R.Prosecution Service, R (on the application of) v Portsmouth Crown Court

Thursday, 1st May 2003

1. LORD JUSTICE SCOTT BAKER: The Crown Prosecution Service seeks judicial review of the decision of Judge Ian Hughes QC, sitting in the Portsmouth Crown Court on 20th December last with two Justices, when he allowed the appeal of Richard Proud because the Crown Prosecution Service were not present in court to resist it.

2. Mr Proud had appeared in the Portsmouth Magistrates' Court on 16th August of last year and had been convicted of common assault and threatening behaviour. Sentence was adjourned until 27th September, when he was given a community punishment of 150 hours and ordered to pay £175 compensation for assaulting Lewis King. For threatening behaviour, he was ordered to pay £75 compensation to Kirsty Jefferey and he was also ordered to pay £100 towards the costs of the prosecution. Following conviction and sentence, he appealed to the Crown Court against both.

3. The case was first listed in the Portsmouth Crown Court on 15th November 2002, but Mr Proud had not given full instructions to his solicitors and so the appeal could not proceed at 10.30. It was put back until 12.50 and then adjourned until 20th December last, partly due to lack of court time and partly because he needed to give further instructions to his solicitors and counsel. The victims, Mr King and Miss Jefferey, were both at court, along with their three month old child, and it was no doubt irritating and inconvenient for them to have to return on 20th December.

4. On 20th December, Mr Proud's appeal was listed at 10.30, but behind a confiscation application in a case called Etherington, also listed at 10.30. The case of Etherington, when originally fixed, had a three hour time estimate and this was not apparently altered. However, in the event, there were discussions on the morning of the hearing and the case settled.

5. It seems likely that the court office must have envisaged there was some prospect of the case going short. Otherwise, there would have been a "not before" marking on Mr Proud's appeal.

6. What happened on the morning of 20th December was this: counsel for the respondent to Mr Proud's appeal (that is the Crown Prosecution Service) was briefed in a case in another court in the same building, also listed at 10.30. It too was second in the list and counsel expected it would take some 10 or 15 minutes.

7. The Crown Prosecution Service statement of facts on this judicial review -- and we emphasise we have not had any evidence from the counsel concerned -- runs as follows. Counsel attended court 4 at 10 am to inform the usher and the clerk that she was also prosecuting a sentence case in His Honour Judge Selwood's court. She explained that the sentence should take no longer than 10 to 15 minutes. She specifically requested that this information be communicated to the judge and it is believed that this was done. (Indeed, it clearly was done.)

8. She waited in court 4 until 10.35 and was then called into Judge Selwood's court. She left court 1 at 11.09 and attended court 4 at 11.11 or 11.12 and was informed by the clerk that the appeal had been allowed because she was not there to prosecute the case. A message was passed to the judge to ascertain if he would see counsel, but the judge refused to come back into court or to see her in his chambers.

9. Counsel was informed by counsel for the appellant and the clerk of the court that the judge had called the case on at 4 minutes past 11, according to the court logger, and 7 minutes past 11, according to the clerk of the court. His Honour Judge Hughes asked the appellant's counsel if they had an application to make and counsel asked that the appeal be allowed. The previous case had concluded at 10.52, at which time His Honour Judge Hughes rose.

10. It is plain from the statement of facts in support of the judicial review application, and this is confirmed by a note from the judge that was lodged at the same time as the acknowledgement of service, that counsel did not ask the judge for any indulgence as to time whilst she completed her case in the other court. She simply asked the usher to tell the judge that she was prosecuting a sentence case in Judge Selwood's court. The judge was given no information when she might be available. No prior arrangements had been made with the Listing Office.

11. The judge says this in his note:

"It is regrettably a regular occurrence at Portsmouth Combined Court Centre for counsel to accept briefs which clash and consequently for courts, witnesses and others to be kept waiting for counsel to complete another case in another court. This can have an adverse effect on other cases waiting to be heard. I am aware that this is regarded as a serious issue which needs to be addressed on this circuit".

12. The judge did not sit until 10.45 am because there were negotiations underway to settle the first case listed, namely Etherington. The case of Etherington was completed at about 10 minutes to 11. The judge rose, told the court clerk that the appeal of Proud would be called at 11 am and he duly returned to court at approximately 5 past 11. The following then took place, and I refer to the transcript.

13. The clerk of the court said:

"I understand prosecution counsel is in court 1, your Honour, and defence counsel is just collecting documents from the robing room".

14. The judge said:

"This was listed at 10.30 and it is now 7 minutes past 11".

15. At that point, counsel for the appellant arrived. The judge said:

"Yes, the case was listed at 10.30, was it not?"

16. Counsel replied:

"Your Honour, yes, I have been here. I left my papers to write on in the robing room and so I went to get it".

17. The judge said:

"So you had to rush there and get them".

18. Counsel for the appellant said:

"I did. I have been doing a case in another court and I had left the actual -- in the robing room".

19. The judge then asked the usher formally to call the appeal of Richard Proud, which the usher did, and the judge then said:

"Yes, now Miss Clarke you defend", to which she replied "yes, I do".

20. The judge said:

"Yes. There is nobody here to prosecute the appeal. The case was listed at 10.30 and it is now 10 past 11 and so do you have an application to make?"

21. She said:

"I would ask for it to be dismissed".

22. Judge Hughes:

"Yes -- what, the appeal to be dismissed?

23. Miss Clarke:

"I am sorry, the other way round. I would ask for the appeal to be allowed".

24. Judge Hughes then said:

"Yes, well, as there is no appearance [at that point, the Bench conferred]. Yes, there is no appearance by the prosecution. The appeal will be allowed with costs".

25. Within about five minutes, counsel for the respondent had completed her case in court 1, but the appeal had of course by then been allowed. She asked to see the judge, but the magistrates had by the time she made this request already left and there was no prospect of reinstating the case.

26. I have described these events in some detail because they provide the most unfortunate backcloth to the decision of which judicial review is sought. Mr Lofthouse, who has appeared for the Crown Prosecution Service before us, has advanced this application on the basis that counsel was not at fault at all. The impression that he gave was that counsel had a right to accept briefs in two different courts at the same time and take a risk that she might be required to be on her feet at the same time in both courts and that the court should accommodate her difficulties. There had, as he put it, to be some give and take.

27. The submission of Mr Lofthouse suggests that a climate has arisen, at any rate in the Portsmouth Crown Court, whereby counsel can take a risk of being listed in two different courts at the same time without first obtaining the consent of the judge and expect the court to be sympathetic to the extent of adjourning to await counsels' availability or convenience. If there are those who take this view, they must be disabused of it.

28. The Code of Conduct for the Bar of England and Wales provides at paragraph 701(a) that a barrister:

"... must in all his professional activities be courteous and act promptly conscientiously and diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court's time and to ensure that professional engagements are fulfilled".

29. At 701(e):

"A barrister must inform his client forthwith and subject to paragraph 610 return the instructions to the client or to another barrister acceptable to the client ..."

Then (ii):

"... if there is an appreciable risk that he may not be able to undertake a brief or fulfil any other professional engagement which he has accepted".

30. I have some sympathy with counsel in the present case, but the fact that the case of Etherington had a three hour time estimate at one time seems to me to be neither here nor there. The fact is that her case was not given a "not before" marking, nor apparently did she or her clerk ever ask for one. She plainly knew she was in potential difficulty once she arrived at court because she asked for a message to be passed to the judge. Because the judge did not sit at 10.30 because of the then current negotiations in Etherington, she could not make an application to the judge in person in court. It would, however, have been common courtesy to make a request to the judge via the usher, rather than simply to ask that he be told she was in another court. The fact that she did not do so again suggests there may be an impression in some circles that the Bar has an entitlement to take risks of this kind.

31. Mr Lofthouse submits that there was no appreciable risk in this case and that therefore paragraph 701(e)(ii) of the Code of Conduct was not engaged. I cannot agree on the facts put before this court that I have outlined. It is, of course, a common problem that counsel is instructed in cases that are listed in different courts on the same day. Most courts will do their best to accommodate counsel within reason, but it must be emphasised that it is the responsibility of counsel instructed in the case to be in court at the time the case is listed unless he has made arrangements with his client for acceptable cover or has obtained the agreement of the judge that the case will not be heard until some later time. It is simply not good enough to tell the usher to tell the judge that he or she is engaged in another court in the building.

32. The judge was, in my view, understandably irritated by what happened in this case. The situation could, so it seems to me, have been resolved by more vigorous enquiries as to when counsel was likely to be available and this would, as matters turned out, have resulted in only a short further delay. The judge could then have made his displeasure known to counsel, rather than taking a step that was manifestly to the disadvantage of an innocent third party, namely in this case the victims in the appeal.

33. It was open to the judge to report the matter to counsel's Head of Chambers, the Circuit Leader or to the Bar Council. Alternatively, he might have taken action with regard to costs in the proceedings.

34. The question, however, for this court is whether Judge Hughes acted unlawfully in allowing the appeal in the circumstances that he did. The jurisdiction of this court to quash the order of Judge Hughes in the present case is undoubted (see the R v Bournemouth Crown Court ex parte Weight [1984] 1 WLR 980 at 984G, where Lord Fraser said this:

"Whatever the position may be at a trial before a court of first instance, when it comes to procedure before quarter sessions sitting as an appeal court there is a clear distinction of principle between allowing an appeal against conviction after proceedings in which all the available evidence, so far as it is in the opinion of quarter sessions admissible, has been heard, and allowing it after proceedings which have been prematurely aborted, without all the available and admissible evidence having been heard, because of a ruling by the court on a preliminary point. The former is not liable to be quashed. The latter, which is this case, is liable to be quashed on the grounds stated in R v Ridgway, 1 D&R 132 and R v Clare Justices [1905] 2 IR 510".

35. The issue is whether Judge Hughes' decision is one to which no court acting reasonably could have come. Similar situations have arisen before. In R v Sutton Justices ex parte DPP [1992] 2 All ER 129, Mann LJ had this to say at 133A:

"... the bench should have paused for an inquiry. They should have paused for an inquiry because they knew that counsel was on his way from London and that he was in any event going to be late. The inquiry which has suggested itself to me is an inquiry as to when counsel would have arrived had he been travelling by train. The answer to that inquiry would have been either 10 o'clock or 10.30 am. He had plainly not arrived by 10 o'clock. Thus 10.30 am was therefore the alternative event and in my judgment the bench should have waited until a reasonable time had elapsed from the arrival of that train. However, the bench made no inquiry. I understand, as I have said, what may have been a feeling of irritation, but I do not think that that affords any justification for the exercise of discretion that was in fact made. The matter should have been stood adjourned in toto to await the advent of counsel. On the information available to the bench it must have been reasonably imminent".

36. Then Mr Justice Brooke at 143A:

"Speaking for myself, I have great sympathy for the chairman of this bench of justices and the lay justices who were sitting with him. It appears from an affidavit by the court clerk that two cases were scheduled for hearing that day, including the case which is the subject of this application for judicial review. Both cases were listed for 10 am, both to be dealt with by way of a not guilty hearing. Counsel in the first case did not arrive until 10.40 am. The defendant in the other case did not attend until 10.50 am. I can quite well see that the justices, faced with what were in essence two contested trials during the morning, with witnesses and lawyers coming either at public expense or private expense to attend court, would have been exasperated by the late attendance of counsel instructed by the Crown Prosecution Service in the first case and I share Mann LJ's suspicion that the reason why the lay justices behaved in the way they did was that this was probably not the first occasion on which they had been treated in this way.

However, although I have great sympathy for them, I agree with Mann LJ that justice required them to wait longer and that the relief to which he has referred ought to flow".

37. Then in the R v Hendon Justices ex parte DPP [1967] 1 QB 167 at 174C, Mann LJ, giving the judgment of the court, said:

"However, the duty of the court is to hear informations which are properly before it. The prosecution has a right to be heard and there is a public interest that, save in exceptional circumstances, it should be heard. A court's irritation at the absence of a prosecutor at the appointed time is understandable. That said, it can seldom be reasonable to exercise the power under section 15 of the Act of 1980 (as opposed to that under section 10(1)) when the justices know that a prosecutor is on the way to their court and the case is otherwise ready to be presented. In this case, according to the custody officer, the justices knew Mr Blake was on his way and in any event a further telephone call would have established the position precisely. The exercise was not reasonable in this case and was not in R v Sutton Justices ex parte DPP [1992] 2 All ER 129. We entertain the strongest suspicion that the justices were here acting so as to punish what they saw as the inefficiency of the Crown Prosecution Service".

38. Then a little later at F:

"The decision being unreasonable in the Wednesbury sense, the question arises as to whether the order of certiorari which is sought is an available remedy".

39. It is unnecessary for me to read further.

40. The remaining case to which it is necessary to refer on this issue is the DPP v Shuttleworth. In that case, although the prosecutor was present in court, she did not have the prosecution file and the court clerk indicated that the file needed to be located, as there was insufficient material in the files for the case to proceed on the basis of a guilty plea. The magistrates indicated that if the file was not found by 12.15, they would dismiss the case for want of prosecution. That is precisely what happened.

41. At paragraph 16 of the judgment, Roderick Evans J said:

"... it is entirely appropriate for magistrates to consider, at the magistrates did in this case, the position of the defendant and the legitimate expectation of the defendant to be dealt with promptly.

17. However, there are other interests which must also be borne in mind. There is, for example, the general public interest in prosecuting and convicting offenders. There is also the more particular interest of those people who may be personally affected by the alleged offence".

42. The transcript in the present case does not suggest that the judge, in exercising his discretion, took all relevant matters into account. Indeed, he appears to have considered the non-appearance of counsel as conclusive. In any appeal in the Crown Court, where the court is considering allowing it because the prosecution is for one reason or another not in a position to proceed, the court will need to balance a number of interests: those of the appellant; the respondent (and this will involve consideration of the interests of the victim, where there is one); and also the public interest.

43. In Attorney General's Reference (No 3 of 1999) 2 AC 91, Lord Steyn in a different context said this at page 118 at letter E:

"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public".

44. In my judgment, that same triangulation of interests arises in this case. Thus, here the judge should have endeavoured to be fair to all sides. In the present case, in my judgment, there were a number of factors that he should have taken into account. They are as follows.

45. First, that the prosecution was not present when the case was called on. Second, that there had been a previous adjournment at the defence instigation. Thirdly, the inconvenience that had been occasioned to the witnesses. In this instance, I think the only witnesses were in fact the two victims, but that point merges into the next one, which is that the judge had to give careful consideration, and in my judgment this is a matter that ought to have carried considerable weight, to be fair to the victim. Allowing this appeal had the consequence that each victim lost the compensation that that been awarded following conviction in the Magistrates' Court.

46. Next, there is the gravity of the offence, and further the fact that the appellant had already been convicted. Additionally, there was the important factor that if proper enquiries had been made, it would have been established that the case could indeed have been heard within a matter of minutes after the judge allowed the appeal.

47. Finally, the judge should have considered whether there were any alternative means of dealing with the problem that had caused him irritation, which plainly, as I have pointed out, there were.

48. In my judgment, no reasonable tribunal, taking into account all these factors, could have come to any conclusion other than that the court ought to have waited a little longer until counsel was in a position to prosecute the appeal.

49. There is one further matter to which it is desirable to make brief reference. The judge helpfully provided a note for the court, which was lodged at the same time as the acknowledgement of service. That note was signed by the judge, but not by either of the justices sitting with him.

50. It is ordinarily inappropriate in my judgment for a judge to provide information by way of note. The case of R v Snaresbrook Crown Court ex parte Input Management Limited (1999) 163 JP 533, and in particular the passage at 539G, makes it plain that the appropriate manner in which information of that kind should be supplied is by way of evidence, if necessary, in a statement from the clerk of the court.

51. In the event, the point it seems to me is of no particular consequence in the present case because there is nothing material in the judge's note. When I say material, I mean material to the decision to decide whether judicial review is appropriate. There is nothing that is material and is in dispute. It becomes of particular importance where there is something that may be disputed, to put it in evidence in the proper way. What is provided by way of a note is not evidence in the case, although in this instance the judge provides certain background material which simply corroborates what the court has learnt from other sources from the documents in this case.

52. In my judgment, what happened in this case was a poor advertisement for justice and it is something which should not be allowed to recur in the future. I would, accordingly, quash the decision and remit the case to a differently constituted court for the appeal to be determined.

53. MR JUSTICE PITCHFORD: I agree.