Clarke, R. v

SIR IGOR JUDGE: This is an application by the prosecution, under section 58 of the Criminal Justice Act 2003, for leave to appeal against a ruling made by His Honour Judge Milmo QC at Nottingham Crown Court on 18th September 2007, when he refused an application by the prosecution that a trial listed for hearing that day should be adjourned for a period of up to 4 weeks.

The background to Judge Milmo's decision needs some fairly lengthy narrative. The complainant, LB, and the defendant, Martin Clarke, had known each other for some 10 years and lived together during about two of them. According to the Crown's case, on 16th February 2007 Martin Clarke assaulted LB causing bruising to her face. He assaulted her again on 19th February, and on 20th February he raped her. On the way to hospital he used violent language and thereafter, when she left hospital, the Crown asserted that he assaulted her yet again. He also caused serious damage within her home.

When charged with the offences he is said to have responded with words to the effect that if he were given a couple of weeks to talk to LB all the charges would be dropped.

On 22nd February he appeared at the Magistrates' Court. He was committed in custody to Lincoln Crown Court and he subsequently remained in custody.

On 1st March a preliminary hearing took place at Lincoln Crown Court. At some stage thereafter LB visited him in prison. On 26th April LB made statements to an independent solicitor that she was unwilling to give evidence. The allegation that she made against the defendant was not withdrawn but she refused to go to court. She wanted, she said in her statement, to put this incident behind her.

On 27th April, at the plea and case management hearing at Lincoln Crown Court, the judge was informed of what LB had said and her indication that she did not wish to proceed. The Crown took the view that she should be summoned to court. The court agreed. The case was set down for trial to take place on 3rd September. The case was to be re-listed in 4 weeks, so that the prosecution could speak to LB and ascertain her views and discover whether or not she had been put under any pressure.

At some stage in this process LB had given her mobile telephone number to the defendant. On 30th April 2007 he spoke to her on the telephone from prison. A covert tape recording was made of the discussion. The defendant told LB that the statement that she had given, which indicated that she did not wish to proceed with the case was insufficient; a further statement was required. His own words were that it should say that "her head was fucked up at the time and people put words into her mouth." When the contents of this telephone conversation were revealed to the prosecution, a charge of doing an act tending and intended to pervert the course of justice was brought.

On 21st May LB made a statement to the police, in strong terms, that she was unwilling to give evidence and that she did not wish to go to court.

The case was re-listed for review on 8th June. The Crown informed the court that although LB had been seen by the officer in the case and had indicated in strong terms that she did not want to go to court, the Crown's position was that a witness summons would be sought so that she could be compelled to come to court to give evidence. The summons was granted; it was served on LB on 16th August.

In the meantime, on 9th August the defendant was charged with the offence arising from the telephone conversation, which has already been described. Thereafter he pleaded not guilty to that charge which was in effect organised so that it should catch up with and be dealt with at the same time as the original offences. On 10th August LB again indicated to the police that she was unwilling to give evidence.

Something of the flavour of LB's position, as described at this stage in the proceedings, can be discerned from a statement she made on that day, when she said that she would like to state that the defendant had no involvement in causing her to withdraw her complaint for the allegation of rape, but confirming that she had been in contact with him while he had been in prison. She had made her own arrangements to speak to him. She said: "It was my decision to do that, because I still miss him and I do love him and I want him to be out of jail." She said that she had told the ambulance staff that she had been raped; she had done that because: "They asked me what happened. From then on I've had the police telling me that I should go through with the complaint. My Mum was constantly on at me about making a complaint. The situation has made me ill, which is why I don't want to go to court, I just want it all to stop."

She then described her first visit to solicitors, about wanting to withdraw the complaint and then her second statement about not wishing to go to court. She said she went to the solicitors of her own accord to withdraw her statement of complaint because "I do not want to go to court because of the pressure I am under." She then gave leave for her solicitors to disclose all the documentation relating to this issue in their professional relationship with her because, as she put it: "I want the police to have that documentation to understand that Martin has nothing to do with me not wanting to go to court and I made that decision myself. I can also confirm that I have written about three letters to Martin again saying I did not wish to go to court. I've never said in those letters I was not raped, I've never said to anyone that I was not raped. All I can say is that I do not want to go to court because the effect it is having on me and my children. It has nothing to do with Martin putting pressure on me to withdraw the complaint. I'm old enough to make my own decision."

There is an undated document included in our papers. It has not been impossible to begin to fix the precise date when it was made, but it followed a number of visits to the complainant by a Detective Constable. By a process of deduction or inference, we assume that the note was made at about this time but, in any event, it is relevant just to note some of the contents. The writer says that the complainant does not really seems bothered by this case: "She's very evasive and will not look at me, she just asks when it is going to be finished with. On one visit I have asked her if she still loves Martin Clarke and is hoping to get back with him. She said "no", but she then looked away and started laughing. She was offered help from Victim Support. She said that she didn't need it or want support." She was, in the words of the writer, "completely unco-operative". When asked questions the writer recorded that LB started giggling and looking away: "She's not showing signs of a woman who is being put under [I cannot read the next word but the word "pressure" is clearly discernible]. She is clearly not going to assist or help the prosecution any more, and her attitude towards the police is terrible." There is a reference again to the possibility of speaking to Victim Support or the DVO. On one occasion, according to this file, when the police officer went LB was "sporting a black eye". She explained that she had been in a fight when drunk on the previous Saturday night and the note ends by recording that she was to be arrested as a complaint of assault had been made against her.

The trial date, it will be remembered, was 3rd September. On that date LB attended Lincoln Crown Court at the appropriate time. When there, she indicated that she would refuse to go into court to give evidence. There was some problem about the length of time available for the trial. A jury was sworn. The case was opened. When called upon to give evidence during the afternoon, LB refused to go into court. The Crown applied for an order that she be arrested. The judge made that order. He assigned counsel to her. Her counsel, after seeing his client, reported to the judge that his client did not wish to give evidence. The judge warned LB that she would be held in contempt if she declined to attend court or give evidence on the following day. He admitted her to bail.

On 4th September she attended Lincoln Crown Court, this time indicating that she would be prepared to give evidence over the video link and she asked to look at her statements again. Because time had already been lost and there was some outstanding work still to be done by the defence, in listening to tapes of the telephone conversations between the defendant and complainant, which had at that stage only recently been obtained by the police, and because in those circumstances neither counsel could guarantee that the case could conclude in the available time, the jury was discharged. Notwithstanding the unavailability of the defendant's counsel, the case was adjourned to start again on the following Monday, 10th September.

New counsel was instructed. On that date LB again attended Lincoln Crown Court. There was a problem because the defendant was unhappy about his new counsel. A jury was sworn. The case was opened. After lunch LB was in the video link room waiting to give evidence. In the end, however, the prosecution served something like 100 pages of additional evidence. The defendant was unhappy that counsel had insufficient time to take instructions and to consider this new material. He was also unhappy we are told by Mr Aspden, who appears before us today and, as we shall see, at the critical moment in this case, and presumably on the basis that his client has waived privilege, that the defendant was unhappy that his new trial counsel's advice on key issues was materially different to the advice he had received from his first counsel.

At lunchtime the trial was adjourned to allow the second new trial counsel to take instructions and to consider the additional material. Having done that second counsel decided that he would be unable to continue to act. We do not know the precise circumstances in which that occurred but it is clear that new counsel found himself in a professional difficulty. He decided that he would withdraw. The jury was discharged. The trial was refixed for 17th September, this time at Nottingham Crown Court.

The complainant told the Crown Prosecution Service representatives that she was not prepared to attend again. That information was given to the Recorder. She was brought back into court and the Recorder told her that she must attend at Nottingham Crown Court on 17th September at 9.30. The case was duly listed to be heard before His Honour Judge Pert QC. Mr Aspden appeared for the defendant. Although he was appearing as the third trial counsel, he had had the advantage of having been instructed when the case was originally to be prosecuted and so he knew the defendant.

When the case was called on LB was not in attendance. The representative of the Crown Prosecution Service contacted her using a mobile telephone. She refused to attend. More importantly she refused to reveal her whereabouts. The prosecution applied for an adjournment. The application was opposed. The judge considered the submissions on both sides; he acknowledged that there was force in the submissions made on behalf of the defence but, in the end, he decided that he would grant an adjournment, in effect indicating, as far as he was concerned, that would be for a 24-hour period. He invited the prosecution to consider its position very carefully if LB then failed to attend. That was the end of the hearing on that day. A warrant was then issued for LB to be brought to court by 10 o'clock on the next day.

On the 18th, the case was listed before His Honour Judge Milmo QC. LB was not present; she was not under arrest, and it was indicated by the prosecution that the police had attended all possible known locations and had been unable to trace her and execute the warrant issued by Judge Pert. It was in those circumstances that the prosecution applied for further adjournment so that the complainant could be traced and the warrant executed. In the end that application was refused.

Some thought was given then to the possibility of the Crown proceeding with the case on the basis that the original statement of complaint could be read in evidence in accordance with the provisions of section 114 of the 2003 Act. But when the relevant legislation was studied, it was decided that that could take the matter no further. The Crown was offered a stark choice: it had to choose either to offer no evidence against the defendant or to seek to appeal the decision of Judge Milmo. Judge Milmo refused the Crown's application for leave to appeal to this Court, but he allowed appropriate time for the application to be made here.

The first question is whether the right granted to the prosecution by section 58 of the 2003 Act extends to a decision relating to what is pre-eminently a case management decision. The second is whether, assuming that it does, leave to appeal should be granted. Mr Aspden, having studied the relevant statutory framework, was inclined to concede that read literally the decision reached by Judge Milmo fell within the legislative provisions. He drew our attention to one particular provision in section 61(4) paragraph (a) and questioned in careful terms whether it would be possible, if this Court reversed or varied Judge Milmo's ruling, for proceedings for the offence to be resumed in the Crown Court. Unless the proceedings could be so resumed, there was no power, he said, to examine the decision.

With respect, and recognising the care with which he approached this part of his submissions, we do not think that the provisions of section 61(4)(a) provide any kind of barrier to the conclusion to which a clear construction of the statute drives us.

The statute should be construed strictly. Section 57 introduces the power and indicates areas in which the prosecution has no right of appeal under the Act. Unless therefore provision is expressly made, or may be found in other legislation, the right of appeal does not exist. Section 58(1) applies the section "where a judge makes a ruling in relation to a trial on indictment ... and the ruling relates to one or more offences included in the indictment." Judge Milmo's ruling here applied to all the offences in the indictment.

Section 58(13) identifies the applicable time in relation to a trial on indictment, which must be a ruling made before the start of the judge's summing-up. That plainly applied here.

We come then to section 67 which creates the Court's powers "The court may not reverse a ruling on appeal unless satisfied (a) that the ruling was wrong in law; or (b) that it involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made." We are here asked to focus on the last provision, section 67(C).

Importantly, section 74(1) defines a ruling for the purposes of this legislation. It includes: "a decision, determination, direction, finding, notice, order, refusal, rejection or requirement". In our judgment, this legislation is clear: a case management decision on whether to order an adjournment before the trial or indeed before the start of the summing-up, may constitute a terminating ruling for the purposes of section 58. The right of appeal is not confined to decisions that there is no case to answer, otherwise the express provisions relating to such ruling would be unnecessary. Equally, case management decisions do not fall within the ambit of evidential rulings as defined in section 62(2).

Section 74 therefore defines the "ruling" in the very wide terms, and this provides the answer. Whatever else it may be, a ruling on whether to grant an adjournment is a judicial decision, and in this particular case its effect, unless successfully appealed would have been to require the prosecution to offer no further evidence, thus in effect terminating the trial. The ruling made by Judge Milmo, therefore, was a terminating ruling, and the answer to the first question is: "yes, it can", and the prosecutions right to appeal applies to his decision.

We come now to the second question: is the court entitled to interfere with it? The limitation in the statute is clear. We may not do so unless it was not reasonable for the judge to have made the ruling. Time and time again in this Court emphasis has been laid on the simple proposition that case management decisions are made by trial judges, not by this Court. Adjournments are sought and refused, or granted, on very many grounds; sometimes at the behest of the prosecution, sometimes the defence. Sometimes the decision is insignificant. At others, as here, it is critical to the outcome of the case. But the decision is a decision for what is usually described as the discretion of the judge but it is in fact a decision which reflects his or her judgment on an overall balance of all the material, as it stands before him at the time when the decision has to be made.

There is no doubting that this was a serious allegation. The effect of Judge Milmo's decision will be that it will not be decided by a jury. He would have been as alert as anyone to the consequences of his decision. He said so in plain terms. Even if he had not done so, an acknowledged master of the criminal law like Judge Milmo would have been very well aware indeed of the consequences of what he decided.

Mr Cranmer-Brown submitted, on behalf of the prosecution, that the Crown had never previously sought an adjournment of the case. In effect, therefore, this was only the first application. But, as the narrative of the facts shows, the pre-trial process had not exactly run smoothly from the prosecution's point of view, and there was no reason to believe that it would suddenly start to be an entirely smooth process. In any event, however, an application for an adjournment was an inevitable consequence of the application to Judge Pert on 17th September for a warrant of arrest of the complainant, an application granted, as indicated in the narrative, with some hesitation and subject to something of a condition.

Judge Milmo was also made aware and fully appreciated that it was being alleged that the defendant had been applying extreme pressure to the complainant not to give evidence. That, after all, was a direct allegation in what became count 6 of the indictment. It is however clear that whatever the truth of those allegations, the complainant rather than he had initiated the telephone contact between them. Mr Cranmer-Brown pointed out that the complainant had twice appeared at court, very reluctantly but apparently willing, in the end, to give evidence. From that he sought to persuade us that this meant that, if and when she was found and brought to court it was reasonable to anticipate that she would indeed say whatever it is that she wished to say. The force in that submission is somewhat reduced by the consideration that if all that is true, it rather undermined an essential feature of the Crown's case that the defendant had, by putting the complainant in serious fear, prevented her from attending court. If she was frightened as all that, she would never have come. The reality, as it seems to us, is that no one could have known quite what would happen if the complainant had actually been arrested and brought to court. It is of course true that, if she had come and proved hostile to the Crown, the judge might have given leave for her to be so treated and therefore cross-examined by the Crown. It is equally true, that if after a 4 week adjournment, she could not be found, and if the Crown could not produce her, then her statement of complaint might, with the judge's leave, have been read. However given her remaining statements and what she had said to police officers in the course of this long and lengthy process, it is far from certain that a trial judge would have agreed to either course, at any rate without ensuring that the jury was kept fully in the picture with a complete account of the responses of the complainant.

The judge was satisfied, in counsel's words in submission to him, that the complainant had deliberately made herself scarce. He was deeply concerned when the Crown agreed that, if the case had to be adjourned any further, the defendant, who it was said had been intimidating the complainant, should be admitted to bail. In the course of his judgment he recorded:

It is obvious that the decision Judge Milmo had to make was far from straightforward. It was indeed very troublesome just because he had to find the right balance between the continuation of the prosecution for a serious offence and all the other uncertainties in relation to the complainant, bearing in mind the interests of the defendant who was in custody throughout this time, awaiting his trial. To say that his decision was right might imply that no alternatives were realistically available. In fact there were two alternatives open to Judge Milmo on 18th September. In our judgment the decision he eventually reached was reasonable and we cannot interfere with it. Accordingly this application will be refused.

MR ASPDEN: My Lord, so far as the consequences of that are concerned, can I take your Lordships to the statute?

SIR IGOR JUDGE: Yes.

MR ASPDEN: Section 58(12), in my submission is the relevant subsection and reads as follows: "Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled..." and subsection (9) refers to the leave to appeal not being obtained from this Court...

SIR IGOR JUDGE: Yes. It seems, on the face of it, that we should order, subject to what Mr Cranmer-Brown says, that the defendant should be acquitted of these offences.

MR ASPDEN: That is my submission.

MR CRANMER-BROWN: I agree with the Act in the same way.

SIR IGOR JUDGE: We think that is an inevitable consequence of our decision. Thank you both.