Crown Prosecution Service, R (on the application of) v Gil

LORD JUSTICE MAURICE KAY: This is an application for judicial review of two decisions of a lay magistrate sitting alone in the City of London Magistrates' Court. The first decision was on 7 June 2005 and the second decision was on 6 July 2005. Permission for this application was granted by Hooper LJ and Cresswell J on 20 December 2005.

The background to the matter goes back as far as 2003. The claimant in this application, the Crown Prosecution Service, seeks to prosecute the interested party, Miss Cordelia Gil, in respect of alleged offences said to have been committed between June and November 2003. Miss Gil was arrested on 24 November 2003 and interviewed. She was interviewed again and charged on 1 June 2004. She made her first appearance at the City of London Magistrates' Court on 4 June 2004. Committal proceedings, which I shall call the first committal, took place on 16 November 2004 at which stage she was discharged in respect of all charges.

It was, and was said to be, the intention of the Crown Prosecution Service to recharge Miss Gil. On 7 February 2005 she was summoned on four new charges. She appeared in the Magistrates' Court on 16 March. The matter was listed for an old style committal on 2 June but that eventually was adjourned until 7 June. At that time there were ten proposed committal charges on a draft indictment. She was discharged in relation to charges 1 to 9 on 7 June. Consideration of Count 10 was adjourned to 6 July 2005, on which occasion she was discharged from that remaining charge. Those are the circumstances in which the Crown Prosecution Service now seek judicial review of the two decisions of June and July 2005 discharging Miss Gil.

The factual basis for the allegations is contained in a bundle that we have seen. We are not concerned with the ultimate truth or falsity of those allegations; they are summarised in the skeleton argument prepared on behalf of the Crown Prosecution Service and I take this summary from that source without commenting on its ultimate accuracy or inaccuracy.

The investigation into Miss Gil began when she attempted to use a cheque in the sum of £34,769.87 made payable to her in order to open a Lloyds TSB Bank account on 24 November 2003. The cheque had originated from a firm called JG Palmer LLP. It transpired that JG Palmer LLP had indeed issued the cheque but that upon issue it had been made payable to a company called Northern and Shell. The name had been altered so as to bear the name of Miss Gil.

This led to her arrest and to an investigation into previous matters.

The events of 24 November 2003 resulted in charge number 10. The subsequent investigation yielded the material for charges 1 to 9. So far as charge 1 is concerned, it related to the setting up of an account in the name of Calvary Ministries. A cheque was paid into that account in the sum of £36,500. The drawer of the cheque was the well-known firm of solicitors Nabarro Nathanson. At the time of issue, it is alleged that the cheque was made payable to the Corporation of London and was in respect of an amount of £25. The cheque had been altered as to payee and amount so as to produce the result to which I have referred. Documentation relating to Calvary Ministries was found at Miss Gill's home. That was count 1. Charges 2, 3, 4, 5 and 6 related to further cheques issued on that account in various sums of money between £1,860 and £10,000. Charges 8 and 9 related to cheques drawn on the accounts of a company called Gapway. The cheques came from a cheque book which had been sent to Gapway but had not arrived. Cheques for £3,800.50 (charge 8) and £1,600.35 (charge 9) were paid into Miss Gill's bank account from the Gapway account. Gapway did not issue those cheques to her.

Thus far I have not referred to charge 7. That concerned a company, Tudor Services Limited. A cheque had been paid from its account which had not been authorised in the sum of £3,400. A similarly unauthorised cheque for £1,900.79 was in the banking system awaiting clearance. It had been made payable to Miss Gil. Tudor Services subsequently discovered that a cheque book which had been sent to them in the post had never arrived and that these cheques had emanated from that book.

When the matter first came for committal before a different magistrate, on 16 November 2004, the position was that the hearsay provisions of the Criminal Justice Act 2003 were not yet in force. This is a case in which the prosecution at all times have sought to rely on hearsay evidence. At the outset, they wished to rely on hearsay evidence within the meaning of sections 23 and 24 of the Criminal Justice Act 1988 in relation to business documents.

In order to do that, in November 2004 the procedure set out in section 5D of the Magistrates' Courts Act 1980 ought to have been observed. That requires the notification of the Magistrates' Court and the accused person of the matters set out in section 5D(2), which include a statement that the prosecutor believes that a statement might, by virtue of section 23 or 24 of the Criminal Justice Act 1988, be admissible as evidence if the case came to trial; and that the statement would not be admissible as evidence otherwise than by virtue of section 23 or 24 of that Act if the case came to trial. As I understand it, the first committal proceedings failed because of the non-observance of that statutory requirement.

By the time the matter came back before a different magistrate, in June 2005, the hearsay provisions of the Criminal Justice Act 2003 had been brought into force. The hearsay provisions were the subject of a commencement order known as Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005. It provided for the relevant statutory provisions to come into force on 4 April 2005.

There is still something of an issue in this case as to whether that commencement order applied the 2003 changes to the committal proceedings in this case. I say at once that I have no doubt that the 2003 regime applied in the Magistrates' Court in June and July 2005 by virtue of that commencement order. That seems to me to follow inexorably from the decision of the Court of Appeal, Criminal Division, in Bradley [2005] EWCA Crim 20. That case of course was concerned not with hearsay, but with the bad character provision of the same Part of the 2003 Act. However, in H, decided in July 2005 by a different division of the Court of Appeal Criminal Division over which by chance I was presiding, it was held that the hearsay provisions too applied post 4 April 2005 on the same basis as the bad character provisions had applied from the December commencement date which had brought them into operation. On behalf of Miss Gil, Mr Field has not conceded that the 2003 regime applies to the present Act, but equally he is unable strenuously and convincingly to oppose that proposition. In my judgment the position is clear and it is desirable that there be consistency across the range of provisions brought into effect at a particular time and in the way in which the courts approach them.

Accordingly, in June and July 2005, the matter fell to be considered by reference to the law as amended. Therein lay the problem for the magistrate on 7 June, because on close scrutiny it turns out that the patchwork of amendment and repeal, commencement and replacement, was not as tidy as it ought to have been.

The problem arises in this way. Section 5D of the Magistrates' Court Act 1980, which had been inserted into that Act in 1996, was not repealed as of 4 April 2005. Indeed it has still not been repealed, although there are provisions in the Criminal Justice Act 2003 which anticipate its repeal. However, sections 23 and 24 of the Criminal Justice Act 1988 undoubtedly have been repealed by the Criminal Justice Act 2003 and that repeal is the subject of the commencement order to which I have referred. That produces this odd situation. Section 5D applies to cases in which the prosecutor intends to rely on a statement made admissible by section 23 or 24 of the Criminal Justice Act 1988 at a time when those latter sections are no longer in force. The magistrate in her ruling considered this complication but came to the conclusion that because the Criminal Justice Act 1988 preceded the Criminal Justice Act 2003, her task was to give priority to the 1988 Act in the process of construction. She found that there had indeed been a failure to notify under section 5D(2), and that provided the basis of her decision to discharge Miss Gil on charges 1 to 9.

Charge 10 fell into a different category because, as I have explained, its genesis was the occasion in November 2003 when, on the prosecution's case, Miss Gil was caught with the cheque in question in a branch of Lloyds TSB - in other words in relation to that the prosecution were less reliant upon hearsay evidence in any event. For that reason charge 10 did not fall with charges 1 to 9 inclusive.

After discharge in relation to charges 1 to 9 inclusive, the advocate representing Miss Gil raised an issue of abuse of process in relation to charge 10. The magistrate felt disinclined to deal with it on that occasion and that is how the matter came to be adjourned for a month until it was considered on 6 July. On that occasion she acceded to a defence submission that to proceed and to commit on charge 10 would be an abuse of the process of the court. She based her decision to a significant extent on R v HorshamJustices ex parte Reeves [1980] 75 Cr App R 236. That, then, was the factual and procedural history which gave rise to the present applications.

In my judgment the magistrate fell into error in dealing with section 5D of the 1980 Act. Whilst on 6 June 2005 and today it was and is unrepealed, the reality is that it has ceased to have potency. The reason is clear. Sections 23 and 24 of the Criminal Justice Act 1988 have been repealed and it is therefore otiose to contemplate the service of a notice to the effect that they are to be relied upon. The admissibility of hearsay evidence in criminal proceedings, including the proceedings in the Magistrates' Court which took place in the present case after 5 April 2005, is now governed by the Criminal Justice Act 2003. The magistrate was therefore in error when basing her decision on section 5D. She ought not to have discharged Miss Gil on that basis and her decision and order to that effect were wrong in law. In my judgment, the decision of 7 June 2005 in relation to charges 1 to 9 must therefore be quashed.

Mr Field has argued that, in the light of the history of the case where the prosecution had been in error at the time of the first committal in November 2004 and had taken a tactical decision to proceed by way of a second committal rather than by an application for a voluntary bill in early 2005, so much time has passed that we ought not to countenance the further continuation of the prosecution of Miss Gil. I disagree and shall explain why once I have said a little more about the consequences of a quashing order in this case.

The normal consequence of such an order would be to remit the matter to the City of London Magistrates' Court for the matter to be reconsidered. However, that is not what the prosecution are asking for. They have an application for a voluntary bill of indictment which was expressly made on a contingent basis - that is to say, contingent upon their being successful in obtaining the quashing of the decision of the Magistrates' Court. It is evident that to the extent that this court is quashing the decision of the City of London Magistrates' Court, consideration of the application for a voluntary bill could take place within a much shorter time frame than if there were a remitted hearing in that magistrates' court. Indeed, it can take place forthwith.

If the matter were to be remitted, the magistrates' court would have to consider it on the basis of the judgment of this court without resort to section 5D. On behalf of the Crown Prosecution Service, Mr Perry submits that without section 5D there are no current notice requirements in relation to an intention to adduce hearsay evidence in committal proceedings. For my part, I do not think that that is correct.

Our attention has been drawn by Mr Field to Rule 34 of the Criminal Procedure Rules 2005 which came into force on the same day as the hearsay provisions of the 2003 Act. Rule 34.1 states,

Mr Perry submits that Rule 34, to the extent that it applies to magistrates' courts, is concerned with summary trials and not with committal proceedings. I accept that that is its primary concern, and I also accept that we are considering the present case and the rules at a time when committal proceedings are expected to be abolished in their entirety as part of the unification of the criminal courts in the not too distant future. Nevertheless, Rule 2.1 of the rules specifically states:

On that basis I conclude that Rule 34 does apply to committal proceedings. It is unfortunate that no one referred the magistrate to Rule 34 on 7 June. However, to the extent that the issue on that day was presented and decided on the basis of section 5D as founding a requirement of notice, it is easy to see how Rule 34 did not occur to the advocates. If this matter were now to be remitted, the likelihood is that the prosecution, having read what I have just said, would serve a Rule 34 notice asking, if necessary, for an extension of time. Whether they did so or not I am quite sure that any reasonable magistrate dealing with this case on remittal would take the view that notice should be dispensed with or abbreviated under Rule 34.7 in the circumstances of this case. My confidence in this regard is derived from two factors. The first is that Miss Gil can in no way be taken by surprise by this evidence. It has been sought to be relied upon for 18 months or more. The second and very important consideration is the overriding objective of the Criminal Procedure Rules 2005. The overriding objective is set out in Rule 1.1(1), where it states:

I do not lose sight of the fact that the prosecution have twice fallen into error and may also have come to at least one avoidable decision; namely, the decision not to apply for a voluntary bill at the end of 2004 or the beginning of 2005. I am also mindful that Miss Gil has been facing prosecution for more than two years; the disruption to her life has been significantly increased by the twists and turns of these proceedings; and she personally has not caused the delays, even though the legal misunderstandings which lay at the heart of the hearing on 7 June were shared by her representatives and were not limited to the prosecution.

I go back to the overriding objective. Dealing with a criminal case justly includes "acquitting the innocent and convicting the guilty". Of course it is not for this court to form or express any view about guilt. But we must take into account (1) that the allegations are serious; and (2) that there is a formidable prima facie case against Miss Gil, along with the other factors to which I have referred. All this leads me to the conclusion that upon any fresh consideration of this case at committal proceedings a reasonable magistrate would be virtually certain to shorten or dispense with the notice requirements under Rule 34(7).

In view of the contingent application for a voluntary bill, I consider that the interests of justice would best be served not by remitting the case but by allowing the application for a voluntary bill to take its course.

Thus far, I have been concerned with charges 1 to 9. Finally, I turn to charge 10 which, as I have recorded, was not so reliant on hearsay evidence. The first and obvious point is that in my view charge 10 would not have been considered an abuse of process but for the prior discharge in relation to charges 1 to 9. Ultimately, the submission which attracted the magistrate was that there was an abuse because charge 10 had previously been considered and discharged in November 2004. The magistrate placed reliance on R v Horsham Justices ex parte Reeves.

In my judgment Reeves was a very different case. The present case is not one in which disputed evidence had been heard and evaluated on the previous occasion. If it had been properly evaluated it is difficult to see how it could reasonably have been found wanting as a prima facie case. The reason for the second committal's consideration of charge 10 is historically and inextricably linked to what befell charges 1 to 9. The principles which have to be applied to an application to stop a criminal case as an abuse of process are well-established. First, it is exceptional for the court to intervene in that way; secondly, it will do so in cases where either a defendant could not receive a fair trial or it would be unfair to try a defendant. These principles are common ground.

In my judgment, the present case does not fall into either of those categories. There can be no doubt that a fair trial can still take place and, in my judgment, it would not be unfair for such a trial to take place. I take the view that the discharge from count 10 on 6 July was infected by the legally erroneous decision in relation to charges 1 to 9 and cannot be said to have been within a range of reasonable decisions open to the magistrate on that occasion. Accordingly, I would quash her decision in relation to count 10 as well. Once again, its future will fall to be considered in the voluntary bill application.

In my judgment, there is no reason why that voluntary bill application should not be considered forthwith. There is this slight complication upon which I, and I think my Lord, would be assisted by submissions. The statutory provisions in relation to voluntary bills put the matter in the hands of "a judge of the High Court".

We are sitting as a Divisional Court and, whilst I am today sitting in the High Court, by current appointment I am a Lord Justice of Appeal. The question arises whether, upon consideration of the application for a voluntary bill, the application should be heard by the court as presently constituted or whether it should reconstitute itself simply with my Lord who is undisputedly a judge of the High Court.

Finally, this ought to be said. I have every sympathy with the lay magistrate in this case. I think it right that her decisions be quashed. However, yet again, the 2003 Act and its repeals and commencement orders have thrown up an elusive and confusing mismatch of provisions in a way which must have been ill-considered at the time of enactment, and the courts, in this case a single lay justice, had been left to pick up the scattered pieces. In those circumstances, sympathy for that lay justice is a matter of entitlement.

MR JUSTICE TUGENDHAT: I agree, and have nothing to add.

LORD JUSTICE MAURICE KAY: We have an application for a voluntary bill. Who ought to deal with it? First of all Mr Field indicated that he might not want it to be dealt with today. I must say if he wants to make oral submissions it seems to me a little indulgent to put the matter back any further in view of the time that has elapsed and in view of the fact that he has been on notice that there is such an application, has been since the launching of the application for judicial review, and it has always been contingent upon success in the judicial review application. And to find more court time with more expense for public funds and for other cases to be left out of the list so it could be dealt with on a later occasion seems to me to be, as I say, indulgent. The idea of putting the matter off does not attract.

MR FIELD: My Lord, might I invite my Lords to rise. My lay client has shown a very keen interest in these proceedings.

LORD JUSTICE MAURICE KAY: Understandably, and when you have spoken to her perhaps you would also speak to Mr Perry to see whether there is a joint view on how many of us should sit. If either of you has a concern about it, it seems to me the safest course is for the matter to be dealt with simply by Tugendhat J. If you both think that the language is such as to enable me to remain, that could happen as well. Tell us when you are ready.

MR FIELD: Just before my Lord rises, I have read a little on that point and it might help if I draw my Lords' attention before you rise to the issue that the law is that there can be no challenge to a decision of a High Court Judge's decision. This is a finality of decision. And the Court of Appeal will only look at whether the High Court Judge had jurisdiction. It appears to be the only contentious issue.

LORD JUSTICE MAURICE KAY: Quite. That is why I raised; it is a jurisdictional matter.

MR FIELD: My Lord, yes.

LORD JUSTICE MAURICE KAY: Tell us what you think the answer is in due course.

MR FIELD: My Lord, can I first make an application whilst the court sits in its present constitution. I would invite my Lords in the light of your judgment to consider an application that my Lords certify a point of law for general public importance. In a nutshell - and I am taking it from the very specific nature of my Lords' ruling - it is along these lines. Where the Crown Prosecution Service fail to serve a notice pursuant to section 5D of the Magistrates' Court Act in reliance on the prosecution assertion that the repeal of sections 23 and 24 of the 1988 Act obviate the need for such notice, and the CPS, moreover, failed to serve a notice in accordance with the new legislation, namely the Criminal Justice Act 2003 so that they serve no notice at all, whether the magistrate would be correct in those circumstances to refuse to commit.

LORD JUSTICE MAURICE KAY: It is very difficult to say this is of general public importance. The House of Lords would not touch Bradley. The House of Lords was asked to take Bradley and they turned it down, and that was of general application; it was the first big decision on procedural aspects of the Act.

MR FIELD: My Lord, yes. I can invite my Lords to certify the question and I could petition the House of Lords.

LORD JUSTICE MAURICE KAY: What would you be certifying? That it is of general public importance? This case is very much a creature of its own facts.

MR FIELD: It may be, my Lord, and certainly I also have in mind what my Lord said.

LORD JUSTICE MAURICE KAY: Sorry about that, Mr Field, but we refuse to certify. We do not think it is a matter of general public importance.

MR FIELD: So be it, my Lord. The next issue my learned friend can assist the court on, I believe, in terms of the constitution in relation to the next set of proceedings.

MR PERRY: My Lords, just before I deal with the jurisdiction matter, may I refer to two matters concerning the judgment whereby there may have been a slip of the tongue.

LORD JUSTICE MAURICE KAY: As between the 6th and 7th dates, I was conscious of reading from different documents that are not consistent, so I was going to check that.

MR PERRY: That was the first one. My Lord, from my recollection it was only in the first paragraph when your Lordship said that the second decision was dated 7 July, as opposed to --

LORD JUSTICE MAURICE KAY: The correct dates are the ones on Mr Keith's skeleton argument.

MR PERRY: Yes, the first decision under challenge is 7 June and the second decision under challenge is 6 July.

LORD JUSTICE MAURICE KAY: I think the wrong one comes from the magistrates's statement.

MR PERRY: That is correct. My Lord, the second and final matter was that your Lordship referred to Bradley as a decision of this court.

LORD JUSTICE MAURICE KAY: No, Court of Appeal, Criminal Division.

MR PERRY: Just for the sake of precision. My Lord, moving then to the jurisdictional matter --

LORD JUSTICE MAURICE KAY: Should we, when I do the transcript -- it is not to do with the voluntary bill; it is to do with the fact that it is committal proceedings only at the moment. Should we refer to the interested party by initial rather than by her name?

MR PERRY: Well, my Lord, our submission in relation to that is there is no reason to depart from the ordinary principle that open justice requires full reporting.

LORD JUSTICE MAURICE KAY: Reporting restrictions were lifted in this case on the first occasion.

MR PERRY: The reporting restrictions were in fact lifted at the request of the defendant's solicitors on 16 November immediately upon their decision. My Lord, although this matter has come by way of judicial review at the instigation of the Crown Prosecution Service there could be no prejudice to the interested party if there were to be any reporting of this matter. Your Lordship may recall that in a series of reasoned cases which had gone to the House of Lords where reporting restrictions appear to have been imposed on interlocutory appeals, the appellate committee has expressed its own concern as to why anonymity has been granted on interlocutory appeals as a departure from the ordinary fundamental principle of open justice.

LORD JUSTICE MAURICE KAY: Yes. It is a burning issue, or it has been in children cases; but in asylum cases at the moment where we have just moved to more or less across the board system of anonymisation and that is thought not to wholly correct.

MR PERRY: My Lord, if there were any fundamental principle to be applied, the fundamental principle would be would reporting in P, the proper administration of justice. And given that there could be nothing from these proceedings that would prejudice the defendant in any future trial, we would submit that there is no reason to depart from the ordinary rule. So that is the first matter.

My Lord, so far as the jurisdictional point is concerned, we would submit - and my Lord I speak I hope also for my learned friend having had an opportunity to discuss the matter with him very briefly - that the safer course is for the actual decision to prefer a voluntary bill of indictment to be considered by my Lord, Tugendhat J. May I just explain what the position is just so that your Lordship knows. The starting point is section 2(2) of the Administration of Justice (Miscellaneous) Provisions Act which - my Lord, for your Lordship's reference it is Archbold, chapter 1, paragraph 204, page 116. The only point to be made in relation to section 2(2)(b), your Lordships will see that a bill may be preferred by the direction of the court of criminal appeal or by the direction or with the consent of a judge of the High Court. That then requires consideration of what is meant by "a judge of the High Court", and I have asked to be provided to your Lordships in the second volumed of the White Book -- just immediately in front of my Lord there are two volumes. In those bundles there should be two yellow post-it notes. The first one should fall open at sections 2 going on to section 4 of the Supreme Court Act. Your Lordship will see that section 2 of the Supreme Court Act deals with judges of the Court of Appeal and section 4 deals with judges of the High Court. But section 4 does not include judges of the Court of Appeal as judges of the High Court. Although your Lordships will see going on, for example, to, from memory, section 9, there are powers for directions to be given by certain specified authorities, notably the Lord Chief Justice and the Master of the Rolls, for judges to be assigned to business in courts where they might not ordinarily sit. And then the second post-it note is at section 66 of the Supreme Court Act which deals with the constitution of a Divisional Court which merely provides that a Divisional Court may be constituted by two judges. It does not say what the identity of the particular judges has to be. That is why a Divisional Court may be constituted by two puisne justices of the High Court, as well as a Lord Justice of Appeal sitting with a puisne judge or, alternatively, two Lords justices of Appeal.

LORD JUSTICE MAURICE KAY: In section 66 there is nothing about Lord JusticeS of Appeal at all, is there?

MR PERRY: No, that is the point I make, my Lord. It just says "two judges".

LORD JUSTICE MAURICE KAY: But it says every judge of the High Court should be qualified to sit in any divisional court.

MR PERRY: Yes, but clearly when it refers to judges it is not limiting it to a judge of the High Court. But my Lord, it appears in those circumstances that it would be desirable for the matter to be considered by a Judge of the High Court.

LORD JUSTICE MAURICE KAY: That was my initial impression.

MR PERRY: That appears to be correct, my Lord. There would not of course be any principle objection to the matter being considered by your Lordships both present in court so long as the decision is taken to prefer the bill it is preferred --

LORD JUSTICE MAURICE KAY: I think there is a principle objection to that myself if I am not to be party to the decision especially if I am not here.

MR PERRY: Well, it depends on what basis your Lordship were to be present. But my Lord I simply make those points.

LORD JUSTICE MAURICE KAY: Yes. Mr Field, you agree with that, do you?

MR FIELD: Yes.

LORD JUSTICE MAURICE KAY: It was the provisional view we formed as well. So I think we retire and Tugendhat J will come back.