Essen v Director of Public Prosecutions

MR JUSTICE BEATSON: This is an appeal by way of case stated from the decision of the Colchester Magistrates' Court on 7th April 2004. The appellant was convicted of driving a motor vehicle, on 4th July 2001, while unfit through drink or drugs, contrary to section 4(1) of the Road Traffic Act 1988, and of careless driving contrary to section 3 of that Act.

The procedural history of this case is complex and although this appeal, in the end, turns on a matter that occurred towards the beginning of it, I will set it out in full. In the period between 8th January 2003, when the appellant entered pleas of not guilty, and 10th January 2003 there were eight pre-trial hearings. During that period trial dates set for 30th November and 30th December 2002 were vacated. The respondent's chronology of proceedings states that trial dates for 29th April and 23rd July were also vacated. The first was because their prosecution did not have their experts' dates to avoid and the second because a prosecution witness was unavailable. The trial date, set for 30th November, was vacated without objection by the appellant because a policeman, who was to give evidence, wished to attend a funeral.

An application by the appellant to vacate the second trial date on 30th December was refused. The grounds on which this was sought are not given in the case stated by the magistrates, but Mr Ley, who has represented the appellant throughout, has stated that the adjournment was sought because the date was inconvenient to defence witnesses.

On 30th December, when the appellant and her witnesses and the representatives of the defence and prosecution, assembled for the hearing, the prosecution applied for an adjournment because no prosecution witness had attended. The reason was that the Crown Prosecution Service had not warned them to attend court. Miss Nash, who represented the prosecution today, but did not appear before the Justices, states that this was due to an administrative error.

The appellant opposed the application to adjourn, but the Justices granted it. The case stated does not give any reasons for the Justices’ decision on the prosecution's application to adjourn the hearing scheduled for 30th December 2002. The trial finally commenced on 17th April 2003. On that day the magistrates heard evidence from a police officer, who was called to the scene of the accident, and from another driver, who was a witness to the accident.

Dr Donohue, a forensic toxicologist, was then to give evidence of toxicology analysis of a blood sample taken from the appellant on the day of the accident, but Mr Ley objected to the admission of his evidence on the grounds that it was hearsay and that he had not carried out the analysis tests himself. Following extensive legal argument the Justices, in the face of opposition by both parties, adjourned the matter to enable the parties to provide full skeleton arguments and for the Clerk to the Justices to consider these and to advise them.

Mr Ley's ground for opposing this adjournment was that it would be unfair because it would enable the prosecution to get their missing witnesses to court for the next hearing.

The earliest day on which the parties and the court could reconvene was 20th June 2003. On that day further legal argument was heard as to the admissibility of the toxicologist’s evidence. The Justices ruled that the computer print-out analysis was capable of being real evidence and that the toxicologist could give interpretive evidence as an expert, but there was a lack of continuity in relation to the evidence which rendered it inadmissible at that time.

Counsel for the prosecution then indicated that, as a result of the ruling, further witnesses would be called to deal with the continuity evidence. Mr Ley objected on the ground that on 17th April prosecution counsel had indicated that the prosecution would not seek to call such further evidence. Mr Ley stated the defence had relied on that undertaking. He sought a ruling that the prosecution should not be entitled to call such evidence. After further legal argument the Justices again adjourned the trial to enable skeleton arguments to be exchanged and served. (In her skeleton submission Miss Nash states that the statements providing the continuity evidence were served by 24th June 2003, but were not at that stage accepted by the appellant.)

By the time the matter proceeded to a substantive hearing, on 7th April 2004, the continuity evidence was accepted as accurate and read under section 9 of the Criminal Justice Act 1967.

The matter next came before the court on 29th August 2003. The Justices heard further legal argument and ruled that the prosecution was entitled to rely on the additional continuity evidence. Their ruling on this is subject to one of the grounds upon which their decision is challenged, but, as I shall explain, it is not necessary to go into this.

The case stated sets out the reasoning of the Justices. They concluded that there would be no unfairness in admitting the evidence and that the prosecution had not taken an unfair advantage or acted in bad faith in deciding to call such evidence, notwithstanding an earlier statement that they would not be calling further evidence as to the blood analysis. Following this ruling the trial was then adjourned to the earliest date on which all concerned could be present, that was 6th November 2003. That date was subsequently vacated owing to the appellant's ill health.

The trial resumed on 7th April 2004, the first date on which this was possible. Once again objections to the admission of the continuity evidence were made by Mr Ley and the Justices rejected these, for the reasons they have given, on 29th August. Mr Ley also submitted that the proceedings should be stayed on the ground that it would be wrong in law for the trial to be allowed to continue due to the time over which the proceedings had been part-heard. The Justices rejected this submission on the ground that there was no unfairness to the appellant and the circumstances were such that a fair trial could be afforded to her.

The Justices believed that two issues were particularly important in coming to their decision: first, that relatively little evidence had been given on the first day of the trial. The evidence of the police constable and the lay witness had been short, precise and easily kept in memory with the aid of their notes and the notes made by their clerk. No further evidence was heard until the final day of the trial.

The delay between the first day, 17th April 2003, and the reception of the remainder of the evidence on 7th April 2004 was caused by the Justices’ need to deal properly with what the case stated described as "the determined legal arguments" put to them by Mr Ley on the appellant's behalf. They considered it reasonable to adjourn to allow for skeleton arguments to be served and considered. They state that if legal argument is put to a lay bench without prior notice, it is likely that time will be required to allow for proper consideration.

The questions the Justices have referred to this court for it's opinion are:

We have only heard submissions as to the effect of the decision to adjourn on 30th December 2002 and the rejection of the defence submissions resisting this. It was perhaps fortunate for Mr Ley, that in the light of our conclusion on this, it was not necessary to consider the first two questions. In his skeleton argument Mr Ley submitted that given the refusal of his application for an adjournment on that day, granting the prosecution's application was Wednesbury unreasonable because there must be equality of arms. We do not consider this to be a sound point. The defence application for an adjournment of the hearing, scheduled to take place on 30th December, was on the grounds of inconvenience. Inconvenience to a party, or to that party's legal representative, is not necessarily in itself a ground for an adjournment. Nor does the way the matter was put indicate that should the hearing be held on that date the party making the application (the appellant) would not have a reasonable opportunity of presenting her case to the court under conditions which did not place her at a substantial disadvantage vis-a-vis his opponent. The mere fact that prior to granting the prosecution's application to adjourn the court had rejected the defence application to adjourn does not affect the validity of the decision of the court in relation to the second application.

The real question here is whether the decision to grant the prosecution's application for an adjournment is itself open to challenge and open to challenge now almost two-and-a-half years after the decision to adjourn and over a year after the outcome of the case in April 2004. Mr Ley, when asked whether he was not out of time, stated that by section 111(1) of the Magistrates' Courts Act 1980 an application that a case be stated shall be made within 21 days after the date on which the decision of the Magistrates' Court was given. He submitted that the effect of section 111(1) and the decisions of this court, in particular, the R v Rochford Justices ex-parte Buck (1979) 68 Cr App R 114, show that the time does not run until the decision and that to seek a case stated before the matter was concluded would, in the words of Lord Widgery CJ in the Buck case be a wrong course. Lord Widgery stated:

In Blackstone's Criminal Practice at page 1839, 1840 it is stated that:

While the decision in the Buck case concerned a ruling as to the admission of evidence after the commencement of the trial, it appears from the passage I have read from Blackstone's and the cases cited, in particular, Load and Others v DPP [1990] 1 QB 1052, that this applies to other rulings.

Mr Ley stated that while it would have been open to the appellant to challenge the ruling in December by way of judicial review, he did not consider doing that in part because he had a statutory appeal. He had an alternative remedy under section 111(1) of the Magistrates' Court Act in requiring the case stated at the appropriate time and in part because of possible difficulties in the appellant securing legal aid, although he accepted that was not a major consideration.

In view of the time that has passed since the decision of the Justices and the fact that the trial took place (a trial at which the defendant was able to make its legal and other submissions at great length) I am troubled by the argument that the appellant, having decided not to seek judicial review of the decision to adjourn, is now entitled to come forward and challenge the decision made on 30th December 2002. Nevertheless, in view of the position in the authorities in relation to cases stated and the fact that the Justices in this case have stated a case, this court must deal with it.

I turn to the substance of this third ground. Mr Ley relied on the decision of Mitchell J in R (Walden and Stern) v Highbury Corner Magistrates' Court [2002] EWHC 708 (Admin). That case dealt with two separate applications for the judicial review of decisions by the Highbury Corner Magistrates granting prosecution applications to adjourn when no prosecution witnesses attended. No explanation for the absence of any attempt to warn the witnesses was to be found on the file and no explanation was forthcoming before the Justices. Although the Justices asked for a outline of the facts of the charge, it appears that no inquiry was made by them as to the explanation for the non-attendance of the witnesses. In Mr Walden's case the Justices gave as their reason for granting the adjournment the seriousness of the allegation faced by the claimant "being in charge of a motor vehicle having consumed excess alcohol" and the fact that this was only the first time the matter had been listed for trial.

In the case of Mr Stern the justices granted the adjournment without giving any reasons at all. Neither the Justices nor the CPS were represented at the hearing before Mitchell J. His Lordship stated that it followed that there was before that court no explanation for why the witnesses were not warned, no explanation for the inability of the prosecution to explain to the magistrates the lack of a warning, and in the case of Mr Stern, no explanation by the magistrates for their failure to give any reasons for the granting of an adjournment in his case.

Mitchell J considered the judgments of Lord Bingham in R v Abedare Justices, ex parte DPP (1990) 155 JP 324 and R v Hereford Magistrates' Court ex-parte Rowlands [1998] QB 110. In the latter case the Divisional Court considered a number of applications for the review of procedural decisions by magistrates, two of the cases concerned adjournments. The Justices had refused an application to adjourn a case on the eve of the trial to enable two witnesses to attend and to give evidence for the defence. The applications for judicial review succeeded on the grounds that since the witnesses were critical to the defence, and the defence bore no responsibility for the non-availability, the refusal of an adjournment deprived the applicants of a reasonable opportunity to advance their defence. A fair trial was not possible without a reasonable opportunity to call them and thus the decisions had resulted in unfairness. Lord Bingham CJ stated at page 127:

In that case the Justices had refused a prosecution application for an adjournment. This court, while not criticising the Justices for paying attention to the need for expedition in the prosecution of criminal proceedings, set aside their decision. Bingham LJ stated that although the Justices were conscious of the defendant's desire that the matter should be cleared up one way or the other and should not continue to hang over him, they failed to pay proper regard to the undesirable consequence of refusing an adjournment when the result would be that the prosecution would thereupon collapse. The court stated that the Justices had to take account of the interest of the prosecution representing the public, and that a charge properly preferred against a defendant should be the subject of proper adjudication.

Bingham LJ also stated that the Justices in the Abedare case failed to take full account of the fact that the prosecution were not the authors of their own misfortune. His Lordship stated that the Justices were required to pay regard to the interests of justice As they affected both sides and to the question whether the person applying for the adjournment was at fault or not. Mitchell J in the Highbury Corner Justices case accepted that this court should be very slow to interfere with the decision of Justices to grant an adjournment, but, in the circumstances before him, in which no representatives were before the court either on behalf of the Justices or the CPS and in the light of Lord Bingham CJ's observation in the Hereford Magistrates' Court case, that applications for adjournments must be subjected to rigorous scrutiny, he concluded that in the cases before him the applications for an adjournment should have been refused.

In the present case the court has the benefit of the case stated, but, as I have said, this does not give the reasons for granting the prosecution's application for an adjournment on that day. Miss Nash before us referred to the endorsement on her papers which referred to the seriousness of the charges and consequences of refusing an adjournment. However, she stated it was not possible, after the passage of time, to ascertain whether that endorsement reflected a reasoned decision by the Justices or the submissions that had been put to them. She very fairly did not seek to put those matters before us in any stronger way. Because of our concerns about the fact that this matter comes before this court two years and four months after the justices' decision, we invited her to consider whether it would be helpful to remit the matter to the Justices so that they could add such reasons for the adjournment in a supplement to the case stated. Again realistically Miss Nash stated that after this time it was unlikely that anything more could be revealed. The clerk who had assisted the Justices in stating the case would have looked at the court file. It was possible that a different bench had granted the adjournment on 30 December 2002. She considered that the matter could not be taken further than is contained in the case stated.

Where reasons for an adjournment are given, as the decision of Collins J in W (R on the application of) Camberwell Youth Court [2004] EWHC 2211 (Admin) shows, they do not have to be elaborate. Collins J said that in that case reasons given in the acknowledgment of service served on behalf of the Youth Court were sparse, but that in itself could not justify a successful judicial review. In paragraph 18 of his judgment his Lordship stated:

That was, however, said in the context of a case in which a ruling with reasons was given in response to the submissions made by the parties. In the present case, as in the application against the Highbury Corner Justices made by Mr Stern, no reasons were given. In these circumstances we have no information before us upon which we can be satisfied that the Justices did take into account relevant considerations and exclude irrelevant considerations. It is possible that what weighed them was the factor referred to by Bingham LJ in the Abedare Justices case. That is the interest of the prosecution that a serious charge properly preferred by the defendant should be the subject of proper adjudication and that the result of refusing an adjournment would, as Miss Nash stated it would have been in this case, be the collapse of the prosecution. If this was the case and if they had articulated this, even in the brief form in W's case, for the reasons given by Lord Bingham CJ in the Hereford Magistrate's case and the Court of Appeal (Criminal Division) in Chaaban, it is very unlikely that this court would interfere with their decision.

In a case stated where the magistrates have stated a question concerning the effect of the adjournment on 30 December 2002 for this court without giving any reasons for the decision, it is not possible to say anything other than that this was a decision which could have gone either way. In those circumstances, since no reasons were given, given that applications for adjournments must be subjected to rigorous scrutiny (Lord Bingham CJ in the Hereford Magistrates Court case) with some reluctance, I am constrained to the conclusion that this court is unable to uphold the decision. I would set aside the decision of the Justices granting the adjournment and allow the appeal.

LORD JUSTICE SEDLEY: This appeal has highlighted the problem relating to this court's jurisdiction over Magistrates' Courts. The case stated by the Justices in November 2004, at Miss Essen’s request, poses a question about an order or a determination made on 30th September 2002. Although no point was taken at the time, for reasons to which I will come, by the present respondent, at the opening of the appeal we questioned whether the case had not been stated out of time. Section 111(1) of the Magistrates' Courts Act 1980, in its material parts, provides:

Mr Ley's response to the query we raised was that while he could perfectly well have sought judicial review of the decision to adjourn, had he done so promptly after 30th December 2002, he was not bound to do so. Indeed, the decision of this court in R v Rochford Justices, ex parte Buck [1979] 68 Cr App R 114 suggested that until there was an outcome to the trial this court lacked jurisdiction to undertake judicial review of interlocutory decisions of Justices. Moreover, Mr Ley submitted that once a case had been stated for this court he had a right, indefeasible by any exercise of discretion, to bring it before the High Court. Miss Nash did not dissent from this. In fact she drew our attention to the decision in Load v The Director of Public Prosecutions [1990] 1 QB 1052 to the effect that: "a decision" in the parallel provision of the Supreme Court Act 1981, section 28(1) in relation to cases stated by the Crown Court meant a "final decision". The court noted that in Streames v Copping [1985] QB 920 this court had decided that magistrates' courts do no have the power under section 111(1) to state an interlocutory case.

It may be in the light of the present case that this group of decisions could usefully be revisited. If neither judicial review nor appeal by a case stated is available against an interlocutory decision which would arguably have been dispositive of a case at an early and much less costly stage, a fixed rule that any challenge must abide a final outcome is capable of working injustice. Here, for example, the justices stating the case, who were very probably not those who in December 2002 had granted the adjournment in issue, have been unable to give any intelligible reason for the decision to adjourn the case in the face of a frank failure of the CPS to have its witnesses present on a fixed trial date for which everyone else was ready and in attendance.

In the course of argument we mooted the possibility that where an application to state a case invites the justices to include in it a question relating to an interlocutory matter decided more than 21 days before the application to state a case, it might be proper for the justices to decline to state a case in that regard, leaving it to the applicant to move this court for a mandatory order, a discretionary remedy in which the pros and cons of stating that much of the case out of time could be canvassed. I would not like this to be taken as necessarily a good idea. It is capable of producing a proliferation of satellite litigation which would not be beneficial to the system of justice, but it does leave a problem which might well deserve to be addressed.

Miss Nash has candidly accepted that it is highly unlikely that remission of the case stated for amplification on this question could produce any further information or reasons. In the circumstances we are left with the bare recital of facts in the case stated, which is no more that:

The next part of the narrative begins on 17th April when the trial eventually commenced, and the only possible inference is that upon no more facts than those recited the Justices had acceded to an application to adjourn. I agree with my Lord, Beatson J, that if this was all it was not open to the justices to grant the CPS an adjournment. The prejudice to the defendant of doing so was manifest. The CPS had no ground for seeking clemency. It was the sole author of its own misfortune.

If some countervailing factor nevertheless persuaded the justices that the balance of justice made it right for them to adjourn the case, there is no indication of what it was. No doubt there was concern that a possible crime would otherwise go unpunished. But in that case no prosecutor, however dilatory, need attend to the requirement to be ready for trial on the set date. If there was something else, perhaps some special reason intrinsic to the situation that is described in the case, we have no indication of what it was.

We are left with a case stated which discloses no good reason, indeed no reason at all, for the granting the CPS an adjournment, the purpose and effect of which would be simply to rescue it from the consequences of its own neglect. Had it been refused, as on the material before us I consider it should have been, Miss Nash accepts, with complete candour, that the case would inexorably have failed there and then. That is the impasse which in this unsatisfactory factual and legal situation the appellant is entitled to be placed. I too, would accordingly, and without pleasure, allow the appeal and quash the conviction. We are indebted, as always, to the counsel for their help.