry courthouse was a modern purpose built court that was fit for purpose, that had been refurbished at a cost of almost £2million, and that it has been very efficiently run. These points were all conceded but the response was that they did not tell against the proposed closure. The fact that there had been recent expenditure did not justify unnecessary and avoidable future expenditure, however satisfactory the court might be; and there was no reason why the performance of the Barry magistrates should not be replicated in the Cardiff Court.
(4) A powerful submission was made, particularly by Atal y Fro (a local support group for victims of domestic violence), that Barry was an important Specialist Domestic Violence Centre, and that this would be undermined if the work were to be transferred to Cardiff. It was suggested that the parties might meet each other travelling to the court on public transport, and that Barry was unique in the area in having separate facilities (including a separate entrance) for complainants and their witnesses. The problems of the transfer of such work to Cardiff were highlighted, it was said, when the work was temporarily moved in 2008-9 when the courthouse in Barry was being refurbished. The response was that Cardiff was also a Specialist Domestic Violence Centre, and it had separate facilities for vulnerable witnesses, when required; and, although they had no dedicated separate entrance, multi-entranced buildings (including Barry) were to be reviewed because of the security difficulties they pose. In any event, particularly vulnerable witnesses could be given support to limit the possibility of meeting defendants on the journey to court and to gain access to the court in Cardiff by a separate entrance, if needed.
(5) It was also noted that the effect of the proposal would mean that the largest town in Wales had no magistrates' court and that the Vale of Glamorgan would be the only local authority in Wales without a courthouse. The response was that this was not a relevant consideration since HMCS was not bound to align courts with local authority boundaries.
(6) A number of issues were raised with respect to the wider costs benefit analysis. It was suggested that some of the potential savings which were alleged were exaggerated, for example the need to replace all the windows in the Barry court at a cost of over £0.8m. The response was that it had not been suggested that the windows at Barry would all be replaced immediately, but that there were significant backlog maintenance costs that reflected a future need if Barry remained open. The substantive point made was that if Barry closed, there would be no need to spend any money on maintaining the courthouse there and, of course, there would be an eventual capital profit from the sale of the building.
Another point made by the representations was that cost increases of the move had been under estimated, particularly the costs that would be borne by the Council itself. Following a "rudimentary assessment", the additional annual costs to the Council were estimated at £300,000, although no breakdown of that figure was given. There was evidence of the additional travel time and costs that would be expended by court users travelling to Cardiff from Barry. In the course of these proceedings, the Council have obtained expert accountancy evidence (not available before the decision to close Barry was made) that their additional costs would be about £170,000, and a further £46,000 being borne by central government in respect of additional magistrates' travel costs (although that cost would not be born by the Council). The response to the consultation was that Barry is only 9 miles from Cardiff, and public transport (rail and bus) is good, being relatively quick and cheap. Some of the more heavily populated areas currently served by Barry (e.g. Penarth) are closer to Cardiff. In the Impact Statement, it was accepted that some court users would have increased journey times and costs as a result of the transfer of work; but these costs would be offset to an extent by strategic planning of court activities in fewer centres and the centralisation of CPS and other functions which, for some, would mean the making of shorter and/or fewer journeys to court.
It said that, due to the multi-factoral nature of the cost-benefit calculation, it was not considered possible to "monetise" (i.e. put a precise figure on) the costs and costs savings. The Lord Chancellor maintains that the expert evidence now obtained by the Claimants is insufficiently sensitive to the wide variety of factors that affect net public cost, and, in any event, on any view the additional costs that might be expended by the Council are less than the annual savings expected by the Barry court closure; and hence there will be net public cost saving from the closure of Barry.
(7) A number of consultees, but notably Ms Jane Hutt (the Welsh Assembly Member for the Vale of Glamorgan), said that Barry is a particularly deprived area as marked by its designation by the Assembly as one of seven Strategic Regeneration Areas in Wales, one key theme of which is "reinvigorating the town centre" of Barry. It was suggested that the closure of the court would not assist in these objectives. The response to the consultation (apparently missing the focus of the point made, Mr Roddick QC, counsel for the claimant, submitted) said that travel to court would be infrequent for most, and available and affordable to almost all. The Impact Statement, however, did deal with the point: it was assumed that if a court closed, then the vacated building would be subject to "an equivalent alternative use", and therefore no adverse local economy impact was expected.
(8) It was also suggested that it would be more sensible for Caerphilly Magistrates' Court to close, given that it is marginally closer to Cardiff and is serviced by excellent travel links. The response to that particular suggestion was as follows:
"At this time, magistrates' court services are very much linked to local criminal justice board areas. As Caerphilly is in Gwent, a different RCJB area from Cardiff, we did not consider merging the work from Caerphilly with that from Cardiff, although there may be merit in working across these boundaries in the future.
(9) The paper also rejected a submission to the effect that these were short term savings only and that there was no coherent strategy. It was stated that with the workload in Barry falling over the years, and having regard to the available resources, it was necessary for HMCS to position itself with fewer courts operating more efficiently.
The grounds of challenge.
(1) The Lord Chancellor failed to consider alternative means of achieving the increased utilisation of the courts at Cardiff and as a related ground of challenge, that he failed to consult about any such alternative scheme.
(2) The Lord Chancellor failed to give proper weight to a range of considerations, including the fact that the Barry court was highly successful; that it was a purpose built court which had been the subject of considerable recent expenditure; that it was better suited for domestic violence cases in the locality; and that there would be seriously adverse economic consequences resulting from the closure.
(3) A specific aspect of this submission was that the Lord Chancellor had failed properly to give proper consideration to the aggregate cost on the public purse, and in particular to the fact that Barry is an economically deprived area which has been identified by the Welsh Assembly as one of seven Strategic Regeneration Areas in Wales.
(4) In all the circumstances the decision was perverse in a Wednesbury sense.
(5) The Lord Chancellor gave inadequate reasons for the decision.
Failing to consider or to consult on alternative means of achieving the objectives
"Other things being equal, it was permissible for him (that is, the Secretary of State) to narrow the range of options within which he would consult and eventually decide.
Consultation is not negotiation. It is a process within which a decision maker at a formative stage in the decision making process invites representations on one or more possible courses of action. In the words of Lord Woolf MR in Ex parte Coughlan  QB 23 at para 112, the decision maker's obligation "is to let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
This passage was approved by the Court of Appeal in R (Forest Heath DC) v Electoral Commission  PTSR 1227 at para 54.
Failure to have regard to relevant considerations.
"Provided the planning authority has regard to all material considerations it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit, or no weight at all."
Accordingly, the submission that too much weight, or inadequate weight, was given to any particular factor is doomed to fail. Indeed, it is not possible to say what weight was given to any of the factors taken individually. The only possible legal basis for challenge is to submit that the weighing exercise was so defective that the Lord Chancellor reached a decision which was Wednesbury unreasonable. That is indeed one of the grounds of challenge, and we address it below.
Failure to consider the economic consequences to the public purse including the fact that Barry has been designated a strategic regeneration area.
"What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision."
Lord Scarman then approved a later passage in the judgment of Cooke J where he observed that there may be cases where a matter is
"so obviously material to a decision on a particular project that anything short of direct consideration by the ministers .... would not be in accordance with the intention of the Act."
This analysis has been followed more recently by Lord Bingham of Cornhill in R (Corner House Research) v Serious Fraud Office  3 W.L.R.568 para 40.
The decision was perverse.
Failed to provide proper reasons.