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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
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Cite as: [2001] NIQB 40
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Neutral Citation no.[2001] NIQB 40
Ref
KERF3518
Judgment: approved by the Court for handing down
Delivered:
08.11.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY STEVEN CRANSTON FOR JUDICIAL REVIEW
KERR J
Introduction
This is an application by Steven Cranston for judicial review of the decision of the Department of the Director of Public Prosecutions to prefer certain charges against him and for judicial review of a decision of Kenneth Nixon RM in relation to those charges, taken at Craigavon Magistrates' Court on 16 November 2000. The decision of the magistrate which the applicant challenges is described in the Order 53 statement as the refusal to stay proceedings against the applicant on foot of summonses charging him with the offences of driving whilst disqualified and driving without there being in force a valid policy of insurance. The decision of the DPP which is challenged is the decision to prefer those charges after the applicant had pleaded guilty to other charges arising from the same incident.
Background
On 18 March 2000 the applicant took and drove away a motor vehicle without the owner's consent. At that time he was a disqualified driver and he had no insurance cover for his driving of this or any other vehicle. After driving the car for a period, the applicant destroyed it by setting it alight.
He was charged initially with three offences viz taking and driving away the motor vehicle without the owner's consent, theft of items from the car and arson. In the course of interviews he admitted to police officers that he had been driving whilst disqualified and that he did not have a valid policy of insurance but he was not charged with any offence in relation to these matters at the initial stage.
The applicant appeared at Craigavon Magistrates' Court on 6 April 2000. The court was informed by his solicitor that it was likely that he would plead guilty to the charges of taking and driving away and arson. At that time discussions were taking place between the prosecution and the defence in relation to the third charge i.e. theft. The case was therefore adjourned until 4 May 2000. When the matter came on for hearing again on that date, pleas of guilty were entered on his behalf to the charges of taking and driving away and arson. The theft charge was withdrawn. The Resident Magistrate adjourned the case to 1 June 2000 so that a pre-sentence probation report could be obtained. On 1 June 2000 he again adjourned the matter to allow a psychological assessment of the applicant to be carried out. On 20 July 2000, when the case was next listed before him, the Resident Magistrate deferred sentence on the offences to which the applicant had pleaded guilty. This was in line with the recommendation of the Probation Service.
On 15 August 2000 complaints were laid against the applicant in respect of offences of driving whilst disqualified and driving without a valid policy of insurance. These offences arose out of the same set of facts as the charges that had already been preferred against the applicant. The complaints in respect of these two new charges were listed for 16 November 2000, the date to which sentence on the other charges had been deferred. The facts relating to the hearing on 16 November are disputed and will be considered separately below. The applicant pleaded guilty to the new charges. He was sentenced to six months imprisonment suspended for two years on each of the charges of taking and driving away and driving while disqualified, although on the latter charge he was also disqualified from driving for a period of three years. On the charge of arson he was made the subject of a probation order for eighteen months on condition that he undertake psychiatric treatment. In respect of the offence of driving without insurance, he was fined £150.
The hearing on 16 November 2000
In an affidavit filed on behalf of the applicant, his solicitor, Samantha Park, gave the following account of the hearing on 16 November 2000: -
"14. At the applicant's court appearance on 16 November 2000 it was pointed out to His Worship, Mr Nixon RM, that these summonses [of 15 August 2000] had been issued and served on the applicant long after he had pleaded guilty to offences arising out of the same set of facts. The prosecution had therefore armed themselves with the applicant's guilty pleas, and the applicant now had no option but to enter pleas of guilty to the new summonses. This, it was submitted, was unjust and an abuse of process.
15. His Worship Mr Nixon RM noted that these were serious matters and refused to disregard the summonses.
16. The applicant therefore faced two summonses for strict liability offences. By an earlier plea to taking and driving away he had admitted the actus reus of both offences. Pleas of guilty to both summonses were recorded."
The applicant's account of the hearing (contained in his own affidavit) is cryptic. He stated that an application to stay the summonses was made and refused by the magistrate. It is perhaps significant that Ms Park did not expressly state that such an application had been made.
In any event, Mr Nixon, in an affidavit filed on behalf of the respondent, roundly rejects the account given by the applicant and Ms Park. Having summarised their version of what had taken place, he stated: -
"4. I wish categorically to deny that the above alleged events occurred. I have a clear memory of the case which was heard by me at Craigavon Magistrates' Court on 16 November 2000 and I was not asked to disregard the summonses or stay the proceedings as an abuse of process. No application whatever was made to me concerning the summonses and it would not have escaped my notice if one had been made.
5. It is the case that the applicant through his solicitor entered pleas of guilty to the two offences. I did indeed refer to the seriousness of the offences in the context of the significant penalties they would normally attract. I cannot understand the factual basis on which judicial review is being sought in relation to a decision by me in respect of these two offences which I contend I did not make."
The magistrate's forthright denial that any application to stay the proceedings was made to him is supported the court clerk, Hazel Willis. She has said: -
"1. I was the court clerk in Craigavon Magistrates Court on 16 November 2000.
2. I recollect the case of Steven Cranston in particular as I knew the defendant's mother to see and I recognised her sitting in the body of the court.
3. I cannot recollect the defendant's solicitor, Samantha Park, making any application to stay proceedings to His Worship, Mr Nixon, in respect of any issue of abuse of process.
4. I noted on the order book the defendant's plea, indicated by his solicitor, to the two summons matters, that of no insurance and driving while disqualified, and I would further add that it is my practice when an issue is raised in respect of a summons or charge, that I would note same and in this case I made no note of any kind."
Ms Park responded to the affidavits of Mr Nixon and Ms Willis in a second affidavit. To this she exhibited a handwritten memorandum of advices that she had obtained from counsel, Mr Sayers, on the issues in the case and her own notes made in preparation for the hearing. She then gave the following somewhat fuller account of what had occurred: -
"5. Sometime after 11 o' clock I called the applicant's case. I drew attention to the fact that the applicant's name appeared twice in the Magistrates' Court list and indicated that the case had already been listed for sentencing but that two further summonses had been issued. I then briefly urged that for the prosecution to thus arm itself with the applicant's pleas of guilty was unjust and unfair. I think I used the phrase 'abuse of process' but am absolutely certain about 'unjust' and 'unfair'.
6. Mr Nixon RM did not call for submissions from counsel for the DPP. Indeed Mr Nixon RM corrected me when I erroneously indicated that these summonses had been served in September 2000 and informed me that they had, in fact, been served in August. He asked why the summonses should be disregarded to which I replied that it was unjust and unfair. Mr Nixon stated the charges were serious and could not be disregarded."
In response to this affidavit, Mr Andrew Crawford, counsel for the prosecution, gave the following account of an exchange between him and Ms Park before the hearing on 16 November 2000 and of the hearing itself: -
"3. Before the Court began I was approached by the solicitor for the applicant, Samantha Park. She stated to me that she was unhappy with the August 2000 summonses being issued after pleas of guilty had been entered in respect of the arson and taking and driving away charges. She asked me to withdraw these summonses. I told her that the summonses would be proceeded with. In the circumstances I asked her whether she would be making any application to the Court and whether she had any authorities to cite on this issue. I did not receive any response to these questions.
4. When the case was called, to my surprise the applicant's solicitor entered pleas of guilty to the new summonses. I am quite clear that no application was made to stay the summonses on the basis of any alleged abuse of process or unfairness or breach of the European Convention on Human Rights and that consequently the Resident Magistrate, Mr Nixon RM, did not refuse such an application. Straightforward and unequivocal pleas of guilty to the new summonses were entered and the Resident Magistrate handed down sentences in respect of these."
No response to Mr Crawford's affidavit was made by or on behalf of the applicant.
It has been observed that judicial review is not best suited for resolving disputed issues of fact – see, for instance, R v Jenner [1983] 1 WLR 873. The present case perhaps exemplifies the difficulty in reaching a confident conclusion on sharply conflicting versions of events by reference only to affidavit evidence. The legal burden of proof remains on the applicant, however, - see Judicial Review Supperstone & Goudie, 2nd Edition, p. 17.8. It is for the applicant to establish (on the balance of probabilities) the version of the facts that is necessary to sustain his judicial review challenge.
I am not persuaded that the applicant's solicitor's account of what occurred at the hearing on 16 November 2000 can be accepted. I have taken into account that she had made notes for the making of an application to stay the proceedings against the applicant and had obtained counsel's advices on the issues arising in such an application but the preponderance of the evidence available to me suggests that she did not in fact make that application.
The magistrate's decision
For the applicant Mr Larkin argued that the Resident Magistrate ought to have stayed the proceedings regardless of whether such an application was made to him. In particular, he suggested that the magistrate ought to have recognised that the applicant's rights under Article 6 of the European Convention on Human Rights would be infringed by the preferring of the charges of driving whilst disqualified and driving without insurance. He was therefore under a duty (by virtue of section 6 of the Human Rights Act 1998) to refrain from acting in a way that was incompatible with the applicant's Convention rights, Mr Larkin argued; this required the magistrate to intervene and restrain the further prosecution of the applicant on those charges.
Leaving aside for the present the question of whether the applicant's Convention rights were engaged, I am satisfied that this argument must fail. If the magistrate had not been informed that the applicant objected to the further charges being preferred, how is he to have known that a Convention right had been infringed? In any event, waiver of a Convention right is possible, although that must be established in an unequivocal manner – see Pfeifer and Plankl v. Austria[1992] 692. If the possibility of an infringement of the applicant's rights had occurred to the magistrate, he would have been entitled, in my opinion, to assume that the applicant, by reason of the unequivocal plea of guilty that had been entered on his behalf, was waiving those rights. It would not have been appropriate for the magistrate to intervene in those circumstances.
By the same token, I do not consider that the magistrate should have detected any other irregularity such as abuse of process on the part of the prosecution if that had not been drawn to his attention. The preferring of the later charges against the applicant might have been by arrangement with his solicitors or for reasons of administrative convenience. It would be quite unrealistic to expect the magistrate to be alert to an impropriety simply because the applicant's name had appeared twice in the court list. In the absence of an application to him to stay the proceedings, he was right to continue to deal with all charges. The fact that the applicant pleaded guilty without demur made it doubly inappropriate that the magistrate should intervene.
The decision to prefer the charges
The applicant challenges the decision of the DPP to prefer the later charges on two grounds principally. First it is suggested that the proceedings in respect of these charges should not have been instituted during the period that sentence on the first set of charges had been deferred. Secondly it is claimed that the decision to proceed with the charges amounted to an abuse of process.
The deferral of sentence
Article 3 (1) of the Criminal Justice (Northern Ireland) Order 1966 provides that a deferred sentence may be used: -
"for the purpose of enabling the court to have regard, in determining [the defendant's] sentence, to his conduct, after conviction (including, where appropriate, the making by him of reparation for his offence) or to any change in his circumstances"
The applicant argued that the preferring of the later charges represented an illegitimate use of the deferred sentence procedure. Counsel relied on the decision of the Court of Appeal in R v Gilby (1975) 2 All ER 743. In that case, James LJ, delivering the judgment of the court said: -
"A decision to defer passing sentence for the purposes expressed in s 1(1) of the 1973 Act inevitably conveys the impression to a defendant—and we would say contains the implication—that if the report called for by the court is favourable to the defendant (even though the defendant has not achieved all that was hoped for) the court will not pass so severe a sentence as it might otherwise have imposed."
It was suggested that the deferral of sentence in the present case was made because the magistrate had reached a provisional sentencing decision and that, as in Gilby the applicant was entitled to expect that he would be dealt with less severely and that the decision to prefer further charges resulted in a heavier penalty than had been contemplated by the magistrate. It was argued that the provisional sentencing decisions had thereby been undermined.
In Gilby the justices had deferred sentence on the accused but when he returned for sentence, they committed him for sentence to the Crown court with a recommendation for borstal training. Those circumstances are markedly different from the present case. There the accused had reason to expect that he would not receive as substantial a penalty as was in fact imposed. Indeed, he was entitled to anticipate that he would be dealt with by the justices. Here, by contrast, the applicant was sentenced by the court that had deferred sentence and there is no reason to suppose that the penalty imposed on the charges on which sentence had been deferred was any more severe. I do not consider, therefore, that it has been shown that the provisional sentencing decisions of the magistrate were altered by the preferring of the further charges or that Article 3 of the 1996 Order was used other than for its stated purposes.
Abuse of process
Mr Larkin submitted that where a defendant has once been tried on offences arising from a particular set of facts, it is prima facie oppressive to put him on trial a second time in relation to the same set of facts. In support of this proposition he relied principally on the decision in Connelly v DPP [1964] AC 1254. In that case Connelly and three other men were charged on two indictments with murder and robbery with aggravation, arising out of an office robbery in November 1962, during which an employee was killed. The indictment for murder was tried alone. All four were convicted. At the conclusion of the trial the judge directed that the indictment for robbery should remain on the file not to be proceeded with without leave of the court. Connelly's appeal against conviction succeeded. The Court of Appeal granted leave to the Crown to proceed with the prosecution of Connelly on the second indictment for robbery. At his subsequent trial Connelly raised the defence of autrefois acquit. That defence failed and the judge was asked to exercise his discretion to prevent the Crown from proceeding on the second indictment. He held that the only discretion that a judge had in such circumstances was to express an opinion; and he expressed the opinion that it would be wrong for the Crown to proceed. Despite this, the Crown proceeded with the prosecution; Connelly was tried and convicted on the robbery indictment. The House of Lords dismissed his appeal against conviction. Lord Devlin expressed the view, however, that it would normally be wrong for the prosecution to proceed with a second prosecution based on the same set of facts. At pages 1359/60 he said: -
"As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because, as a general rule it is oppressive to an accused for the prosecution not to use rule 3[which permitted a series of offences of a similar character to be joined in the same indictment] where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case."
It was submitted that this passage had the effect of reversing the normal burden of proof in an abuse of process situation. Normally it was for the defence to establish that there is "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding" – Hui Chi-Ming [1992] 1 AC 34, 57. Mr Larkin argued that, by contrast, where a defendant had once been tried in respect of a particular set of facts it is prima facie oppressive to put him on trial a second time. He submitted furthermore that where the prosecution sought to take advantage of the proviso in Lord Devlin's statement of the principle, they were fixed with the burden of showing that there were special circumstances that made it just that the second prosecution should be allowed to proceed.
It is not necessary for me to reach a conclusion on the incidence of the burden of proof in abuse of process cases where it is proposed to prosecute on the same set of facts as formed the basis for a prior prosecution. I am satisfied that the prosecution of the applicant on the charges of driving whilst disqualified and driving without insurance arises from the same set of facts as those to which he had already pleaded guilty. In these circumstances, the decision to prosecute amounted to an abuse of process. It was also a violation of the applicant's rights under Article 6. The fact that these were summary charges rather than, as in Connelly, charges preferred on indictment does not, in my opinion, alter the application of the principle. It is equally oppressive to prefer summary charges as it is to present a new indictment. The abuse of process cannot be redeemed by the failure of the applicant's legal representative to apply for a stay. If the magistrate had been aware of the circumstances in which the second set of charges had been preferred, he would have been bound to stay them, in my opinion, whether or not an application for a stay had been made. As I have held, he was not aware of these circumstances and cannot be faulted for having failed to intervene. The fact that the magistrate did not grant a stay (since he was not asked to) cannot cure the abuse of process that was caused by and stemmed from the prosecution's decision to prefer the second set of charges.
For the respondents Mr Montague argued that the circumstances in which a stay on account of abuse of process would be granted were restricted to those outlined in the judgment of Carswell LCJ in Re DPP's application [1999] NI 106. In that case the Lord Chief Justice indicated that the jurisdiction to stay should be exercised sparingly and only for compelling reasons. He stated (at page 116) that there were two main strands or categories of case where an abuse of process would succeed, namely where there had been delay or manipulation of the prosecution process so as to adversely affect the fairness of the trial or where, although the defendant might receive a fair trial, it would be an abuse of process to put him on trial at all. There is nothing in the Lord Chief Justice's judgment which suggests that where a defendant has been prosecuted earlier on charges arising from a certain set of facts it would not be an abuse of process to prosecute him at a later stage on other charges arising from the same set of facts. In any event, the present case appears to me to be an obvious example of the second category adumbrated in this passage of the judgment.
Mr Montague also argued that the prosecution of the applicant on charges of driving whilst disqualified and driving without insurance did not arise out of the same set of facts as the charges of taking and driving away and arson. I cannot accept that argument. The taking and driving away charge has precisely the same factual basis as the charges of driving whilst disqualified and driving without insurance. It was the act of driving the vehicle that gave rise to the applicant's liability on each of those charges. He ought therefore to have been charged with all offences at the same time.
Conclusions
The decision to prefer further charges arising from the same incident against the applicant after he had pleaded guilty to the charges of taking and driving away and arson amounted to an abuse of the process of the court. The applicant's conviction on the later charges will therefore be quashed and the penalties imposed on those charges will be remitted.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION BY STEVEN CRANSTON FOR JUDICIAL REVIEW