Director of Public Prosecutions, R (On the Application Of) v Birmingham Magistrates' Court

This is a case to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. No matter may be published in relation to the Complainant which might, during her lifetime, identify her as such. We have anonymised our judgment accordingly.

By permission of Garnham J the Claimant, the Director of Public Prosecutions, seeks the judicial review of two decisions made by District Judge (Magistrates' Courts) Dickens in the Birmingham Magistrates' Court. The first, on 17 January 2017, was to refuse an application made by the Prosecution in the case of the Interested Party to adjourn the trial hearing on a charge of sexual assault. The second, on 23 February 2017, was to refuse to state a case for the opinion of this Court in relation to the refusal to adjourn.

Neither the Defendant nor the Interested Party has taken part in this hearing. The principal relief sought by the Claimant is an order quashing the first decision, and the dismissal which followed when the prosecution offered no evidence, together with a direction that the case be remitted and heard by a differently constituted Court. In the alternative, the Court is invited to order the judge to state a case.

The background is, in short, as follows: On 25 August 2016, the complainant (to whom we shall refer as “A”) attended a job centre with her two young children. It is alleged that she and the Interested Party sat next to each other in the waiting area, and that he put his hand under her bottom on four occasions - on each of which she moved away from him. A sent her fiancé a text informing him of what had occurred. He attended the job centre, the police were called and the Interested Party was arrested. He denied touching A.

On 21October 2016, the Interested Party was charged with an offence of sexual assault. His first court appearance was on 18 November 2016, when he pleaded not guilty and the case was fixed for trial on 17 January 2017. A and her fiancé were promptly notified that their attendance was required on the trial date, and two days after being warned they confirmed their willingness to so attend.

At 8.31 a.m. on the day of trial, that is a minute after the Witness Care Team telephone line had opened, A's fiancé telephoned and said that five members of A's family had been killed overnight in an accident in the Yemen, and that consequently neither of them would be attending court, but that they would both attend on any adjourned trial date.

The Prosecutor eventually discovered what had happened and, later that morning, made an application to adjourn the trial. The Prosecutor furnished the judge with the following information: (1) A had the previous night lost five members of her family in a car accident in Yemen, and was consequently not in a fit state to attend court. (2) Her fiancé was also not coming to court as he was supporting her. (3) The information had been provided by A's fiancé at around 8.30 a.m., which was when the telephone line to the Witness Care Team had opened. (4) The case concerned an allegation that a stranger had sexually assaulted the complainant, the seriousness of which was stressed. (5) A had been supportive of the prosecution throughout the duration of the proceedings, and there was nothing to suggest that she would fail to attend for any reason other than the one given to the Witness Care Team and, as the circumstances were tragic and unforeseen, A and her fiancé could not be considered at fault for their non-attendance and nor, indeed, should the prosecution be considered to be at fault either.

The Prosecutor noted that the judge asked how the five were related to A, but that no definitive answer could be given. The Interested Party's solicitor opposed the application, asserting that there were no confirmed facts, that it was not known who the deceased were in relation to A, and that the Interested Party had been distressed by the case and wanted it to be concluded at the earliest possible opportunity. As indicated above, the judge refused the application for an adjournment.

The prosecutor noted that, when doing so, the judge had said that only limited information was available; that there was no confirmation that an accident had taken place; that the exceptional remedy of an adjournment required cogent evidence of which there was none; and that whilst the decision might seem hard-hearted, if A or her fiancé had actually attended that court that morning with the information, and had then stated that they were unable to continue, the decision would have been different.

On 3 March 2017, the judge provided written reasons for her refusal of the application to adjourn, the relevant paragraphs of which were as follows:

On 28 March 2017, the Court filed an Acknowledgement of Service in these proceedings which, in paras. 2 to 5, provided further details as to the judge's reasons as follows:

In the meanwhile, and within the 21-day time limit, on 7 February 2017 the Claimant applied to the Defendant Court to state a case for the opinion of the High Court. The Court responded by letter and indicated that the judge had refused to state a case. The Claimant sought reasons for that refusal, in consequences of which the Court replied that:

At some point after the hearing on 17^th January 2017 it was discovered that, in fact, seven members of A's family had been killed, and in a rocket attack rather than an accident. It is also clear that, in relation to the seriousness of the alleged offence, the judge was not informed that the Interested Party had a relevant previous conviction. However, none of that carries any weight in these proceedings which necessarily concentrate on whether, based on the information that was available at the time, the decision to adjourn was Wednesbury unreasonable or not.

The law in relation to applications for adjournments of trials in the Magistrates' Court can be shortly summarised. Section 10(1) of the Magistrates' Court Act 1980 provides a discretionary power to adjourn a trial. The leading authority (of many) as to the applicable principles in the exercise of that discretion is CPS v Picton (to which we have already referred above). In that case, the first judgment of this Court was given by Jack J who, at [9], set out the principles – the relevant aspects of which are, for present purposes, as follows:

It will also be recalled that the overriding objective to deal with cases justly, as set out in Part 1 of the Criminal Procedure Rules, includes an obligation to deal with cases efficiently and expeditiously.

On the Claimant's behalf, Mr Boyd, in his written submissions, argues that it is clear that the judge did not consider it to be in the interests of justice to adjourn the trial for essentially two reasons: (1) the explanation for the Complainant's non-attendance had not come from the Complainant herself; and (2) the information provided by her fiancé and communicated to the judge was too vague to be cogent and reliable.

Mr Boyd submits that the judge inappropriately placed far too much importance on the lack of direct contact by, or with, A. As noted by the judge in her written reasons, she was told that family members had been killed, and it was self-evident that A was distressed by the very recent discovery of their death. Hence, the fact that the information was conveyed by her fiancé, that she did not email or attend in person, and that the Prosecution had not been in direct contact with her, should not have created a concern that the basis for the adjournment was insufficiently made out. In particular, the absence of any direct communication from A herself was entirely understandable in the particular circumstances of the case.

Mr Boyd further submits, in his written submissions, that there were no grounds for not taking the information at face value. There had been no previous application for an adjournment and it was A's fiancé who had contacted the Witness Care Team at the very earliest opportunity, not vice versa. There was no suggestion that A was reluctant to support the prosecution: quite the reverse. Equally, there was nothing in the written reasons or the acknowledgement of service to indicate what further information would have persuaded the judge of the reliability of the explanation.

In any event, given the timing and location of what had happened, further inquiries would have been very difficult. It was sufficient to know, Mr Boyd argues, that those killed were members of A's family and it was difficult to understand how knowledge of the precise identities of the deceased would have made any explanation more reliable. The judge, Mr Boyd submits, was wrong to conclude that the tragic event "may" have provided a good reason to adjourn. It plainly did so. Indeed, on the facts of this case, Mr Boyd submits, no reasonable tribunal could have denied the application to adjourn absent a legitimate basis for doubting the truthfulness of the reason advanced for the absence of A and her fiancé.

Equally, Mr Boyd submits, the judge failed to consider, or to properly consider, the fact that there had been no fault by the prosecution – a factor to which appropriate weight should have been given. Nor, albeit that there was a legitimate expectation that the trial would proceed on its fixed date, had there been any prior delay at all. Nor did the judge make any enquiry as to the next available date, and thus as to the extent to which the trial would be delayed and whether the Interested Party would suffer any prejudice. Nor, indeed, did she consider the seriousness of the offence.

Finally, in his written submissions, Mr Boyd underlines that the judge did not consider the Court's overriding objective to do justice between the parties. In that regard, Mr Boyd makes clear that whilst the Claimant well understands the desire of Magistrates' Courts to ensure that cases are dealt with promptly and efficiently and, indeed, that whilst the Claimant also whole-heartedly supports initiatives such as Transforming Summary Justice, the fundamental issue, with which a court must nonetheless engage when an adjournment is sought, is the question of justice to all involved – with consideration of not only the Defendant’s interest, but also of the public interest in prosecuting and convicting offenders, and of doing justice to those personally affected by offending. Hence, Mr Boyd submits, the judge's decision struck a wrong balance which was Wednesbury unreasonable – i.e. was outside the range of reasonable decisions that were open to her.

For reasons that will become obvious, it is unnecessary to deal with Mr Boyd's submissions in relation to the judge’s refusal to state a case.

In his oral submissions, Mr Boyd underlined that too much emphasis had been put on the Prosecution’s lack of contact with A on the day of trial; that, given the circumstances, too much weight had been put on the need for A to attend; that, given that there was only a slim chance of getting further information from the Yemen, too much focus had been placed on the need for the prosecution to prove that the events in the Yemen had occurred; that whilst scepticism is required in the face of an application to adjourn, the scepticism employed on this occasion was too great; and that the judge failed to consider a number of balancing issues – including the absence of any Prosecution fault; the seriousness of the allegations; the public interest in prosecuting and convicting offenders, and of doing justice to those personally affected by offending; the likely consequences if there was an adjournment, and the lack of any consequent prejudice to the Interested Party.

In my view, given that the judge has provided reasons for her decision to refuse to adjourn, it is appropriate to resolve this case by the consideration of the merits of that decision being made for those reasons. Additional consideration of the judge’s refusal to state a case is thus unnecessary.

I make clear that, for my part, the outcome is entirely specific to the very particular facts of this case. My decision is not intended to be, nor should it be cited as being, any sort of general precedent. Indeed, I would strongly endorse the general approach, as clearly set out in Picton and in other cases such as DPP v Petrie [2015] EWHC 48 (Admin) at [21], to applications to adjourn trials in the Magistrates' Courts, and would underline the need for trial dates to be met and for rigorous scrutiny to be given to any application to adjourn.

However, in the very specific circumstances of this case, for broadly the reasons advanced by Mr Boyd on behalf of the Claimant, and notwithstanding the fact that, in my view, the prosecution could have done at least some more to assist the judge, I have no doubt that the judge's discretionary decision was plainly wrong. It was outside the range of reasonable decisions available to her, and was thus Wednesbury unreasonable. In particular, there was no reason to believe that the fatal events in relation to family members had not occurred; it was an unrealistically high standard to expect A and her fiancé to attend at court; and the judge made clear that if they had attended the information would have been accepted. In addition, there was the fact that the explanation had been volunteered at the earliest moment on the day of the trial, rather than needing to be sought after non-appearance. There was also the absence of consideration of the various balancing factors in the doing of justice between the parties that Mr Boyd has underlined - including the seriousness of the offence; the public interest (including that of the Complainant); the fact that the Prosecution had done no wrong hitherto; and the lack of prejudice to the Interested Party via some additional delay.

Accordingly, for my part, I would quash the refusal to adjourn and the consequent dismissal of the charge, and would order that the case be remitted to the Magistrates' Court for trial before a differently constituted court.

I agree with the result for the reasons given by my Lord. I endorse what he has said about the general applicability of Picton, and the fact that this decision in this case is confined to its own particular facts.

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