Director of Public Prosecutions, R (on the application of) v North & East Hertfordshire Justices & Anor

MR JUSTICE COOKE: This is an application for judicial review of a decision by the North and East Hertfordshire Justices on 9th February 2007, for which permission has been given by the single judge. The decision taken on that date was to refuse an adjournment to the prosecution, which sought it on the basis that a critical witness, Mrs Taylor, was unable to be present that day for the one-day trial. It is contended that the justices' decision to refuse the adjournment was irrational and one which reasonable justices, applying their minds to the facts of the situation and applying the appropriate test, could not properly reach.

The evidence before this court takes the form of a statement dated 20th March 2007 by Mr Weber, a senior Crown prosecutor employed by the Hertfordshire CPS. In addition to the submissions made by the claimant, we also have submissions made on behalf of the justices and the interested party, a Mr Simpole, who was the defendant to the charge to which these proceedings relate. We have additionally seen exchanges of correspondence between the CPS and the solicitors who acted for Mr Simpole at the time and further exchanges between the CPS and Mr Simpole himself which have ensued since 9th February, as Mr Simpole has been unrepresented since that time.

The prosecution's case was that on Saturday, 29th April 2006, in the afternoon, Mrs Taylor observed a Peugeot car, with a registration number which she was able to give, driving erratically. She was able to describe the driver in terms which corresponded to a description of Mr Simpole. She followed the Peugeot and gave a commentary to the police as to the dangerous course of driving being pursued by the Peugeot car. She saw it turn off into Lygean Avenue in Ware, and shortly thereafter the police, who had ascertained that the relevant car was registered to Mr Simpole, attended at his address at 37 Lygean Avenue. On finding Mr Simpole unloading his car, it was the officers' view that Mr Simpole was drunk which, on the prosecution case, was confirmed by taking blood samples, which were analysed at the police station within about an hour and which showed him to be over twice the legal limit.

Mr Simpole's case, on arrest and at interview was that he had not been driving the vehicle. He said his mother had taken him shopping in her vehicle and on return to the house in Lygean Avenue he had drunk several beers before the police arrived and arrested him.

He was charged on 29th April 2006 and entered a not guilty plea on 28th June. The issue was said to be "post-incident consumption" and it was said that the defendant would be instructing an expert. The trial date was set for 19th October and the Crown served the evidence upon which it proposed to rely at trial in reasonably good time prior to that date. By 11th October Mr Simpole had instructed RM Falvey & Co to act on his behalf. By a letter to the CPS that firm indicated that all the witnesses for whom statements had been served would be required at the trial.

On 19th October (when Mr Weber did not appear for the CPS) the justices' submissions show that Mr Falvey made a successful application to adjourn the trial because of an issue of continuity surrounding the blood sample given by Mr Simpole. It was suggested that when the sample was sent for analysis there was no barcode on it, but when it came back from the doctor there was. By way of parenthesis, it appears that the prosecution's case is that the sample was originally in a packet with the barcode stated on it and that the sample had, in any event, been split, with one half given to Mr Simpole so that he could conduct his own test if he so wished, thus creating a cross-check in respect of the test of the police sample.

The justices' submissions state that the time estimate was increased by the raising of this continuity issue from half a day to a full day, which meant that the court had insufficient time to hear it, given that the trial had been listed for 2.00 pm. The other issue as to the identity of the driver remained. Mr Falvey indicated to the justices that Mrs Taylor's evidence could not be agreed by Mr Simpole because she described the driver in a way that indicated that it was Mr Simpole. The hearing was re-set for the 9th February with a pre-trial review fixed for 5th January 2007, which was adjourned to 26th January for reasons which are not entirely clear, but which appear to be connected to the issue as to which witnesses needed to be warned. It seems that again the defence required all the witnesses to attend after the Crown had indicated that section 9 statements would be served.

At the pre-trial review on 26th January itself the Crown accepted that all witnesses would be required to attend, including Mrs Taylor. The court has seen correspondence from Mr Falvey, Mr Simpole's solicitor at the time, in which he suggests that on 19th October he indicated that the only issue was the continuity of the blood sample and that Mrs Taylor's statement could be read. In correspondence he states that it was the CPS who insisted on calling Mrs Taylor to give evidence of the dangerous driving, although Mr Falvey was content for this to be accepted on the statement.

The justices' submissions, however, show that the justices were proceeding on the basis that the identity of the driver was very much in issue, as well as the question of continuity of the blood sample. Mr Falvey's letter also suggests that although all other witnesses were present on 19th October, the doctor who had taken the blood sample was not. That does not appear from the evidence of Mr Weber, nor from the submissions of the Crown, nor of those of the justices. There is agreement between them that the reason of the adjournment of the trial fixed for 19th October was the lack of court time for the extended hearing, necessitated by the raising of the issue on continuity.

Mr Falvey suggests that the 26th January pre-trial was unnecessary and blames the CPS for it. The Crown maintains that the court insisted on a further pre-trial review on 26th January when, on 5th January, the defence required the presence of all witnesses for the prosecution at the trial. Mr Falvey and Mr Simpole complained that this was an unnecessary hearing which had to be funded by Mr Simpole since he was paying his solicitors on a private basis. In my judgment Mr Falvey's and Mr Simpole's complaints are unfounded.

On 7th and 8th February 2007 there was overnight snow which caused disruption to traffic and closure of schools. On the evidence, late on the afternoon of 8th February, the CPS prosecutor, who had been expecting to prosecute Mr Simpole, was informed that Mrs Taylor had contacted the witness care team with concerns about attending court the following day because of the wintry conditions, the closure of schools and the need for her to mind her children, who were therefore not at school. The situation was left to be assessed the following morning and the Mrs Taylor was advised to keep in contact with the witness care team and the court. The following day, on the evidence, the CPS prosecutor was unable, herself, to get to the office or to court because of the continued closure of schools and her need to mind her four children. It then fell to Mr Weber to take over the prosecution of the case, and another case, both of which were listed before the justices, each scheduled to last one day. Arrangements were made for the files to be couriered to him from the home of the prosecutor originally assigned to the matter.

On his arrival at court, Mr Weber was told by one of the court ushers that Mrs Taylor had contacted the court at about 8.00 am that morning to say that she was unable to get to the court due to the journey between Peterborough and Hertford of 65 miles. Somewhat unexpectedly, it then appeared that her son's school had remained closed for a third day and she was unable to arrange alternative childcare for the day. On consulting the prosecutor previously assigned and seeing the file, Mr Weber formed the view that the prosecution could not proceed without the evidence of Mrs Taylor.

Whilst the matter has been debated considerably in correspondence, it is clear on a proper reading of that correspondence, as well as the evidence of Mr Weber, that Mr Falvey was made aware of the position and, although suggesting that the matter could go ahead in the absence of Mrs Taylor, at that point, whatever his earlier position might have been, he was clearly not prepared to admit her evidence in the form of her statement. The justices had allowed 15 minutes to the CPS to consider the position on the files and at 10.15 am Mr Weber applied for this matter to be adjourned on the basis that Mrs Taylor could not attend to give evidence through no fault of her own.

It was clear that Mrs Taylor had voluntarily attended the previous trial date on 19th October, and had kept the court and the CPS aware of her difficulties. It was also clear that Mr Simpole's case required a whole day and, given the justices' policy at the time that cases should not start where there was no likelihood of finishing, an application to begin the case, hear other evidence first, with an adjournment to follow, part heard, to hear Mrs Taylor's evidence on an another day, was not capable of being pursued.

Mr Falvey opposed the prosecution's application for an adjournment on the basis that it was not in the interests of justice for it to be granted. He referred to the previously vacated trial on 19th October and the second pre-trial review of 26th January 2007. He confirmed that the trial had been vacated on 19th October due to insufficient court time through no fault of Mr Simpole. It was submitted that a further adjournment would be unfair to Mr Simpole, who had been on bail for the offence for some 7 months and he was paying for his defence privately. It was submitted that the second pre-trial review was a waste of his paying client's time and money.

As I have already mentioned, whatever may have been said on earlier occasions as to the need to call Mrs Taylor, rather than accept her evidence in a section 9 statement, at this point it is clear that Mr Falvey was not prepared to adopt the latter course. His submission was that insufficient justification had been put forward for her failure to attend on 9th February. Criticisms were made by him as to the efforts made by the witness and the CPS to secure her attendance, given that snow had fallen the previous day and there was plainly a potential difficulty for 9th February itself. It was questioned why other arrangements had not made for childcare.

Mr Weber submitted that the responsibility for the previously vacated trial lay with the court and not the prosecution, which had been in a position to proceed on 19th October. He submitted that the pre-trial review of 26th January had been listed at the initiative of the court and that it had been reasonable to do so in order to clarify which witnesses were required to attend for trial. It was further submitted that Mrs Taylor was a willing witness who had attended the previous trial hearing and had been thoroughly co-operative. Whilst there had been passing mention of witness summonses, no one was proceeding on the basis that this would have been of any assistance with a co-operative witness who was faced with a problem at the last moment, or at least that day or the previous day.

The magistrates retired, and after coming back into court refused the adjournment. When asked for reasons, the explanation afforded was that it was not in the interests of justice to adjourn, given the history of the case. No other reasoning was given. Following a short adjournment for the Crown to consider its position, it sought an adjournment pending an application for judicial review, which was also refused. Mr Weber felt unable to continue to press the case without Mr Taylor's evidence and the magistrates therefore dismissed the information.

Another trial had been double listed with Mr Simpole's case, which was again due to take the whole day. That trial was effective and commenced at 11.30 am and concluded at approximately 5.00 pm. It is clear that the court could not have accommodated both trials that day.

The justices' submissions set out their explanation for their decision in this way:

Later in their submissions, the justices say this:

The basis for refusing the application was then set out in the conclusion in their submissions in this way:

Thus although the only reason given for refusing the adjournment at the time was "the interests of justice, given the history of the case", these submissions indicate that it was the fact that Mrs Taylor had been on notice the previous day of possible difficulties on 9th February and had therefore had sufficient time to arrange childcare for the trial date. That was not the express reason given at the time.

Section 10(1) of theMagistrates' Court Act 1980 states that a Magistrates' Court may at any time adjourn the trial, while section 15 of the Act provides that the court may dismiss the information where, at the time and place appointed for the trial, the accused appears and the prosecutor does not appear. It is accepted by the Crown that the justices are entitled to exercise the power to dismiss, pursuant to section 15, in circumstances where the prosecution is unable to proceed. Both the power to adjourn and the power to dismiss the information involve an exercise of discretion by the justices and in order to succeed the claimant accepts that it must demonstrate that the justices made an irrational decision within the meaning of the Wednesbury test. Despite the contrary contentions advanced in correspondence on behalf of Mr Simpole, or by his erstwhile solicitors, it is clear that at all stages the magistrates considered from 9th October onwards that all issues were live and all witnesses were required to be present at the trial. The identity of the driver issue remained at the forefront of Mr Simpole's case and the continuity of the blood sample was a point which Mr Falvey was intending to pursue to the full. No different indication had ever been given to the justices.

The civilian witness whose evidence was therefore crucial to the prosecution was Mrs Taylor in relation to the identity to the driver. She was a willing and co-operative witness who faced difficulties in attendance, of which she kept the court and the CPS fully informed. The evidence shows that Mr Weber expressly informed the justices that although he had not spoken to Mrs Taylor himself, he would be happy to do so should they want any further information about her difficulties, particularly in the light of Mr Falvey's objections. The justices told him it was not necessary for him to make further inquires but then proceeded to refuse the adjournment, which led inevitably to the dismissal of the information as Mr Weber could not prove his case on the identity of the driver at the relevant time without Mrs Taylor's evidence.

The Crown submits that the need for the adjournment was not caused by any fault or inefficiency on the Crown's part and that the previous trial date had similarly not been vacated because of any such fault or inefficiency. Whilst Mr Simpole would have been inconvenienced by an adjournment, there would not have been any injustice caused by such an adjournment, and, although he was a fee-paying defendant, costs issues could have been dealt with by the magistrates to compensate him, should that have seemed appropriate. Although the charges were 10 months old in February 2007, the factual questions remained simple and the two major issues were capable of being tried.

In my judgment, the justices' decision can fairly be characterised as irrational and perverse. Whilst I have every sympathy with the desire of magistrates to ensure that cases come on quickly, and recent initiatives, particularly in the form of CJSSS, to achieve this are fully supported, the fundamental issue with which any court must grapple when an adjournment is sought is the question of justice to all those involved. It is clear from the Crown v Hendon Justices ex parte DPP (1993) 96 Cr App R 227, DPP v Shuttleworth (2002) EWHC 621 and other authorities that the prosecution should not be shut out as a form of punishment for the inefficiency of the CPS, let alone the supposed default of a witness.

In this case the CPS was not at fault and nor was the witness, save in the most general sense in failing to obtain childcare on a contingency basis for 9th February. Whilst the interests of the defendant must always be borne in mind, including his legitimate expectation to be dealt with promptly, a proper balance must be struck between the interests of the parties and the general public interest in prosecuting and convicting offenders.

In The Queen on the application of Costello v N E Magistrates (2006) EWHC 3145, the court said that where it is clear that, through no fault of the defendant, witnesses do not attend who should have attended, the magistrates ought generally to grant adjournments. Whilst the prosecution's position is not necessarily identical inasmuch as perhaps higher standards can be expected in securing the attendance of witnesses, there was in this case no basis for criticising the prosecution, unless it be for the failure to suggest to the witness the previous day that she should take steps to arrange childcare for the following day on a contingency basis in case the schools should, contrary to expectation, remain closed for a third day.

There was nothing in the preceding history of the matter that would justify the approach adopted by the justices and, on the basis of the material before them in relation to the events of 9th October itself, there was nothing which could properly be weighed in the scales against the granting of an adjournment. Delays are of course important, but the ultimate issue is, as the magistrates themselves recognised, the interests of justice. They did not, however, properly apply their minds to that question and, in my judgment, reached a conclusion that no justices properly directing themselves could reach. Their decision was therefore irrational and perverse and should therefore be quashed, along with the decision to dismiss the case. It follows that there should also be a mandatory order requiring the justices to relist the case and hear and determine the matter.

LORD JUSTICE LATHAM: I agree with Cooke J.

MR FIELDS: My Lords, thank you.