O, R (on the application of) v Stratford Youth Court

LORD JUSTICE ROSE: This application for judicial review is brought with the permission of Leveson J. The decision challenged is that of the Stratford Youth Court on 24th March 2004 to reopen a case which they had already dismissed earlier that day and to adjourn the proceedings to a fresh date for trial.

The circumstances were these. The claimant, having been born on 10th June 1987, is now 17 years of age. He faced a charge before the youth court of indecently assaulting a female on 15th May 2003. He was to be tried on 19th January 2004, but on that occasion neither the complainant nor other civilian prosecution witnesses attended court. In consequence the prosecution applied to adjourn the matter and it was adjourned to 24th March 2004. Again the complainant and civilian prosecution witnesses failed to appear.

The case was called on at 11:30 in the morning. The Crown, not having their witnesses, sought an adjournment. The application was opposed by the complainant and was refused by the justices. The Crown offered no evidence and the justices dismissed the charge.

A few minutes later the prosecutor discovered that, despite the searches earlier that morning made in an effort to find her, the complainant had, at any rate by that time, arrived and so the prosecutor applied for the court to reconvene, which it did.

Initially, relying on section 142 of the Magistrates' Courts Act 1980, which is effectively a slip rule provision, the prosecution applied to reopen the case because it now had the necessary evidence to proceed. That section 142 argument was, in due course, abandoned and the prosecutor then sought to rely on the court's "inherent power to reopen the case in the interests of justice".

The claimant himself was anxious to have finality in the matter, but counsel appearing for him very properly took the point that, notwithstanding that attitude on behalf of the defendant, it was not open to the justices to reopen the decision which they had made, following the offering of no evidence, that the case be dismissed. However, the justices, having been referred by their clerk to an authority which, as it seems to me, was not in point, concluded that they should rescind their dismissal of the charge; and indeed they would, had time permitted, have proceeded to adjudicate upon the matter further. However, time did not permit that and so the purported rehearing of the case was adjourned to 19th May. Before that rehearing could take place, the application giving rise to the present proceedings was made on 20th April.

There is one further matter of recent history to which reference should be made. By letter dated 21st June, that is to say the day before yesterday, the Crown Prosecution Service, who do not appear by counsel before this court today, wrote indicating that, as the complainant in relation to the charge against the claimant has left the jurisdiction and will not be returning, even if the present application were to fail there could not, in any event, be a retrial of the claimant.

The crucial question which arises for determination today, as it seems to me, is whether or not, the prosecution having offered no evidence and the court having dismissed the charge, it was open to the court to reopen matters in the way which they did. In my judgment it was not. Events having taken the course which I have described, the court, as it seems to me, was functus officio and any further hearing against the defendant in relation to this matter would inevitably give rise to a plea of autre-fois acquit on his part. It is unnecessary to go into the authorities which support those conclusions.

In those circumstances, for my part, I would grant this application and quash the justices' decision to reopen proceedings against the claimant once those proceedings had been dismissed.

MR JUSTICE HARRISON: I agree.

MR KIRBY: My Lord, thank you.