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
		25 June 2014

1. SIR BRIAN LEVESON: On 28 August 2013 at the Hendon Magistrates' Court before District Judge (Magistrates Courts) Denis Brennan, Dariusz Radziwilowicz and Adam Wanas entered pleas of not guilty to charges of contravention of section 4A of the Public Order Act 1986. Radziwilowicz also pleaded not guilty to an offence under section 31(1)(b) of the Crime and Disorder Act 1998 and section 5 of the Public Order Act, being the racially aggravated form of the offence. The case was prosecuted by an associate prosecutor (as defined by section 7A of the Prosecution of Offences Act 1985) who did not have rights of audience to conduct a trial; it had been listed following an earlier hearing on 21 August when, according to the Case Stated, the police summary had been served and an adjournment requested for the Crown Prosecution Service to obtain witness statements and review the charges.
2. In the event, at the hearing before the District Judge, the police statements were not then available. This was a prosecution begun by British Transport Police and only thereafter registered to the CPS. In the light of the Criminal Procedure Rules 2013 and the protocol "Stop Delaying Justice", the Judge determined to take pleas and the defendants pleaded not guilty. Defence solicitors then invited the court to proceed with the trial immediately, both defendants waiving their rights to disclosure of unused material.
3. The prosecutor objected on the ground that first he did not have authority to conduct a trial in any event. He also agreed that he did not have any evidence, written or oral, on which to proceed. In the circumstances the District Judge refused the adjournment in his terms, as expressed in the case, "as being inimical to the interests of justice." No evidence was offered and the charges were dismissed.
4. It is in those circumstances that the Director of Public Prosecutions appeals by way of Case Stated. In the case the District Judge sets out his reasons in these terms:

"11. Unlike situations where I am requested to state a case after a full trial, I have very little evidence to look back upon to assist me in setting out what happened at court in this case. This case was called on during the course of a routine, busy remand and overnight list. I didn't retire to consider my decision. It would have been highly unusual for me to do so, as I simply would not be able to get through my list if I was to retire to consider every such case.

12. Accordingly, I applied the factual background, as set out above, set against the respective responsibilities of the parties and myself in accordance with statute, case law and the CPR.

13. I have a discretion, in accordance with s 10 Magistrates' Courts Act 1980, whether to adjourn or not. There have been many cases concerning the application of that discretion. None of us in Court specifically referred to them but I had in mind, in particular, DPP v Picton (2006) EWHC 1108 (Admin) and Visvaratnam v Brent Magistrates' Court (2009) EWHC 2017 (Admin). I also considered the CPR. Every District Judge (Magistrates' Courts) is familiar with the details so far as both the Court's and the parties' duties are concerned, as set out in Rules 2 and 3.

14. Thus, by the 28th August, the CPS had failed to provide the Court and the Defendants with any witness statements. Also, between 21st and 28th August, the CPS had failed to review the case, to see whether the charges were correct, or whether there ought to be an alternative racially aggravated charge against Mr Wanas or whether the case ought to proceed at all. Since being asked to state a case, I have been informed by the Applicant that a prosecutorial review of the case had taken place, albeit on 6th August. The outcome of that review, the Applicant accepts, was not brought to the attention of Mr Haling on 28th August nor, do I infer, to the prosecutor at Court on 21st August. However, it is not suggested by the Applicant that any further review, between 21st and 28th August, had taken place.

I recognised that some of this failure is the responsibility of the police but the CPS present cases and must be accountable for the prosecutorial process.

15. As a consequence, these failures had undermined my ability to manage the case effectively, as set out in Rule 3 of the Crim PR. If I had granted an adjournment, I would have then had to set a trial date and time or adjourn again to another non-effective date. In the former, I had no idea how many prosecution witnesses were required, how long each witness would take or what the real issues were in the case. I could not tell whether any future trial date was convenient for any prosecution witness nor indeed whether other evidence could be agreed between the parties eg interviews, the facts of arrest etc. In the latter, that would make three non-effective dates. That course of action is inimical to simple speedy summary justice, and the previous adjournment had not achieved its objective.

16. I wholly accept that my decision was robust but was within the limits of my discretion based on the known facts and omissions. The complaint is that I have acted unreasonably, and as a consequence those subjected to the alleged misbehaviour of the defendants have not been able to tell the court what had happened. When weighing up whether I ought to adjourn or not, in the circumstances presented to me on 28th August, my view was, and is, that the CPS and the police had acted unreasonably towards the Court, the defendants and their own witnesses; it was the prosecution's failures and omissions which were unreasonable, contumelious and disrespectful. I also accept that the effect of my decision was disciplinarian but I consider, in managing my case load and furthering the overriding objective as articulated in CPR 1, that that is a legitimate tool in the range of devices available to me."

5. The question posed by the District Judge for the opinion of the court is:

"Whether in the circumstances I had acted unreasonably in refusing to adjourn the case to a subsequent date."

6. The skeleton argument prepared by Mr James Boyd on behalf of the Director condescends to a considerable amount of detail about the charges, the evidence and the degree of consultation. It is unclear how much of that was before the District Judge and none has made its way into the Case Stated, which is the defining document and upon which I approach the issue. To allow extraneous material is to run counter to the well known approach to appeals by way of Case Stated, namely that the facts must come from the four corners of the document approved by the District Judge stating the case.
7. The procedure to be adopted for summary trial is set out in section 9 of the Magistrates' Court Act 1980, with section 10(1) providing the power to adjourn, whether before or after beginning, to try an information. In the normal course of events, therefore, the first stage is for the court through the legal adviser to read the charge and take the plea. Following a plea of guilty 9(3) permits a conviction to be recorded without hearing evidence. Following a not guilty plea the usual course is to adjourn for trial pursuant to section 10(1).
8. This brings me to the judicially led initiative known as Stop Delaying Justice. This follows an earlier initiative with the acronym CJSSS concerned with simple, speedy and summary justice. The aim has been that all contested trials in the Magistrates' Court will be fully case managed in the first hearing and disposed of, by way of trial or otherwise, at the second. The initiative also makes reference to the idea of an immediate trial but provides examples of such a possibility which are very different from the present case. Thus such a course might be adopted if the initial or advanced disclosure contains all of the likely available evidence of note. One example is a case where a defendant admits possession of property which it is common ground has been stolen with the issue being knowledge or suspicion. Another concerns admission of possession of a knife where the sole issue is good reason or lawful authority. In other words prosecution evidence is not challenged and the only evidence, if any, will be that of the defendant.
9. In that regard the initiative makes it clear that:

"The real issue is fairness of the proceedings to all parties. It is suggested that this method of calling on an immediate trial in an appropriate case, especially where the parties agree, does not offend the fairness of the proceedings under CPR Part 1 Rule 1.1 and is not a breach of the defendant's Article 6 rights."

10. The District Judge approached the case on the basis that he had an undoubted discretion. His references to Director of Public Prosecutions v Picton and Visvaratnam v Brent Magistrates' Court are, however, misplaced. Although these cases are authority for the proposition that if the party asking for an adjournment is at fault that is a factor to be taken in to account, both concerned an application for a hearing that was listed as a trial. Thus, in each case the prosecution was aware of the need to produce evidence at the hearing and failed to do so.
11. In this case, there was no obligation on the prosecution to have their witnesses available, rather it was to be in possession of enough material to enable the case to be advanced sufficiently and without the need for a further interlocutory hearing. Furthermore, the fact that, as the District Judge well knew, the prosecutor was not authorised to conduct trials only makes it more obvious that it was clear that the trial could never proceed and thus, as he readily concedes in the stated case, the decision was purely disciplinary.
12. Mr Boyd has referred to authorities which make it clear that faced with non-compliance by the prosecution with the duty to provide advanced information, now "initial details", the magistrates could do no more than adjourn; see Dunmow Justices ex parte Nash [1993] 157 JP 1153 and King v Kucharz [1989] 153 JP 156, in which cases were stayed as an abuse rather than forced on and then dismissed. He readily concedes, however, that these cases predate the case management powers conferred by the Criminal Procedure Rules but, in my judgment, the requirements of the overriding objective to deal with cases justly do not call for any other approach. Part 1.1(2) of the CPR includes within the definition (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and defence fairly; (d) respecting the interests inter alia of witnesses and victims. This is in addition to (e) dealing with the case efficiently and expeditiously.
13. For my part I can well understand that the District Judge had the spirit of Stop Delaying Justice well in mind and was equally aware of the needs of other cases. It may have been entirely appropriate that he sought to censure the CPS or the British Transport Police for their failings which, based purely on the evidence of the Case Stated, were unexplained, whatever now might be the explanation for them. Mr Boyd suggests that the Judge could have made an order against the prosecution for the costs incurred as a result of the ineffective hearing; see Rule 76.8 CPR of the relevant regulations. For my part, I am concerned that given the way in which criminal defence is funded it might be difficult to identify what costs, if any, have in fact been wasted.
14. In truth, the time of the court has been taken up and other cases delayed. The valuation of that cost and whether it ought to be recoverable is a matter which ought perhaps to be considered. An appropriately senior prosecutor could have been called to court to explain the failure, although that would only take that prosecutor away from work on other cases. None of these solutions is ideal and there is a similar problem in relation to defence failures to comply with judicial directions or the Rules. All this needs review, for the court does require mechanisms to ensure that the objectives of the Criminal Procedure Rules are met and failures adequately admonished and subject to sanction.
15. In the context of this case, however, those who complained about the conduct of these defendants have been deprived of their opportunity to pursue the matter and the case was brought to a premature and abrupt end, requiring the prosecution to proceed in a way and at a time that was entirely unjustified.
16. In the circumstances I would answer the question posed by the District Judge in the affirmative, allow the appeal and remit the case back to the magistrates so that the matter can proceed.
17. MR JUSTICE CRANSTON: I agree.
18. MR BOYD: My Lord, I don't have any applications.
19. SIR BRIAN LEVESON: It would be difficult given nobody has appeared against you.
20. MR BOYD: Indeed.
21. SIR BRIAN LEVESON: Thank you.