W, R (on the application of) v Camberwell Youth Court & Anor

MR JUSTICE COLLINS: The claimant, who will be referred to as "W", seeks judicial review to quash a decision of the Camberwell Youth Court on 2 July 2003 to grant an adjournment of the prosecution against him to the Crown Prosecution Service. He contends that that decision was erroneous in law because the justices failed properly to consider, as they should have done, whether the adjournment was justified, and in particular failed to give any reasons other than that it was in the interests of justice to grant the adjournment.

In form it came before me as a result of an order by Mr Andrew Nicol QC, sitting as a deputy judge, that the application for permission should be adjourned to a hearing in court with the substantive application to follow if permission was granted. I decided, and Mr Leonard on behalf of the interested party did not seek to contend to the contrary, that it was sensible to grant permission because the claim was arguable, to dispense with the formal requirements following permission and to treat this as the hearing of the claim. Mr Dunne, on behalf of the claimant, made no objection to that course of action.

Let me deal with the background. The claimant, who was at the time of the alleged offence aged 14, was arrested on 28 January of this year, which was some two days or so after the alleged offence was committed, and charged with robbery. He first appeared in court on 7 February. He was then bailed to reappear but failed to attend on the 13th, whereupon a warrant was issued. That warrant was not executed until the beginning of April. He attended court on 2 April and was again bailed. On the 16th there was a further appearance. The defence was not then ready and there was a week's adjournment to the 23rd. On that occasion the defendant failed to appear when he should, but he attended in the afternoon. He was again bailed. On the 30th when he again should have attended, he failed to attend and was not re-arrested until the end of May. He was then yet again bailed. On 3 June the Youth Court accepted jurisdiction and fixed the trial for 22 July. For some reason, which is not explained, it seems that on 11 June he was remanded to the care of the local authority. I am told there was some hearing on 8 July, but again I am not told what that involved.

On 22 July, the Crown was not ready for trial. The reason was a failure, and an inexcusable failure, to comply with their primary disclosure obligations. In particular, they had failed to give the defence a copy of the tape and a transcript of the interview between the police and the claimant. The prosecutor who was to deal with the matter on 22 July appreciated when the file was put before him or her that the disclosure had not been complied with and that therefore it would be impossible for the trial to proceed on the 22nd and so ensured that the witnesses, and in particular the complainant who alleged that he had been robbed by the claimant, were warned not to attend court. That was indeed done so that no witnesses were to that extent discomforted by the inability of the trial to proceed on that day.

An application was made for an adjournment. It was vigorously opposed by Mr Dunne, who was then acting for the claimant, but notwithstanding his submissions, the justices decided to grant the adjournment, which at that time was until 15 November of this year. The prosecutor, somewhat hopefully, applied for an extension of the custody time limits, but the justices very properly refused that application on the basis that it could not conceivably be said that the Crown had acted with due diligence. Accordingly, the claimant was released on conditional bail.

At the beginning of last month the Crown notified the court that it was ready to proceed, the disclosure having been given, and so the trial was brought forward to 14 September. It remains at the moment fixed for that date, which is next Tuesday.

This application for judicial review was lodged on 1 September. The justices have filed an acknowledgment of service in which it is indicated on their behalf what steps they took when considering the application. What is said by the assistant justice's clerk is as follows:

Mr Dunne criticises that on the basis that it bears the stamp of ex post facto reasoning in order to justify a decision which was not properly thought through at the time. I am not prepared to reject what is there said. I appreciate it is not put in the form of a witness statement, but nonetheless it seems to me that, as it comes from a responsible source, namely an assistant clerk to the justices, and it is not in the least inconsistent with what actually happened, although of course the reasons given were very sparse, that it is material that I ought to accept.

There are a number of authorities relating to judicial review of decisions of justices either to adjourn or to refuse to adjourn. The principles are well established. I think it is only necessary for me to refer to a very few of those cases. One fairly recent such case is F v Balham Youth Court [2003] EWHC 2584 Admin, decided by a divisional court on 24 October of last year. That was a case which was very different on its facts. It involved a charge of causing actual bodily harm to an individual. The individual was a 19 year-old and there was in addition an eye witness, who was no doubt a friend of his, aged 18. The claimant in that case was a young lad of 15. The first time the case was listed for trial neither prosecution witnesses attended on time, nor in fact did the claimant. The enquiries ascertained that the complainant was in bed but there was no information about the eye witness. The claimant not having arrived, it is not surprising that in those circumstances an adjournment was granted. In fact, the complainant and the claimant did arrive later in the day. So far as the witness was concerned, no explanation was given about his absence. The trial was re-listed for the end of April. Once again the complainant and the witness did not attend. It was ascertained that both were at work and the excuse was that they had thought that the trial was due to be heard the following day. That excuse was later discovered to be almost certainly untrue and in those circumstances it was perhaps not surprising that the court did not accept that it was correct for the district judge to adjourn the matter. But I cite the case not for its facts, but for the principles that are explained in it. I say "not for its facts" advisedly because it is clear that all these cases involving questions of adjournment do depend on their own facts. It is very important to ascertain the facts of each individual case. It is not the decision which is of importance for subsequent cases, but the approach which the court should adopt.

Observations which have been accepted as to the proper approach are set out in two previous judgments of Lord Bingham. The first is in R v Abedare Justices ex parte DPP [1990] 155 JP 324. Bingham LJ (as he then was) said that he wanted to make two things quite plain:

It is of course clear that the custody time limits and the application now of Article 6 of the European Convention on Human Rights make the need for expedition in the prosecution of criminal proceedings all the more important. As F's case itself makes clear, when one is concerned with youth court trials involving young persons, it is all the more important that such cases should be heard expeditiously.

The second case in which Lord Bingham CJ set out some matters of principle is R v Hereford Magistrates Court ex parte Rowlands [1998] QB 110. At letter 127G, Lord Bingham CJ said this:

That was in the context of a refusal to allow an adjournment at the request of the defence. Of course, all these expressions of principle will depend upon the nature of the application which has been made. It is also worth referring to an observation of Mitchell J in a case in 2003, namely R(Walden and Stern) v Highbury Corner Magistrates Court [2003] EWHC 780. That was a case where the Crown Prosecution Service, although it filed an acknowledgment of service, did not attend the hearing before Mitchell J to seek to justify the failure in that case to warn police officers in a breathalyser prosecution. There was no excuse given and no explanation as to why no steps had been taken to warn the relevant witnesses to attend. Mitchell J was left with no excuse, no explanation and nothing to go on other than the decision in question. But he did make the point, and this is obviously of some importance, that the court should be careful not to give the impression to prosecuting authorities that inefficiency which leads to a failure to take steps which ought to have been taken and the absence of which result in an application for an adjournment is something which the courts will tolerate. What Mitchell J at paragraph 17 said was this:

It is of course right to say that there was no excuse for the obvious inefficiency which led to the failure to comply with the disclosure obligation. However, factors which are clearly relevant include the public interest in seeing that offences are carried through to trial, particularly if they are serious offences, and the effect on the victim of an offence if, because of inefficiency by the prosecuting authority, the offence is not in the end prosecuted. Mr Dunne submits that, so far as that is concerned, this claimant, as a result of his actions in failing to surrender to bail, was kept in custody in a secure local authority institution for a period of some two months and that that might well be regarded by the victim as some sort of penalty for what he had done, and that might mean that the victim should not be so concerned if the prosecution did not proceed. I do not think that there is any substance in that submission. The remand in custody resulted from the claimant's own actions in failing to comply with court orders and had nothing to do with whether he should be convicted of the offence and what might happen to him if he was convicted of the offence.

Mr Leonard submits that there is no conceivable prejudice to the claimant if the trial takes place on 14 September (next week) instead of 22 July. This is not a case where there is any question of an alibi in the sense of it being necessary to find witnesses whose recollection will be important in order to establish where the defendant was at the particular time. Equally, the issue as to whether the defendant was a party to the robbery which it appears to be accepted took place is not something which is likely to be clouded by the difference between 22 July and 14 September, or even into November which was the date which the justices thought was the likely date when the order was made.

Mr Dunne is not really able to resist the submission that there is no prejudice, other than of course that which exists in him having to face a trial which he might not otherwise have had to face, but that is not a relevant prejudice.

Equally, this is a case where the victim is concerned that the matter should proceed. That certainly is the information that was before the justices and there is no reason to doubt it at this stage. There is clearly a public interest, as I have said, in ensuring that a serious offence such as this should be prosecuted, and of course it is equally of importance that, if guilty of this offence, the claimant should be found guilty because that is a matter that will be on his record and will effect things for the future. Equally, it is important that, if not guilty, he be found not guilty and can say that he has been cleared of this offence. It is, I recognise, a somewhat marginal point, but of course if he is indeed not guilty of the offence, he will be in a better position if able to say, "I was cleared after the evidence was heard and the court found that I was not guilty", rather than, "I was found not guilty because the prosecution messed it up and it was decided that an adjournment was not appropriate". I accept that that is a marginal point but it is a factor.

In all the circumstances, I am satisfied that, when all the appropriate matters are taken into account, the justices' decision was not one which could be said to have been unlawful. The reasons no doubt were somewhat sparse but that in itself could not in a case such as this justify a successful judicial review. One has to look further and see whether the decision was one which in fact cannot be supported. As Mr Leonard rightly submits, the basis for relief must depend upon the court being persuaded that the decision was an irrational decision. That of course covers a failure to have regard to relevant considerations. But on the material before me, I am satisfied that the justices did have regard to all the material considerations. In those circumstances, this claim must be refused.

MR DUNNE: My Lord, the claimant is publicly funded and I ask for public assessment.

MR JUSTICE COLLINS: You can have the usual order.