Director of Public Prosecutions v Ayres

MR JUSTICE GIBBS: The appellant, the Director of Public Prosecutions, appeals against the decision of the Ealing Magistrates' Court made on 4th May 2004 to stay proceedings against the respondent, Michael John Ayres. The proceedings consisted of a criminal prosecution against the respondent for offences of assaulting a police officer in the execution of his duty, disorderly conduct and being drunk and disorderly. The charges arose out of events which took place rather over a year ago on 10th October 2003 in High Street Ealing, West London. The charges were at all times denied by the respondent. The reason given by the justices for staying the proceedings was their finding that there had been an abuse of the process of the court.

The narrow ground on which the decision is challenged on the appellant's behalf is that when the justices made their decision to stay they acceded to an application that the appellant should not be entitled to be heard on the matter. The reason given by the justices for that ruling was that the appellant was in breach of an earlier direction that it should file a skeleton argument. No skeleton argument had been filed, and, as will appear, there were many other breaches of the court's directions and orders in addition to that.

The procedural history of the case formed an important background to the basis of the justices' challenged decision and is in summary as follows - taken chiefly from paragraph 2 of the stated case.

The respondent first appeared before the magistrates on 16th October 2003 and pleaded guilty to two of the three charges, no plea being taken on the third. The matter was adjourned until 13th November 2003 for a pretrial review.

On 13th November the respondent pleaded not guilty to the third charge. The court then made a series of directions. These required of the appellant the following: service of primary disclosure by 27th November 2003; all disciplinary records, internal and external, for Police Constables Tither, Carlow and Collier to be served by 4th December 2003. It should be noted here that Police Constable Tither was the alleged victim of the assault. The original CCTV records for the relevant period should be served directly on the respondent's solicitors by 27th November 2003. The original CCTV film was to be served. The reason for this was because it may have captured the relevant events and the original was required in case enhancement would make those events clearer. The report of a Dr Ransom, a forensic medical examiner who had examined the respondent, should be served by 4th December 2003. The relevance or possible relevance of that was that it appears that the respondent himself was quite seriously injured in the course of the incident giving rise to the charges. The case was then adjourned to 11th December 2003.

At the hearing on 11th December 2003 the court learned that the appellant had complied with none of the directions given at the previous hearing. The respondent produced, and in fact served on the appellant, orders that the respondent's father had obtained in the Brentford County Court against the London Borough of Ealing. The London Borough of Ealing was the body which had possession of the original CCTV tapes, and the county court order was to the effect that the council should retain the tapes pending further order.

The court reiterated the directions made on 13th November 2003, save that it provided that the original closed circuit television tapes must be served unless the Metropolitan Police, having taken advice, felt it inappropriate to do so. The trial date was set for 4th May 2004 and the case adjourned until 5th January 2004 for a further pre-trial review.

For reasons which will become obvious, it was not apparent to this court until today what, if any, basis for argument the appellant had or might have had about the CCTV tapes. But there has been handed to us a letter dated 31st December 2003 setting out the Crown Prosecution Service's approach to the matter. By then, notwithstanding the order of the Brentford County Court, the police had acquired the original CCTV recording. They had also served a copy of that (as opposed to the original) on the respondent's solicitors, but they maintained by that letter that since the original recording was an exhibit in the criminal proceedings and was relevant to the investigation of the complaint, it should be held and retained by the police. It was said that the orders of the county court were addressed to the council and not to the police. The letter suggested a way to resolve the issue, namely that the recording could be examined, at the cost of the defence, by a mutually agreed independent expert. But meanwhile the position was maintained that the recording would remain in police possession and would be returned to the police after examination.

That letter having been sent and received, the issue of the CCTV was, we are told by Mr Hoffman, who was present at the hearing of 5th January 2004 and whose recollection of course we accept, raised at that hearing. It is of course not possible for Mr Hoffman to remember the precise details of what was said. One would, however, have expected the issue to be raised at that hearing, the letter having been sent by the prosecution a few days before.

Having heard all relevant matters, on 5th January the magistrates made the following orders: that primary disclosure should take place by 19th January 2004; secondary disclosure, if appropriate, by 16th February 2004. The court had also been notified that the respondent wished to submit that there had been an abuse of the process of the court and that the case against him should be stayed. They adjourned the matter to 4th May 2004 for that application to be heard and the trial, if necessary, to take place thereafter. In connection with the abuse of process application they directed that the prosecution should file and serve a skeleton argument indicating their response to the abuse of process application by 20th April 2004.

Apart from the question of disclosure, there were other outstanding directions which had not at that point been complied with. Importantly, these included the direction in relation to the CCTV tapes. The justices directed that that, as well as the other outstanding directions, be complied with by 19th January 2004; and it appears that they made that direction having taken the letter of 31st December into account. Other matters which were still outstanding included the supply of the disciplinary records of the relevant officers.

I now come to the position on 4th May and the events immediately leading up to it. The 4th May, it appears, was a Tuesday; Monday 3rd May was a Bank Holiday; on the previous Friday the respondent's solicitors received for the first time primary disclosure. It also received some information about the officers - Mr Hoffman submits, even at that stage insufficient information. There was no service of the CCTV tapes, and there has been none until today.

In order to summarise the procedural history I will take each aspect of it briefly and separately.

In relation to primary disclosure there was breach by the appellant of the order of 13th November 2003, breach of the order of 5th January 2004, and primary disclosure was in fact made - whether wholly or partially we need not say - over five months after the court first directed it. A similar timetable applies in relation to the disciplinary records of officers. If they were satisfactorily served, they were satisfactorily served only after a delay of some five months. As already mentioned, the CCTV film has never been disclosed at all. The report of Dr Ransom, the forensic medical examiner, was served three weeks late, and there was in addition a failure to comply with the direction to lodge a skeleton argument.

For the purposes of this appeal it is not necessary to set out the facts of the alleged offences themselves nor to rehearse the statement of evidence: that can be taken as read and as contained in the case stated. The case stated set out the contentions of the respondent and then the conclusion of the justices.

A summary of what occurred on 4th May is that those representing the respondent made an application to the justices that, in the light of the failure to serve a skeleton argument, the justices should not hear submissions from the appellant. The justices granted that application, and it follows that they decided the abuse of process issue having heard and taken into consideration only that which the respondent was putting forward. Having heard the respondent's submissions they retired to consider whether to stay the proceedings, and they took advice on the law. They concluded that the delay was unacceptable but at that stage were advised that the jurisdiction to protect the court's process from abuse was confined merely to matters directly affecting the fairness of the trial. They were advised that the jurisdiction did not extend to a wide supervisory jurisdiction for upholding the rule of law. In the light of that, although they found the appellant's delays unacceptable, they concluded that their powers were limited and that they were compelled to proceed to trial.

That decision to refuse to stay the proceedings was communicated in court. The respondent then questioned whether the reasoning giving rise to the decision was actually consistent with the decision itself. They were addressed further on the point, and found that there had been impropriety on the part of the appellant and decided to stay the proceedings. That amounted to a revision of their decision.

The justices' stated opinion on the matter was:

The questions stated for the opinion of this court are as follows:

In support of the submission that the magistrates were incorrect in allowing the respondent's application Mr Preston submits that this was essentially a set of proceedings which required oral hearings. It was not a set of proceedings which were essentially conducted on paper with a discretion as to whether to hear oral argument. He submitted that the prosecution was deprived of an oral hearing not, as the respondent submitted, as a result of their failure to lodge a skeleton argument, but essentially by the mistaken decision of the magistrates.

He sought to distinguish the position in criminal procedural hearings from those in civil cases. He argued that it was a quite different situation from that in civil proceedings in which a party is deprived of a defence by default in failing to appear or failing to lodge a defence. In the present criminal proceedings the appellant was present through his legal representatives and ready and in a position to provide oral submissions and should have been heard. The situation is quite different from that which prevailed in the case of R v Home Secretary, Ex parte Al-Mehdawi [1990] 1 AC 876 relied upon by the respondent. He went on to submit that if he was right about the error of the justices in granting the respondent's application then the answer to question 2 posed in the case stated must also be resolved in his favour. The reason for that would be that no proper decision could be made on whether or not there had been an abuse of process unless the appellant was given the opportunity of making submissions and presenting the court with material which would enable that issue properly to be decided.

Mr Hoffman, in answer, submits that it is not simply a question of the failure to lodge a skeleton argument; in effect the direction relating to the skeleton argument was a last chance given to the prosecution to remedy a series of gross procedural defaults for which no explanation had yet been offered. He submits that it must have been clear to the prosecution that it was a last chance and that failure to comply with the direction would leave them without the opportunity to argue the case. It was to be noted that when Mr Preston, who appeared for the appellant at the magistrates' court hearing in May, was asked why no skeleton argument was lodged he was unable to reply because he had no instructions. Under all those circumstances Mr Hoffman submits that it was within the justices' discretion, having regard to the seriousness of the appellant's default, to deprive him of the right to an oral hearing.

On the relatively narrow but important issue as to whether or not the justices were right to refuse to hear the appellants orally I prefer the submissions of Mr Preston. Criminal proceedings are essentially proceedings conducted through oral submissions. A skeleton argument is a useful device, designed to assist the court and to assist the parties as to what the basic outline of a party's case will be; and it seems to me that, however serious a party's default has been in general terms in the course of a case, it is essentially unjust to deprive that party of the opportunity of putting forward an explanation for the default and/or of making submissions on the important issue as to whether criminal proceedings should be stayed for abuse of process.

It is difficult, in my judgment, although perhaps not impossible, to imagine a case where a court in criminal proceedings would be entitled to shut out a party from making oral submissions. It is sufficient, in my judgment, to say that certainly this case could not fall into that category. Indeed it might be said that the more serious the allegations which a party to proceedings had to face, the more important it was to give that party an opportunity to be heard upon them.

Accordingly I would answer the question posed for the opinion of this court in the following way:

However, that is not the end of the matter. For my part I have the gravest possible concerns about the overall picture which emerges in this case. For those reasons, this court felt it fair to invite Mr Preston, even at this late stage, to provide any explanation that there might be for the serious - one might even say scandalous - defaults on the part of the prosecution which the history of this case discloses.

Mr Preston, who has been extremely helpful and frank with the court, provided such explanation as he could about the failure to comply with the directions relating to CCTV, and I have sought to incorporate that explanation earlier in the judgment. He has helpfully pointed out that some disclosure was made at the last minute in relation to police officers' disciplinary records, and that too I have sought to incorporate in the judgment. However, the great majority of the defaults remain without any or satisfactory explanation. It is certainly not a satisfactory explanation that the police failed to supply the material to the Crown Prosecution Service which the court required if the orders were to be complied with.

I have already made clear the extremely substantial periods of default in relation to each of the items in this case, and I need not repeat them. Individually they are serious. As far as I can see, collectively they amount (not in the legal sense but in ordinary parlance) to a contempt for the directions of the magistrates. As a result of the disquiet which I entertain about the history of this matter, for my part I would wish to investigate further, with the assistance of counsel, the question of whether the matter could justly or fairly at this stage be remitted to the Bench for reconsideration.

I am also of the view, since this case is brought by the Director of Public Prosecutions in name on behalf of the Crown Prosecution Service, that the disquiet that has been expressed, whatever the outcome of this case stated, be drawn to the attention of the Director of Public Prosecutions. However, having said that, I repeat that I would answer the questions 1, 2 and 3 in the manner for which Mr Preston submits.

MR JUSTICE SILBER: I agree. It is clearly very desirable that a copy of the judgments in this case should be sent to the Director of Public Prosecutions so that he can decide what can be learned from the very disturbing way in which this case has been conducted. He might well consider that this will require a thorough investigation of the conduct of the prosecution in this case. Are there any applications at all?

MR HOFFMAN: The appellant's costs of the appeal?

MR JUSTICE SILBER: No order as to costs I think.

MR HOFFMAN: Did your Lordships wish to hear me with regard to whether it would be just and fair to remit the matter back to the magistrates' court? That is what I understood.

MR JUSTICE SILBER: Well that is the next step. You have heard what we have said in our judgments about the way the case has been conducted and the way matters look at the present stage. Do you have any instructions?

MR HOFFMAN: I do not have instructions. I have already indicated that I do not have instructions about the reason for the non-compliance and that I am not in a position to advance any separate arguments on the justice/fairness of it, except to interpret what I have already said in the context of whether it would be so fair.

MR JUSTICE SILBER: We are not keen that it should in fact be remitted, and indeed if it was remitted I think there would be a very strong chance that you would be finding yourself with an abuse application. Thank you for your help on what has been an interesting but very disturbing case.

We officially allow the appeal.

MR PRESTON: Can I just make it entirely clear, not least for my lay client, that your Lordships allow the appeal but it will not be remitted to the magistrates?

MR JUSTICE SILBER: Yes.

MR PRESTON: I am grateful.