England and Wales High Court (Administrative Court) Decisions

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

		CO/3491/2017 Royal Courts of Justice Strand, London, WC2A 2LL
		14/11/2017

Lady Justice Sharp:

Introduction

1. This is the judgment of the Court.
2. The principal issue of law that arises in each of the cases before us, is whether magistrates' courts have a discretion to extend the time to state a case after the expiration of the 21 days specified in section 111(2) of the Magistrates' Courts Act 1980 (the 1980 Act) as the time within which an application for a case to be stated for the opinion of the High Court must be made.

The facts

3. The brief facts of each case are as follows.
4. The first claimant was convicted of assault by beating contrary to section 39 of the Criminal Justice Act 1988 before a deputy district judge at Colchester Magistrates' Court on the 18 November 2016. On the 24 November 2016 his solicitors wrote to the court asking for a copy of the findings and sentencing remarks of the deputy district judge. They repeated their request on the 18 January 2017. On the 14, 16 and 24 February 2017 the first claimant, acting in person, communicated with the court, again seeking the deputy district judge's notes. Those notes were provided on the 27 February 2017. The deputy justices' clerk at Colchester Magistrates Court made clear however, in letters of the 28 February 2017, and 2 March 2017, that the court had not received a request to state a case from the first claimant or his solicitors. On the 31 March 2017 an application to state a case was made by the first claimant's current solicitors (then newly instructed). On the 5 April 2017 the deputy justices' clerk wrote back to the first claimant's solicitors explaining that the application was out of time and there was no power for time to be extended.
5. On the 13 April 2017 an application notice in form N244 was issued in this court seeking an order "to vary the time limit for filing an appeal notice to state a case" from the magistrates' court.
6. At the hearing before us we questioned whether there was any basis for such an application, in the absence of any cause in existence or in immediate contemplation to which such an application could relate. In the event, the point was conceded. Mr Croskell on behalf of the first claimant accepted that what was sought in substance was an application for judicial review of the decision of Colchester Magistrates' Court to refuse to state a case on the basis that time had expired; and for that decision to be quashed and re-considered in the light of the argument that there was discretion to extend time under section 111(2) of the 1980 Act. An undertaking was then given to the court that judicial review proceedings would be commenced and the requisite fee paid by close of business on the 30 October 2017 (as in fact occurred). The hearing before us then proceeded on that basis. Our decision to allow this course to be taken was a pragmatic one, in circumstances where there was no objection from the Interested Party, and we were satisfied there would be no prejudice to the parties concerned. For the avoidance of doubt however, the procedure adopted by the first claimant was irregular, and should not be repeated. It should not be necessary to emphasise that parties cannot bring a matter before the court by such means in the absence of a claim in existence or, in cases of genuine urgency, where a claim is in immediate contemplation in which case appropriate undertakings will be required.
7. The second claimant was convicted following a trial at the Stratford Magistrates' Court on the 21 April 2017 of two offences of assaulting a constable in the execution of his duty contrary to section 89(1) of the Police Act 1996 and one charge of resisting a constable in the execution of his duty contrary to section 89(2) of the Police Act 1996. He was sentenced for these offences on the 26 April 2017. On the 17 May 2017, the time specified in section 111(2) of the 1980 Act for applying to the court for it to state a case, expired. We were told that the second claimant had given instructions to his solicitors to state a case at some point before the 15 May 2017 (we were not told when). We were also told that his solicitors' computer system malfunctioned so that the solicitors were unable to submit the application on that day (the evidence on this was somewhat vague). In the event, the application was made the following day, on the 18 May 2017, and thus a day outside the 21 day time limit. On the 1 June 2017 the district judge refused to consider the application to state a case as it was out of time and there was no discretion to extend time. She nonetheless provided a draft of a case which she would have stated to cover the possibility that this court might conclude that there was a discretion to extend time and that it ought to be exercised in the second claimant's favour.
8. Since the question whether or not there is a discretion to extend time under section 111(2) of the 1980 Act goes to jurisdiction, it is appropriate to deal with that issue at the outset.

The relevant legal framework

9. Section 111 of the 1980 Act provides as follows:

"Statement of case by magistrates' court

(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved;

(2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.

(4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to the Crown Court shall cease."

10. It is important to note that there is a parallel and alternative right of appeal to the Crown Court under section 108 of the 1980 Act, which provides a power for the Crown Court to hear an appeal from the magistrates' court against conviction or sentence on a full merits basis.
11. The Criminal Procedure Rules (the CrimPR) govern (i) an appeal from the magistrates' court to the Crown Court under section 108 of 1980 Act: see CrimPR Part 34; (ii) an appeal by way of case stated to the High Court under section 111 of the 1980 Act: see CrimPR Part 35; and (iii) an appeal to the High Court against a decision of the Crown Court by way of case stated under section 28 of the Senior Courts Act 1981^[1] (the 1981 Act): see CrimPR Part 35.
12. In case there should be any doubt about the matter, Para 2.1 of the Civil Practice Direction 52E states that the procedure in such cases is set out in the CrimPR as set out below.
13. The following provisions of CrimPR Part 35 are relevant for present purposes:

"35.2 Application to state a case

(1) A party who wants the court to state a case for the opinion of the High Court must –

(a) apply in writing, not more than 21 days after the decision against which the application was to appeal; and

(b) serve the application on –

(i) the court officer, and

(ii) each other party.

(2) The application must –

(a) specify the decision in issue;

(b) specify the proposed question or questions of law or jurisdiction on which the opinion of the High Court will be asked;

(c) indicate the proposed grounds of appeal; and

(d) include or attach any application for the following, with reasons-

(i) if the application is to the Crown Court, an extension of time within which to apply to state a case,

…

(3) A party who wants to make representations about the application must-

(a) serve the representations on-

(i) the court officer, and

(ii) each other party; and

(b) do so not more than 14 days after the service of the application.

(4) The court may determine the application without a hearing.

(5) If the court decides not to state a case, the court officer must serve on each party-

(a) notice of that decision; and

(b) the court's written reasons for that decision, if not more than 21 days later the applicant asks for those reasons.

35.3 Preparation of case stated

(1) This rule applies where the court decides to state a case for the opinion of the High Court.

(2) The court officer must serve on each party notice of-

(a) the decision to state a case, and

(b) any recognizance ordered by the court.

(3) Unless the court otherwise directs, not more than 21 days after the court's decision to state a case-

(a) in a magistrate's court, the court officer must serve a draft case on each party

(b) in the Crown Court, the applicant must serve a draft case on the court officer and each other party.

(4) The draft case must-

(a) specify the decision in issue;

(b) specify the question(s) of aw or jurisdiction on which the opinion of the High Court will be asked;

(c) include a succinct summary of-

(i) the nature and history of the proceedings,

(ii) the court's relevant findings of fact, and

(iii) the relevant contentions of the parties;

…

(6) A party who wants to make representations about the content of the draft case, or to propose a revised draft, must-

(a) serve the representations, or revised draft, on-

(i) the court officer, and

(ii) each other party; and

(b) do so not more than 21 days after service of the draft case.

(7) the court must state the case not more than 21 days after the time for service of representations under paragraph (6) has expired.

…

35.5 Court's power to vary requirements under this Part

(1) The court may shorten or extend (even after it has expired) a time limit under this Part.

(2) A person who wants an extension of time must-

(a) apply when serving the application, representations or draft case for which it is needed; and

(b) explain the delay."

14. It is to be noted that in contrast to section 111(2) of the 1980 Act, there is no express time limit in section 28(1) of the 1981 Act for applying to a Crown Court to state a case. Further, though CrimPR 35.2(1)(a) stipulates a time limit of 21 days for making such an application to the Crown Court, it does so in language that does not oust an extension of time. This difference is reflected in the relevant rules. Thus CrimPR 35.2(2(d)(i) provides that an application to the Crown Court to state a case can include an application for an extension of time and CrimPR 35.5 provides that the court may shorten or extend (even after it has expired) a time limit under Part 35. However the Notes to those rules also state that "the time limit for applying to a magistrates' court to state a case is prescribed by section 111(2) of the Magistrates' Courts Act 1980. It may be neither extended nor shortened."
15. An applicant is only able to engage the jurisdiction of the High Court in relation to an appeal by way of case stated once an application for a case to be stated has been made (to the relevant magistrates' court or Crown Court as the case may be) and the magistrates have stated a case in accordance with the rules in Part 35. If a decision is taken pursuant to CrimPR 35.2(5) to refuse to state a case then that decision is susceptible to judicial review; but such a decision can only be reached after an application to state a case has been made to the magistrates' court in time.
16. The power of the High Court to deal with a case stated from a magistrates' court or Crown Court is created by section 28A of the 1981 Act which provides as follows:

"28A. Proceedings on case stated by magistrates' court or Crown Court.

This section applies where a case is stated for the opinion of the High Court –

(a) by a magistrates' court under section 111 of the Magistrates' Courts Act 1980, or

(b) by the Crown Court under section 28(1) of this Act.

(2) The High Court may, if it thinks fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly.

(3) The High Court shall hear and determine the question arising on the case (or the case as amended) and shall –

(a) reverse, affirm or amend the determination in respect of which the case has been stated; or

(b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court, and make such other order in relation to the matter (including as to costs) as it thinks fit."

17. Part 52 of the Civil Procedure Rules (CPR) addresses the exercise of the jurisdiction under section 28A of the 1981 Act.
18. CPR 52.2 provides as follows:

"52.2 Parties to comply with Practice Direction 52A to 52E

All parties to an appeal must comply with Practice Directions 52A to 52E"

Practice Direction 52E deals with appeals by way of case stated. In particular, Practice Direction 52E paragraphs 2.1 – 2.3 provides as follows:

"Section 2 Case stated by Crown Court of Magistrates' Court Application to state a case

2.1 The procedure for applying to the Crown Court or a Magistrates' Court to have a case stated for the opinion of the High Court is set out in the Criminal Procedure Rules [emphasis added].

Filing of appellant's notice

2.2 An appellant must file the appellant's notice at the appeal court within 10 days of the date of the case stated by the court.

Documents to be lodged

2.3 The appellant must lodge the following documents with the appellant's notice –

(a) the stated case;

(b) a copy of the judgment, order or decision in respect of which the case has been stated; and

(c) where the judgment, order or decision in respect of which the case has been stated was itself given or made on appeal, a copy the judgment, order or decision appealed from."

Part 52 provides as follows in relation to variations of time:

"52.15 Variation of time

(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.

(2) The parties may not agree to extend any date or time set by –

(a) these Rules:

(b) Practice Directions 52A to 52E; or

(c) an order of the appeal court or the lower court"

19. As can be seen, CPR 52.15(1) is concerned with applications to vary time limits for filing an appeal, and the making of such applications to the appeal court. The issue we are considering however is whether the first instance court whose decision the claimants wish to appeal can itself extend the time limit to make an application to appeal (by way of case stated).
20. In Michael v Gowland [1977] 1 WLR 296 the court was concerned with the predecessor provision to section 108 of the 1980 Act, namely section 87 of the Magistrates' Courts Act 1952 which provided for a 14 day time limit. Sir George Baker P. giving the judgment of the court considered the contrast between the provisions for making the application to state a case, and those for the actual stating of the case once an application had been made. At p.297H to 298B he said:

"The contrast is very clearly made in the notes to R.S.C., Ord. 56, r.6(1) in The Supreme Court Practice (1976), vol. 1, p.822, dealing with the application to justices to state a case, it says:

"The application to the justices must be made within 14 days after the day when the decision is given. The court will not make such an order unless the application to the justices was in time…

And then later, dealing with the stating of the case itself:

"The case must be stated within 3 months after the application, but the Divisional Court has power to extend time."

-and it cites among other cases Wittingham v Nattrass [1958] 1 WLR 1016. It seems to me that although the court has power to extend the time in respect of the actual stating of the case once the application is made, this court has no power to extend the time in respect of the application itself."

21. In Chief Constable of Cleveland Police v Vaughan [2009] EWHC 2831 the application to state a case had been made well outside the 21 day time limit. An argument that there was a discretionary power under the CPR to extend time was raised at a late stage of the proceedings. Scott Baker LJ said this at para 6:

"I have come to the conclusion that even if there is a power to grant an extension of the 21 day period, that is not a power which we should exercise in the circumstances of this case. I, for my part, have very grave doubts as to whether there is indeed power to extend the time or whether Michael v Gowland has been overtaken by the rules. On the limited research that has been possible on the part of the court, it seems to me that it is highly probable that there is no power to grant the extension sought by Miss Smith."

22. Cranston J made these observations about extending time in his concurring judgment:

"18. …We have not heard full argument on the extension of time point. Section 111(2) of the Magistrates' Court Act 1980 seems clear. The application for a case stated must be made within 21 days. Miss Smith for the appellant points to CPR 3.1, which sets out a list of powers given to the court "by any other rule or practice direction or by any other enactment or any power it may otherwise have": CPR 3.1(1). She points to 3.1(2)(a), where a court may make, extend or shorten the time for compliance with any rule, practice direction or court order, and may do that retrospectively. However, the phraseology of CPR 3.1 is significant. The opening clause is "Except where these Rules provide otherwise". Practice Direction 52, paragraph 18.3, provides that the procedure for a case stated is set out in the Criminal Procedure Rules. So it is those rules which govern. Rule 64.4 of the Criminal Procedure Rules, while providing for an extension of time in relation to some aspects of a case stated, does not do so in relation to the 21 day limit set out in section 111(2) of the Magistrates' Court Act. In the result, I agree with my Lord that there is every reason to think that Michael v Gowland [1997] 1 WLR 296 is still good law."

23. The point arose most recently in Woolls v North Somerset Council [2016] EWHC 1410. The factual background and the court's views, are set out in the judgment of Jeremy Baker J, with whom Hamblen LJ agreed:

"4. On 12 February 2014, the appellant applied to the North Somerset Magistrates' Court to state a case, and on 14 February 2014 the Magistrates' Court provided the parties with a draft case and, following a request for their observations upon it, these were duly received. Thereafter the appellant sought instead to appeal to the Bristol Crown Court, where it was ultimately determined that pursuant to section 111(4) of the Magistrates' Courts Act 1980, he was precluded from doing so, and therefore the application for the case stated was revived and now comes before this court for determination.

5. It may be that a preliminary issue arises in this case, namely that jurisdiction of this court to consider the appeal in view of the fact that the original application to state a case may have been made on a date beyond that provided by section 111(2) of Magistrates' Court Act 1980, namely within 21 days of the day on which the decision of the Magistrates' Court was given.

6. In this regard, although rule 35.5(1) of the Criminal Procedure Rules 2015 provides that its own time limits may be extended, as the note to rule 35.5(2) makes clear, this does not permit a similar extension of time to the making of the original application to state a case under section 111(2) of the Magistrates' Court Act 1980. However, CPR 52.6(1) provides that application may be made to this court to vary the time limit for filing an appeal notice. In regard to the question as to whether the time limit should be extended, I remind myself of what Brooke LJ had to say in Foenander v Bond Lewis & Co [2001] EWCA Civ 759 concerning the practical consequences which may flow from refusing such an application. In the event, if an extension is required in this case, then I consider that it is appropriate that an extension be granted so as to allow its merits to be determined."

24. The court decided there was no substance to the complaints raised by the claimant and dismissed the appeal.
25. CPR 52.6(1) referred to in Woolls is reproduced in materially identical terms by CPR 52.15, set out above. The argument for the claimants before us is that the latter provision enables the time limit under section 111(2) of the 1980 Act to be extended, and to that extent Woolls was correctly decided.
26. Miss Smith's principal argument however is a different and alternative one. She submits that section 111(2) of the 1980 Act should be read down to allow for a discretionary extension of the time limit in an appropriate case to ensure the legislation is compatible with article 6 of the European Convention on Human Rights (the Convention): see Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604 and R (on the application of) Adesina & others v NMC [2013] EWCA Civ 818; [2013] 1 WLR 3156.
27. Pomiechowski was concerned with "short and inflexible" time limits of 7 and 14 days to appeal to the High Court from decisions to extradite (or discharge) persons under the Extradition Act 2003 made either by a district judge (in Part 1 cases) or the Secretary of State (in Part 2 cases). A previous decision of the House of Lords had held that the giving of the relevant notice of appeal had to include both filing in the High Court and service on all respondents. In many of these cases the persons subject to extradition proceedings were detained when they were seeking to appeal decisions and had to file and serve accordingly. The Supreme Court used section 3(1) of the Human Rights Act to read down the statutory provisions concerning extradition appeals to include the qualification that the court should have a discretion in exceptional cases to extend time for filing and serving a notice of appeal.
28. Lord Mance (with whom Lord Phillips, Lord Kerr and Lord Wilson agreed) said:

"33. …the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing "the very essence" of the right, pursue a legitimate aim and involve a "reasonable relationship of proportionality between the means employed and the aim sought to be achieved" in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above.

34. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdom's Extradition Arrangements of 30 September 2011 identified the time limits as an "unsatisfactory feature about the appeals process", and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that "On the whole we prefer the former, as this is an area in which certainty and finality is important.

35. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The "very essence" of the right may be impaired in individual cases and there may still be no "reasonable relationship of proportionality between the means employed and the aim sought to be achieved…

37. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligen's case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair "the very essence of the right" of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be "a reasonable relationship of proportionality between the means employed and the aim sought to be achieved"…

39. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligan, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously."

29. The Court of Appeal in Adesina was concerned with similar arguments in relation to Article 29(9) of the Nursing and Midwifery Order 2001. This required any appeal to the High Court brought against a disciplinary decision of the Nursing and Midwifery Council to "be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned". The Court held that the statutory time limit should be read down to give the Court a discretion in exceptional circumstances and where an appellant had personally done all he could to bring the appeal timeously. At paras 13 and 14, Maurice Kay LJ with whom Patten and Floyd LJJ agreed, said:

"13. There are obvious contextual differences between extradition appeals and appeals in disciplinary or regulatory cases such as this. First, extradition carries with it the prospect of loss of liberty and involuntary removal to a different country. The consequences of removal from a nursing and midwifery Register, an admittedly serious detriment, are not as grave. Secondly, the time limits in the Extradition Act (14 days in Pomiechowski) are significantly shorter than the 28 days here. Thirdly, the putative appellant in an extradition case would often have to cope with the shorter time limits in the more difficult position of custody, where communications with advisers and access to information and facilities are more difficult. Fourthly, there was widespread recognition of the problems created by the short time limits in extradition (see paragraph 7, above) but there is no such evidence in relation to appeals such as these.

14. Are these differences sufficient to leave the Mitchell/Reddy line of authority untouched by Pomiechowski? In my judgment, they are not. The context, exclusion from a profession, is still one of great importance to an appellant. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair "the very essence" of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent (Nursing and Midwifery Council (Fitness to Practice) Rules 2004, rule 34(4)). In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal."

30. Miss Smith submits that in exceptional cases the application of the strict time limit in section 111(2) of the 1980 Act has the potential to give rise to a breach of article 6 of the Convention, just as it does where there are appeal time limits in extradition and disciplinary appeals, and the court must therefore read down section 111(2) of the 1980 Act to provide the court with a discretion in particular cases to extend time. She submits to do otherwise would impede, "the very essence" of the right to a particular form of appeal, namely one where on the basis of settled facts, a pure argument of law can be considered.
31. Mr McGuinness on behalf of the Interested Party submits that there is no requirement to read down section 111(2) of the 1980 Act. He accepts that the process here engages article 6, but says that not all time limits specified for the bringing of proceedings will infringe article 6 simply because there is no discretion to extend them. There are, he submits, a variety of contextual factors which distinguish the position here from that in Pomiechowski and Adesina. These include (i) the absence of the sort of criticisms which had been noted in Pomiechowski; (ii) the fact that a magistrates' court (unlike the tribunals or courts in Pomiechowski and Adesina) is not a court of record. It is necessary therefore to have a short time limit so justices can state a case while matters are fresh in their memory; (iii) the fact that in proceedings in the magistrates' court, the potential appellant is present and participating in the proceedings when the decision is announced. This is different to the position in Adesina for example where notices of the tribunal's decision were posted out and deemed to have been served on the potential appellant; and (iv) the fact that unlike the position in Pomiechowski and Adesina, an appeal by way of case stated is not an exclusive remedy. The appellant can pursue an appeal to the Crown Court, which has a time limit of 21 days and a discretion to extend time in appropriate cases. On such an appeal an appellant can raise the matters of law and questions of fact that were before the magistrates' court. Further, if the appeal is unsuccessful there is a further right to an appeal by way of case stated from the Crown Court, at which point an appellant can raise the same questions of law yet again.

Discussion

32. It is accepted by counsel for both claimants that the relevant legislation is clear and its wording does not admit of any discretion to extend the time limit in section 111(2) of the 1980 Act. Further it is entirely uncontroversial that the relevant provisions of the Criminal Procedure Rules, in particular Part 35.2 and the notes to it, accurately reflect the fact that there is no discretion to extend that statutory time limit for an application to state a case. The argument raised by the claimants therefore begins and ends with the contention that what was said by the court in Woolls is correct and is binding on this court, and that what is said about extending time in the earlier authorities and in particular Michael v Gowland has been superseded by the CPR.
33. There is no doubt that Parliament has decided in primary and secondary legislation that there should be a strict time limit of 21 days to state a case from the magistrates' courts. Nor is there any doubt that once a case has been stated, the role of the magistrates' court comes to an end, and if an appeal is mounted, the jurisdiction of the High Court and its procedure is governed by the separate legislative regime to be found in section 28A of the 1981 Act and the CPR (specifically CPR 52.2 and CPR PD 52E).
34. The provisions of CPR 52.15 are part of the suite of rules governing the procedure for an appeal brought under section 28A of the 1981 Act. They have no application to the right of a party to apply to the magistrates' court to state a case under section 111(2) of the 1980 Act. It follows that CPR 52.15 has no application to the procedure under section 111(2) of the 1980 Act. Accordingly, the claimants' contention that the 21 day time limit in section 111(2) of the 1980 Act can be extended by resort to the CPR, which governs a different procedure, must be rejected.
35. The approach suggested in Woolls should not therefore be followed. It is important to note that the appellant was in person, that the issue of an extension of time via the CPR route was addressed only tentatively in Jeremy Baker J's judgment and that no argument appears to have been addressed to the court on the different sets of statutory provisions and rules or on the dicta from the authorities to which we have been referred.
36. We turn then to the question of reading down. We reject the submission that the court is required to read down section 111(2) of the 1980 Act to ensure compliance with article 6 of the Convention. In our judgment, it is entirely proportionate to have a short and clear time limit in which to bring an appeal by way of case stated for the reasons given by the Interested Party. In many instances magistrates' court proceedings will be before a panel of lay justices who perform their important work part-time. The magistrates' court is not a court of record, and whilst no doubt, magistrates may have access to their notes, their ability to state a case with accuracy depends upon their having a reasonably fresh recollection of the proceedings. There is no evidence that the time limit in question has given rise to any particular difficulties of the kind mentioned in Pomiechowski or attracted judicial or other criticism. This is not surprising, given the immediacy of the verdict and the presence, in almost all cases, of the defendant to hear it. Moreover, section 111 of the 1980 Act does not provide for an appeal as of right. It is open to the magistrates' court to decline to state a case. The short time limit enables a potential appellant to know (expeditiously) where he or she stands when considering whether to exercise other potential rights.
37. Furthermore, in contrast to the position in Pomiechowski and Adesina, section 111(2) of the 1980 Act is not the only route by which to appeal the decision of the magistrate(s). There is an alternative remedy in the form of an appeal to the Crown Court as of right on a full merits basis. An applicant who is out of time to apply to state a case to the magistrates' court, has a right of appeal to the Crown Court, with a time limit capable of extension, on any point of law that could have been raised in an application to the magistrates' court. Thereafter, he or she has a right of appeal by way of case stated from the Crown Court itself. The argument that the short time limit imposed by section 111(2) of the 1980 Act somehow deprives a potential appellant of the "very essence" of their right of appeal is without merit.
38. Finally it should be noted that if time could be extended, the result would be delay, additional expense and an incoherent procedural tangle that would not be consistent with the good and efficient administration of justice. On the claimants' hypothesis there could be two sets of proceedings before the magistrates' court, bisected by a return to the High Court (requiring the magistrates' court to extend time). Further, an application to state a case made outside the 21 day time limit, where an application for an extension of time was refused, might deprive an applicant of the right to appeal to the Crown Court by virtue of section 111(4) of the 1980 Act: see further P and M Supplies (Essex) Ltd v Hackney London Borough Council (1990) 154 JP 814; [1990] Crim.LR 569.
39. In the event we conclude there is no discretion to extend the statutory time limit in section 111(2) of the 1980 Act. This conclusion is dispositive of both applications for judicial review, which are refused. No useful purpose would be served by considering the further arguments made to us on behalf of the second claimant about the merits of the application to extend time, or the merits of the substantive stated case (in draft) itself. It is also unnecessary for us to consider further the question of the first claimant's delay in bringing the proceedings.

Note 1   Section 28(1) provides that: “Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.”     [Back]