Lewisham v Elias

MR JUSTICE PITCHFORD: This is a prosecutor's appeal by way of case stated from a decision of the District Judge sitting at Marylebone on 3rd October 2002, when she ordered that the prosecution of the interested party, Warren Elias, should be stayed on the ground that the process of the court was being abused.

On 9th April 2001 Mr Elias was served with a noise abatement notice under section 80 of the Environmental Protection Act 1990. He did not appeal that notice, as he could under section 80(3). The notice related to number 77 Laleham Road, London SE6. Alleged against Mr Elias by informations were three breaches of the notice contrary to section 80(4) of the Act occurring on 7th October 2001, 12th December 2001 and 24th January 2002.

Next door to number 77 Laleham Road was a public house, the Dartmouth Hotel. On 25th June 2002 Mr Elias served a defence case statement pursuant to the Criminal Procedure and Investigations Act of 1996. Since this was a summary trial of a summary offence he was not bound to do so, but chose to serve such a statement. In it he disclosed that his defence would be that he was not responsible for noise nuisance on any of the alleged days. He admitted, however, that he and friends had been playing a keyboard, guitar and a drum kit, but, he claimed, without amplification. He would contend at his trial that any noise for which he was responsible could not have constituted a nuisance. His case would be that any noise nuisance was caused by the occupants of the public house next door.

The service of the defence case statement triggered the operation of section 7(2)(a) of the Act of 1996, requiring the prosecutor, Lewisham Borough Council, to make what is called secondary disclosure. That is disclosure of any material not already disclosed "which might be reasonably expected to assist the accused's defence as disclosed by the defence statement".

It is conceded in the skeleton argument submitted by Mr Spencer on behalf of the prosecutor that the documents subsequently disclosed could properly be described as material inspected by the prosecution in connection with the case for the prosecution for the purposes of section 7. No such disclosure was made at the time.

On 1st October, the first day of the hearing, the prosecutor adduced evidence from six Environmental Health Officers and a neighbour of Mr Elias' on the other side at number 75. Most of the witnesses were cross-examined by counsel for the interested party to the effect that there had been problems with noise from the public house. They gave evidence that having attended the street outside number 77, they had satisfied themselves that the noise emanated from those premises and not from the Dartmouth Hotel. On the face of it, the evidence appears to have been impressive.

In her statement of case at paragraphs 14 to 16 the District Judge described her impressions of that evidence:

The interested party opened his case. With the permission of the District Judge, four witnesses were called before Mr Elias himself was to give evidence. It was apparent that the trial could not be completed in a day and it was convenient for the defence witnesses, other than Mr Elias, to give their evidence on the first day. Their evidence was to the effect that on each occasion loud music was emanating from the Dartmouth Hotel while unintrusive music was being played at number 77.

Following the adjournment on 1st October, the interested party sought from the prosecutor specific disclosure of any complaints of noise nuisance made against the Dartmouth Hotel. It emerged, in summary, that the following information was available. Mr Moon, one of the prosecution witnesses and a neighbour, had made a complaint about noise emanating from the pub on 1st April 2002. Between May 2000 and September 2002 the Environmental Health Department had received 22 complaints of loud music emanating from the pub, most of them related to times after 10 pm and seven were logged after midnight. None of those complaints related to the dates in question in the trial. Indeed, it is right to say that the three informations concerning the dates to which I have already referred fell between complaints relating to the pub on 27th July 2001 and 1st April 2002. In other words, the informations fell within what I could describe as a quiet period so far as complaints went. Between May 2000 and September 2002 there had been 12 attendances at the pub by prosecution witnesses, Environmental Health Officers. A noise abatement notice had been served on 19th June 2000 and the licensee of the pub had been cautioned on 17th January 2001 and 22nd September 2001 in respect of loud music being played after 1 am.

Counsel for the interested party submitted at the resumed hearing on 3rd October that the prosecution should be stayed as an abuse of process. The prosecution had manifestly failed to comply with its obligations to make secondary disclosure. The prosecution case was now complete. The prosecution witnesses had been cross-examined. Four defence witnesses had completed their evidence. Late disclosure could therefore prejudice the interested party's right to a fair trial.

Under section 9 of the Magistrates' Court Act 1980 the court's duty was to hear the evidence and either convict or dismiss the informations. The District judge had power to adjourn the trial under section 10(1).

In her case stated, the District Judge appears to give the impression that she believed she had no power to halt the proceedings and order a re-hearing before a different bench. Counsel has, however, explained to us that on this particular occasion, having found that there had been a misuse of the process of the court, the District Judge, in the exercise of her discretion, chose to stay rather than consider the alternative of discharging herself from further hearing the case and ordering that the matter be re-heard before a different bench. There is in fact no doubt, in my view, that the District Judge did have the power, had she so chosen to take that course. She could, had the prosecutor invited her to do so, have adjourned the matter pending an application to this court. This court would undoubtedly have had the power to order a stay or a re-hearing or a continuation of the adjourned hearing. In the result, the District Judge acquitted the prosecution of bad faith but found that the failure to make statutory disclosure was a misuse of the court's process which had caused actual prejudice to the interested party. She took the view that he had been deprived of a fair trial, and she expressed herself as follows:

Mr Spencer now asks us to quash the order of the District Judge and to remit the matter for a continued hearing or a re-hearing before a different bench.

The question posed by the District Judge for our consideration is:

Mr Spencer submits, first, that there was no abuse of the process since the material disclosed was not capable of assisting the defence case within the meaning of section 7 of the 1995 Act. I cannot accept that proposition. It seems to me, as the District Judge found, that the material might well have been deployed to advantage and not only in cross-examination of the witnesses called by the prosecutor. It might have revealed avenues of inquiry which led to further witnesses who could be called on behalf of the interested party. These may have been Environmental Health Officers who had visited the Dartmouth Hotel or members of the public. The relevance of the material was the possibility that witnesses were mistaken about the origin of the noise nuisance. That may seem a remote possibility, but it is right to recall that the bar of the Dartmouth Hotel, where the music had on several occasions caused nuisance, was to the rear of the premises in extremely close proximity to the rear of number 77 where Mr Elias and his friends played their music. Secondly, none of the Environmental Health Officers who visited the area on the dates covered by the informations succeeded in obtaining access to number 77 to trace the noise to a specific source.

Mr Spencer points to what I have described as the quiet period and invites us to conclude that the impact upon the merits of the defence would have been slight if not non-existent. I am inclined to agree that the result of the trial might have been unaffected, but that is not, as it seems to me, the issue; the issue is whether the material was relevant and whether if deployed, in an admissible form, it was reasonably capable of advancing the defence. If it was, then a fair trial had been prejudiced.

In my view, a fair trial demanded the disclosure of this material well before the commencement of the hearing. I ask myself what would have happened if the material had been produced at the commencement of the first day of the hearing. Given the contents of the defence statement, I do not see how an application by the interested party to adjourn to make further enquiries could have been refused. I suspect there would have been further requests for disclosure. As it is, the prosecution case had been closed by the time this material emerged.

That, however is not an end of the matter. In order to ensure a fair trial it was open to the District Judge to adjourn the hearing to enable the defence to make what further enquiries it wished and to enable the prosecution to re-open its case in order that prosecution witnesses could be further cross-examined. The interested party could, by one means or another, have been given the opportunity to utilise the material disclosed at the resumed hearing without a stay of the proceedings.

In Attorney-General's Reference No 1 of 1990 [1992] QB 630 at 642, Lord Lane CJ said in a passage often quoted in this context:

It is perhaps unfortunate that the District Judge was not asked to adjourn either to permit further enquiries to be made or to seek the view of this court, or both, but no such application was made by the prosecutor; nor was an application made that the District Judge should discharge herself and order a re-hearing. She could have invited submissions on the subject, but given the way the prosecutor chose to raise his objections to the stay by denying the relevance of the material, it is hardly surprising that she did not. I consider the District Judge was entitled to reach the conclusion that the process of the court had been misused. I would agree that the cause was manifestly not a lack of good faith, but neglect of duty. The District Judge found prejudice. She was, in my view, in the best position to judge the degree to which the interested party had been deprived of the opportunity to conduct his case to advantage. She was entitled in her discretion, having found that a misuse of the court's process had occurred, to decide that it was an abuse too late to correct. While this may have been a borderline decision, I cannot describe it as irrational or unlawful and I would dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree. Accordingly the appeal will be dismissed and the question posed answered in the affirmative.

MS SLATER: My Lord, I am unassisted this morning. I did understand that Mr Elias is the beneficiary of a legal aid order. To that extent I do ask that there be costs.

MR SPENCER: I cannot properly object, my Lord.

LORD JUSTICE SCOTT BAKER: The appeal will be dismissed with costs.

MS SLATER: I am obliged, my Lord.

LORD JUSTICE SCOTT BAKER: Legal aid assessment in the ordinary way. Thank you both very much.