Director of Public Prosecutions v Petrie

The Director of Public Prosecutions (“the Appellant”) appeals by way of case stated against a decision of the justices sitting at Ormskirk magistrates’ court (“the court”) on 13^th May, 2014, staying the proceedings against the Respondent for abuse of process.

In a nutshell, the 13^th May had been fixed for the trial of the Respondent on a charge of driving with excess alcohol in his breath. It was common ground, flowing from a pre-trial hearing on 25^th March 2014, that CCTV footage from the police station was required for the trial. In the event, however, the CCTV supplied by the prosecution had not been formatted and could not be played. The prosecution’s application for an adjournment was refused. Thereafter, the Respondent successfully applied for a stay of proceedings on the ground of abuse of process.

The case stated, dated 11^th July, 2014 (“the Case”), raises two questions (“Question 1” and “Question 2”) for the opinion of the High Court, namely:

“ 1. Were we correct in law in refusing the request by the Appellants to adjourn the trial?

2.

Were we correct in law in acceding to the Respondent’s request to stay the case as an abuse of process?”

Albeit on its own facts, the Case thus raises two questions of considerable practical importance for magistrates’ courts: namely, the issue of adjournments and recourse to the remedy of a stay to address (alleged) abuse of process.

As is settled law, in appeals of this nature, the facts are confined to the four corners of the case stated. Here, the facts, taken from the Case, are as summarised in the paragraphs which follow.

The Respondent had been charged with driving on a road, on the 9^th March, 2014, after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit.

On the 25^th March, 2014, the Respondent attended at the court and pleaded not guilty. The Case Management Form “…highlighted a number of disputed issues including the procedure at the police station”. Counsel then appearing on behalf of the Respondent confirmed that “…he would be relying on the fact that the statutory warning had not been given, and that the full questions were not put in accordance with those specified on the MGDD/A”.

Having regard to [7] – [9] of the Case, the position as to the CCTV was as follows:

The CCTV supplied on the 13^th May had not been formatted and could not be played on any equipment in the court, despite attempts on the main TV/DVD player, as well as on the laptops available at court.

The prosecution sought an adjournment, with a view to making enquiries “…about possibly obtaining that day the original footage from Preston Police Station”. The Case continued at [6]:

“ However he [i.e., the prosecution representative] had already confirmed that the police officer on whom the Crown intended to rely was in attendance at court and that in fact the Crown was in a position to proceed at the trial. [The prosecution representative] confirmed that the Crown would not normally serve CCTV, as it was not usually relied upon. However in this case, the Crown had tried to make it available. ”

Counsel for the Respondent opposed the adjournment. The justices, having regard to the decision in DPP v Picton [2006] EWHC 1108 (Admin), ruled that the trial should go ahead. In refusing the adjournment, the justices highlighted the fact “…that the Prosecution had been lax, and further that it had been clear from the outset that the CCTV was required.”

As he had already indicated, counsel for the Respondent then raised the argument that there had been an abuse of process. The prosecution submitted that there had been no such abuse. The trial could proceed on the day, simply by hearing the evidence of the police officer. The Respondent would not be deprived of a fair trial and a stay should not be granted where there still remained an available process to allow the matter to be adjudicated upon. Counsel for the Respondent contended that he would be deprived of a fair trial if the case proceeded and the court heard only from the police officer, without the advantage of viewing the CCTV footage.

The Justices’ decision is encapsulated at [15] of the Case:

“ ….bearing in mind that we had already stated that it was clear from the outset that CCTV footage was required, we indicated that it would be unfair to proceed and that the Respondent would not have a fair trial if the matter proceeded to trial on that day.”

Without more ado, I turn to the Questions raised by the Case.

(1) The legal framework: Case management is well-established as an integral feature of criminal procedure in all courts trying crime in this jurisdiction: see, generally, Archbold 2015, at paras. 4-112 et seq. The principles of case management are firmly embodied in the Criminal Procedure Rules 2014 (“the CPR”), applicable in the magistrates’ court as they are in the Crown Court.

The CPR begin with the “overriding objective”: namely, that criminal cases are to be dealt with justly (r.1.1(1)). Dealing with a case justly includes acquitting the innocent and convicting the guilty (r.1.1(2)(a)), dealing with the prosecution and the defence fairly (r.1.1(2)(b)) and dealing with the case efficiently and expeditiously (r.1.1((2)(e)).

Part 3 of the CPR deals specifically with case management. R.3.2(1) imposes a duty on the court to further the overriding objective by “actively managing the case”. As elaborated upon in r. 3.2(2), active case management includes:

“ (a) the early identification of the real issues;

(c)

achieving certainty as to what must be done, by whom, and when….

(f)

discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings….”

As provided by r.3.3, each party must “actively assist” the court in fulfilling its duty under r. 3.2.

It may thus be seen that efficiency, expedition, the discouraging of delay and the avoidance of unnecessary hearings are adjuncts of dealing with cases justly and it may be said, in the summary jurisdiction, summarily. Adjournments, all too often historically encountered in the magistrates’ court, run contrary to these important objectives.

It is against this background that successive initiatives (CJSSS, Stop Delaying Justice and, now, Transforming Summary Justice) have repeatedly exhorted the magistracy and District Bench to case manage robustly and to resist the granting of adjournments. Although there are of course instances where the interests of justice require the grant of an adjournment, this should be a course of last rather than first resort – and after other alternatives have been considered. As observed by this Court in DPP v Picton (supra), at [9(b)]:

“ Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised. ”

It is essential that parties to proceedings in the magistrates’ court should proceed on the basis of a need to get matters right first time; any suggestion of a culture readily permitting an opportunity to correct failures of preparation should be firmly dispelled. For completeness, the recent decision of this Court in DPP v Radziwilowicz [2014] EWHC 2283, in no way casts doubt on this approach; as explained by Sir Brian Leveson P, giving the lead judgment (at [10] – [11]), the hearing in question had not been listed as a trial and there was thus no obligation on the prosecution in that case to have their witnesses available.

A necessary corollary of exhorting robust case management from the magistracy and District Bench is that appellate courts should be slow to interfere with case management decisions which have endeavoured to give effect to the approach outlined above. In any event, the grant or refusal of an adjournment is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong).

(2) Decision: Returning to the facts of the Case, it is not in dispute that the CCTV was required for the trial listed on the 13^th May, 2014. There was, however, a failure on the part of the prosecution in that the footage supplied had not been formatted and could not be played on any equipment at the court. As to resolving that conundrum, the prosecution application for an adjournment did not go beyond making enquiries about “….possibly obtaining that day the original footage from Preston Police Station…”. To put it no higher, the magistrates were thus faced with the likelihood that the trial could not go ahead on that day should the adjournment have been granted. The magistrates were aware that the prosecution were otherwise ready to proceed, albeit that counsel for the Respondent had already indicated that he would raise an argument of abuse of process, if the adjournment was refused.

In his skeleton argument, Mr. Boyd, counsel for the Appellant (who did not appear below), accepted that it was open to the justices to refuse to adjourn the trial. In oral argument before us, Mr. Boyd’s position fluctuated somewhat. For my part, I have no hesitation in concluding that the position adopted by Mr. Boyd in his skeleton argument was right. The matter had been listed for trial for some time; the CCTV had plainly been required; the prosecution failed to produce it in a usable form. There could be no expectation that an opportunity would be granted to cure this failure, at the likely cost of the fixture being lost. The refusal of the adjournment may well have been a robust case management decision by the justices; if so, it was none the worse for that. On any view, I am wholly unable to conclude that the decision was one to which the Bench was not entitled to come. That conclusion suffices to dispose of Question 1 but I would go further. As it seems to me, the decision by the magistrates to refuse an adjournment was a properly robust case management decision entirely in keeping with the wider considerations discussed earlier

(3)Answering Question 1: I would therefore answer Question 1: Yes.

(1) The legal framework: It is unnecessary to look significantly beyond R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130; [2001] 2 Cr App R 23, for the guiding principles in this area. As expressed by Brooke LJ, giving the judgment of this Court, at [17]:

“ ….The Crown is usually responsible for bringing prosecutions and, prima facie, it is the duty of a court to try persons who are charged before it with offences which it has the power to try. Nonetheless the courts retain an inherent jurisdiction to restrain what they perceive to be an abuse of their process…. ”

However, as the Court stressed from the outset (ibid), this “residual (and discretionary) power” was one which “….ought only to be employed in exceptional circumstances…”.

The Court (at [18]) outlined the two “categories” of cases in which the power to stay proceedings for abuse of process may be invoked, namely: “(i) cases where the court concludes that the defendant cannot receive a fair trial, and (ii) cases where it concludes that it would be unfair for the defendant to be tried.”

In the first category of case (“Category 1” cases), the court will only stay proceedings for abuse of process where it is clear that otherwise the defendant could not be fairly tried: [24]. As the Court observed (ibid), an unfair trial would be an abuse of the court’s process and a breach of Art. 6, ECHR. However, the Court went on to say this (at [25]):

“ Two well-known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process:

(i)

The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one sided; it requires that that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.

(ii)

The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.”

Pausing here, the wording of (i) is entirely consistent with the reminder in the “overriding objective” of the CPR, underlining (see above) that dealing justly with a case includes acquitting the innocent and convicting the guilty. Further, it is to be reiterated that “….there is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried”: R v Crawley (Scott) and Others [2014] EWCA Crim 1028; [2014] Cr App R 16, per Sir Brian Leveson P, at [18]. In this context, a stay of proceedings effectively prevents such a trial taking place and is thus a “remedy of last resort” (ibid). As has frequently been said, a stay is not to be imposed in order to discipline an errant prosecution.

In an important and most pertinent passage (at [27]), the Court in Ebrahim observed, relevant to (ii) above:

“ It must be remembered that it is a commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence. ”

In the second category of cases (“Category 2” cases), a court is not prepared to allow a prosecution to proceed “….because it is not being pursued in good faith, or because the prosecutors have been guilty of such serious misbehaviour that they should not be allowed to benefit from it to the defendant’s detriment…”: Ebrahim, at [19]. As the Court explained (at [20]):

“ In these cases the question is not so much whether the defendant can be fairly tried, but rather whether for some reason connected with the prosecutors’ conduct it would be unfair to him if the court to permit them to proceed at all…..”

In short, Category 2 cases are concerned with protecting the integrity of the criminal justice system: Archbold 2015, at para. 4-75. In Category 2 cases in particular, it is to be underlined that the “wider supervisory responsibility for upholding the rule of law” Archbold 2015, at para. 4-76 is vested in the High Court rather than the magistrates’ court.

(2) The justices’ decision: The language used by the justices, encapsulated at [15] of the Case, is capable of being read as granting a stay on both a Category 2 and a Category 1 basis. The wording “unfair to proceed” suggests Category 2; the wording which followed, “…the Respondent would not have a fair trial…” falls within the ambit of Category 1. Before us, Mr. Dye for the Respondent (who did not appear below) focused, understandably, more on Category 1 than on Category 2. He also submitted, broadly, that the magistrates had properly exercised their discretion to stay the proceedings; their decision was not Wednesbury unreasonable; accordingly, this Court should not interfere. For completeness, I address this question in terms of both Category 1 and Category 2 – and, for convenience, take the latter first.

(3) Category 2: I can deal summarily with this topic. If and insofar as the justices based their decision to grant a stay on Category 2 considerations, then, with great respect, they were plainly wrong. It is correct that the prosecution failed to supply CCTV in a format which could be played on the day of the trial. That was indeed a fault on the part of the prosecution. However, a failure of this nature simply comes nowhere near the gravity required to justify a Category 2 stay. Nothing about the prosecution’s failure here began to impinge on the integrity of the criminal justice system. No more need be said of Category 2.

(4) Category 1: With respect, here too, I am clearly of the view that the justices were plainly wrong or erred in law or principle so that under this heading likewise, their decision is unsustainable. However regrettable the prosecution failure to furnish the CCTV footage in a playable format, it fell well short of justifying a stay. My reasons follow.

First, the decision was wholly speculative. The facts in the case do not disclose that anyone had ever watched the CCTV footage. It is not known, for instance, whether the recording covered the relevant part of the procedure or, if it did, whether it captured the precise details of what was said. Accordingly, the magistrates had no basis for concluding that the CCTV footage, if playable, might, still less, would have assisted the Respondent. It follows that the foundation for the justices’ conclusion and the exercise of the exceptional jurisdiction to stay proceedings - that the Respondent could not have a fair trial without the CCTV footage - simply disappears.

Secondly, the trial could and should have proceeded on the basis of the available evidence. The prosecution would have called the police officer (who was present at Court) and the defence could, if they so chose, have called the Respondent. The burden of proof was on the Crown to prove the case to the requisite criminal standard of proof, against the background that if there was or might have been any relevant failure of procedure (under s.7(7) of the Road Traffic Act 1988), the Respondent would have been entitled to an acquittal: Murray v DPP [1993] RTR 209. Furthermore, the Respondent could properly have made play of the fact that the CCTV footage which he had requested was not available through no fault of his own: see Ebrahim, supra, at [27] (set out above). In this way, the trial process could safely and fairly have dealt with the “hole” in the case arising from the prosecution failure. Having weighed all these matters in accordance with the burden and standard of proof, the magistrates could fairly have concluded the trial and - depending on the view they took - either acquitted or convicted the Respondent. Underlying this approach is the recognition and emphasis that a stay is an exceptional remedy of last resort.

Thirdly and assuming that at the conclusion of the live evidence (notwithstanding the assistance furnished by the trial process together with the burden and standard of proof) the justices were driven to the view that the interests of justice did require the viewing of the CCTV footage, they could at that stage have revisited the question of an adjournment. They would still, it is fair to say, have needed to grapple with the difficulty that the assistance to be obtained from the footage remained speculative. That said, consideration of an adjournment at this later stage would have arisen with knowledge of the other available evidence and as a matter of last resort. For my part, I cannot say that I am attracted to such a course but it would have been open to the magistrates and would undoubtedly have been preferable to the decision to stay the proceedings.

(5) Answering Question 2: For all these reasons and whether approached as a Category 1 or Category 2 case, I would answer Question 2: No.

It follows from this answer to Question 2 that I would allow the appeal and remit the matter to a differently constituted Bench for further consideration. As I understand it, the CCTV footage has now been formatted and served on the Respondent; it will be for the Bench hearing the matter to rule on any questions of admissibility and weight relating to this footage.

The manner in which this case proceeded prompts a number of reflections:

No doubt in the interests of expedition and with the best of intentions, all concerned with the pre-trial hearing on 25^th March, 2014 appear to have had only limited regard to the CPR and the provisions of the Criminal Procedure and Investigations Act 1996 (“CPIA 1996”) as to disclosure. In the event, it may be that a closer focus on the CPR and CPIA 1996 would have benefited all parties. While it seems clear that the issue in dispute (as to the statutory warning under s.7(7) of the Road Traffic Act 1988) was or must have been identified, no proper analysis of the status of the CCTV footage appears to have taken place. There is no suggestion that, at the outset, the prosecution was intending to use the CCTV footage in evidence as part of its case. On this footing, the CCTV footage constituted “unused material”, as understood in the disclosure context, yet no “schedule” had been prepared. When the Respondent requested production of the CCTV footage – and assuming no point was to be taken that the request was not formally made under s.8, CPIA 1996 – it was incumbent on the prosecution to consider whether it satisfied the test for disclosure under the CPIA 1996. For this to be properly done, the prosecution must have viewed the CCTV footage and, if so, minds would in all likelihood have been focussed on ensuring that the footage (if disclosable) would have been properly formatted. Without belabouring the point, the lesson, it might be suggested, is that the provisions of the CPR and CPIA 1996 serve a practical purpose and are to be followed.

I agree.