Khan v Waltham Forest Magistrates Court

LORD JUSTICE HUGHES: This is a very late application by the Crown Prosecution Service to take part in this hearing. If it falls to be judged according to the performance of the Crown Prosecution Service in this case, we should refuse it. There is no excuse for the lateness. It is a chapter of, at the very best, crass errors.

We are concerned with the wider interests of justice, including, apart from anyone else, those of the person who alleges that he was the victim of an assault by the claimant. In those circumstances we need the submissions of the Crown. The claimant is not significantly embarrassed in dealing with them. He has had ample notice of them. We shall hear them.

MR JUSTICE TREACY: This is an application for judicial review made by Shan Aga Khan. The application arises in relation to a decision by the Waltham Forest Magistrates' Court on 24 April 2007 to adjourn the committal proceedings for seven days.

It is helpful to start with a history. The alleged assault giving rise to these proceedings took place on 12 October 2006. The nature of the assault was one whereby the alleged victim sustained head injury, having been attacked by a group of men. By 18 October the alleged victim had provided a witness statement which gave this applicant's name and address and identified him as being a perpetrator of the attack. The applicant was arrested at the address given on 12 January 2007. An identification procedure took place on 20 February 2007. The applicant was picked out by the alleged victim. The applicant was charged on 7 March 2007 with an offence contrary to Section 47 of the Offences Against the Person Act 1861.

The first Magistrates' Court appearance was on 13 March 2007. On that day, the date of 24 April was fixed for committal proceedings to take place. At some point thereafter advanced disclosure was made to the defence by the Crown Prosecution Service (CPS). That included disclosing the witness statement of the complainant, evidence of the identification procedure and the material containing the applicant's response when interviewed.

On 24 April 2007, the day for committal came. The Crown said that it was not ready and the justices granted a seven-day adjournment. We shall return to that day in more detail.

On 1 May 2007 a judicial review claim was lodged in the Administrative Court Office and service upon the Magistrates' Court and the CPS, as an interested party, was effected. On 2 May the case against this applicant was committed to the Crown Court for trial. It was a Section 2 paper committal, it being acknowledged that there was a prima facie case against the applicant. On 8 May 2007 Mr Justice Keith abridged the time for acknowledgement of service to 17 May. He stayed the Crown Court proceedings and gave the parties liberty to apply to discharge his order or vary it on 48 hours' notice.

On 22 May 2007 the matter came before Mr Justice Collins. No acknowledgement of service had been received. He granted permission to the applicant to seek judicial review. He ordered that a copy of the papers be served on the Director of Public Prosecutions so that he could take action on what appeared to be internal failures within the CPS. We record that we have had the courtesy of a reply from the Director, dated 28 June 2007, indicating that the CPS's internal procedures are dealing with the failures of the relevant office of the CPS. Mr Justice Collins also ordered that defences from the magistrates and/or the CPS be lodged by 8 June 2007. No such defences were filed by that date and no communication of any sort was received by that date from the parties.

We move forward to Friday 29 June 2007. On that day the CPS filed an acknowledgement of service together with evidence and its defence to the application. It sought permission to take part in the proceedings pursuant to Civil Procedure Rule 54.9. Earlier in the proceedings today we granted the Crown permission to take part, observing that the interests of justice required that it should be allowed to do so, the interests of justice being those of the alleged victim in the case who would otherwise not have a voice in relation to this particular matter. On that same day, Friday 29 June, the claimant filed his bundle approaching 200 pages with the court together with his skeleton argument. The applicant was some three weeks late in so doing. He appears to us to have been guilty of the very thing about which he complained to the magistrates about the Crown Prosecution Service's handling of the matter, namely a failure to prepare his paperwork in due time for consideration by the court.

On Monday 2 July 2007 the justices submitted an acknowledgement of service which made their observations about the case. They, like every other party in this case, failed to deal with the matter with appropriate despatch. This court has been faced with the prospect of dealing with important materials in this case at the eleventh hour. The excuses put forward by each of the three parties who were in the case are virtually interchangeable; failures demonstrating disorganisation misunderstanding or inefficiency. This court has to struggle with the consequences of the parties' failures to get their papers in order and present them to this court in time. We have indeed considered all papers which have been submitted to us.

I turn to the hearing of 24 April which forms the centrepiece of this application. That date, as observed, had been fixed some weeks previously. When the case was called on the prosecutor told the court that the Crown was not in a position to proceed to committal that day. No committal papers had been served on the applicant or the court prior to the hearing or at court on that morning. The Crown had not, as it should have in my judgment, given any prior indication - either to the court or to the defendant - that it was not going to be ready to proceed. The only explanation put forward by the Crown for failure to serve the evidence was that the papers had not been received by the CPS from the police until the preceding Friday, 20 April 2007. It does not appear that any explanation was proffered as to why the police had not been chased to produce the papers on time; nor does it seem that any explanation was given as to why, what appears to us to be, a relatively small bundle of papers necessary to establish a prima facie case could not have been copied and served in the time available between Friday 20 April and the hearing before the magistrates on Tuesday 24 April 2007.

Prosecution counsel sought an adjournment of 14 days. Mr Hook, who was counsel below as he was counsel before us today, opposed that application. He said that his client had a legitimate expectation that his case would be dealt on that day. He said that his client was entitled to know on what evidence the Crown intended to rely in order to establish a prima facie case. He submitted that any further delay would cause his client distress and inconvenience. It would take him away from his work and might jeopardise his continued employment. It was submitted that the Crown had put forward no good reason for its failure to go ahead with the committal and that the justices should not grant an adjournment. The justices considered the matter and granted the prosecution's application for an adjournment but, instead of granting it for the period of a fortnight which was sought, they adjourned the proceedings for a period of one week until 2 May 2007.

It is asserted on behalf of the applicant that no sufficient reasons were given for doing so. The applicant contends that the justices' decision was unreasonable and unfair. He submits that the decision to adjourn should be quashed on those grounds, and that this court should make an order that he be discharged from the proceedings which are currently before the Crown Court as he would have been if the adjournment application had been refused.

The submission made to us is that the justices failed to give reasons, that they failed to give the application rigorous scrutiny, that there was prejudice and unfairness caused to the applicant and that a highly relevant factor was that the CPS was responsible for the problems which led to it having to seek an adjournment. Mr Hook submitted to us that although the other authorities in this area relate to cases coming before this court concerning adjournments in the Magistrates' Court at the point of trial, similar principles should be applied to adjournments arising from committal proceedings. He submits that the two types of proceedings are closely analogous in the sense that each of them is at a point in the proceedings where the Crown must produce certain evidence in order for it to discharge the burden upon it of obtaining the outcome for which it contends. He submits that the committal process is an important filter and a safeguard in the steps on the way to the trial, and therefore should be treated in a similar way to those cases that have come before the court relating to adjournments at the point of trial.

The law in relation to this matter has been helpfully digested and summarised in the judgment of Mr Justice Jack in this court in Crown Prosecution Service v Picton [2006] EWHC 1108 Admin, paragraph 9. There, in a series of propositions lettered A to H, his Lordship has distilled the essence of previous authorities which it is not necessary for us to quote in full. We draw attention to certain items in the list which have been underlined to us in the course of submissions. First, an appellate court will interfere only if very clear grounds for doing so are shown. Second, magistrates should pay very great attention to the need for expedition in the prosecution of criminal proceedings. Third, if the need for an adjournment arises through the fault of the party asking for an adjournment, that is a factor against granting an adjournment. Fourth, the court's duty is to do justice between the parties in the circumstances as they have arisen. That represents a very incomplete catalogue of a wider number of matters that are considered at paragraph 9 in Picton .

It is also helpful at this stage to have regard to the observations of Lord Justice Bingham (as he then was) in two previous authorities. In R v Aberdare Justices ex p Director of Public Prosecutions [1990] 155 JP 324, his Lordship said:

The documentation recently provided to the court by the Crown Prosecution Service submits to us that there were reasons provided by the magistrates on 24 April. Having been asked to discharge the case, the magistrates announced that they would adjourn the committal proceedings for one week rather than the two sought by the Crown. Second, they issued a warning. They indicated that if the committal was not effective on the adjourned hearing the Bench would be likely to accede to a defence application to dismiss.

The Crown submits that in the circumstances of dealing with an application to adjourn at this early stage of the criminal process, what the justices said was sufficient by way of reasoning to indicate that they had given proper consideration to the adjournment application and, in particular, the arguments put forward on both sides. The material which we have lately received from the justices includes this passage:

We would comment on those observations of the justices in this way. Each case must be considered on its merits. There can be no policy of nodding through prosecution applications for adjournments in circumstances such as these where there has been some form of administrative failure which means that the Crown is not ready to proceed on any given day.

I do not read the passage quoted from the justices' submission as showing that they failed to give proper consideration to the application before them on 24 April 2007. I wish to make clear that in my opinion any policy of a "free" adjournment to the Crown Prosecution Service would be utterly unacceptable and entirely contrary to the overriding objective set out in the Criminal Procedure Rules of 2005. No circumstances or situation must be allowed to develop at this court or any other Magistrates' Court which would encourage or condition the CPS to think that it will have no difficulty in gaining an adjournment of the case on at least one occasion through administrative failure or inefficiency on its part. That cannot and must not happen, and any policy to that effect would be wrong and unlawful.

In this instance it seems to me, having heard from Mr Hook who was present at the hearing, that the parties did not sufficiently consider the requirements of paragraph 3.3 of the Criminal Procedure Rules which is that each party must actively assist the court in fulfilling its duty. In this case no consideration seems to have been given by any party, and I include in that the justices, to adjourning the hearing to later on that day to see whether the committal could take place at that time. This was a straightforward case involving a small volume of committal papers. I cannot understand how the parties did not, in the face of the protests on behalf of this applicant that he was being gravely inconvenienced, put their heads together and seek to adopt some pragmatic solution. If the CPS do not volunteer it, it is incumbent upon the defence to seek to make matters work properly by raising that suggestion. It is incumbent upon the court, as the manager of the process, of its own initiative, to consider whether such an avenue is worth exploring and to make an order, if necessary. The mere claim by one party that something cannot conveniently be done cannot be a trump card.

The primary ground of complaint made by Mr Hook in this case is that no, or no sufficient, reasons were given by the justices for their decision in granting the adjournment. The underlying submission would, I imagine, be that in the absence of sufficient reasons, this court cannot know the basis upon which the justices came to their conclusion. It seems to me on an examination of the materials that the justices below did not grant the adjournment unthinkingly or without appropriate scrutiny. They plainly did apply their minds to the situation which is why they cut down the length of the period of adjournment sought and administered the warning to the Crown.

We have seen and heard from Mr Hook this morning, it is perfectly clear to us that the submissions which he had to make on behalf of his client will have been fully and meticulously put before the justices in a way which would have impinged upon their minds. The justices would have been well aware of the relatively early stage at which these proceedings were in the process, and they should, in my judgment, be taken to have balanced the alleged inconvenience on the part of the applicant against the interests of justice in trying an allegation on the evidence which was capable of being put before the court.

I am, with some hesitation, prepared to hold that there is sufficient indication from all the circumstances laid before us of a reasoned decision. I would, for that reason, reject this application.

I would hold that the justices exercised their discretion appropriately and gave sufficient reasons for doing so. In so holding, I bear in mind that this decision was on an application for an adjournment for a relatively short period at an early stage of the criminal process. It is, in my judgment, different in nature from the situation and from the cases which have previously been considered where justices adjourned the trial because of the prosecution's failure to get witnesses to court in time. The need for fuller reasons at that stage is perhaps clearer. Here, we are dealing with an earlier stage of the process in which it would be wrong and, indeed, disproportionate to expect a substantial degree of formality in the handling of this type of application.

I consider that the justices did enough to indicate that they had given proper consideration to the conflicting arguments, and enough by what they said to indicate that they had sufficient and good reason for coming to the conclusion which they did. If they were at fault in the eyes of defence counsel, all he had to do was to ask for some fuller reason there and then at the hearing and a sentence or two would, no doubt, have cured the problem which has led to the matter being brought to the court at all. Counsel has frankly acknowledged to us that he asked no question. He did not ask for reasons. His reason for doing so was that he could not see that there was any point in asking for any reasons because he could not see that there was any justifiable reason which the justices could put forward. In that, I think he was wrong, both in failing to ask the question and in making the assumption that there was no good reason which the justices could have put forward to expand upon the ruling which they had made.

If I am wrong in my view about the sufficiency of reasons, I would nevertheless hold this to be a case in which it would not be appropriate to grant relief.

The following matters seem to me to be relevant. It cannot be the case that a simple administrative error cannot be sufficient reason to grant an adjournment. The court must have power to excuse error, notwithstanding the fault of the party who is now seeking relief from the court. Second, the position is that the stage of proceedings was an early one. Advance information had been provided to the defence, so that the applicant knew in advance of the committal hearing that the Crown had a good prima facie case against him and that the overwhelming likely consequence of that was that there would be a committal on the papers. I have now seen the papers and it shows a good prima facie case. Indeed, that that is so is further demonstrated by the fact that the committal took place as a Section 6 (2) committal on 2 May, the date to which the hearing had been adjourned.

In my judgment, no injustice or unfairness has been caused to this applicant in the criminal process beyond a degree of annoyance and inconvenience at the one-week delay in the proceedings. He has not in any way, in my judgment, suffered or been caused any unfairness. The other side of the coin is that he has had (and there is no complaint to the contrary) a fair committal hearing and the matter has proceeded to the Crown Court where he will, in due course, one hopes, receive a fair trial.

The interests of the alleged victim in the case have to be considered. The justices' decision was one which meant that for him justice was neither delayed nor denied, as it would be if the applicant's contention is correct.

To grant an order at this stage would have the effect of halting the Crown Court proceedings. There is, in my judgment, no flaw or unfairness of the sort which should require the termination of those proceedings which are designed to resolve the issue between the complainant, one way or another, according to due process. If we were to grant an order of the sort contended for by the applicant, the Crown would be free to recommence proceedings and in those circumstances nothing would be achieved by this exercise other than delay, costs and wasted effort.

Finally I come to the view that the fact that reasons were not sought by defence counsel at the time is a factor of some significance. As I have already indicated, had he asked the relevant question, no doubt, a sentence or two would have avoided this matter coming before the court at all. As has been observed during the course of this hearing, criminal proceedings are not a game. Counsel for the defence, just as much as counsel for the prosecution, is bound by his or her duty under the Criminal Procedure Rules to assist the court. It seems to me that sight has been lost of these important objectives in these proceedings below. Mr Hook has been frank in saying that he viewed his position as one which did not require him as being under a duty to assist the Crown out of its difficulties. No doubt there are many others in his position who would have taken the same view. The climate has changed, and the requirements upon those who appear before the courts have been restated in a clear way which is binding on all parties.

I conclude by saying that, in my judgment, no order of this court could achieve any useful purpose, looking at the overall justice of this particular case. For those reasons I would also not think it appropriate to grant any relief.

LORD JUSTICE HUGHES: I agree with everything which my Lord has said.

In the course of his submissions Mr Hook invited us to consider whether any general observations might be appropriate; I think two are. They both emerge very clearly from the detailed reasons which my Lord has given. The first observation is that no party to criminal proceedings in any court - and that includes the Magistrates' Court - must be allowed, still less encouraged, to think there may be allowed to develop what has been elsewhere called "a culture of adjournment"; nor that inefficiency and consequent adjournment are par for the course. That is not acceptable. The cost to the public - never mind the impact on the parties and on witnesses - is enormous. It is the duty of justices to be astute to avoid the impression being achieved by either party to a case that inefficiency will be nodded through by way of adjournment.

The second observation is that no party to a criminal case in any court, including the Magistrates' Court, must be encouraged to stand on possible tactical advantage at the expense of the plain duty, under Rule 3 (3) and Rule 3 (2) of the Criminal Procedure Rules, actively to assist the court in discouraging delay, dealing with as many aspects of the case as possible on the same occasion and avoiding unnecessary hearings. This was a case in which committal was inevitable as documents already in the hands of the defence on the material available demonstrated. I do not - like my Lord - believe that it was impossible that day, with co-operation of both parties, to achieve committal, perhaps, but justifiably, at the expense of some little inconvenience to the prosecution. I would hope that in such a situation justices would actively consider such a possibility rather than to take refuge in accepting the necessity for an adjournment.

The short answer to the present application is that adjournment is in the discretion of the justices. They undoubtedly have power to grant an adjournment even though the reason for it was the fault of the prosecution, just as they would if an application had been made by a defendant at fault. The justices' power to adjourn undoubtedly includes the power to grant relief against a party's own fault. It happens frequently. The justices were not however obliged to do so. Had they refused, this court would not have interfered, for the same reason, I am satisfied, as we should not interfere with what they did do.

MR HOOK: My Lords, I found out before I came with my solicitors that, to my surprise, legal aid was not in place before this. That was a surprise to me. Can I ask you for a representation order at this stage?

LORD JUSTICE HUGHES: We have power to do it, have we?

MR HOOK: Section 16 of the Prosecution of Offences Act deals with costs out of central funds. That is not my position.

LORD JUSTICE HUGHES: No.

MR HOOK: I have not at this moment found the powers to make a representation order.

LORD JUSTICE HUGHES: It will be under the Legal Aid Regulations, I suspect. You had better find out what our position is. In principle, we will grant it on paper if you can demonstrate to us, in very short form in writing, what our power to do so is. Provided we have power to do so, we shall make a representation order for junior counsel. That is what you want, is it?

MR HOOK: Yes.

LORD JUSTICE HUGHES: Junior counsel only.

MR HOOK: And solicitors also. They did have some - - - - -

LORD JUSTICE HUGHES: Yes, I suppose they did. Yes, all right.

MR HOOK: Shall I put that in a note to the court?

LORD JUSTICE HUGHES: Yes. If you can do that to my clerk, you can do it by e.mail if you want. Can you do it this afternoon or not?

MR HOOK: Yes. I can remain in the building and perhaps provide it to you - - - - -

LORD JUSTICE HUGHES: You will not get us back. You can do it through my clerk or the Administrative Court Office. You will probably find the former easier to locate. I would be grateful if you could do it by 4 o'clock this afternoon.