Aryan v Department of Public Prosecutions

MR JUSTICE HARRISON: This is an appeal by way of case stated against a decision of the Hendon Magistrates' Court on 19th May 2003 when they refused an application made on behalf of the appellant to reopen the mode of trial procedure to allow the appellant to elect trial before the Crown Court.

Before this court, the appellant is represented by counsel. Neither the respondent nor the Crown are represented, but the Crown have lodged a skeleton argument for the assistance of the court.

The appellant is an 18-year old Iranian national who arrived in this country at the beginning of 2003. She does not speak English. On 2nd March 2003 she was charged with theft from a John Lewis store at the Brent Cross Shopping Centre in North London. On her first court appearance on 3rd March she was represented by the Brent Law Practice. On that occasion she was refused a representation order on the grounds that it would not be in the interests of justice. When she appeared before the justices on 16th April 2003, she had the assistance of a Farsi interpreter and she was granted a representation order to be represented by a firm of solicitors, Van-Arkadie & Co, who were present in the court and who were also acting for her co-defendant.

According to the facts as later found by the justices, the plea before venue and mode of trial procedure set out in sections 17 to 23 of the Magistrates' Court Act 1980 was explained to the appellant by the justices' legal adviser. The justices found as a fact that the legal adviser had recorded on the case papers that he had explained to the appellant the choices about trial contained in sections 17 to 23 of the 1980 Act. The appellant, having indicated that she was pleading not guilty, consented to summary trial. The matter was then adjourned for trial to the 19th May 2003. Subsequently, the court transferred the representation order to Brent Law Practice because of a conflict of interest of Van-Arkadie & Co, arising out of the fact that they also represented the appellant's co-defendant.

On 19th May 2003, counsel on behalf of the appellant, Miss Zeitler, who also appears on behalf of the appellant before this court, applied to vacate the election for summary trial in order to allow the appellant to elect trial by jury. It was submitted that her previous solicitor had not discussed with her the advantages and disadvantages of a Crown Court trial, that she had been frightened and that she had not been in a position to make an adequate choice. The Crown, on the other hand, submitted that the appellant understood the choice that she had made about mode of trial.

The justices were of the opinion, as recorded in paragraph 5 of the case stated, that the appellant did understand the nature and significance of the choice she made because there was an interpreter present with whom she had spent time, she was advised by a solicitor, and the clerk, or legal adviser, would have clearly explained the choice of trial venues to her when going through the procedure in sections 17 to 23 of the Magistrates' Court Act 1980. Accordingly, the justices refused the application to reopen the mode of trial procedure and adjourned the information for trial. She was later convicted.

The question posed for the opinion of this court is:

It is apparent from Miss Zeitler's skeleton and from the skeleton lodged by the Crown that the court has discretion to permit a defendant a change of election (see R v Craske, ex parte Metropolitan Police Commissioner [1957] 2 QB p 591, at page 597). The main submission made by Miss Zeitler to this court is that the justices erred in concluding that the appellant understood the nature and significance of the choice that she had made. The words "understood the nature and significance of the choice" are derived from the judgment of McCulloch J in R v Birmingham Justices, ex parte Hodgson [1985] QB p 1131 at page 1144, when he referred to the central factor being the state of mind of the defendant at the time he made his election:

Miss Zeitler submits that the conclusion of the justices was Wednesbury unreasonable and was therefore a perverse decision. She accepts that the justices' decision involves a finding of fact. Her first complaint is that the justices failed to take into account that, prior to entering into court and electing venue, the appellant had no understanding of the nature and significance of the choice that she was about to make. She asserted that the appellant's previous solicitor had not explained the choice between summary trial and trial at the Crown Court, having simply told her to elect summary trial. That, of course, was an assertion made by counsel, there being no evidence called before the justices to that effect.

Secondly, Miss Zeitler complains that, whilst in court, the explanation given by the justices' clerk immediately prior to election was not sufficient to instil any kind of comprehension of the choice she was about to make. She referred us to the case of ex parte Hodgson and submitted that the quality of the choice had to be considered. A mere explanation of the choices available to the appellant did not involve explaining what the choices actually entailed. It seems quite clear to me that the clerk to the justices would have explained in the normal and clear fashion what the choices were that were before the appellant, as, indeed, the justices so found.

The next complaint is that the justices did not have regard to the broad justice of the situation. Reference was made, in that respect, to R v Southampton Justices, ex parte Briggs [1972] 1 WLR p 277 at page 280-F. Reliance was placed by Miss Zeitler on the fact that the appellant had no knowledge of English, that she was dependent upon the assistance of an interpreter and was unfamiliar with the conventions and customs of this country, and that she was barely over the age of 18. It seems to me, however, that all of those matters -- her youth, the length of time she had been in the country, and the fact that she did not speak English and had an interpreter -- were quite evident to the justices and, indeed, as Miss Zeitler has said, they were points made by her to the justices. There is no reason at all to conclude that those matters were not properly borne in mind by the justices.

At the end of the day, the justices were, in my view, perfectly entitled to bear in mind, firstly, that this appellant had the assistance of an interpreter; secondly, that she was represented by a solicitor; and thirdly, that the clerk of the court would have explained the choices that were available to her. In that situation, I fail to see how it could conceivably be held that the finding of fact made by them that the claimant did not understand the nature and significance of the choice that she has made amounted to a perverse conclusion. It seems to me that that was a decision which was plainly open to the justices on the evidence before them. It was a finding of fact which they were entitled to make and by no stretch of the imagination can it be said to be a perverse decision. For my part, I would dismiss this appeal.

LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which my Lord has given. The appellant arrived in the United Kingdom in early 2003. She was only then about 18 years old. She could not speak English. In early March of 2003 she was charged with theft; it being alleged that she stole a handbag, a diary and manicure set belonging to John Lewis. The following day, 3rd March, she appeared before the magistrates and on that occasion she consented to summary trial and pleaded not guilty to the theft offence. The case was adjourned until 19th May for trial. The question of venue was addressed at a pre-trial review on 16th April 2003 and again on 19th May when representations were made on behalf of the appellant that she should be entitled to trial by jury in the Crown Court. The justices refused that application, hence this appeal by way of case stated.

Justices faced with an application of this kind have to address the broad justice of the situation. Where an application is made, the central factor to which attention should be paid when justices are faced with an application to re-elect is the state of mind of the defendant at the time when he or she made the election. Did he or she properly understand the nature and significance of the choice? This question has to be asked and answered in the context that the defendant is not lightly to be deprived of a right to trial by jury. That comes, conveniently, from the judgment of McCulloch J in the case of the R v Birmingham Justices, ex parte Hodgson [1985] QB p 1131. In particular, reference may be made to pages 1144 and 1145.

In the present case, the justices addressed that very question and they were of the opinion, as they record in the case which they have stated, that the appellant did understand the nature and significance of the choice she had made because there was an interpreter present with whom she had spent time, because she was advised by a solicitor, and also because the clerk of the court would have clearly explained the choice of venue to her when going through the procedures of sections 17 to 23 of the Magistrates' Court Act 1980.

Miss Zeitler submits, as she has to, that this is an unsustainable or perverse decision. I do not think she comes anywhere near persuading me that that is so. She relies on the fact that this was a young woman only recently arrived in this country who spoke no English. Yes, she had an interpreter but the interpreter is only there to translate. Yes, she had a solicitor but she has been told that the solicitor said no more than that she should elect a summary trial. Yes, the clerk of the court explained what the choices were but did not give any guidance in that matter.

For my part, it seems to me that in these circumstances, where the appellant had the advice of a solicitor, where the appellant, albeit she spoke no English, had the proceedings interpreted to her, and where the clerk of the court had given the explanations which he or she did, it was entirely open to the justices, on the second occasion, to reach the conclusion that the appellant did understand the nature and significance of the choice she had made and to decline to allow her to reopen it. I agree that this appeal should be dismissed.

Thank you very much, Miss Zeitler.