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
		24 February 2017

1. .1. MR JUSTICE SWEENEY:

1.2. Introduction

2. .3. At the invitation of Sharp LJ, this is the judgment of the Court. The Director of Public Prosecutions appeals, by way of Case Stated, against the decision of District Judge (Magistrates' Courts) James Clarke, made on 27 January 2016 in the Burnley Magistrates' Court, to revisit and to reverse a decision made the previous day by Mr Ross Bevan, a legal team manager, acting under delegated authority and on the papers, to vacate the respondent's trial (long fixed for hearing on 27 January 2016) on charges under section 4(2) (driving whilst unfit through drink) and section 5(2) (driving with alcohol above the prescribed limit) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
3. .4. Hereafter, for simplicity, we shall refer to the appellant as the prosecution, and to the respondent as the defendant.

The decisions made on 26 & 27 January 2016

4. .5. On 26 January 2016 Mr Bevan decided to grant a written prosecution application (dated that day) to vacate the trial hearing the following day (which had been fixed at a hearing on 8 September 2015). The application was advanced, in summary, upon the basis that it was the fault of the defence that the prosecution's expert witness, the blood alcohol analyst Dr Paul Darkins, was unavailable to attend the trial.
5. .6. The defence had been notified of, and had objected in writing to, the prosecution's application – indicating that they were ready for trial. They then received notification of Mr Bevan's decision late in the afternoon of 26 January 2016. However, neither they nor the prosecution were provided, at that stage, with Mr Bevan's reasons for granting the application.
6. .7. Following Mr Bevan's decision, the prosecution de-warned their other witnesses.
7. .8. Both sides nevertheless attended before the District Judge on 27 January 2016. Mr Lucas, appearing then, as now, on behalf of the defendant, asked to see the record of Mr Bevan's reasons for granting the prosecution's application. It was provided to the parties. It consisted of a thorough and careful four-and-a-half page chronology of the correspondence and court hearings to which the prosecution had drawn his attention, and an equally careful explanation of his reasoning – which amounted to an acceptance of the basis upon which the application had been put by the prosecution, and the conclusion that the defence could not be ready for trial.
8. .9. Mr Lucas then invited the District Judge to revisit Mr Bevan's decision – arguing that the prosecution's application to vacate had been materially misleading, and that it should not have been allowed.
9. .10. Mr Lucas' argument was that the real cause of the problem had been that the prosecution had failed, until 18 January 2016, to warn Dr Darkins to attend the trial - which was far too late. Further, and here we quote from the Case Stated:

"He said that the Crown had not served any expert reports on the defence until 19 January 2016. By letter dated 18 January 2016 the Crown served an SFR1 [Streamlined Forensic Report] and a further witness statement from Dr Darkins."

10. .11. Mr Lucas submitted that it was the service of an SFR1 that was meant to trigger the consideration by the parties of the various requirements in relation to expert evidence set out in Part 19.3 of the Criminal Procedure Rules. He submitted that Part 19.3 could not be referring, as a trigger, to what the defence had been served with at the outset of the case – namely a form MG5 setting out the Initial Details of the Prosecution Case. The Initial Details had not included an SFR1 report (even though the SFR1 report eventually received on 19 January 2016 was dated 6 May 2015). There was no copy of the SFR1 report on the court file. Mr Lucas submitted that it was thus unfair to criticise the defence for failing to identity issues in respect of an expert report, when no such report had been served until 8 days before the ultimate date fixed for trial.
11. .12. Mr Lucas then pointed out that Part 19.3 of the Criminal Procedure Rules includes amendments which were intended to reflect the Streamlined Forensic Report Protocol – including the need to serve any SFR1 on the defendant as soon as reasonably practicable after his not guilty plea (see Part 19.3-(1)(b)). Mr Lucas further pointed out that, from the outset, all the letters sent by the defence had identified that the reliability of the analysis of the defendant's blood sample was in issue, and that they had requested the attendance of the prosecution's analyst at trial. The analyst was also listed on the Preparation for Effective Trial Form as being a witness who was due to give live evidence at the trial. Mr Lucas asserted that the defence were ready for trial – as there had been enough time since the service of Dr Darkins' report for it to be considered by Dr Rose, who had attended court and was ready to give evidence.
12. .13. The then prosecutor confirmed to the District Judge that she was in possession of the letters that had been written by the defence; that the SFR1 had not been included in the Initial Details of the Prosecution Case; that no expert evidence had been served upon the defence until sent on 18 January 2016; and that Dr Darkins had not been warned to attend the trial until that same date. She complained however that, other than by way of general assertion, the defence had failed to identify the issues in relation to the evidence of the analyst.
13. .14. In reply, Mr Lucas maintained that it had been incumbent upon the prosecution to warn their witnesses and that they had failed do so until it was too late. He emphasised that he had applied to re-open the issue of the adjournment on the basis that the prosecution's application had been made on false premises. He submitted that the application contained information which was now conceded by the prosecutor to be incorrect. He further submitted that the reasons given by Mr Bevan demonstrated that he had in fact been misled.
14. .15. The District Judge was referred to three authorities in relation to adjournments, namely CPS v Picton [2006] EWHC 1108 (Admin), Balogun v DPP [2010] EWHC 799 (Admin), and R (on the application of Jenkins) v Hammersmith Magistrates' Court [2015] EWHC 3961 (Admin). His decision, as recorded in the Case Stated, was as follows:

"I was of the opinion that it was appropriate to reconsider the application to adjourn, based upon my finding that the court had been misled in the written application about the requirement for witness to attend the trial. I allowed both parties to address the court anew on the fairness of the adjournment.

Mr Lucas, for the defence, submitted that, in essence, the trial should not be vacated as the Crown had failed to warn a witness. The prosecutor repeated the complaints about the defence failing to properly deal with identifying the issues in the case. Mr Lucas contended that they were now in a position to do so as the defence expert had considered the report of Dr Darkins.

Although there were issues over the extent to which the defence had identified the reasons why Dr Darkins' evidence was controversial, they had not had sight of any report from him until the week before the trial. Those issues could have been dealt with within the trial process. It appeared to me that the true reason for the application to vacate the hearing was the failure to warn the prosecution expert. Despite the court file being noted that the date for trial had been fixed without the availability of Dr Darkins, I had heard no reason why Dr Darkins was not available.

The failure to fully identify the issue with his evidence had not been achieved not least due to the failure by the prosecution to serve his SFR1 report dated 6 May 2015 until 18 January 2016.

I declined to adjourn the trial based upon the non-attendance of Dr Darkins. I said that I was refusing to adjourn because, the issue over the contentious nature of his evidence notwithstanding, Dr Darkins was an important witness who had always been required and simply had not been warned until too late."

After the District Judge had given his decision he "anticipated that the prosecution would then make an application to adjourn the case due to the cancellation of witnesses or else request to stand the matter down to see whether any of the cancelled witnesses might be available later that day." In the alternative he "expected the prosecution to make application under section 116 Criminal Justice Act 2003 to introduce Doctor Darkins' evidence." He also noted that "the offence of being in charge of a vehicle while being unfit through drink was not dependent upon any expert or forensic evidence…"

In the event, however, the prosecution simply offered no evidence against the defendant on both charges.

The question posed

The question posed in the Case Stated is as follows:

"In a situation where the court has been misled or given incorrect information about the basis for an application to vacate a trial (namely, whether or not a witness was required to attend) and granted the application, is it permissible for the same court to revisit that decision (and hear renewed submissions) when the correct information is provided?"

In his written submissions Mr Douglas-Jones, on behalf of the prosecution, submitted that three issues arose from the question, namely:

(i) Whether a decision to vacate a trial may be revisited if the court was materially misled?

(ii) Whether the court in this case was materially misled?

(iii)Whether the decision of the District Judge to refuse the adjournment was reasonable, the prosecution witnesses having been de-warned as a result of the earlier decision of Mr Bevan?

This morning, Mr Douglas-Jones has invited us to consider the following amended, or supplementary, issue namely:

"Was the court correct to revisit the decision without taking into account the fact that, as a result of that decision, the prosecution witnesses had been de-warned?"

Detailed chronology of the relevant history

It is necessary first to set out a detailed chronology, distilled from the Case Stated and the Annexes to it, of the relevant history of the case.

The offences were alleged to have taken place on 19 April 2015. The Streamlined Forensic Report (SFR1), which dealt with Dr Darkins' analysis of the defendant's blood sample, was completed on 6 May 2015.

On 1 June 2015, an information was preferred against the defendant alleging an offence of driving whilst unfit through drink, and on 22 June 2015 the prosecution provided the defence with Initial Details of the Prosecution Case (but not the SFR1) and a copy of the defendant's custody record.

The first hearing was held on 23 June 2015, when the defendant pleaded not guilty to driving whilst unfit through drink. A trial date of 23 July 2015 was set (but was later vacated).

On 6 July 2015 the defence wrote to the prosecution requesting service of the prosecution forensic evidence. Reference was made in the letter, and in the many defence letters that followed it, to the fact that the request was being made pursuant to (what was then) Crim PR (2014) Part 33 or Crim PR (2015) Part 19. The request was declined upon the basis that there was no Defence Statement.

On 7 July 2015 there was a Case Management Hearing, during the course of which the prosecution laid an oral information alleging an alternative offence of driving whilst over the prescribed blood alcohol limit – to which the defendant also pleaded not guilty. The blood alcohol reading was alleged to be 111mgs in 100mls. In the Preparation for Effective Trial Form the defence gave multiple reasons for the not guilty pleas – including that the defendant was not unfit; that the statutory procedure for obtaining the blood sample was flawed; that there had been a breach of the PACE Codes such that the blood sample was inadmissible; and, in particular, that the quantity of blood in the sample provided to the defendant was insufficient to allow independent analysis - and that therefore the prosecution evidence in relation to blood analysis should be excluded under s.78 of PACE. Significantly, the defence also indicated that Dr Darkins was required to give evidence at trial.

On 16 July 2015 the defence wrote again to the prosecution requesting service of the prosecution forensic evidence.

At a further hearing on 23 July 2015 the court made various orders, including that the prosecution serve its case and make primary disclosure by 20 August 2015, and that the defence provide any defence expert report by 31 October 2015. The trial was re-fixed for 23 November 2015.

On 28 July 2015 the defence again wrote to the prosecution requesting service of the prosecution forensic evidence. However, the prosecution failed to serve its case in full, or to make primary disclosure, by 20 August 2015.

On 21 August 2015 the defence again wrote to the prosecution requesting service of the prosecution forensic evidence, and on 27 August 2015 (i.e. two months in advance of the deadline that they were under) the defence served the statement of their own expert, Dr Rose – who asserted that the blood sample given to the defendant had been too small to analyse.

At a Case Management Hearing on 8 September 2015, and because Dr Rose was not available on the then date fixed for trial of 23 November 2015, the trial was re-fixed for 27 January 2016. The defence again made clear that Dr Dawkins was required to give evidence. The court file was endorsed to the effect that the new date had been set without knowing the availability of Dr Dawkins. Also on 8 September 2015 the defence wrote to the prosecution reminding them that no witness statement from Dr Darkins had been received.

On 2 & 19 October 2015 the defence again wrote to the prosecution requesting service of the prosecution forensic evidence.

At a further Case Management Hearing on 12 November 2015, with the prosecution still having failed to comply with the order to serve its case in full by 20 August 2015, the court ordered Dr Darkins to respond to Dr Rose's report by 17 December 2015, and that any notes made by him during the course of his work on the case were to be disclosed by 10 December 2015.

On 23 November 2015 the defence wrote, again, to the prosecution requesting service of the prosecution forensic evidence.

On 18 December 2015, with the prosecution having failed to comply with either of the orders made on 12 November 2015, the defence wrote to them, again, requesting a witness statement from Dr Darkins. The defence also wrote to the court informing the court of the prosecution's failures and seeking assistance to remedy the position.

On 5 January 2016 the defence wrote, yet again, to the prosecution requesting a statement from Dr Darkins.

On 18 January 2016 (i.e. 9 days before trial) the prosecution finally sent the SFR1 dated 6 May 2015, together with a statement from Dr Darkins (in the form of an SFR2), to the defence – who received them on 19 January 2016. It was also on that day that the prosecution became aware that Dr Darkins was not available on 27 January 2016.

On 25 January 2016 the defence wrote to the prosecution indicating that they did not accept the evidence of Dr Darkins. On the same day the District Judge acceded to an application made by the prosecution, on the papers, to rescind the order made on 12 November 2015 requiring any relevant notes made by Dr Dawkins to be disclosed.

On 26 January 2016, having completed the appropriate form, the prosecution made its written application to vacate the trial which was fixed for the following day. To the question on the form "Was witness availability on file when the case was fixed?" the answer given was "NO – this witness was not required when the trial date was fixed". The entries on the form then detailed why Dr Darkins was an important witness for the prosecution, and stated that a full report (SFR2) by him had been served on the defence on 18 January 2016 "despite there being no clear indication by the defence as to the issues in the earlier report".

The defence objected, in writing, to the adjournment – pointing out that it had always been their case that (amongst others) Dr Darkins could not be agreed, and that their own expert would be attending the trial, for which they were ready.

In making his decision on 26 January 2016 Mr Bevan took account of the defence objections, but expressed it as "hard to understand" that they had indicated being ready for trial when they had previously insisted upon disclosure of a variety of material that it appeared had not been provided.

Mr Bevan considered the criteria in DPP v Picton (above), and (echoing the prosecution's application) criticised the defence failure to actively assist in identifying specific issues in the case. He then formulated the view that the defence would be unable to properly present their case without the documents that they had requested earlier, and further concluded that the attendance of Dr Darkins was required in the interests of justice. Hence he vacated the trial.

The arguments on appeal

It was common ground that:

(1) Mr Bevan was entitled, acting under delegated powers, to make a decision on the papers.

(2) A Magistrates' Court does have the power to revisit a decision to vacate a trial if the court has been materially misled.

In addition, as was pointed out to the parties in argument this morning, Crim PR Part 3.6 provides that:

"(1) A party may apply to vary a direction if –

(a) the court gave it without a hearing

……

(2) A party who applies to vary a direction must –

(a) apply as soon as practicable after becoming aware of the grounds for doing so; and

(b) give as much notice to the other parties as the nature and urgency of the application permits."

That was what occurred in this case. We are in no doubt that the defence application on 27 January 2016 fell squarely within that provision and that, on the particular facts of this case, Crim PR Part 3.6(2)(a) and (b) were complied with. Mr Lucas did not know what Mr Bevan's reasons were for granting the adjournment until he had inspected the record of Mr Bevan's decision, and he promptly asked the District Judge to revisit it.

The focus of the argument before us has been on two points, namely:

(1) Whether the prosecution's written application to vacate was misleading; and

(2) Whether the decision arrived at by the District Judge was reasonable in the Wednesbury sense.

On the first point, we begin by highlighting some aspects of the written application. It stated that Dr Darkins "was not required when the trial date was fixed". It then went on, against the background of alleged failures by the defence to comply with their duties in relation to disclosure issues, to assert that the defence had failed to trigger the preparation of an SFR2, in accordance with the staged reporting of forensic expert evidence - in consequence of which, it was said, the prosecution had felt obliged to instruct Dr Darkins to prepare a report covering all aspects of the evidence that might be challenged – which was what had been served on the defence on 18 January 2016, and which the defence had indicated (in their letter dated 25 January 2016) that they did not accept.

In our view, and whether expressly or impliedly, this clearly placed the blame for the last-minute nature of the application to vacate on the defence.

The reality, as we have already summarised in the chronology above, was significantly different. It had been made clear since the Case Management Hearing on 7 July 2015, that Dr Darkins was required to give evidence; the SFR1 was dated 6 May 2015 but had not been served by the prosecution until some six months after it should have been; and the court had twice ordered the prosecution to serve its evidence by certain dates and the prosecution had failed to do so. In contrast, and albeit without serving a Defence Statement, the defence had set out the issues in broad terms (both to the prosecution and the court) from the outset; had sent numerous letters trying to progress the consideration of expert issues; and had served their own expert report on 27 August 2015 - two months in advance of the date ordered by the court and five months in advance of the eventual trial date.

In our judgment, and notwithstanding his otherwise thorough and careful approach to the picture with which he was presented, the mischaracterisation of these events by the prosecution was the substantial cause of Mr Bevan's decision, otherwise he would not have concluded that there was merit in the prosecution's criticisms of the stance taken by the defence.

It may well be that the prosecution genuinely thought that the defence had been obstructive, via the absence of a Defence Statement, on disclosure issues - not least in consequence of the ruling in favour of the prosecution on 25 January 2016. However, the blunt reality was and is, as the District Judge recognised by what he said in his ruling:

"It appeared to me that the true reason for the application to vacate the hearing was the failure to warn the prosecution expert who would always have been required and simply had not been warned until too late."

In our judgment, the prosecution's application was misleading. Had the true position been appropriately crystallised to Mr Bevan it is inconceivable that he would have granted the application to vacate what was the third date of trial. Equally he was wrong to reject the defence assertion that (notwithstanding the late service of the SFR1 & 2) they were ready for trial. Although they were not in an ideal position, we accept that they were ready.

We also take the view that it cannot be said that the District Judge's decision to re-consider and reverse Mr Bevan's ruling was unreasonable, let alone irrational.

We understand the point made by Mr Douglas-Jones that by the time the District Judge came to make his decision the prosecution had de-warned its witnesses and that therefore it was not in a position to proceed immediately with the trial. We also note that the District Judge says in the Case Stated that after he gave his ruling he expected the prosecution to make an application to adjourn the case "due to the cancellation of witness or else request to stand the matter down to see whether any witnesses might be available later that day". As to the latter point we do not consider it would have been rationally open to the District Judge to return to the issue when an essential part of the factual matrix on which he had made his decision was that the prosecution witnesses had by then been de-warned.

However that may be, in our view, on the particular facts of this case, these problems had arisen because of the way the prosecution had dealt with the matter (including the failure to serve the SFR1 in a timely manner, and the breaches of the orders as to the service of its case) and in particular because they had left it so very late to make the application to vacate (and with no reason given as to why Dr Darkins could not attend). This meant that there was no time available, between the application to vacate and before the proposed trial date, for the decision of Mr Bevan on the papers to be revisited.

In those circumstances, and again we emphasise on these particular facts, it was not unreasonable for the District Judge to have come to the decision he did - notwithstanding the de-warning of the witnesses. Had the prosecution served the SFR1 when they should have done, and had the court's orders as to the service of Dr Darkins' evidence been complied with by the prosecution, none of these problems would have arisen. Had there been a timely application on the papers to vacate, the prosecution could have catered for a subsequent reversal of any decision in their favour by re-warning their remaining witnesses before the trial date.

For the reasons given, we answer the question posed by the Case Stated "yes". We likewise respond to the three issues originally identified by Mr Douglas-Jones in the affirmative, and (as to the amended or supplementary issue) conclude that the judge did take into account the fact that the witnesses had been de-warned. In the result, the appeal is dismissed.

15. .16. MR LUCAS: My Lady, my Lord I apply for an order of costs subject to taxation from Central Funds.
16. .17. LADY JUSTICE SHARP: Have you served any statement of costs?
17. .18. MR LUCAS: There is a costs schedule available. My understanding is that it is permissible for me to apply for costs subject to taxation by way of letter. I do have a costs schedule should anyone wish to see it.
18. .19. LADY JUSTICE SHARP: Can you pass the schedule. Has it been served on Mr Douglas-Jones?
19. .20. MR LUCAS: It has not although I did discuss the matter of costs with my learned friend earlier today, and whether or not I should proceed by way of applying for costs subject to taxation by way of letter or whether I should serve the schedule, there was no dispute between the parties that it was appropriate for me to apply in the way which I just have. Out of an abundance of caution I did ensure that the schedule was available should the court wish to see it. I have a copy for my learned friend, should he wish to see it.
20. .21. LADY JUSTICE SHARP: He has not seen it?
21. .22. MR LUCAS: He has not seen it, no.
22. .23. MR DOUGLAS-JONES: My Lady on the basis that it is an application for a defendant's costs order from Central Funds, I am entirely in the court's hands. It is not an inter partes costs application in those circumstances and I need not see it.
23. .24. LADY JUSTICE SHARP: Have you a copy?
24. .25. MR LUCAS: My Lady it is in fact two copies. May I just hand them up (Same Handed).
25. .26. LADY JUSTICE SHARP: Mr Douglas-Jones, do you wish to say anything about the application?
26. .27. MR DOUGLAS-JONES: On the basis it is an application for costs from Central Funds, no thank you.
27. .28. LADY JUSTICE SHARP: What order are you asking the court to make, just to order that costs be paid out of Central Funds?
28. .29. MR LUCAS: That is my application in the sum particularised in the schedule.
(The Bench Conferred)
29. .30. LADY JUSTICE SHARP: Mr Lucas, the order we are going to make is that we will order your costs out of Central Funds to be taxed.
30. .31. MR LUCAS: I am grateful.
31. .32. LADY JUSTICE SHARP: Presumably the parties can draw up an order.
32. .33. MR DOUGLAS-JONES: My Lady I am halfway there.
33. .34. LADY JUSTICE SHARP: Thank you very much. Submit it to the court Associate for us to approve. Thank you both of you for your assistance.