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
		27 November 2014

1. MR JUSTICE SIMON: This is an appeal by way of case stated by the Norfolk County Justices and arises out of the decision to refuse the prosecution's application to adjourn. The respondent, whom I shall refer to as the defendant, was charged with an offence of assault by beating, contrary to section 39 of the Criminal Justice Act 1988. The offence was alleged to have taken place in Diss on 20 August 2012.
2. The chronology, as it emerges from the case stated, begins in September 2012. On 4 September, the defendant entered a not guilty plea and the trial was fixed for 7 December. Two days before, on 5 December, the trial was vacated because the court had been double-booked. However, the case was left in the list for 7 December for the purpose of refixing the date for trial. On 7 December, the trial was refixed as a high priority for 5 April 2013. The trial was ineffective on that date because both a police witness and the defendant were in hospital. On 11 April, the trial was refixed for 16 July. On 16 July, the trial was unable to proceed because it had been double-listed with another high priority case, in which the defendant was in custody.
3. It appears that the complainant had attended court in Norwich on at least 16 July. On 20 September, an application was made for the complainant to give evidence by video link from Cheltenham Magistrates' Court, which was more convenient for him to get to. The trial had been refixed for hearing on 4 November.
4. In the event, it could not go ahead because it was not possible to make a direct link from Norwich Magistrates' Court to Cheltenham Magistrates' Court in order to enable a video link to be established. Special arrangements needed to be made for a bridging link and this required 24 hours' notice. The magistrates, who were plainly concerned at this turn of events, asked their legal adviser to check this and the answer provided confirmation that a bridging link was required and could not be set up in a day.
5. The prosecution applied for an adjournment, pointing out that the CPS had been granted permission to adduce the complainant's evidence by video link, had made enquiries of Gloucester Magistrates' Court and had, on 22 July, made a provisional booking for the use of the video link at Cheltenham Magistrates' Court. The CPS expected Norwich Magistrates' Court to arrangement the logistics. Counsel for the prosecution submitted that there had been a technical difficulty which was not the fault of the prosecution.
6. The defence resisted the adjournment, pointing out that this was the fourth time that the trial had been proved ineffective and the charge was an old one. One defence witness had already been lost due to the passage of time. Neither side referred to any cases in support of their submissions. The justices considered the application and their approach is set out in paragraphs 7 to 9 of the case.

"7. We were given advice by our legal adviser that it was in our discretion to decide what was in the interests of justice based on all the circumstances. These included the age of the case, the nature of the charge and the rights of all parties to a fair trial. We were made aware of the nature of the defence, ie self-defence. In addition, having set out the history of the case, this was the fourth time the case had been listed for trial and on this occasion it was the court's failure to ensure that the video link connection was set up which prevented the trial from taking place. It was apparent that if the adjournment was not granted then the Crown would not be able to proceed and would be forced into offering no evidence. We are reminded that the interests of justice apply to fairness to all parties; these included the respondent as well as the complainant.

8. We retired for approximately 30 minutes to consider our decision. We were of the opinion that we should refuse the application to adjourn. We announced that, 'The quality of the evidence would be doubted due to the passage of time and this could lead to a probable injustice to either party and an injustice to witnesses, defendant and victim. It was to be regretted that the victim will be unhappy but we need to balance all the interest.' In reaching that decision we took into account the age of the offence, the nature of the allegation, the detail outlined in the case management form regarding the nature of the defence, the delay and the fact that if it were adjourned again then it could not be heard until 21 February 2014. We balance the respondent's right to a fair trial, given the principle of innocence until proven guilty, against fairness to the alleged victim.

9. We confirm that the preceding paragraph sets out an exhaustive list of the factors that we considered. At the request of the parties we confirmed that:

(i) The case was not restricted to any particular justices or advocates.

(ii) We were not asked to consider a date which could be convenient to all parties involved, regardless of court lists.

(iii) The case management team were consulted as to the very soonest date available given the circumstances. As part of that process, the team may have considered the removal of other trials from the list or convening further courts in order to obtain the earliest date for a case which had been listed for trial on three previous occasions, but we were not told whether that was so, nor did we direct such specific consideration before making our decision."

7. Mr Heptonstall, who appears today for the Director of Public Prosecutions, but did not appear in the Magistrates' Court for the prosecution, submits that the justices failed to have regard to the principles established by this court in the case of Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin).
8. The Divisional Court in Picton was concerned with the refusal by the magistrates to adjourn; an adjournment being necessary due to the fault of the prosecution in warning their witnesses. In the course of his judgment at paragraph 9, after referring to the other authorities, Jack J concluded that a number of points emerged:

"(a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.

(b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings. Delays be scandalous; they bring the law into disrepute. Summary justice should be speedy justice. An application for an adjournment should be rigorously scrutinised.

(c) Where an adjournment is sought by the prosecution, magistrates must consider both the interests of the defendant in getting the matter dealt with and the interests of the public that criminal charges should be adjudicated upon and the guilty convicted as well as the innocent acquitted. With a more serious charge, the public interest that there be a trial will carry greater weight.

(d) Where an adjournment is sought by the accused, the magistrates must consider whether if it is not granted he will be able to fully present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.

(e) In considering the competing interests of the parties, the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length and the need to decide the facts while recollections are fresh.

(f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise, if the party opposing the adjournment has been at fault, that will favour an adjournment.

(g) The magistrates should take appropriate account of the history of the case and whether there had been earlier adjournments and at whose request and why.

(h) Lastly, of course the factors to be considered cannot be comprehensibly stated, but dependent on the particular circumstances of each case and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen."

9. Mr Heptonstall submitted that there were four relevant factors bearing on the decision to adjourn. First, where any fault lay? Second, what would be the length of the adjournment? Third, what would be the effect of an adjournment on the case? Four, where did the interests of justice lie?
10. So far as fault is concerned, he pointed out that the need for an adjournment on 4 November was not due to the fault of the prosecution but the fault of the court. That is true but it is important to note, as the justices did, that it was not the fault of the defendant.
11. As to the length of the adjournment, he submitted that the justices could not make a ruling based on the length of the adjournment without satisfying themselves that no earlier date could be found.
12. He submitted that the court should have made specific enquiries as to whether another court could have heard the case sooner, and this was particularly so where the fault was that of the court. In such circumstances he submitted that that consideration overrides all other factors.
13. I am doubtful if the cases on which he relies, R~(McAuley) v Coventry Crown Court [2012] EWHC 680 (Admin) and R (Raeside) v Luton Crown Court [2012] EWHC 1064 (Admin), cases on extending custody time limits in the Crown Court, greatly assist this argument.
14. The magistrates had made enquiries and had discovered that, if there were an adjournment, the case could not be listed by the court before 21 February 2014; a further delay of ten weeks. It is clear that they did not investigate the possibility of bumping another case out of the list before that date. However, I do not consider that their failure to do so was material to the proper exercise of their discretion.
15. So far as the convenience of the parties is concerned, it is of course possible that the matter could have been listed earlier but it is equally possible that it would have resulted in the case being listed later. The overall delay, in any event, which would be caused by yet a further adjournment, was material to their consideration.
16. As to Mr Heptonstall's third factor, the effect of the adjournment, it is clear that the justices took into account the quality of the evidence after such a time and the impact on the fairness of the trial. Mr Heptonstall submitted that this approach was akin to ruling that although the defendant could have had a fair trial in November 2013, he could not have a fair trial in February 2014, that there was no proper basis for the magistrates to form this view and that, accordingly, they took into account an irrelevant consideration.
17. In my judgment, the length of the adjournment was plainly relevant and it hardly needed to be stated that the longer from the date of the alleged incident that the trial would take place the greater the adverse impact on the witnesses' recollection. This was a matter which the justices considered, as is clear from paragraph 8 of the case.
18. Finally, on the overall interests of justice, Mr Heptonstall submitted that the result provided a significant and undue advantage to the defendant while unfairly prejudicing the prosecution and the complainant. Significant weight should have been attached to the purpose of the trial process, acquitting the innocent and convicting the guilty. Again, it is plain that the justices had this point in mind, as is clear from paragraph 7 of the case.
19. As Keene LJ observed in Picton, paragraph 11, a decision whether to adjourn or not is particularly a matter for the court in question. Courts are, in general, discouraged from adjourning cases unless they have to. The history of delays before 4 November 2013 was highly regrettable and it was compounded by a final blunder by the court but, importantly, the defendant had not been at fault.
20. The justices, in my view, took into account the material matters and did not take into account immaterial matters, and came to a conclusion that was open to them on the facts and which I do not consider to have been either unfair or contrary to the interests of justice.
21. Mr Heptonstall's essential submission was that the law needed to be clarified by this court. If no party is at fault he submitted guidance should be given. What is to happen in those circumstances? In my judgment the answer to that is it will all depend on the facts. The appellant's argument amounts to little more than a disagreement as to the weight that the justices gave to particular considerations properly taken into account. The questions posed in the case stated reinforce the impression that the court is being asked to review the exercise of the discretion.

Question 1: did the court consider all relevant factors in adjudicating on the Crown's application for adjournment?

Question 2: did the court give sufficient weight to the fact that:

(a) it was its own failure to provide the video link when refusing the consequent application to adjourn?

(b) by denying the application a willing complainant was being denied the opportunity of a trial?

Question 3: did the court exercise its discretion appropriately in refusing the application to adjourn?

22. In my view, the only question which needs to be answered is the first question, which I would answer, yes. Accordingly I would dismiss the appeal.
23. LORD JUSTICE BEATSON: I agree. I observe only that in this case the justices took into account the factors listed in paragraph 8 of the case, one of which was the nature of the defence. In paragraph 6 of the case they record the respondent's submission that the charge was an old one and one defence witness had already been lost due to the passage of time. It is against those sort of fact-specific backgrounds that the justices had to exercise their discretion.
24. I do not consider that it can be said that they failed to consider all relevant factors in adjudicating on the Crown's application for an adjournment. I too would dismiss this appeal.