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
		3 February 2011

 

1. LORD JUSTICE TOULSON: On 8 August 2010 a nasty incident happened in an underground train at Epping Underground Station. A woman, whom I will call S, boarded the train, followed shortly afterwards by another woman and a man. According to S, the other woman became aggressive, complaining that S had pushed past her at the barrier at the entrance to the station. S got up from her seat and the other woman then assaulted her, pushed her through the door leading to the driver's cab on to the floor, punched her a number of times, and pulled out some of her hair. The train was stationary all this time. A fellow passenger telephoned the police. At the same time the other woman and the man left the train. The police attended and obtained descriptions of the woman and the man.
2. Miss Firth was arrested soon afterwards not far from the station. She is the claimant in these proceedings but is the defendant in the criminal proceedings which underlie them. On the next day she was interviewed by the police under caution but said "no comment" in answer to every question. After being interviewed, she was charged with assault by beating, contrary to section 39 of the Criminal Justice Act 1988.
3. She was bailed to appear at Epping Magistrates' Court on 1 September 2010. On that occasion she was represented by counsel, Miss Crocker. The prosecution was represented by a senior Crown Prosecutor, Miss Deutsch. Miss Firth pleaded not guilty to the charge and, with a view to the future management of the case, a document called a case progression form was completed.
4. Since 2005 there have been Criminal Procedure Rules, which are made under section 69 of the Courts' Act 2003. The rules apply to all criminal cases. Section 69 creates a body called the Criminal Procedure Rule Committee to make Criminal Procedure Rules. Section 69(4) provides:

"Any power to make or alter Criminal Procedure Rules is to be exercised with a view to securing that (a) the criminal justice system is accessible, fair and efficient and (b) the rules are both simple and simply expressed."

5. The current version of the Criminal Procedure Rules came into effect on 5 April 2010. The Criminal Procedure Rules reflect a new approach to the administration of criminal justice, in which both sides, rather than the prosecution alone, are required to disclose the nature of their case well before trial, for the reasons advocated by Auld LJ in Gleeson [2004] 1 Crim App R 29 page 416:

"A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."

6. Rule 1.1 provides:

"1) The overriding objective of this new code is that criminal cases be dealt with justly.

2) Dealing with a criminal case justly includes (a) acquitting the innocent and convicting the guilty (b) dealing with the prosecution and the defence fairly ... (e) dealing with the case efficiently and expeditiously."

Rule 1.2 provides:

"1) Each participant in the conduct of each case must (a) prepare and conduct the case in accordance with the overriding objective ..."

Rule 1.3 provides:

"The court must further the overriding objective in particular when (a) exercising any power given to it by legislation, including these rules ..."

Rule 3.2 provides:

"1) The court must further the overriding objective by actively managing the case.

2) Active case management includes (a) the early identification of the real issues ... (g) encouraging the participants to cooperate in the progression of the case.

3) The court must actively manage the case by giving any direction appropriate for the needs of the case as early as possible."

Rule 3.3 provides:

"Each party must (a) actively assist the court in fulfilling its duty under rule 3.2 without or, if necessary with, a direction."

7. The use of a case progression form is part of this process. It forms part of the court record. It records matters such as the date fixed for the trial, the estimated length of trial, the likely number of defence witnesses, and the names of prosecution witnesses. It also had, at the relevant time, a box headed "trial issues (what is disputed and what is agreed)." The information recorded at the hearing on 1 September in this box was:

"Assault on def by complainant. Only contact made was in self defence".

In other words, if the form was correct, the court was informed at that stage that it was Miss Firth's case that she was assaulted by S and acted in self defence.

8. The form also recorded that the case was to be tried in the Magistrates' Court on 15 November 2010 and was estimated to last one day. However, on 5 November 2010 the Crown Prosecution Service wrote to Miss Firth's solicitors to inform them that the prosecution had decided to increase the charge to one of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861.
9. The matter next came before the court on 11 November in order to take Miss Firth's plea to the new charge and to decide on the venue and mode of trial. Miss Firth pleaded not guilty and the magistrates decided that the case should go to trial at the Crown Court before a judge and jury. There would therefore have to be committal proceedings. Miss Firth's legal representative asked for a full committal hearing, because it was going to be her contention that the prosecution witness statements which had been served did not disclose a prima facie case.
10. The committal hearing took place on 15 November. The witness statements which the prosecution had served did not contain any identification of Miss Firth as the person who allegedly assaulted S, but, before the hearing, prosecuting counsel informed Miss Firth's counsel that he would seek to adduce the contents of the case progression form as evidence that Miss Firth had admitted to being involved in the fracas with S, albeit as a victim of an assault by S rather than the other way around. This led to an argument before the magistrates whether the case progression form was admissible in the committal proceedings for this purpose. The magistrates decided that it was, and Miss Firth's counsel made no further objection to the committal proceedings. The case was formally committed to the Crown Court for trial.
11. These proceedings are in the form of an application for judicial review to quash the committal on the ground that the magistrates were wrong in law to admit the case progression form as evidence in the committal proceedings. Leave to apply for judicial review was given by Burnett J.
12. The magistrates have taken no part in the proceedings but the application is opposed by the Director of Public Prosecutions as an interested party.
13. There has been served, on his behalf, a witness statement made by Miss Deutsch, who represented the prosecution at the hearing on 1 September 2010. She confirms that Miss Firth was present and was represented by counsel, Miss Crocker, and she states that the case progression form was completed by Miss Crocker. She adds:

"I know this because it is not in my handwriting and I have endorsed the file that Miss Crocker was the defendant's representative. In particular, the box that asks what the issues are and what is agreed was completed by Miss Crocker. This was repeated orally in court."

14. Mr Grout, who appears for Miss Firth on this application, has indicated to the court that Miss Deutsch's evidence on this matter is undisputed. It might be thought to follow that this appeal is in a sense academic. For if the application were successful, and the committal quashed on the basis that the magistrates were wrong to order Miss Firth's committal on the material available to them, the prosecution could apply to a High Court Judge for leave to prefer a voluntary bill of indictment on the basis of Miss Deutsch's statement. Mr Grout was initially inclined to agree that it would be hard to imagine that such an application would be refused. However, as he developed his argument it became plain that, if the principles for which he contends are correct, such an application ought properly to be refused, because it is his submission that the contents of the case progression form ought not to be brought into evidence against his client in any way.
15. The question whether the magistrates were right to admit the case progression form, either on the material which was then available to them or if they had additionally known that it had been completed by Miss Firth's own counsel, does raise a point of some interest. The Magistrates' Courts Act 1980 contains provisions about the evidence which is admissible at committal proceedings. Under sections 5 to 5E the evidence has to be in written form and to come within one of a number of categories. The prosecution rely on category 5E, headed "other documents." This section contains a number of paragraphs which appear to be largely duplicative of one another. They cover any document which, by virtue of any enactment, is evidence or is to be admitted or received in or as evidence in proceedings before a Magistrates' Court enquiring into an offence as examining justices. "Document" is defined as meaning anything in which information of any description is recorded. The case progression form undoubtedly contains information, so the question is whether it is admissible as evidence in the committal proceedings by virtue of any enactment.
16. The prosecution rely on three statutory provisions: section 118(6) of the Criminal Justice Act 2003; section 114(1)(d) of the Criminal Justice Act 2003; and section 10 of the Criminal Justice Act 1967. Section 118(6) of the CJA 1967 preserves the prior common law exception to the hearsay rule in relation to admissions by an agent. It provides:

"The following rules of law are preserved ... (6) any rule of law under which in criminal proceedings (a) an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated."

17. The common law principles in relation to admissions made by agents in the context of criminal proceedings were considered by the Court of Appeal Criminal Division in Turner [1975] 61 Crim App R 67. At page 82 Lawton LJ set out three principles. First, an authorised agent can make an admission on behalf of his principal; secondly, a party seeking to rely on an admission must prove that the agent was so authorised; thirdly, the court is entitled to assume that what a barrister says in court on behalf of his client is said with his client's authority. As Lawton LJ said:

"If the court could not make this assumption, the administration of justice would become very difficult indeed."

18. There is no reason in principle why section 118 of the Criminal Justice Act 2003 cannot apply at committal proceedings as much as it would apply at a trial. If the case progression form would be admissible in evidence at the trial there would be no rhyme or reason in excluding it from consideration at the committal stage. Moreover, at the committal stage, where evidence is of possible but doubtful admissibility, it is good practice for the magistrates to admit it and leave the final decision to a higher court, as the magistrates correctly did in the present case.
19. It is not disputed by Mr Grout that the case progression form in this case, on its face, amounts to evidence of an admission made by her counsel on her behalf. Implicit in the assertion that S assaulted Miss Firth was an acceptance that she was involved in a physical encounter between the two of them. Since the document is part of the court record its authenticity as to what it purports to be is not in question, but, if there were any doubt about it, that could be dealt with by the document being certified by a court officer.
20. It is true that there is nothing on the face of the document to indicate who wrote the words on which the prosecution rely. They might have been written by Miss Firth's counsel (we now know that they were) or by the Crown Prosecutor or by the court clerk. However, to anyone with knowledge of the court process, of which the court is entitled to take judicial notice, it would be apparent that, unless a mistake had been made, what was recorded about the nature of Miss Firth's defence must have been provided by Miss Firth's counsel for the information of the court. Neither the prosecution nor the court officers could have known what was her case unless they were told by her counsel in the proper exercise of counsel's responsibilities under the Criminal Procedure Rules.
21. Mr Grout, however, submits that the document was not admissible and that the ordinary principle of admissibility recognised in Turner does not apply to a document completed at a case management hearing. He presented the argument attractively but I do not accept it. He founds the argument in part on principle and in part on two authorities.
22. As a matter of principle, Mr Grout submits that to admit such evidence would infringe against the principle that a defendant is not required to incriminate himself or herself. I would reject that argument for the reasons given by Auld LJ in the passage cited. It does not infringe against the principle that a defendant is not required to incriminate himself for the court to require that the nature of the defence is made plain well before the trial. Of course, any requirement for disclosure of the nature of the defence must be a fair requirement, in the sense that it must not be extracted from a defendant in circumstances where the prosecution have no case and are trying to adopt Star Chamber processes to try to build a case, but the rules are designed to make sure that this does not occur.
23. So, I would reject the broad proposition that any requirement that a defendant should disclose his or her hand before trial is inherently repugnant.
24. Similarly, insofar as the information imparted by counsel was, until that moment, privileged (as any prior discussions between Miss Firth and her counsel undoubtedly were), thereafter by reason of the open disclosure that she made, pursuant to the rules, there can no longer be claimed to be any privilege in that information.
25. I turn to the two authorities on which reliance is placed: Hutchison [1986] 82 Crim App R 51 and Dietrich and Aldridge [1997] 1 Crim App R 369. Reading those reports, one realises how far the system of the administration of criminal justice has changed over the last 25 years.
26. In Hutchison the question was whether there could be deployment at the trial of things said by the defendant's counsel at a pre-trial review. In those days pre-trial reviews were a creation of the courts, which had no statutory foundation. The court noted that many judges and practitioners would welcome a pre-trial review having the force of law but, until such time as Parliament introduced the necessary statutory changes, a pre-trial review was to be regarded as an essentially voluntary discussion about matters affecting a forthcoming trial. Although the court did not use this expression, the effect of the judgment was that such a hearing was equivalent to a "without prejudice" meeting between parties in civil proceedings. It took place on the understanding that nothing said at such a hearing could be used at the trial without the consent of the other party. Under that approach there was no discretion on the part of the court whether to admit or exclude such evidence. It simply was not admissible, because of the very nature of the discussion and the understanding upon which the parties embarked on it.
27. By the time that Dietrich was decided, the law had developed to the point that there were rules governing plea and directions hearings, but they were very different from the present rules. The court considered that only rarely would it be right to use at trial anything which had been said at such a hearing, but this was essentially a matter for the court's discretion, having regard to the purpose of such hearings. The court made it plain that it was not saying that it would never be appropriate to introduce before the jury matters which had transpired at the plea and directions hearing. Rather the court expressed the view that it would rarely be appropriate to do so.
28. Mr Grout has drawn to our attention that the editors of Archbold 2011 suggest, at paragraph 484K, page 303, that principles in those two cases should govern the approach of the court today to the deployment of material at pre-trial hearings governed by the Criminal Procedure Rules. I disagree. In the first place, the principles laid down in Hutchison and the principles laid down in Dietrich were different from one another, because they reflected the different understanding and state of the rules at the times when those two cases were decided. The first recognised a rule of law that no use could be made of information provided at a pre-trial hearing; the second rested on the court's discretion. More fundamentally, I disagree with the editors' view because it fails to take account of the major change brought about by the Civil Procedure Rules for the purpose of fulfilling the expectation set out in paragraph 69(4) of the Courts' Act 2003.
29. In the course of argument there was discussion about the practical consequences if Mr Grout's argument were right. Suppose that in the present case the matter had proceeded to a summary trial in the way that the parties originally expected. Because of the way that the issues were identified in the case progression form, the prosecution would not have thought it necessary to adduce identification evidence. If then, after the prosecution had called its evidence dealing with the nature of the events, the defendant had submitted that there was no case to answer because there was no proof of identification, Mr Grout recognises that there would be a problem. To put it colloquially, the prosecution would have been led up the garden path. He submits that it would not be possible in those circumstances for the prosecution to introduce the case progression form. Rather the appropriate course would be for the prosecution to seek an adjournment. As a matter of practical reality the case would then have to go off to a future date, probably before a different bench of magistrates, and the prosecution would have to set about seeing whether they could obtain further identification evidence, involving identification parades, by now a considerable time after the incident.
30. If one asks rhetorically whether that approach is consistent with the object of the Criminal Procedure Rules, ie whether it would further the interests of justice, do fairness and encourage expedition, the answers are obvious. I see no unfairness, in such a case, in the prosecution being able to put in evidence the case progression form.
31. Mr Grout contended that the information given on the case progression form should not properly be regarded as identifying the issues, but merely a forecast of what the issues are likely to be. That would run contrary to the object of the modern case management system.
32. Mr Grout put forward possible variations of his argument. At its broadest he contended that no pre-trial admission made by a defendant's lawyer could, in any circumstances, be used at a subsequent trial. This would have the result that if a defendant in interview by the police admitted presence at the scene of assault but claimed to be the victim, that evidence would go before the jury, whereas if the defendant maintained a "no comment" interview but on the first hearing before the court his counsel, with his full authority, told the court that he admitted to being present but claimed to be the victim, such evidence could not go before the court. That sort of quirky rule has no place in a modern system for the fair administration of criminal justice. A defendant is at least as well protected when represented by a lawyer at court as he is when interviewed by the police, with or without a lawyer.
33. Mr Grout advanced more limited alternatives, such as that admissions by a defendant's lawyer at a pre-trial hearing might in certain circumstances be used to rebut a defence, but not for the purpose of establishing a prima facie case. I can so no logic in drawing such a distinction. Part of the purpose of early identification of the real issues is to avoid the time, expense and possible inconvenience of having to obtain evidence to prove aspects of the case which are not disputed.
34. It has also to be remembered that the question of admissibility of evidence as a matter of law and the question whether the evidence should be allowed to be introduced by the prosecution at the trial are not the same. If the circumstances in which an admission was made at a pre-trial hearing were such that there would be any unfairness in admitting it at the trial, the defendant's position is protected by the court's power to exclude such evidence under section 78 of the Police and Criminal Evidence Act.
35. For those reasons, I am unable to accept Mr Grout's argument that the court should hold that there is today some residual principle, from cases such as Hutchison, preventing the deployment of material, either at a trial or at committal proceedings, which would be admissible under the principles of Turner (as now given statutory force). To recognise such a principle would have the potential seriously to weaken the Criminal Procedure Rules. It would place the prosecution in every case in the position of having to choose whether to prepare evidence on a point which they have been told is not in dispute, in case it should turn out to be in dispute at trial, or to act on what they have been told, with the risk of having later to seek an adjournment of the trial and incur the extra expense and possible difficulty of obtaining evidence at a time when the trail may have run cold.
36. Since I accept the prosecution's case that the evidence was admissible under section 118(6), it is unnecessary to consider the alternative statutory bases upon which the prosecution rely. For those reasons, I would dismiss this appeal.
37. MR JUSTICE EDWARDS-STUART: I agree that, in spite of the attractive argument presented by Mr Grout, this application must fail for the reasons given by my Lord Toulson LJ.
38. LORD JUSTICE TOULSON: I am grateful to my Lord. Mr Grout, you did present it attractively and I will make sure that gets into the transcript when I approve it.
39. MR GROUT: I am very grateful.
40. MR LITTLE: My Lord, there is the question of costs. The interested party was obviously brought into these proceedings and had a legitimate interest in defending them, I would ask for the interested party's costs from the claimant. I understand that the claimant has a Community Service Legal Funding Certificate, so it would need to be, if I am right about the costs, the usual order in relation to that.
41. LORD JUSTICE TOULSON: Yes.
42. MR GROUT: My Lord, I cannot resist that application.
43. LORD JUSTICE TOULSON: No. So be it.
44. Thank you very much.