Tuesday, 17th June 2003

1. LORD JUSTICE AULD: The Director of Public Prosecutions has sought permission to challenge by way of judicial review a decision of District Judge McIvor at the Croydon Youth Court on 5th March 2003 that proceedings re-instituted by him pursuant to section 22B of the Prosecution of Offences Act 1985 against Carrie-Anne Campbell and Danielle Sinclair for robbery were invalid as proceedings in the Youth Court and could only be re-instituted by the preferment of a bill of indictment.

2. The issue arises only because an extension of time limits granted by the Youth Court under section 22(3) of the Act had been refused on appeal by the Crown Court on 11th October 2002. The question for this Court is whether the order of the Crown Court had the effect of a substituted order of the Youth Court or is to take effect as an original order of the Crown Court.

3. If the former, the prosecution should be re-instated as summary proceedings in the Youth Court, as the Director of Public Prosecutions has sought to do. If the latter, and if regulations covered it, it would have to proceed by way of indictment in the Crown Court.

4. The defendant Court has filed an acknowledgement of service indicating its intention to contest the claim, but not to appear or be represented. It has been put on notice by service of Munby J's order referring the application to this Court that he envisaged that, if the Court granted permission, it would proceed immediately to hear and determine the substantive application. It has also appended to the acknowledgement of service a witness statement of the District Judge setting out the reasons for her decision, which the Court has read and taken into account.

5. Carrie-Anne Campbell and Danielle Sinclair, the defendants and interested persons on this application, have also been notified of the proceedings and have given no indication of an intention to appear or to be represented, and do not appear.

6. However, included in the papers before the Court is a copy of a skeleton argument prepared by counsel for Campbell, Miss Karaiskos, for her successful argument before the District Judge that the prosecution could not be re-instituted in the Youth Court. The Court has also read that and taken it into account.

7. We have this morning granted the Director of Public Prosecutions permission to make this application and, consistently with the indication of Munby J to the defendant and the interested parties, we have proceeded to hear the substantive application.

8. As I have indicated, it concerns the operation of sections 22 and 22B of the Prosecution of Offences Act 1985. Section 22B was inserted into the Act by section 45 of the Crime and Disorder Act 1998. The declared object of that amendment was to expedite the trials of offenders under the age of 18.

9. Section 22 of the Act, as amended by sections 43 to 45 of the 1998 Act, empowers the Secretary of State by regulations to impose statutory time limits for, amongst other matters, the procedural stages of trials of young offenders.

10. By the Prosecution of Offences (Youth Courts Time Limits) Regulations 1999, the Secretary of State imposed such time constraints on the trials of young offenders in certain petty sessional divisions. One of those divisions was Croydon. The regulations came into force on 1st November 1999 and applied to any young person whose first appearance before such a court occurred on or after 1st November 1999.

11. Mr John Hardy, who appears for the Director on the application, has incorporated in his skeleton argument a useful summary of the statutory scheme, which I gratefully adopt for the purpose of this judgment.

12. The regulations made provision for an initial stage time limit, a sentencing time limit and, by virtue of regulation 4, an overall time limit which allowed the prosecution a maximum of 99 days in which to commence the trial after a young offender had made his first appearance. I say "made provision" because these regulations have since been revoked with effect from 22nd April 2003.

13. By section 22(4) of the Act, as amended, where the overall time limit expires, the court is required to stay the proceedings. Section 22(4) provides in these terms:

"Where, in relation to any proceedings for an offence, an overall time limit has expired before the completion of the stage of the proceedings to which the time limit applies, the appropriate court shall stay the proceedings" [my emphasis].

14. As to the meaning of the "appropriate court", section 22(11) of the Act provides, as amended and so far as material that:

"(a) where the accused has been committed for trial, sent for trial under section 51 of the Crime and Disorder Act 1998 or indicted for the offence, the Crown Court; and

(b) in any other case, the magistrates' court specified in the summons or warrant in question or, where the accused has already appeared or been brought before a magistrates' court, a magistrates' court for the same area . . . "

15. So it is to be noted that section 22 makes general provision for the making of regulations. The regulations in question here are those to which I have referred governing proceedings before certain specified Youth Courts, of which Croydon was one.

16. Mr Hardy has told us that no regulations have been made under the first limb of that definition of "the appropriate court"; that is to say, under section 22(1)(a) in respect of indictable proceedings.

17. By section 22(3) of the Act, as amended, the court can extend the overall time limit before it expires, but only if it is satisfied that the need for the extension is due to some good and sufficient cause and that the investigation has been conducted and, where applicable, the prosecution has acted with all due diligence and expedition.

18. By section 22(7) of the Act, as amended, an accused person has a right of appeal to the Crown Court against a decision of the relevant court -- that is to say, in this case, the Youth Court -- to extend the overall time limit. And, by section 22(8), as amended, the Crown has a similar right of appeal if such an application is refused.

19. However, sections 22B(2) and (3) confer a power on, among others, Chief Crown Prosecutors to institute fresh proceedings where the original proceedings have been stayed under section 22(4) because the overall time limit has expired. The institution of fresh proceedings must take place within three months or such longer period as the court may allow of the stay.

20. The critical provision of the Act for the purpose of this application is to be found in section 22B. So far as material, it provides:

"(1) This application applies where proceedings for an offence ('the original proceedings') are stayed by a court under section 22(4) . . . of this Act.

(2) If --

(a) in the case of proceedings conducted by the Director, the Director or a Chief Crown Prosecutor so directs

. . .

fresh proceedings for the offence may be instituted within a period of three months (or such longer period as the court may allow) after the date on which the original proceedings were stayed by the court.

(3) Fresh proceedings shall be instituted as follows --

(a) where the original proceedings were stayed by the Crown Court, by preferring a bill of indictment;

(b) where the original proceedings were stayed by a magistrates' court, by laying an information".

21. Again, I observe that regulations have only been made under section 22 governing proceedings in the specified Youth Courts; that is to say, falling within section 22B(3)(b). No such regulations have been made by way of indictment in the Crown Court.

22. Before turning to Mr Hardy's submissions as to the effect of those provisions generally, and in their application to the proceedings in this case, I should summarise those proceedings.

23. Again, I am indebted to Mr Hardy for his helpful summary in his skeleton argument. The interested parties, Carrie-Anne Campbell and Danielle Sinclair, are accused of robbing a 15 year old girl of jewellery to the value of £430 and a mobile telephone worth £150 on a bus journey on 31st May 2002. The victim knew or recognised both of the defendants, as they attended a local school.

24. On 21st June 2002, both defendants were charged and made their first appearances before the Croydon Youth Court on 28th June 2002. The Youth Court determined the issue of mode of trial and retained jurisdiction. It set a trial date for 8th August 2002. However, that had to be adjourned while the result of an identification parade was awaited.

25. The court set a new date for trial as 12th September 2002, but that in turn had to be adjourned because the complainant, the victim, had planned to go on holiday on that date.

26. The court set a further trial date for 15th October 2002, which was outside the overall time limit of 99 days prescribed by the regulations.

27. The Crown Prosecution Service applied to the court for an extension and the court granted it. The two defendants appealed that grant, and on 11th October 2002, His Honour Judge Waller, sitting in the Crown Court, allowed the appeal. Accordingly, the case remained stayed, in accordance with section 22(4) of the Act.

28. On 10th December 2002, the Chief Crown Prosecutor for London notified the defendants that she had authorised the reinstatement of the proceedings. On 9th January 2003, informations were laid in the Youth Court and summonses served the following day. The matter came back before the Youth Court on 5th February 2003. The court set a trial date for 13th March 2003. However, on 26th February 2003, those representing the defendants had the matter listed on 5th March for legal argument.

29. On that day, it was submitted to District Judge McIvor that since proceedings had been stayed by order of the Crown Court by virtue of section 22B(3)(a) of the Act, as it was said, they could only be re-instituted by the preferment of a bill of indictment.

30. District Judge McIvor acceded to that submission and held that the proceedings had been re-instituted invalidly and therefore that the court had no jurisdiction to hear them. The District Judge, in her helpful witness statement to the Court, has given the following reasons for her decision. First, section 22B of the 1985 Act applies only to statutory time limits in the Magistrates' Court. Second, there appears to be no other purpose for section 22B(3)(a) other than to deal with cases appealed to the Crown Court. There is no other route, the District Judge said, by which such proceedings can be heard at the Crown Court. Third in her view, section 22B(3)(a) applies to proceedings such as those before her where there had been an appeal to the Crown Court, and the Crown Court had stayed proceedings.

31. Therefore, she concluded, the proceedings ought to have been re-instituted, not in the Youth Court, but in the Crown Court by preferring a bill of indictment.

32. She added in her witness statement that she accepted that that meant ignoring section 110 of the Magistrates' Courts Act 1980, but that she could find no other purpose for section 22B(3)(a) than for cases which had taken the procedural route of this one. She also accepted that her view meant that a summary matter could not be re-instated if stayed by the Crown Court. She said that it may have been intended to restrict the re-instatement of proceedings to those cases of sufficient seriousness.

33. Mr Hardy has submitted that the statutory provisions here provide a balance within the scheme so that in cases where the interests of justice require that a trial take place notwithstanding the expiry of the overall time limit and consequential stay, a prosecutor of appropriately high seniority can decide to institute fresh proceedings.

34. He submitted that the provisions must operate in that way, whether: 1) there has been a stay without an application and an appeal in relation to extension; or 2) whether there has been an application to extend which has been refused and an appeal to the Crown Court against that refusal, which has been dismissed; or 3) where an application to extend has been allowed by the lower court but overruled on appeal to the Crown Court.

35. He maintained that section 22B does not distinguish between: 1) an overall time limit that has expired; 2) an overall time limit that has expired after extension; or 3) an overall time limit that has expired after an unsuccessful application to extend it has been made and the refusal upheld on appeal; or 4) an overall time limit that has been extended on application but where the extension has been quashed on appeal, as here.

36. The jurisdiction to institute fresh proceedings, he submitted, is unaffected by any consideration of the course followed, as he put it, "first time around".

37. He accepted and brought authorities to the Court to vouch for his acceptance that no prosecutor of designated seniority should institute fresh proceedings without taking account of what had happened up to that stage, but that provided such prosecutor applied his mind to such considerations, his decision could only be challenged in this way by judicial review.

38. As against those submissions, I should note those of Miss Karaiskos to the contrary in her argument below. She submitted to the District judge that the proceedings could only be re-instituted if three conditions were met: first, if the Chief Crown Prosecutor so directed; second, that such a decision is made within three months after the date on which the original proceedings were stayed; and third, that the fresh proceedings are preferred by a bill of indictment.

39. She acknowledged that the first condition, as she had called it, had been satisfied here. However, she maintained that the second and third had not. She said that the re-institution must be by way of bill of indictment and this must be preferred within three months of the stay of the proceedings. She submitted that the purported re-institution was not permitted by statute and was wrong in law.

40. She also argued that, as the prosecution had made no application to re-institute proceedings within the three month period, it could not do so, or should not be permitted to do so. She referred the District Judge to the case of R (on the application of Director of Public Prosecutions) v Croydon Youth Court 165 JP 181 DC, in which the court expressed disapproval of "late re-institution of proceedings by the Crown Court" -- in that case, one month after a stay of proceedings, but well within the statutory period.

41. Before turning to my conclusion, I should say that Miss Karaiskos, in setting out those three conditions for re-institution of proceedings, did not give full effect to the second, since section 22B(2) provides that fresh proceedings may be instituted within three months "or such longer period as the court may allow" after the stay.

42. Mr Hardy, by way of response to a question from the Court, indicated that he placed only very limited reliance on section 110 of the Magistrates' Courts Act 1980, which had clearly troubled the District Judge. As he pointed out, that section has to be looked at in the context of Part V of the 1980 Act, which begins with section 108 setting out a right of appeal to the Crown Court, which, as the section provides in (1), is for an appeal where he pleaded guilty against sentence, and if he did not, against the conviction or sentence. That Part of the Act is thus devoted to the mainstream of appeals from the Magistrates' Courts to the Crown Court, and section 110 is to be looked at in that context.

43. It provides:

"After the determination by the Crown Court on appeal from the Magistrates' Court, the decision appealed against as confirmed or varied by the Crown Court or any decision of the Crown Court substituted by the decision appealed against may, without prejudice to the powers of the Crown Court, be enforced --

(a) by the issue by the court by which the decision appealed against was given of any process that it could have issued if it had decided the case as the Crown Court decided it;

(b) so far as the nature of any process already issued to enforce the decision appealed against permits, by that process;

and the decision of the Crown Court shall have effect as if it had been made by the magistrates' court against whose decision the appeal is brought."

44. The appeal in question here, noted Mr Hardy, does not fall within the general provision for which section 108 and section 110 of the 1980 Act provide. However, as he added, it is of a piece with the main principle of our appellate process that the order of the Appeal Court takes effect as a substitution for the order in respect of which it is made.

45. Mr Hardy submitted that the District Judge was needlessly troubled by section 110 for those reasons. He said that her error was rooted in her failure to take account of the structure of sections 20 to 23 of the 1985 Act, in particular sections 22(1)(2) and (4) which, as I have said, give the Secretary of State general power to make regulations introducing time limits for both Magistrates' Courts and the Crown Court.

46. The definitions of the "appropriate court" in section 11 of the 1985 Act cover a Magistrates' Court and/or the Crown Court where the Secretary of State has made regulations for the purpose. As I have said, no such regulations have been made for the Crown Court under section 22. Therefore, in the context of these proceedings, the enabling provision in section 22B(3)(a) for institution of fresh proceedings in the Crown Court has no application, or relevance, to the interpretation of the provision in section 22B(3)(b) to the institution of fresh proceedings in a Magistrates' Court. It is an option that does not arise because no provision has been made for it by way of regulation.

47. So, Mr Hardy submitted that the District Judge fell into the trap of not realising that there were two separate jurisdictional regimes for which the Secretary of State had been given general powers to regulate, but in respect of which he had only made regulations applicable to one, summary proceedings in a Magistrates' Court.

48. In my view, Mr Hardy's interpretation of the statutory scheme and his analysis of its effect on these proceedings is correct. The exercise by the Crown Court of its power to determine an appeal under these provisions does not have the effect of overriding the lower Court's -- the Magistrates' Court's decision as to the mode of trial. As he submitted, it would be absurd, where a matter had been found to be suitable for summary trial in the Youth Court, that an appeal to the Crown Court as to the expiry of the overall time limit could convert re-instituted proceedings into proceedings that could only be commenced in the Crown Court on indictment.

49. The proper analysis is that the Crown Court's decision on appeal not to extend the overall time limit had the effect of substituting for the extension granted by the Youth Court the stay under section 22(4) that it should have ordered. Any contrary construction of these provisions would undermine the purpose of the legislative scheme, namely to bring about trials within certain time limits in the courts that properly exercise jurisdiction in respect of them. So, on a true construction of 22B(3) of the Act, the Crown Court did not in fact itself stay proceedings at all. It simply acted in an appellate capacity over the Youth Court's decision and quashed that court's decision to extend the overall time limit.

50. It follows, therefore, in my view that the District Judge's decision that the proceedings in the Youth Court has been invalidly instituted was wrong in law and should be quashed. As to what should happen next, my view is that this Court should direct the Youth Court to accept the fresh proceedings and proceed to trial on them. In reaching that view, I have borne in mind the observations of Simon Brown LJ, giving the leading judgment in R v Neath and Port Talbot Justices, Ex Parte Director of Public Prosecutions [2000] 1 WLR 1376, DC. That was a case in which the Court quashed the dismissal by magistrates of a prosecution for indecent assault, the dismissal resulting from their refusal to adjourn the proceedings in the absence of the main prosecution witness. The Court directed that the prosecution should proceed, despite more than a year's delay resulting from the judicial review challenge. At page 1381 G to H, Simon Brown LJ said this, after having been referred to a number of authorities:

"Helpful though it has been to look at those authorities, they do not of course lay down any principle or proposition of law indicating how in any particular case this court's discretion on a jurisdiction review challenge or on an appeal by way of case stated should be exercised. This will inevitably depend on a variety of circumstances. Not least important among these will be (a) the seriousness of the criminal charges, (b) the nature of the evidence in the case and in particular the extent to which its quality may be affected by the delay, (c) the extent, if any, to which the defendant has brought about or contributed to the justices' error, (d) the extent, if any, to which the defendant has brought about or contributed to the delay in the hearing of the challenge, and (e) how far the complainant would feel justifiably aggrieved by the proceedings being halted and the defendant would feel justifiably aggrieved by their being continued".

51. Mr Hardy has also drawn to our attention by way of example two other authorities where the Court has taken a different view in the exercise of its discretion: R v Birmingham Justices, ex parte Lamb [1983] 1 WLR 339, DC, which he rightly observed was distinguishable because it was a much less serious case than that charged here, and the delay longer; and second, R v Sutton Justices, ex parte Director of Public Prosecutions [1992] 2 All ER 129, DC, in which there was an acquittal by the defendants by the Justices and a long delay prompting the Court to grant declaratory relief only.

52. Here, the charges, the subject of these proceedings, are serious. There is no reason to believe that the evidence, either for or against the defendants, will be in any way affected by the delay of a year or so that has occurred. I would have no hesitation in the exercise of my discretion in granting the relief sought requiring the matter to be reheard by way of fresh proceedings in the Youth Court.

53. I should add that the principles to which I have referred in their application to the Youth Court are now, at any rate for the time being, history. Since this application was first lodged, the 1999 Regulations have been revoked, as I have said, with effect from 27th April 2003. Subject to transitional provisions, cases in the Youth Court from the that day on will not be subject to any statutory time limits. If any additional reasons in support of an exercise of discretion to direct the re-institution of proceedings were required, it may be that the demise of those regulations would add weight to it.

54. For those reasons, I would allow the appeal, quash the decision of the District Judge and direct that fresh proceedings should proceed to trial in front of the Croydon Youth Court.

55. MR JUSTICE GOLDRING: I agree.