Crown Prosecution Service, R (on the application of) v Norwich Magistrates' Court

1 LORD JUSTICE RICHARDS: This is a challenge by way of judicial review to a decision of Norwich Magistrates' Court upholding a submission of no case to answer.

2 The proceedings before the magistrates arose out of an incident in a kebab shop in Norwich at around 3am on 27 September 2009. A punch was thrown and a scuffle ensued. Luke Stebbings was arrested and interviewed. He was subsequently charged with an offence under section 4 of the Public Order Act 1986 and with an offence of possession of a small amount of cocaine. I am concerned only with the section 4 offence. Although Mr Stebbings was the defendant in the proceedings before the magistrates, he appears as an interested party to the judicial review proceedings, to which the formal defendant is the Magistrates' Court itself. I shall nevertheless refer to Mr Stebbings as the defendant.

3 The case in the magistrates’ court was prepared in accordance with the DPP's guidance on the streamlined process. A standard case management form, “Trial Information & Notice to Warn Witnesses”, was completed. The box for the prosecution's case on that form stated: "Kebab house incident. CCTV records [defendant] punching somebody and about to throw a chair". The box for the defence case stated: "Defendant says acting in self defence and Crown cannot prove case".

4 The form recorded that two prosecution witnesses, namely PS Watson and PC Wallace, were to attend the trial, which was fixed for the afternoon of 28 January 2010. Subsequently a letter was sent to the defence solicitors stating that PC Wallis would be de-warned; his evidence did not relate to the public order matter. It seems that, by an administrative error, PS Watson was also de-warned and was therefore not in attendance at court when the trial began.

5 At the trial the prosecution advocate opened the case to the magistrates, stating (without correction or dissent from the defence advocate) that identification was not in dispute.

6 CCTV footage of the incident, taken from within the kebab shop, was played to the magistrates. It showed a man wearing a white tie throwing a punch at another man and a scuffle ensuing. I should explain at this stage that, in his witness statement, PS Watson identified the defendant as the man wearing a white tie, but of course he had been de-warned and was not in attendance at that time to give evidence.

7 In addition to the CCTV footage the agreed summary of the defendant's interview was read as part of the prosecution case. It recorded that the defendant had identified himself on the CCTV and it summarised what he said about his role in the incident, including an acceptance by him that he struck the first blow.

8 At the close of the prosecution case the defence advocate made a submission of no case to answer based, in relevant part, on a failure on the part of the Crown to prove identification, that is to say to prove that the defendant was the man seen throwing the punch on the CCTV footage. The prosecution then complained that it had been ambushed and sought leave to re-open its case in order to call PS Watson to deal with the point. The magistrates granted a short adjournment to ascertain if the officer was available. It was established that he could attend within 30 minutes, and indeed he attended at court before the conclusion of the argument. After the short adjournment the magistrates heard defence submissions and then retired, without receiving advice in open court from their legal adviser. When they returned to court they refused the prosecution application to re-open its case and held that there was no case to answer. Their written reasons were these:

"CPS application to re-open refused in the interests of justice - CPS were on notice to prove all elements of their case but did not do so before closing. Minor case with no complainant; the defendant had no previous convictions before this night.

Submission of no case to answer - Bench agree no case to answer".

9 Permission to challenge the magistrates’ decision was granted by Mitting J and the case has come before me, sitting as a single judge in the Divisional Court, for hearing. The magistrates’ court has, quite properly, played no part in the proceedings. The argument is between the prosecution, represented by Mr Pounder, and Mr Stebbings, as defendant in the magistrates' court, represented by Miss Ward.

10 For the prosecution, Mr Pounder has developed his arguments with appropriate succinctness. He submits that the magistrates should have allowed the prosecution to re-open its case and that their decision to refuse the application was irrational. They apparently worked on the assumption that in order to allow the prosecution to re-open its case they had to find as a pre-requisite that it had been subject to an ambush. That, however, was not the appropriate way of approaching the issue. The question of ambush is, in truth, of no relevance. The application should have been allowed in the interests of justice. No prejudice would have been caused to the defendant, there would have been no material delay, the point could have been dealt with in a couple of minutes.

11 Further, the case management process, especially following the introduction of the Criminal Procedure Rules, requires a greater level of cooperation between the parties than was once the case. The real issues are required to be identified at an early stage. The rules discourage a defendant from sitting on his hands in order to obtain a procedural advantage. If he does seek to gain advantage from earlier economies of participation, as Mr Pounder put it in his written submissions, the court should act to correct it, not condone it.

12 In a well presented set of submissions in support of the defendant, Miss Ward has sought to sustain the magistrates' decision. She accepts that the magistrates had power to permit the prosecution to re-open its case in order to call further evidence, but she refers to the breadth of the discretion (see for example Middleton v Rowlett[1954] 1 WLR 831, 833) and she submits that the magistrates were not bound to allow the application in the circumstances of this case and that their decision was therefore not irrational. They considered all relevant matters and they gave proper reasons for the decision.

13 Miss Ward submits that the prosecution had time to remedy the deficiency in their case prior to the start of the trial, when the prosecution advocate became aware of the error in de-warning PS Watson. He could have asked the defence to agree PS Watson's statement, or drafted a further admission for agreement, or could have sought an adjournment to enable PS Watson to attend. But he took a decision, albeit a wrong one, that the evidence available would suffice.

14 Miss Ward agreed with Mr Pounder that the question of ambush is not directly relevant. She said that the prosecution had to prove identification, even if it had been conceded on the defendant's behalf at the case management hearing that identification was accepted. The prosecution's decision to proceed without evidence to prove identification was an error which the defence was under no duty to correct. Nor was the defence under a duty to correct the prosecutor's false impression that no evidence was needed on the issue of identification. There was no breach of duty in failing to correct what was said by the prosecution advocate in opening.

15 In any event, Miss Ward denies there was an ambush in this case. She submits that the defence complied with its obligations under rules 3.2 and 3.3 of the Criminal Procedure Rules to assist the court in furthering the overriding objective, including the early identification of the real issues. The information in the trial information form did that.

16 Accordingly, it is submitted by Miss Ward that there is no basis for interfering with the magistrates' decision.

17 My conclusions on those rival submissions are these. First, as I have said, it is not in dispute, and in any event it is clearly established by the authorities, that the magistrates had a discretion to allow the prosecution to adduce further evidence to plug a gap identified in the submission of no case, provided that such a course would cause no injustice. Indeed, the course proposed by the prosecution in this case was entirely in line with what the court said in Saunders v Johns [1965] CLR 49 should have been done in that case, so far as one can discern from the extremely short report of the case.

18 It seems to me that, in refusing the prosecution application to re-open, the magistrates took a very narrow view of the interests of justice. From their written reasons it appears that they reasoned that the prosecution was on notice to prove all elements of its case, including, by implication, identification. That is a very narrow reading of the statement in the trial information form, "Defendant says acting in self defence and Crown cannot prove case". The very assertion of self defence involves an implicit acceptance that the defendant was the man who threw the punch. Neither in the form nor in the defendant's interview was there any suggestion that he was not the man seen in the CCTV footage throwing the punch. On the contrary, it is clear from the interview record that he accepted that he was that man. There was certainly no reason to believe that identification was in issue between the parties.

19 It may be that formal proof of identification was technically still needed, though if there was no issue in relation to it one can understand the point not having been dealt with expressly in summary proceedings of this kind. If formal proof was needed it ought in the circumstances to have been capable of being dealt with by an admission or by agreeing PS Watson's statement or by allowing him to give oral evidence unchallenged. There can in reality have been no realistic issue over identification, given the absence of dispute about the CCTV footage or the interview. It may be, as Miss Ward submitted, that the prosecution made a mistake in failing to cover the point in its case, but this was, on the face of it, a formality readily capable of correction and the interests of justice cried out for the prosecution to be allowed to correct it.

20 It is apparent from their reasons that the magistrates also took into account that this was a minor charge with no complainant and that the defendant had no previous convictions. Those matters might have carried some weight if there was a question of having to adjourn to another day, but the reality was that very little time indeed need be lost by acceding to the prosecution application to re-open its case and to plug the evidential gap on which the defence was here relying.

21 In my judgment, the balance of considerations lay overwhelmingly in favour of acceding to the prosecution application. The defence case had not begun, there could be no prejudice to the defendant in the prosecution being allowed to call the officer to deal with identification, and the matter could be dealt with in short order.

22 It also seems to me that, if the defence was going to take a positive point on identification, it was incumbent on it to flag the point at an early stage, not to wait until the close of the prosecution case before raising it for the first time in a submission of no case. It should have been expressed during the case management process and included in terms in the trial information form. That is all the more obvious in the environment in which the parties now operate by reference to the Criminal Procedure Rules and the overriding objective. Even if there had been an omission to deal with it at that earlier stage, it ought to have been raised very clearly when the prosecuting advocate opened the case by telling the magistrates that there was no issue over identification. It was not appropriate, as it seems to me, simply to sit tight and to raise it at the end of the prosecution case by way of a submission of no case.

23 Mr Pounder referred to a number of authorities, the most recent of which is Malcolm v Director of Public Prosecutions [2007] 2 Crim App R 1. It is sufficient to refer to Malcolm, which takes into account earlier authorities. For present purposes I need read only from paragraph 31 of the judgment of Stanley Burnton J:

"In my judgment, Miss Calder's submissions which emphasise the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic and obsolete ring. Criminal trials are no longer to be treated as a game in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules 2005 which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even if in a relatively straightforward trial such as the present, in the Magistrates' Court where there is not yet any requirement of a defence statement or a pre-trial review, it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case ...".

There is a great deal of further relevant material in Stanley Burnton J's judgment but I think it unnecessary for present purposes to elaborate.

24 To my mind, it does not matter whether what happened in the present case was a deliberate ambush (or a deliberate treating of the process as a game) or not -- I am prepared to accept that there was no deliberate ambush or gamesmanship. The fact is that, for entirely understandable reasons, given what had been said by and on behalf of the defendant, the prosecution did not appreciate that there was any issue over identification until the prosecution case had been closed. Otherwise minds would have been focussed on the point, which could and would have been dealt with as part of the prosecution case. Even if it ought to have been covered formally in any event as part of that case, the failure to do so was understandable and readily forgivable in the circumstances.

25 In my judgment, the decision to refuse the prosecution application to re-open ran counter to the overriding objective of the Criminal Procedure Rules, was plainly contrary to the interests of justice and lacked any reasonable basis.

26 It follows that the application for judicial review must succeed. Subject to any further submissions from counsel I propose to quash the magistrates' decision dismissing the charge against Mr Stebbings and to remit the case to a differently constituted Bench of magistrates with a direction to re-hear the case.

27 Are there any submissions?

28 MR POUNDER: No, thank you.

29 LORD JUSTICE RICHARDS: That deals with everything does it?

30 I am very grateful to you both for enabling the matter to be dealt with so expeditiously as a result of the very clear written submissions. Thank you.