Chuah, R (on the application of) v Birmingham Crown Court & Anor

MR JUSTICE HICKINBOTTOM: On 21 March 2009, the Claimant Peter Chuah was involved in an altercation with a security guard at Selly Oak Hospital following which the Claimant was arrested and charged with common assault. On 9 March 2009, the Birmingham Magistrates' Court found him guilty of that offence. He appealed, and the appeal was dismissed by Birmingham Crown Court (His Honour Judge Webb and magistrates) on 22 January 2010.

The Claimant, however, was still not satisfied. He wished to appeal again. In 2012, he attempted to appeal to the Crown Court, a second time, leave to appeal (which was in any event required, because the appeal was by then well out of time) being refused by Her Honour Judge Fisher on 12 August 2012. Then, on 31 August, the Claimant commenced this claim for judicial review stating in the claim:

The facts giving rise to the claim can be briefly stated. On 21 March 2009, the Claimant visited his brother, who was an in-patient at Selly Oak Hospital. It was the prosecution case that the Claimant had been drinking, and he behaved abusively and aggressively to staff and other patients. The ward sister, Emma Scrivens, asked him to calm down; and, when he did not do so, she called security and a senior security officer, Phillip Newsam, duly attended. The Claimant was asked to leave, but would not do so. The security officer therefore started to escort him from the premises. However, when they got to the main entrance, the Claimant turned round and poked him to the face, causing him reddening and some discomfort there. The security officer then restrained the Claimant, and the police were called. Police officers arrived, but the Claimant continued to be argumentative and unco-operative. The officers formed the view that he had been drinking. They arrested him on suspicion of assault, and he was taken to the police station where he was interviewed and later charged.

The Claimant denied that this version of events painted a proper picture of the incident; and, in particular, he denied that he was the aggressor. He said in his interview - and later in his evidence to the court - that the security officer approached him when he was at his brother's bedside, asked him to leave and then, without further to-do, forcibly pulled him off his chair and, with his arm up his back, began escorting him out. Whilst waiting for the lift, the security guard had banged his head against the wall. The Claimant accepted that, at that stage, he pointed towards the security guard saying, "You hurt me now"; but he denied touching the security officer, or, if he did touch him, he said it was self-defence or by accident.

The Director of Public Prosecutions has been joined into this claim as an interested party. In helpful summary grounds, it is contended by him that permission to proceed with the claim should be refused on a number of procedural grounds.

First, the claim is late. CPR Rule 54.5 requires a claim for judicial review to be brought promptly, and in any event within 3 months of the decision sought to be challenged. The court may extend that time for good reason, but this claim seeks to challenge decisions months – indeed, years - out of time, without identifying any good grounds for being late. The Claimant, in his turn, says that the reason for the delay is that he was fighting alcohol addiction, possibly (it seems from the documents we have seen) with some success. But there is no evidence as to why this meant that he could not have brought these proceedings earlier. Finality is an important principle of public law, but particularly in a challenge to a decision in criminal proceedings.

Second, the DPP contends that proceedings by way of judicial review is wrong, because the Claimant seeks to undermine the basis of the conviction and so any challenge to the Crown Court rulings ought to have been by way of Case Stated.

I should perhaps add, as a possible third procedural deficiency, that the Claimant seeks to attack the decision of the justices to convict, but has not joined the Magistrates' Court into this action as a party.

In my view, there is considerable force in these submissions made on behalf of the DPP as to procedural matters. In particular, I would echo the comments of this court in R (B) v Carlisle Crown Court [2009] EWHC 3540. In that case, both the President of the Queen's Bench Division Sir Anthony May (at [29]) and Langstaff J (at [16]-[17]) emphasised that Parliament has not given a defendant a right of appeal from a decision of the Crown Court in its appellate capacity to the Court of Appeal (Criminal Division). Generally, there is simply no room for a challenege to such a decision of the Crown Court other than by way of case stated on grounds of jurisdictional or legal error. Attempts at judicially reviewing such decisions are generally inappropriate and should, said the court, be firmly discouraged: judicial reviews in such circumstances should be reserved for quite exceptional circumstances such as where there has been some breakdown in the Crown Court proceedings that fundamentally undermines their fairness. I reiterate and endorse those comments. There do not appear to me to be any such exceptional circumstances in this case.

However, I appreciate that the Claimant is in person and, for my own part, I would not wish to determine this application against him without consideration of the merits, to which I now turn.

The Claimant, first, seeks to challenge the decision of the magistrates to convict him on 8 June 2009, on the basis that he did not have adequate legal representation and his defence of self-defence was not properly considered and was improperly rejected by the magistrates. This ground is legally misconceived. Although this court has a general supervisory jurisdiction over so-called inferior courts such as the Magistrates' Court and indeed the Crown Court, it will only exercise that jurisdiction as a last resort. It will not entertain a judicial review of the decision where there is an alternative route of challenge, such as a right of appeal. In this case, by virtue of section 108 of the Magistrates' Court Act 1980, the Claimant had a right of appeal against the conviction; and, moreover, by virtue of section 79(3) of the Senior Courts Act 1981, that appeal was by way of full rehearing. The Claimant not only had that right, he duly exercised it. That is sufficient to dispose of the challenge to the Magistrates' Court decision to convict, by refusing permission to proceed with it.

However, in respect of the Claimant's grounds of challenge to that decision, I would also mark the following. The Claimant did not have the benefit of legal aid before the magistrates because of his financial position; but he was in fact represented there by a solicitor. The Claimant says that he was disappointed by the result of the trial – and, indeed, by the performance of that individual - but there is no evidence at all that his legal representative's performance was anything less than professionally adequate. Nor is there any evidence that his alternative defence of self-defence was not properly considered by the magistrates. But, even if there were deficiencies in the proceedings before the magistrates, the appeal before the Crown Court was by way of complete rehearing, and consequently any deficiencies before the magistrates were not material. Finally, although I am here dealing with the merits, it is worth noting that this claim for judicial review is much delayed, being over 3 years late.

The second challenged decision is the refusal of the Claimant's appeal by the Crown Court on 22 January 2010, again on the grounds that he was not properly represented and that the court failed properly to consider his defence of self-defence.

In respect to the latter, there is no evidential basis for the assertion that the court failed to consider the Claimant's defence: the appeal was, as I have said, by way of full rehearing. The court heard evidence from Mr Newsam and Miss Scrivens, the arresting officer and the interviewing officer, as well as from the Claimant and his brother. A tape recording of the Claimant's interview was played, in which the Claimant clearly stated that it was he who was the victim of an assault. The court then retired and considered its verdict, before returning and dismissing the appeal. We do not have the benefit of a transcript of the court's reasons – the Claimant has not lodged one - but there is no evidence basis at all in support of the assertion that the court did not consider the Claimant’s defence properly; or for the proposition that that they were anything but fully and properly satisfied that the prosecution had disproved that the Claimant was acting in self-defence when he struck the security guard as the court found he did.

The Claimant's real complaint is that, like the justices, the Crown Court did not believe his version of events. They, rather, accepted the version of the prosecution witnesses that, in drink and aggressive mood, the Claimant poked the security officer in the face with his finger without any justification. But that finding of fact by the Crown Court cannot be challenged in this, or indeed any, court.

With regard to his representation in the Crown Court, it is true that the Claimant represented himself. However, he has not provided the reason why he was refused legal aid for that appeal. Such refusal could, if appropriate, have been challenged by judicial review; and, in any event, there is nothing to suggest that the appeal proceedings were, as a result of him not being legally represented, unfair and thus in breach of Article 6 of the European Convention on Human Rights upon which he relies. A defendant in a criminal trial has the ability – and, indeed, the right - to represent himself and, where he does so, it is for the court to ensure that the trial is not unfair to him as a result. As I have said, there is no basis for any suggestion that the appeal hearing was unfair to the Claimant in this case.

Lastly, in relation to this decision, although again returning to the question of delay, it is again worth noting that the application for judicial review of the decision of the Crown Court was about 18 months late.

Third and finally, the claimant seeks to challenge the decision of Judge Fisher on 9 August 2010, to refuse him leave to appeal to the Crown Court, for a second time, out of time.

Notice of appeal from conviction from magistrates to the Crown Court must be given within 28 days of the conviction, but the Crown Court may extend that time by giving leave to appeal out of time. This appeal would have been 3 years late; but, even more fundamentally, the Claimant had already appealed to the Crown Court once. The DPP's summary grounds refer to the position where a defendant attempts to appeal for a second time from the Crown Court to the Court of Appeal under sections 1 and 2 of the Criminal Appeals Act 1968. In those provisions, too, there is no express prohibition on a second appeal. However, in R v Pinfold [1988] QB 462 at page 464D, Lord Lane LCJ, after noting the absence of any authority which suggested that there was a right to pursue a second appeal, said that the principle of finality of legal proceedings dictated that generally an appellant would be allowed only one appeal. The Lord Chief Justice noted only two exceptions, namely where the original decision was a nullity or where there was a fundamental procedural defect in procedure which resulted in the defendant suffering an injustice, e.g. where the defendant had not been notified of a hearing at all.

The provisions of the Criminal Appeal Act 1999, which enabled the Criminal Cases Review Commission to consider cases and refer them to the Court of Appeal even if there has been a previous unsuccessful appeal, also strongly supports the proposition that the circumstances in which a second appeal will be allowed to proceed by the appeal court itself will be rare.

It seems to me that, as magistrates courts are subject to the supervisory jurisdiction of this court (which can be invoked if there is some fundamental procedural defect in magistrates' court proceedings), there is simply no scope or need for a second appeal from a magistrates' court to the Crown Court. This is particularly so because an appeal to the Crown Court is by way of full rehearing.

I personally find it difficult to conceive of circumstances in which such an appeal could properly be made; and the DPP has apparently not been able to find a single case in which it has in the past happened. If there are such circumstances, they must be rare indeed. However, as this is only an application for permission to proceed and we have consequently not heard full argument on the point, I do not say now that a second appeal could never be made. It is unnecessary for me to do so because, whatever other circumstances might possibly lie outside this case, the circumstances of this case are certainly not such as to allow for a second appeal.

We do not have the paperwork from the attempted second appeal; but I understand that the proposed grounds are essentially similar to those relied upon in the first appeal. There is nothing to suggest any fundamental error of procedure below, and there are simply no circumstances in this case that could possibly make a second appeal to the Crown Court appropriate. Judge Fisher was not only entitled to exercise her discretion not to allow the second appeal to proceed, in my judgment she was clearly right to do so.

For those reasons, I do not consider that any ground is arguable; and indeed, speaking for myself, I consider that this claim is totally without merit, and the order should be marked accordingly.

MR JUSTICE SAUNDERS: I agree.