QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE SIMLER
| The Queen on the application of YOGESH PARASHAR
|- and -
|SUNDERLAND MAGISTRATES' COURT
|CROWN PROSECUTION SERVICE
James Boyd (instructed by Appeals and Review Unit, Crown Prosecution Service) for the Interested Party
The Defendant court did not appear and was not represented
Hearing date: 26 February 2019
Crown Copyright ©
Lord Justice Bean:
"This statement will be tendered in evidence before the court unless you wish the witness to give oral evidence. If you wish this witness to give oral evidence please confirm this within seven days. If you do not do so within seven days of receiving this letter you will lose the right of statement being tendered in evidence and you will only be able to require attendance of the witness with leave of the court under Section 9 of the Criminal Justice Act 1967. We can confirm that a copy of this report has been filed with the court."
"From a note inside the envelope I received at court in a CPS court bag the officer seems to have already instructed an expert to comment on the defence expert report. DJ suggests this can be dealt with in same manner as defence expert. i.e. being adduced as hearsay at the trial. This can be hopefully sorted out once both expert evidence are to hand and both cross-served on each expert for their opinion. If not capable to being agreed then they may have to attend the trial but DJ hopes this can be avoided".
"On 10 August 2018 the matter was before DJ Elsey who refused to hear the abuse of process application that had been listed by DJ Purcell. The CPS was supposed to serve legible copies of the breath test print outs or the metrological logs by 5 June 2018. In default the Claimant was supposed to serve an abuse of process application by 19 July 2018. An abuse of process and section 78 argument was served by the Claimant on 25 July 2018 and there was no response from the CPS. On 9 August 2018 the CPS served a legible copy of the print out. On 14 June 2018 DJ Purcell [had] specifically stated that the CPS had a "limited chance" to serve the print out. DJ Elsey disagreed with DJ Purcell and refused to hear an abuse of process argument or Section 78 application without hearing the evidence at trial. … DJ Elsey was referred to the report of Dr Mundy and it was confirmed by the CPS that the science was agreed and it could therefore be read under Section 9 or under the hearsay provisions. The CPS was asked by DJ Elsey if it intended to raise any objection to the report and they specifically indicated that they were content for the report being read as an unchallenged report pursuant to the hearsay provisions. On that basis the current trial date was purposefully [sic] fixed for a date that was incompatible with Dr Mundy's availability."
"Please note the above-named defendant was listed for trial at Sunderland Magistrates Court on 08 October 2018. … The district judge has requested this matter is listed with a time estimate of a full day hearing."
"With all this in mind the district judge has directed the trial hearing on 8 October 2018 is vacated, however to remain listed for legal argument. Therefore the trial has been vacated and re-listed for trial as per the below listing: 9 November 2018, 10am, Sunderland Magistrates Court. Please note: the parties are still required to attend the legal arguments hearing scheduled for 08 October 2018 at 10am."
"I note that the matter remains listed on 08 October for a legal argument towards the trial on 09 November 2018. All parties to a summary trial are entitled to expect that matters are dealt with swiftly. There has already been significant delay and I am not satisfied in the interests of justice to delay the trial for the current matters into the new year."
"The dates had been fixed for some time now and the offence is driving a motor vehicle when alcohol level is above the limits which does not require counsel. The DJ is willing to admit the expert evidence as hearsay and the trial remains in the list."
"The case is listed at Sunderland Magistrates Court on 8 October 2018, courtroom 2, for a legal argument towards the new trial date which is set for 9 November 2018 at 10am, Sunderland Magistrates Court for a full day trial."
"Please note the above-named defendant was listed for legal argument at Sunderland Mags Court on 9 November 2018 [sic]. Case Management has reviewed the legal argument and found it is an application where the defence are seeking to exclude the interview under section 76 PACE as they state that the interview was conducted while the defendant was still under the influence of alcohol. In view of case management the application cannot be heard without the officer being present and giving evidence. If the witness is expected to attend court, fine, but it seems to be an issue that is better dealt with at the trial with all of the issues in the mix. This has been referenced to a District Judge who has requested the legal argument is removed from the list on Monday 4 October as this will be dealt with at trial." [The last date given was an obvious misprint for Monday 8 October, as was confirmed after a further telephone call and exchange of emails.]
i) It was correct that the case had been delayed already, but both the June and the August adjournments had been caused not through any fault of the defence but because of the fault of the prosecution, the first time in failing to serve the critical evidence and the second time in seeking at the very last moment to instruct an expert of their own.
ii) As for the case being "a summary only matter which does not require counsel", it was not for the judge to tell the defendant that he need not be represented at a hearing involving technical expert evidence and the near-certainty of losing his licence if convicted. If the judge meant to refer to specific counsel the comment would have been reasonable; but the availability of particular counsel was not the main issue about the date. No doubt a substitute advocate could have been found if that was the only problem, but the same did not apply to the expert.
iii) The proposition that the judge would "admit the expert as hearsay so they need not attend" made sense so long as the prosecution had not instructed their own expert. But apparently unknown to the judge this had changed.
"We acknowledge receipt of the court's CJSM response to our further application to vacate 12 October 2018 and note this is refused along with the request for an oral hearing.
A further development has arisen since making our application and in accordance with our obligations pursuant to CrPR 1.2 (c) of the Overriding Objective, we wish to bring these to the attention of the court.
The Defence served the report of Dr Mundy on 30 May 2018.
On 10 August 2018 when the matter was last before the court for an ineffective abuse of process application, when listing the matter for a second trial date (the first having been ineffective in June 2018) the Crown was asked by DJ Elsey if it intended to raise any objection to the 'report and they specifically indicated that they were content for the report being read as an unchallenged report pursuant to the hearsay provisions.
On that basis the current trial date was purposefully fixed for a date that was incompatible with Dr Mundy's availability. However, on 11 October 2018 the Crown has served the expert report of Mr Geraint Roberts, seeking to challenge the report of Dr Mundy some 4.5 months after the service of Dr Mundy's report and 2 months after the date when the current trial was fixed. The Crown gave no prior notice of an intention to serve evidence in rebuttal in an attempt to challenge Dr Mundy. Accordingly, the report of Geraint Roberts has not been served as soon as practicable.
We submit that it is wrong in principle to agree to indicate that a forensic toxicologist's conclusions are unchallenged so that the report is read but then seek to go behind that agreement by challenging the report with contradictory expert evidence.
The Crown has not complied with Rule 19.3.3 CrPR and have not indicated on the PET form any intention to rely on an expert in this case. We therefore apply to the court to rule that the report of Mr Roberts is inadmissible pursuant to Rule 19.4 CrPR.
Renewed Application to Vacate Trial (Only in the event that the evidence of Mr Roberts is permitted to be adduced)
If the court concludes the Crown is entitled to rely on the report of Mr Roberts and that Mr Roberts is permitted to give oral evidence at trial, we apply to adjourn the trial.
We clearly need Dr Mundy to be present at the trial to assist the trial advocate with the cross examination of Mr Roberts, and to give evidence in rebuttal in response to Mr Roberts.
As a matter of principle, it would clearly be unfair to Dr Mundy and the Defendant to allow Dr Mundy's evidence to be read under the hearsay provisions and for another witness to comment on the evidence in an attempt reduce the weight that is attached to it. How will any reasonable tribunal be in a position to make a fair assessment of the evidence on this basis?
Dr Mundy also needs to be in attendance to assist the trial advocate in the cross examination of Mr Roberts, this valid requirement of an expert is well established in Leo Sawrij v North Cumbria Magistrates' Court  EWHC 2823 (Admin)).
Dr Mundy is then required to attend the trial to give evidence in rebuttal.
He is not available to attend the trial on the current trial date due to a booking to attend as an expert in another court,
Respectfully, we ask that the court adopts a reasonable and fair approach and agrees to accommodate the Defence witness' availability."
"where an adjournment is sought by the accused the magistrates must decide whether, if it is granted he will be able to fully present his defence, and if he will not be able to so do the degree to which his ability to do so is compromised."
"There was no suggestion on any side before the justices that this was a claimant playing games. He was pursuing a legitimate defence, supported by evidence."
"Whilst both cases cited above involved a judicial review of a decision to grant an adjournment application made by the Crown, we invite the court to consider the similarities in terms of the apparent unfairness to the Defence in both cases. Mr Parashar has attended each hearing listed by the court in this case ready to proceed but the delays encountered have been caused by the Crown's failings in complying with their disclosure obligations.
If despite the further explanation within this letter, our request for the trial to be vacated is denied, please note this letter does not contain our full submissions and we request that the matter be listed for a hearing as soon as possible where our full submissions can be made in accordance with Rule 3.6(1)(a) CrPR."
"Reply to the defence and say that their application is based on a misapprehension; their expert was not admitted on the basis that the contents of the report were agreed by the prosecution but as hearsay; as with all hearsay the weight to be attributed to the contents of the report will be decided having heard all the evidence in the case. I am conscious that the advocate will not have the defence expert in attendance but given the fact that this is a routine argument in each of his cases I do not anticipate that he will be at a disadvantage. The case will go ahead on the date fixed."
"1 . The reasons given by the district judge for refusing to adjourn the trial to allow for the attendance of the defence expert Dr Mundy are arguably flawed because he failed to consider the applicable principles in Picton. Also, his statement that "it is a summary only matter which does not require counsel…" is difficult to understand. Whether counsel should be instructed is a matter for the parties and not the court and so the judge arguably may have taken an irrelevant consideration into account
2. If the trial proceeds then the defence will be arguably prejudiced because the judge has said that he may attach less weight to Dr Mundy's evidence because it will have been read as hearsay. The defence have been put in this position because of the failure by the prosecution to comply with the court's case management orders and the late service of their expert evidence. In these circumstances it would be arguably unfair to let the trial proceed on 9 November 2018.
3. The judge was arguably wrong not to have entertained an oral application."
"In general terms this court will not entertain, whether by application for judicial review or by way of appeal by case stated, an interlocutory challenge to proceedings in the Magistrates' Court. … "
He added, however, at paragraph 5 that "it is right to say that this court has sometimes been persuaded to consider a case which is at the interlocutory stage where there is powerful reason for doing so."
"It is of the utmost importance that the course of a criminal trial in the Magistrates' Court should not be punctuated by applications for an adjournment to test a ruling in this court, especially when in reality if the case proceeds the ruling may turn out to be of little or no importance. In the present case the District Judge has yet to rule in relation to section 78 if the ruling was to favour the claimant the prosecution would fail. That may or may not be a realistic possibility, but I am satisfied that even when, as here, there is an important substantive point which arises during a trial this court should not and indeed cannot intervene. The proper course is to proceed to the end of the trial in the lower court and then to test the matter, almost certainly by way of case stated."
"Where the issue of an adjournment is raised, different considerations may apply: that is so not only because of the unsatisfactory nature of quashing a conviction that is not itself before the court, but also because, in the interim, considerable expense has been incurred, not merely by the parties, but also by the court in conducting a hearing which in the event has proved entirely nugatory and therefore setting aside the original decision: in that regard, I take some support from observations of Mitting J in R(Watson) v Dartford Magistrates Court  EWHC 965 (Admin) that there was no fetter on this court intervening.
Having said that, it is important that the position is fully understood by those conducting the hearing before the justices. I repeat the observations of Bingham LJ [in R v Aberdare Justices ex p DPP (1990) 155 JP 324] that the decision to adjourn is discretionary; challenges to such a decision will be difficult to mount, and should only be commenced if the circumstances are exceptional. If brought, however, any claim for judicial review must be pursued as a matter of extreme urgency- in days rather than weeks – so as not to affect the continued progress of the case if the single judge (who will also consider the case as a matter of urgency) determines that permission should not be granted. If permission is granted interim relief can be granted to prevent the prosecution continuing while the matter is being investigated."
"It is worth underlining that both Lord Cockburn [sic] and Lord Widgery were dealing with appeals during the course of the hearing of the relevant trial (thereby causing an adjournment for the decision to be challenged). We consider that these decisions can be explained and justified on that basis. The same is so for the subsequent decision which relied on Buck."
12. "The first answer to Mr Benson's submission is that the decisions in the present cases (following an interlocutory ruling and well in advance of the trial) were not made during the trial itself and, thus, strictly the Buck principle can be distinguished: it is not difficult to see why the court will do all that it can not to interrupt a trial then proceeding to a conclusion. In any event, we doubt that the proposition that there is a true jurisdictional bar (meaning that the court had no right to consider the issue at all) can be justified: see, for example, the observations of Sedley LJ in Essen v DPP  EWHC 1077 (Admin) (at ) which suggested that the Buck group of decisions could usefully be revisited on the basis that a fixed rule that any challenge must abide a final outcome is capable of working injustice.
13. There are obvious reasons why the more recent cases were, in fact, determined on their merits (contrary to what would be a true jurisdictional bar). Including words such as 'generally' and observations such as 'in nearly every case' underline what is an entirely pragmatic response to the modern approach to case management and the conduct of hearings in the magistrates' court. In our judgment, however sensible the general rule is (almost inevitably so if a challenge is mounted during the course of the trial), in appropriate and exceptional cases, a mechanism that permits a challenge is entirely consistent with the overriding objective identified in the Criminal Procedure Rules. Accordingly we are satisfied that we have jurisdiction to hear these cases.
14. In the circumstances, it is appropriate to restate the approach in this way. First, it is difficult to visualise circumstances in which it would be appropriate to adjourn a trial simply for the purpose of challenging an interlocutory ruling made during the course of that trial. Such a challenge should be pursued at its conclusion. Second, a challenge to an interlocutory order or decision should not lightly be made but may, exceptionally, be justified where the challenge raises issues likely to have general or wider application and is not dependent on the ultimate result and there is no other means by which the order or decision can be challenged."
(1) Where it is properly arguable that the ability of the defendant to present his defence is so seriously compromised by the decision under challenge that an unfair trial is inevitable.
(2) Where an important point of principle is raised, likely to affect other cases.
(3) Where the case has some other exceptional feature which justifies the intervention of the High Court.
The decision in this case
Mrs Justice Simler: