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

J U D G M E N T

Monday, 10th November 2003

1. MR JUSTICE MAURICE KAY: This is an application for judicial review of a decision of the Winchester Crown Court on 20th March 2003. On that day the court had before it the appeal of Simon John Woodland against a conviction by the Basingstoke Magistrates which had occurred on 18th December 2002. What happened in the Winchester Crown Court on 20th March is that the court refused the prosecution an adjournment and as a result the prosecution were put in a position where they had to offer no evidence and the appeal was allowed.

2. The history of the matter arose as follows. On 24th January 2002 Mr Woodland made an allegation to the police that a Mr Emmerson had kicked his door and threatened to kill him. This led a police officer to speak to Mr Emmerson, who denied the allegation and stated that there were two independent witnesses to the incident, Mr Hunt and Mrs Budgen. Mr Hunt and Mrs Budgen were then spoken to by the same police officer and they confirmed the account that had been given by Mr Emmerson.

3. On 26th January 2002 Mr Woodland made a statement to the police officer repeating the allegations that he had previously made verbally. On 8th March 2002 Mr Woodland was interviewed under caution. On 19th April 2002 he was charged with obstructing a police constable in the execution of his duty. Essentially the allegation was that he was giving a false account to the police officers.

4. As I have said, he was tried in the Basingstoke magistrates on 18th December 2002. He was convicted, the prosecution evidence coming primarily from Mr Emmerson, Mr Hunt and Mrs Budgen. A fine was imposed and an order for costs was made against him.

5. He then filed a notice of appeal to the Crown Court later the same day and on 4th February 2003 notification of the appeal hearing date of 21st March 2003 was sent to the prosecution witnesses, Mr Emmerson, Mr Hunt and Mrs Budgen.

6. By 14th February 2003 all three had confirmed their ability to attend on 21st March, which was a Friday. However, earlier in that week, on 18th March, Mr Woodland's solicitors, without reference to the Crown Prosecution Service, contacted the court stating that one day was insufficient time for the hearing of the appeal and that two days should be set aside instead. As a result of that the court proceeded to list the matter to start a day early, on 20th March 2003. At that point the Crown Prosecution Service still knew nothing of the change.

7. It was at 12.06 on 19th March that the Crown Prosecution Service and the police were informed that the case would now start at 10.30 the following morning. A police officer went to the homes of Mr Emmerson and Mr Hunt. In both cases the occupants were out and the police officer did all that she could, namely leave notes at the houses. She then visited Mrs Budgen, who was in, but she stated that whilst she could still attend, and would still attend, on the Friday, she could not attend at that short notice on the Thursday because of a problem with child care.

8. On 20th March the case was called on in the Winchester Crown Court. The three civilian prosecution witnesses were absent. Prosecuting counsel informed the court as to what had taken place, essentially the chronology to which I have referred. He was also able to inform the court that the police had made efforts on the morning of 20th March to contact the three witnesses but none of them was at home that day and none could be contacted on such telephone numbers as were available to the police.

9. There is a transcript of the proceedings before the court that morning. It is apparent from it that initially the judge who was presiding was indicating sympathy with the prosecution. So far as the change in arrangements was concerned he observed:

"... whilst it is possible to point fingers of blame in all sorts of directions, what was going on was the court taking a bit of a chance in the hope that they would get the witnesses, and for some reason the witnesses could not be got."

A little later, when prosecuting counsel submitted that "everything is to play for", the learned judge said:

"in which case it seems to me we have got little alternative but simply to adjourn it with a date ..."

However, defence counsel made some submissions, essentially to the effect of hardship to his client in any delay and taking points, as he was perfectly entitled to do, as to the implications of an adjournment for him. At the end of hearing all submissions the court refused the adjournment.

10. It is a reasonable inference that one of the matters it took into account was that the original dispute between Mr Woodland and Mr Emmerson was a neighbour dispute. I say that because before giving a ruling the judge and the magistrates came back into court and asked for clarification about whether Mr Woodland had now moved away. The answer was that he and his wife had moved away, and soon after receiving that clarification the learned judge gave the ruling of the court. It was in these terms:

"We have decided that we are not going to grant an adjournment. We think that looking at the whole of this case it is highly important that there should not be any further delay and we believe that it would not have been impossible for the prosecution witnesses at least to inform the court as to what their problems were on Thursday, today, when the date was changed. They had not done so, save in respect of one of the witnesses, and we think it would not be right to put a further adjournment onto this case, and therefore we insist that it continues today."

That had the almost immediate effect of the prosecution offering no evidence, with the consequence to which I have referred.

11. That then is the decision that is sought to be challenged. It must be observed at the outset that the granting or refusing of an adjournment in such circumstances is a discretionary matter falling within the compass of case management and this court will only interfere with a decision which is plainly and obviously wrong by reference to Wednesbury criteria.

12. What is said on behalf of the prosecution by Mr Meredith-Hardy, who also appeared at the Crown Court, is that this was a refusal which no reasonable Crown Court could have made in the circumstances of the case. He draws our attention to some recent authorities. Of particular assistance is R (on the application of Crown Prosecution Service) v Portsmouth Crown Court [2003] EWHC 1079. That was not a case of a refusal of an adjournment because of absent witnesses, it was a problem that arose because prosecuting counsel did not attend when the case was called on. It seems that he was trying to conduct two cases in different courts at the same time. In the course of giving judgment, Scott Baker LJ said at paragraph 42:

"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~...

'... 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..."

The learned Lord Justice then went on to refer to the matters that were of particular relevance in that case. Two of those matters were the fact that the appellant had already been convicted and that the judge should have considered whether there were any alternative means of dealing with the problem. In the event, the court concluded that no reasonable tribunal, taking all relevant matters into account, could have come to any conclusion other than to adjourn for a period of time.

13. In the context of the refusal of an adjournment related to witness difficulties we are also assisted by R v Neath and Port Talbot Justices ex parte DPP [2000] 1 WLR 1376.

14. In my judgment, the circumstances of the present case called for a very careful approach on behalf of the court. I, for my part, attach considerable significance, as did the court in the Portsmouth case, to the fact that this was a case where the appellant had already been convicted. What is more, he had been convicted on the basis of the evidence of the three witnesses who were absent. So far as those witnesses were concerned, each of them had confirmed his or her ability and willingness to attend on Friday 21st March. When the judge said in the course of the ruling that "we believe that it would not have been impossible for the prosecution witnesses at least to inform the court as to what their problems were on Thursday when the date was changed", I take the view that he and his colleagues were there expressing a reason that was unsustainable and unreasonable in the circumstances of this case.

15. So far as Mr Hunt and Mr Woodland were concerned, there is absolutely nothing in the material to suggest that any blame for their absence lay with them, or indeed with the police. They had confirmed that they would attend and give evidence on the Friday. Attempts had been made at short notice to bring that forward to the Thursday. The fact that the attempts failed is not something in respect of which the police or the witnesses were, in my judgment, in any way culpable.

16. So far as Mrs Budgen was concerned, far from manifesting any unwillingness to attend on the original day, she had reiterated her willingness to attend only the day before, and the fact that this new date came out of the blue and created apparently insuperable child care difficulties was something for which she was not to blame.

17. I can find no rational basis for the implicit criticism of those witnesses in the ruling of the court.

18. The ruling is also specific in attaching "high importance" to there not being any further delay. However, there is no material in the transcript suggesting that a full inquiry was made as to how long any such delay might be. There had been no significant delay hitherto. This was the first listing of the appeal, which came within a reasonable period after the proceedings in the magistrates' court. Whilst the judge made it plain that he could not start the case on Friday and continue it until the following week, because he was moving from Winchester to another court centre for at least two weeks, there is no evidence to suggest that an inquiry was made as to when any other judge and magistrates might have been able to hear the case. It had taken six weeks to list the case following the lodging of the notice of appeal. There is no reason to suppose that the case could not have been relisted, certainly within that period, and, given that there had been an adjournment as a result of a listing gamble, it may well be that the case could have been heard in rather less than six weeks.

19. All this leads me to the conclusion that the refusal of the adjournment did not receive the kind of careful attention which is referred to in the judgment of Scott Baker LJ as I have set that out.

20. I have come to the conclusion that to refuse an adjournment on the basis of the material that was placed before the court on 20th March was a decision which no reasonable court could and should have come to. In those circumstances I would allow this application and quash the decision.

21. MR JUSTICE MACKAY: I agree.

22. MR JUSTICE MAURICE KAY: We will order that the matter be remitted to Winchester Crown Court with a direction for an early listing.

23. MR MEREDITH-HARDY: My Lord, I am grateful for that.

24. MR JUSTICE MAURICE KAY: Thank you very much for your help.