England and Wales High Court (Administrative Court) Decisions

ON APEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		18 May 2012

1. MR JUSTICE FOSKETT: I have before me an application by the claimant, Mr Croke, for permission to apply for judicial review of a decision made by the Recorder of Leeds and the two Justices, who were sitting with him on that day, on 2 December 2011. It was given in the context of a continuing and, as yet, unresolved appeal by Mr Croke, against his conviction by a District Judge, on 6 March 2009, of two offences under section 39 of the Criminal Justice Act 1988. The matter came before me on the papers when sitting in Manchester a few weeks ago and I directed that it be listed before me as a Single Judge Divisional Court today, with a judicial review application to follow if permission was granted. The substantive appeal in the Crown Court is due to be heard on 31 May and 1 June and it was obviously important that any challenge to the Recorder's ruling that may impact on the hearing should be heard relatively quickly.
2. There is a long procedural history to this matter, since the incident giving rise to the allegations against the claimant took place on 6 May 2008 and four years have elapsed since then, and, as I have already indicated, over three years since the conviction by the District Judge. I do not propose to set out the full history for the purposes of this ruling. It was set out conveniently in Mr Croke's Skeleton Argument and the documents that he has supplied, and also anyone who needs to see a full and accurate chronology of events need go no further than the most recent ruling of the Recorder of Leeds, given on 10 May this year.
3. That ruling was given in the context of a suggestion that the hearing before the District Judge was unfair because CCTV footage had been lost, destroyed or was otherwise unavailable and that that meant that the prosecution amounted to an abuse of process. The Recorder and his two colleagues heard that as a substantive issue on 21 and 22 December against the background of the unfortunate indisposition of Her Honour Judge Kershaw QC, which arose during the course of October, she having been effectively assigned to this case at an earlier stage. I will return to that in just a moment.

The Recorder gave a lengthy ruling on the issues that were before him and concluded his ruling in this way:

"The appeal will now proceed on the basis of the oral evidence of the complainants and any eyewitnesses the respondents call, the evidence of the arrest and responses of the appellant when interviewed, and any evidence which the appellant chooses to put before us."

As I will indicate a little later, a great deal of that decision related to the CCTV images.

4. The matters that form the subject of the proposed challenge before me are said in the Claim Form to be the refusal of the Recorder and his two colleagues to order the attendance of certain witnesses and direct the availability of certain evidence requested by the claimant. In fact, what is really sought is a challenge to the Recorder's decision not to revisit decisions made by Judge Kershaw QC on 7 July 2011.
5. Mr Croke argues that it was wrong for the Recorder not to revisit decisions previously made by Judge Kershaw because Mr Croke would have asked her to reconsider them had she not had to withdraw from the case through ill health.
6. The issues that she considered and adjudicated upon appear from the transcript that I have read to have followed full argument and, as I have indicated, a transcript of what she decided is available. It appears that she gave careful consideration to the requests that Mr Croke made, which amounted essentially to requests for witness summonses to be issued in relation to those witnesses that he wanted to have called. He has helpfully reminded me today of the witnesses that he was asking to be called. They are set out in the supplement to his Skeleton Argument. I will briefly indicate the people that he was seeking to be called, and I will take them from this document rather than the order that he gave them to me orally. There is first Mr Neil Franklin OBE, who was the immediate past Chief Crown Prosecutor for West Yorkshire, Mr Martin Goldman, the present Chief Crown Prosecutor for West Yorkshire, Mr Keir Starmer QC, Director of Public Prosecutions, the CPS solicitor from the Leeds Office, a Mr Mark Langham, the CPS representative at the sentencing hearing of someone who figures in this case called Holmes, the council officers or line managers who were not at that stage, and have still not yet been, identified of someone called Jane Henry, who again is someone who figures in the background to this case, other unidentified council officers, the Divisional Commander of the Leeds City Police and then someone from the council senior management called Susan Murray. She related in particular to the CCTV matters. I am not sure that I have necessarily identified everyone, but that is sufficient for present purposes.
7. The hearing before Judge Kershaw was concerned, amongst other things, with the vexed question of the CCTV images that might have revealed the incident giving rise to the allegations that Mr Croke faced before the District Judge. I simply say this: that of itself can no longer be an issue because the Recorder and his colleagues have dealt with that in the ruling of 10 May, to which I have referred. However, some aspects of that issue had a bearing on the witnesses that Mr Croke was keen to have called. Mr Croke will, I hope, forgive me for saying that when one recites the list of witnesses that he wanted called it would be obvious to any objective observer that he had rather taken his eye off the ball concerning the essential issue in the appeal, namely whether the prosecution can make the court sure that he had assaulted the two alleged victims. I would certainly not characterise the CCTV issue as peripheral and I do not think that anyone would say that he was unreasonable in pursuing it. Whether his suspicions about what has happened in relation to it are justified will be something that, if not already examined during the abuse hearing back in December, will doubtless surface at the substantive appeal. However, Judge Kershaw, who was obviously au fait with the issues in the case when the case was before her back in July 2011, was not persuaded of the relevance of the other witnesses to whom I have referred. Though, strictly speaking, it is not for me in this court to say whether that was right or wrong, I can well understand her view.
8. However, as I have indicated, it is not her view at that time that Mr Croke seeks to challenge, it is the Recorder's view for not reconsidering it when the matter came before him in December 2011. The short passage in the transcript that reveals the way the Recorder approached the matter is as follows (and this was in response to a suggestion made by Mr Croke, putting it shortly, that there was evidence that could be, or ought to, be followed up):

"Well I think the way I am going to deal with that and subject to discussing matters with the Justices sitting with me, is that if Judge Kershaw has made a ruling, unless there is a change of circumstances, then it is really not appropriate for me in the same proceedings to make a different ruling. If she made a wrong ruling then obviously there are other courses open to you as you know, and I think from time to time you take, but I think it is not an appropriate course for me to take. I do not know if you have anything to add there?"

Mr Croke is reported as saying, "I appreciate your position, my Lord..." and then went on to deal with the CCTV matter. Mr Croke says that had Judge Kershaw not been ill he would have been able to ask her to review her position and that in effect the Recorder's decision precluded any opportunity to do so, or at least to reconsider the view that she had taken.

9. In my judgment it is important to recognise that both decisions made, namely that by Judge Kershaw and that by the Recorder, were made as interim case management decisions in the context of a pending appeal to the Crown Court. They need to be seen in that light. Before Mr Croke's contention in this application can get off the ground it would be necessary for him to demonstrate that the decision of Judge Kershaw and/or the Recorder were either unlawful, unreasonable or irrational in the Wednesbury sense, an expression which Mr Croke acknowledged that he understood.
10. Whilst this court exists of course to entertain applications of that nature if the grounds exist, the threshold for establishing any such ground is high, given that it is essentially a matter for the court with carriage of the proceedings (in this case Leeds Crown Court) to make interim rulings in the context of cases proceeding there.
11. That observation of mine is in part a reflection of what the Lord Chief Justice said recently in the case of R v A [2012] EWCA Crim 434, to which the Crown Prosecution Service were right and perfectly entitled to draw my attention in their Skeleton Argument, or at least in the documents that I have been supplied with. The question is: was the Recorder acting in a Wednesbury unreasonable fashion by taking the stance that he did? Notwithstanding the way in which Mr Croke has put the matter, I do not think that it could possibly be said that he was. There was a full decision by Judge Kershaw and in accordance with standard practice the Recorder said that he would want to see changed circumstances before taking a different view. Although Mr Croke says that the circumstances had changed, he was not very specific about what those changed circumstances were and I cannot see what had truly changed as between the timing of the two considerations of these matters.
12. However, even if the Reorder had entertained the possibility of a review of Judge Kershaw's decision, which of course might have been a course that he chose to adopt, the question is: is it arguable that he would have come to a different conclusion? Again I do not think that can be said. He had to have regard to the overriding objective of the Civil Procedure Rules and to what was proportionate to the case involved. He would have been entitled to take the view that these witnesses (those whom I have already identified) were either of no relevance to the case or certainly not of central relevance to the issue in the appeal.
13. At all events the question is: has it been demonstrated in this court that the Recorder's decision was outside the band of reasonable decisions that could have been made in the circumstances, because that is the only way in which a claim of this nature can be entertained? In my judgment there is no arguable case for saying that and, accordingly, there is no arguable case for judicial review of those particular matters.
14. Mr Croke also complains about the Recorder's refusal, apparently given on 22 December, to direct that a transcript of the evidence given on the previous day, 21 December, should not be prepared at public expense and made available at the substantive appeal hearing. 21 December was the first of the two days set aside for the abuse hearing at which witnesses were called to deal with, I apprehend, the CCTV issue, if I can describe it in that way. Some of those witnesses will undoubtedly be prosecution witnesses at the substantive hearing and Mr Croke is anxious to be in a position to be able to demonstrate to the tribunal hearing the appeal that there are inconsistencies between what the witnesses said then and what they say at the appeal hearing, if indeed inconsistencies are manifest to him.
15. Again, so far as this issue is concerned, it seems to me that this was well within the discretion of the Recorder and it is not something with which I could possibly interfere. As I observed during the course of the argument this morning, it is highly likely that he and the two justices who were sitting with him on 21 December, who will be sitting also with him at the substantive hearing of the appeal, will have been making notes of the evidence at the time and, providing those notes are available to them, if a discrepancy between what is said then and what was said on the 21st manifests itself it will be possible to check that by reference to the notes.
16. Mr Croke has put his application well and courteously, but I am wholly unpersuaded that there is any basis for granting permission on the merits of this case. It is a fair point that is made against him also that he did not seek to challenge the decision by way of judicial review until the very last minutes of the three-month period that is normally set down as the outer limit for such applications. I cannot, for my part, see why, if the matter was of such importance, that he did not deal with the matter more quickly. However, I do not reject his application on that basis. I regret to say that I must reject it because I see no merit in it.
17. Those are my reasons. I am afraid I must refuse the application for permission.
18. MR JUSTICE FOSKETT: Are there any consequential applications?
19. MR LODATO: Indeed, my Lord, in view of the judgment that has just been given I would suggest that costs should follow the event and a schedule has been submitted.
20. MR JUSTICE FOSKETT: Just remind me where the schedule is.
21. MR LODATO: It should be just behind the skeleton argument. I can hand up another copy if it is convenient?
22. MR JUSTICE FOSKETT: About £1,500 in total; is that right?
23. MR LODATO: Indeed. In fairness to Mr Croke and the costs issue, the amount of time spent in responding to this claim as there has been a necessity for me to review material that my predecessor reviewed in that he was unavailable to attend this hearing, so in fairness to Mr Croke I make that point.
24. MR JUSTICE FOSKETT: Mr Croke, is there anything you would like to say about the application for costs?
25. THE CLAIMANT: In respect of the application for costs, my Lord I have seen a brief application. There is no indication of it being drawn by an all costs draftsman, it, therefore, could be challenged on that point, but I will not.
26. MR JUSTICE FOSKETT: This might take a broad view of it but that--
27. THE CLAIMANT: The figure is irrelevant one way or the other, my Lord. I don't have the present means to pay for it. I would ask that it be added to the many thousands of pounds that will no doubt be presented at the end of the appeal process, several years in the future. Either then my appeals process would have succeeded and I will be the one presenting a bill for costs, or if the appeal ultimately fails at the highest possible non-domestic court, then I will be in the position, as indicated in the note passed to your Lordship today, to perhaps enjoy substantial royalties from a publication, and in which case I would see no problem whatsoever in discharging any bill duly presented to me.
28. MR JUSTICE FOSKETT: Thank you, but I am not, forgive me for saying it, terribly persuaded by that. What I am proposing to simply say is that you will pay £750 in relation to this matter, but not to be enforced without the permission of this court.
29. THE CLAIMANT: I am obliged for that, my Lord. May I make an application?
30. MR JUSTICE FOSKETT: Of course, yes.
31. THE CLAIMANT: Would it be possible at public expense to receive a transcript of your Lordship's ruling? Nothing else would be necessary.
32. MR JUSTICE FOSKETT: I am prepared to do that and it will be expedited because I think it is important that at least the court who deals with this in two weeks time knows what I have said. I will give a direction for an expedited transcript at the public expense.
33. THE CLAIMANT: I am obliged for that, my Lord. Might I have your Lordship's leave to appeal your decision?
34. MR JUSTICE FOSKETT: The answer is "no". I do not think there are reasonable prospects of success.
35. THE CLAIMANT: Very well, I may take that to --
36. MR JUSTICE FOSKETT: Of course. That is entirely for you. Thank you very much, indeed. Thank you very much to both of you.
37. THE CLAIMANT: Thank you, my Lord.