England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3 December 2014

1. MR JUSTICE JAY: These are two renewed applications for leave to apply for judicial review, permission having been refused on the papers by HHJ May QC sitting as a Deputy High Court Judge on 29 April 2014. As the claimant reminds me, on 24 October 2014 these applications came before Collins J who adjourned the matter because Mr Ezeugo had not been given access to his papers whilst in prison.
2. The essential factual background to these applications is as follows. The claimant is a serving prisoner. He is currently incarcerated at Her Majesty's Prison Chelmsford. He tells me that he received a sentence of 30 months imprisonment for breach of Section 3 of the Health and Safety at Work etc Act 1974. It is not altogether clear whether the claimant has lodged an appeal to the Court of Appeal in relation to that matter but he has shown me papers which are currently in court which he wishes his wife to file at the Court of Appeal as soon as possible. In any event, I should explain and emphasise that the Health and Safety at Work Act matter is not before me today. This court does not have jurisdiction. The only court which does is the Court of Appeal Criminal Division.
3. In the first application, which bears action number CO/1417/2014 the claimant seeks to challenge the decision of HHJ Devaux on 28 February 2014 to refuse to state a case for the opinion of the High Court. What happened here is that on 24 June 2013, I understand in his absence, the claimant was convicted by the Southeast Suffolk Magistrates' Court for the offence of common assault. He appealed against that conviction to the Ipswich Crown Court on 28 January 2014. He attended court on that occasion but the appeal was dismissed.
4. The claimant then applied to the Crown Court, pursuant to Section 28(1) of the Senior Courts Act 1981 to have a case stated for the opinion of the High Court. On 28 February 2014, HHJ Devaux issued a certificate under Criminal Procedure Rule 64.6(6) refusing to state the case on the ground that in his opinion the application was frivolous. The judge considered that the claimant had failed to comply with the relevant rules, in particular he had failed to specify the proposed question or questions of law or jurisdiction on which the opinion of the High Court would be sought.
5. In his second application, which bears action number CO/1419/2014, the claimant seeks to challenge the decision of Mr Recorder Nicklin QC to refuse to state a case on 24 January 2014. What happened here was that also on 24 June 2013, at the Southeast Suffolk Magistrates Court and again in his absence, the claimant was convicted of an offence contrary to Section 5 of the Public Order Act 1986. He appealed to the Crown Court against conviction, he attended and that appeal was dismissed on 12 December 2013. The Recorder gave details reasons for holding that he considered that the application to state a case was frivolous. In particular he said this:

"The central assertions in the application are arguments about the assessment of, and weight to be attached to, evidence. In essence therefore, the application to state a case is misconceived. It is an attempt to appeal the court's decision on the facts. At the appeal, the court was satisfied on the evidence of the prosecution witnesses and the CCTV footage that the appellant was guilty of the offence under Section 5 Public Order Act 1986. The appellant's application for the court to state a case proceeds almost entirely on the basis of a complaint that the court was wrong conclude on the evidence of the witnesses and the CCTV footage that the appellant was guilty. That is not a proper basis on which to state a case."

6. The claimant appearing before me today raises at least two preliminary matters. The first is that I should adjourn this application for permission on the ground that he could not properly prepare himself for today's proceedings. He has pointed out that he is a serving prisoner. Some of the background is set out in letters the claimant wrote to Ouseley J and which I have considered. On analysis, however, the claimant's arguments in this regard are really an attempt to challenge by collateral means the Crown Court conviction which I have already mentioned. They do not raise a freestanding basis for a proper application for an adjournment. When I consider the way in which the papers have been prepared, the detailed skeleton arguments which the claimant has been able to assemble, and the oral presentation which has ably been put before me today, I may conclude there is absolutely no justification for adjourning these applications, indeed it would be quite wrong to do so.
7. The second application, or at least this is my understanding of Mr Ezeugo's position, is that I should personally view the CCTV footage. In my judgment, that footage is irrelevant to the decision I have to make today. It is not relevant to the refusal of the respective Crown Court judges to state a case. Furthermore, on an appeal by way of case stated, if that were ever to take place, the Divisional Court hearing that appeal would not itself view the CCTV footage: that would be to treat the divisional court as if it were a Court of Appeal which it is not.
8. Accordingly, I proceed to determine the applications on the basis of the material I have which material, as I have already stated, is voluminous and comprehensive. The essential point which the claimant advanced in oral argument in elaboration of his written submissions is that both Crown Courts had no evidential basis on which to make the relevant findings of guilt. The claimant says that all relevant matters are evidenced by the CCTV footage which covers what happened at the Chelmsford Magistrates Court on the relevant date. On my understanding, although this does not matter for present purposes, the claimant was attending the court to have an arrest warrant withdrawn. He says that he was assaulted by security guards at the entrance, he was arrested and then assaulted overnight at a police station. His essential argument is that the criminal proceedings which were then instituted were an abuse of process since they were a colourable attempt to cover up those assaults. The claimant says that on a close examination of the CCTV footage, it is plain that he did nothing. These matters ought to have been apparent to the Crown Court who heard his appeal and Mr Ezeugo confirms that the Crown Court on both relevant occasions reviewed the CCTV. The way in which he put it was that no tribunal properly conducting itself could come to the conclusion that it did. Moreover, the Section 5 offence requires proof of threatening words and behaviour and there is no such proof in the materials which have been disclosed.
9. In my judgment, these arguments are simply misconceived, essentially for the reasons given by the Recorder in the second judicial review application which is before me today. This court is not an appeal court. It is for the Magistrates Court and then for the Crown Court on appeal to come to its own conclusions on the evidence and to state its reasons for its determination. Mr Recorder Nicklin was entirely correct in observing, as I have pointed out, that the application to this court to state a case proceeds almost entirely on the basis of a complaint that the Crown Court was wrong to conclude on the evidence of the witnesses and of the CCTV footage that the claimant was guilty. To my mind, the Crown Court was quite entitled to make those conclusions on the evidence, and the case stated procedure, which is confined to the raising of points of law, is completely inappropriate in such circumstances. Moreover, it has to be pointed out to the claimant that the Crown Court judge and the Recorder had a discretion as to whether or not to state a case. If there was, in their opinion, a point of law fit for further consideration by the High Court then I am sure that the discretion would have been exercised in the claimant's favour but as it happens, no such point was or has been raised. The point that the claimant presses on me are, in my judgment, not points of law at all.
10. I have to say that these applications, quite persuasively advanced though they were in Mr Ezeugo's oral presentation, are totally without merit. The claimant does have a propensity to argue extraneous points, albeit quite fluently, and also endeavours, as many litigants in his position seek to do, to raise what I have called collateral challenges. I suspect that Mr Ezeugo's primary complaint is in relation to what happened at the Chelmsford Crown Court where he received his quite lengthy sentence of imprisonment, but to the extent to which he seeks to reagitate the matters which have been conclusively determined against him on the facts and which are the subject matter of these applications, I have to say that the applications are unarguable and totally without merit.
11. I am minded to make an extended civil restraint order in this case and I will give Mr Ezeugo five minutes but no longer to persuade me why I should not make an order forthwith.
12. MR JUSTICE JAY: Right, you have got five minutes. It is going to run out at 3.02, why shouldn't I make an extended civil restraint order?
13. THE CLAIMANT: My Lord, first of all, corrections, I don't think that this explains the critical issue I raised earlier in terms of prejudice. If you please consider --
14. MR JUSTICE JAY: You are just making it worse. I cannot and will not review my decision. I have given my decision. I am inviting you to explain why I should not make an extended civil restraint order. You have now got four and a half minutes to do so. You are wasting your time.
15. THE CLAIMANT: My Lord, what I was going to say was my application was for this matter to be dealt with as a judicial review, which is on page 7.
16. MR JUSTICE JAY: It is. That is how I have considered it.
17. THE CLAIMANT: I believe, hearing his Lordship, I believe it has been considered as a case stated appeal.
18. MR JUSTICE JAY: No, no, it is a judicial review against the refusal to state a case, I made that absolutely clear, and you need permission to bring that judicial review and I have refused you permission and I have held that your application is totally without merit. Why should I not make an extended civil restraint order?
19. THE CLAIMANT: My Lord, I come back then to the first point which I made and the reason why the application should have been adjourned in the first place because there is -- I have raised a complaint about what has affected my case in the Administrative Court. That complaint is still pending, I have again raised that complaint to the senior judges and I am still waiting for these matters to be addressed.
20. My Lord, it cannot be right that a court could be minded to make a restraining order in terms of the applications that I have made in the past again as I raised in my letter to Mr Justice Ouseley, dated 2 July, because the application I have had -- the applications that I have made in this court have been substantially successful. The only problem that was triggering the alarm was simply that they have not been recorded in terms of when the application, when I simply -- when the application -- sorry, when the substantive matters have been settled, they have not been correctly recorded as I have withdrawn the matters because the matter was settled and you will see how his Lordship put it in his letter, he wasn't saying that I was wrong and the problem, of course, being -- I am not saying again, again I wasn't saying that the Administrative Court were against me, the point that I raise is simply because of the limited information which they have, because once the matter has been finished, has been settled or finished, they don't have any more information as to the background of the case. All they would see is simply a summary of it, case dismissed. So looking at it, they are minded to conclude that substantial amount of my cases have actually failed, that I have been bringing hopeless cases, which is why I raised this issue and his Lordship, Mr Justice Ouseley, would have had enough time to deal with these matters to ask the senior case manager to look into these matters and to confirm that what I was saying was actually correct. They are substantial cases which I have brought.
21. MR JUSTICE JAY: Okay. I am focusing on the vexatious nature of these applications and you have two more minutes to explain why I should not make an extended civil restraint order. It will cover any new proceedings against the Ipswich Crown Court arising out of your dispute with any judge or Recorder of that court. It does not prevent you doing anything else.
22. THE CLAIMANT: My Lord, it will be a step too far to take.
23. MR JUSTICE JAY: You say it is disproportionate.
24. THE CLAIMANT: Yes, can I say I raise this issue. I have a pending claim for harassment against the Metropolitan Police.
25. MR JUSTICE JAY: Yes, but Mr Ezeugo you can advance that claim --
26. THE CLAIMANT: Please allow me to explain. That claim has been pending for considerable length of time and the reason why it has been pending is simply because when I manage -- I have been successful, I have successfully defended more than 45 criminal charges which the police brought against me so far so I am not simply coming to court in a vexatious nature at all, it's the reason -- those harassments, the harrassment that threatened the life not only of myself but my family and, of course, that claim resulted in two previous substantial injunctions against the --
27. MR JUSTICE JAY: Okay, I know all of this. So what is your point? Can you just come to the point?
28. THE CLAIMANT: This is disproportionate.
29. MR JUSTICE JAY: It would be disproportionate.
30. THE CLAIMANT: In doing so, particularly in relation to the -- at this stage that these cases are now.
31. MR JUSTICE JAY: Right. Okay, I understand. I understand, I have got your point and your time has run out.
32. THE CLAIMANT: It is very difficult for me to explain myself.
33. MR JUSTICE JAY: You have explained it.
34. THE CLAIMANT: I have gone through a lot of mental traumas for reason of being in prison.
35. MR JUSTICE JAY: Can I just understand; where are you now? Which prison? It is Chelmsford Prison.
36. THE CLAIMANT: It is Chelmsford Prison.
37. MR JUSTICE JAY: What is your prisoner number?
38. THE CLAIMANT: [Prisoner number given]
39. MR JUSTICE JAY: What I am going to do is I am going to make the extended civil restraint order, I will explain to you what it means and then a copy will be sent to you, to the prison, and the court will have noted your prisoner number. What it prevents you from doing -- we are not debating it any further -- is that you must not for a period of two years issue any proceedings against Ipswich Crown Court arising out of your dispute with any judge or Recorder of that court concerning his or her failure to state a case for the opinion of the High Court. If you breach the order you will be guilty f contempt of court. The order does not prevent you from appealing the decisions I have made in the judicial review proceedings five minutes ago or, if so advised, appealing against the extended civil restraint order. It does not prevent you from issuing or prosecuting claims which shall fall outside the scope of the order. If, however, another judge concludes that you are persisting in claims which are totally without merit, what will then happen is that you will receive a general civil restraint order which will prevent you from litigating at all without permission.
40. Now, what I am going to request is that a copy of my order, which I am now signing and which I am not discussing with you any more, will be sent to you at Chelmsford Prison and the envelope will give your prison number [prison number given] and as soon as the transcript of these proceedings is ready, I will approve the entirety of the transcript, the transcript will be placed on the file so it can be reviewed as appropriate by another court, and I will also ask that a copy of the transcript should be sent to you in due course so you will see exactly what I have said. So I am going to hand the order in to you, I have signed it.
41. THE CLAIMANT: My Lord, the only point which I have wanted to add to that is I have a pending criminal appeal.
42. MR JUSTICE JAY: Yes, the order does not impact to that.
43. THE CLAIMANT: My Lord, that prejudice --
44. MR JUSTICE JAY: It doesn't.
45. THE CLAIMANT: My Lord, anything such as this, prejudice the criminal appeal.
46. MR JUSTICE JAY: It will not prejudice the criminal appeal.
47. THE CLAIMANT: But my Lord, it is, it has -- it will prejudice me.
48. MR JUSTICE JAY: No, it will not. Your rights under Article 6 of the Convention entitle you to run any criminal appeal as you see fit. This order will not prevent that. This order is to protect the justice system and the public from further litigation in connection with this dispute. I am simply warning you, but I am not going to debate the matter any further, that if you persist in making these sorts of applications, you will then find yourself at the end of a general civil restraint order because that is the next and final stage. Thank you very much.