Peter Robert Storey, R (on the application of) v Crown Court at Leeds

Plea: Not Guilty – 21/11/2018

Mode of Trial: Defendant Elects Summary Trial – 21/11/2018

The following is not in dispute: (1) The Claimant appeared in the Magistrates’ Court on 21 November 2018 (“the Magistrates Hearing”), before a district judge (“the District Judge”). (2) He entered a plea of not guilty. (3) He was represented by the duty solicitor, Mr Yogesh Patel of ABR Solicitors, with whom he had a meeting before the hearing started (“the Meeting”). (4) Mr Patel made some manuscript notes during the Meeting (one page); and during the Magistrates Hearing (a further page). This case is about election of summary trial (or, as it can also be put, consent to summary trial); and about what happened at the Meeting and at the Magistrates Hearing.

explain to the accused in ordinary language: (a) that it appears to the court more suitable for him to be tried summarily for the offence; (b) that he can either consent to be so tried or, if he wishes, be tried on indictment; and (c) that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court…

Rule 9.11(2) of the Criminal Procedure Rules says:

The choice of the accused to consent to trial summarily (by the magistrates), referred to in section 20(2) and rule 9.11(2), is known as “electing summary trial”. The process under section 20 is known as a “mode of trial” (“MOT”) process. Three cases concerning the MOT process have been referred to in the Claimant’s written and oral submissions in this case. They are: R v Birmingham Justices ex p Hodgson [1985] 1 QB 1131; R v Bourne Justices, ex p Cope (1989) 153 JP 161; and R v Gould [2021] EWCA Crim 447 [2021] 1 WLR 4812. The section 20 MOT procedure is designed to ensure that “the right to trial by jury is not lost through ignorance” (Gould §102). There being “no transcript of proceedings” before the magistrates, one purpose of the statutory duty is to “achieve a situation where the Crown Court can safely assume that this significant procedure has been properly undertaken” (Gould §102). The failure to follow the section 20 procedure “renders what follows a nullity and liable to be quashed” (Gould §103).

DJ [District Judge] considers SST [suitable for summary trial] but indicates may still commit for sentence if convicted.

There were the two pages of manuscript notes of Mr Patel. Mr Patel’s one-page note made during the Magistrates Hearing was not provided to me, but its contents are discussed extensively in the transcript. The Claimant accepts that this note recorded: (i) the offence charged was “section 4A”; and (ii) that there was an “MOT” (followed by “summary”). There was the exchange of subsequent correspondence. In particular, there was an email of 18 January 2019 from the Claimant to Mr Patel (“the January Email”) which raised various points about the case and concluded with this paragraph:

In response, there was a letter dated 21 January 2019 (“the January Letter”) signed by Mr Patel, which said in its final paragraph:

It has always been the [Claimant’s] instructions that his previous solicitors told him repeatedly that he could not be tried by a jury as the offence was summary only and that the [Claimant] has no recollection of being asked by the Court what his election was.

The January Letter written by Mr Patel was clear evidence that Mr Patel had misunderstood. He had believed that the section 4A offence was summary only. He had believed that the Claimant had no right to trial by jury. At the Meeting, there had been no discussion about any choice. There had moreover been no, or no adequate, MOT process at the Magistrates Hearing. The answer to the question identified in Hodgson was that the Claimant did not make an election, properly understanding the nature and significance of the choice put to him.

The first is that the Ruling “cannot logically or rationally follow from the evidence which was given”. Under this head, the Claimant’s Skeleton Argument identifies and challenges each of these conclusions: (i) that the MOT procedure did take place correctly on 21 November 2018; (ii) that the Claimant was able to participate fully in that procedure; (iii) that the Claimant fully understood the ramifications of that procedure and consented willingly to summary trial in the Magistrates’ Court; (iv) that Mr Patel had given the Claimant correct legal advice; and (v) that the Claimant – and his witnesses – are dishonest when they claim that none of them (all having been present in Court) had understood that the Claimant had apparently been given the opportunity to elect trial by jury.

The second is that “key elements of the evidence presented in Court and provided in skeleton arguments are unaddressed or misreported”. Under this head, the Skeleton Argument identifies these points: (i) the Crown Court’s reasons do not acknowledge the evidence given that the hearing in the Magistrates’ Court was interrupted and occurred in two halves, despite the fact that the transcript makes clear that the Court accepted this; (ii) there is no comment on the fact that the charge was – at some point – changed from a summary-only to an either-way offence; (iii) there is no acknowledgement of the fact that the Magistrates’ Court hearing happened in the Remand Court and therefore that the Claimant was, for the entirety of proceedings, behind thick glass, impairing his hearing; (iv) there is no acknowledgement of the fact that the Complainant had not eaten or drunk anything in almost twenty-four hours (due to OCD issues preventing him accepting food or drink from anyone he does not trust) and had not slept; (v) there is no comment on the fact that the eventual charge brought in the Magistrates’ Court was in fact wrongly worded, or the failure to record consent; (vi) there is no engagement with the contents of the January Email the Claimant sent to the solicitor, demonstrating clearly that he had not understood the mode of trial procedure (even if it had happened); (vii) there is no consideration of what the motivating factors would have been for the Claimant to have elected the particular mode of trial apparently chosen; (viii) there is no consideration of whether, given that the CPS papers were not served until December, the Claimant could possibly have been in any position to make an informed decision as to mode of trial in November; (ix) the Crown Court does not remind itself that trial by jury is an absolute right; (x) there is no consideration of ‘why’ the matter is being raised at this stage; (xi) there is no comment on other evident errors Mr Patel, the solicitor, made, nor how his very evidence to the Court might have been different had he responded properly in the correspondence in question; (xii) there is no evaluation of the proportional effect of the decision to be made.

The third is that the Crown Court Hearing “was not conducted in a fair manner, did not approach key questions in a logically sound or rigorous manner, resulting in a Ruling which includes elementary and unacceptable mistakes of fact”. Under this head, the Skeleton Argument identified these principal contentions: (i) the Crown Court Judge interrupted the Claimant’s Counsel when cross-examining the solicitor, Mr Patel, and prevented her from continuing a line of questioning which was still bearing fruit; indeed, the Crown Court’s decision appears to be based on the assertion that the solicitor’s evidence was ‘clear’, when in fact he was being entirely equivocal and may well have been pushed to accept that fact, had cross examination on that point been permitted to continue, as the Claimant suggests it should have been; (ii) the Crown Court Judge similarly refused to allow the Claimant’s Counsel the opportunity to take instruction from the Claimant when the Claimant wanted to communicate with her, thus blatantly denying him the opportunity to engage fully in the hearing; (iii) the Crown Court Judge was openly dismissive of the relevance of the evidence given by the Claimant’s witnesses before they even entered Court, and his lack of attention to their evidence is reflected in the fact that he misnames them in his written reasons; (iv) the Crown Court did not invite final submissions on the case to allow both sides to summarise their cases; (v) hence there was no opportunity in Court for proper debate on the merits of the case between the Claimant’s Counsel and the Representative of the Crown and, as such, it is not even possible to establish which particular facts were agreed between Applicant and Respondent; (vi) despite the complexities of the case, the Judge and Magistrates met for less than five minutes to discuss the evidence presented, showing a worrying lack of rigour when it comes to their analysis of the facts; (vii) the Crown Court’s written reasons imply dishonesty on the part of the Claimant which was never alleged prior to the issuing of those reasons (certainly never directly asserted by the representatives of the Crown) and to which the Claimant therefore never had opportunity to make response and defend his credibility; (viii) moreover, there was no cross examination which specifically put to the Claimant’s witnesses that their evidence was untrue, yet similarly their evidence seems to have been found not to be credible without them ever being given an express opportunity to defend their credibility (ix) the Crown Court Judge’s description of the letter (Mr Patel’s letter) as a ‘difficulty’ betrays the fact that he is not neutral as to the outcome of the matter, rather he has a preferred outcome, and his task (as he sees it) is to circumnavigate the ‘difficulty’ which prevents him formulating a decision which aligns with that preconceived view; (x) it is also quite unusual that the application began with evidence from the respondent – rather than the applicant going first – and without any opening speeches, no apparent justification for this departure from the standard is given.

During the hearing, from my memory – and I know that Mr Storey was in custody, appeared in court remanded in custody – I went to see him. Prior to that, I had obtained the court papers and you can see that in my handwritten notes I’ve made notes of the prosecution witnesses and I would have gone through this with him, show him what the evidence against him is, asked him what his initial-- whether he was going to plead guilty or not guilty. At the same time, I would have also explained to him the fact that this is a matter which can be tried in the Magistrates’ Court or the Crown Court. I would have explained to him the advantages of both jurisdictions. For example, in the Magistrates’ Court, if he’s convicted, the sentence is likely to be lower and the likely costs awarded against him would be lower; the advantages of going to the Crown Court is that the matter will be heard before a judge and jury and the chances of acquittal, as far as my experience shows, are higher in a Crown Court than they are in the Magistrates’ Court… What I would in addition also say, that having spoken with a client who’d handed me the papers, it was clear that they had stated to me as well that they would accept summary trial, they would suggest summary trial to the magistrates in respect of this matter and that was also indicated to my client. Mr Storey was, I recall, I think he was a lecturer. He was an intelligent man and understood exactly what I was saying and made the decision for a summary trial. Part of the decision, I think, part of the reason for the decision was he was also, due to his income, I believe, he wouldn’t have qualified for legal aid and he wanted to pay privately and the costs were discussed, just very briefly, but the cost of a Crown Court trial would be substantial compared to that of a Magistrates’ Court trial, but I was confident that he understood that the trial could take place either in a Magistrates’ Court or the Crown Court. We agreed and-- well, we decided and agreed that it would be in the Magistrates’ Court. That is confirmed by my recollections that during the hearing the Crown, following the indication of a plea of not guilty, the mode of trial took place and the Crown indicated summary trial, the magistrates accepted summary trial and the question was put to Mr Storey as to whether or not he wished to have this matter tried in a Crown Court or the Magistrates’ Court at Leeds. He elected summary trial… When I saw him in the cells, he understood everything. As I said, he was an intelligent man, as far as I saw. He understood what the procedures were, what the evidence against him was and I had no concerns as to his capacity to understand what was going on.

It states that, “The allegation you’ve been charged with is a summary only offence and can only be dealt with in the Magistrates’ Court”. That bit is clearly wrong because we had a mode of trial and that was dealt with with the client present and he was-- I explained to him exactly what he could do and the advantages of both matters. He’s a clever chap. He understood the situation. He’s the one who the court asked to confirm where he wanted the trial to take place and that was asked by the court, not me.

On that same topic, later, there was this (p.41):

Asked about the Meeting, there was this exchange (p.36):

Asked about the Magistrates Hearing, there was this (pp.36-37):

Q Was there a conversation between you and Mr Patel about the nature of the charge and who was going to try that charge, who was going to make decisions about whether or not you’d done it? A No. JUDGE BAYLISS: Sorry? No discussion at all? A Not a discussion about who would be trying the case, no. MISS MELLY: If there had been discussions – and we heard what Mr Patel said about the pros and cons, the increased cost but risk of more sentence but greater chances of acquittal but more costs and so forth at the Crown Court – did he give you those pros and cons in that discussion at that point? A If it’s at all possible that he could have said anything relating-- that was brief about saying summary trial or trial in the Crown Court, then it certainly escaped my notice and attention and wasn’t something that was a big feature. There was no extended---- JUDGE BAYLISS: So if he said anything about---- MISS MELLY: Summary trial---- A If he said anything about summary trial and Crown Court trial, it must have been very brief because it didn’t-- it certainly was not an extended conversation which had any weight to it. JUDGE BAYLISS: And you said it had escaped what? Escaped? A Well, it certainly escaped my attention in that I do not recall that I did not-- I did not enter the courtroom under the impression that I had a decision to make. I entered the courtroom under the impression that I was going to enter a plea and say “Not guilty” to this charge and it would be taken from there.

Q Mr Storey, I just want to make my understanding as clear as it can be about your case. A Mmm. Q Firstly, is it your case that Yogesh Patel did not advise you at all as to the different modes of trial? A We didn’t have a discussion about that, no. Q Is it your case---- A Can I just clarify that point? Q No---- A Just to say that we didn’t have a discussion about mode of trial at all on the day of the initial hearing. The closest that we ever come to that is the email correspondence of me asking him about----Q And is it your case---- MISS MELLY: Sorry---- MISS METCALFE: -- that mode of trial procedure in the hearing did not happen at all with the district judge speaking to you? A So I’m not familiar with the way that things should work. What I do know is that it was difficult for me to ascertain most things that were happening in that hearing. I only clearly remember speaking to give my name, address, date of birth and to enter “Not guilty”, which I was very vehement and strong about. I did not need anybody to tell me what to say in regard to that. I certainly have no recollection of speaking at any other point and I’m not sure as to the formulation of what should have been asked of me exactly and what I should have said.

And this (p.71):

I can group together a number of legal points. The Claimant says that the ruling left an ambiguity as to which jurisdictional route was being relied on. But the answer to that is that jurisdiction was decided in his favour and the Ruling addressed the Hodgson question on which his own application rested. The Claimant says the burden of proof being inappropriately placed on him. But the Ruling was not a function of a particular characterisation of the burden of proof: the Crown Court concluded that the Claimant had made his election in full knowledge of his options. The Claimant says that the Ruling revealingly misdescribes section 20(2) of the 1980 Act, which does not use the word “jury”, in saying (Ruling §10) that that subsection “requires the court to explain in ‘ordinary language’ that he may either consent to summary trial or elect trial by jury”. But the word “jury” is not inapt in describing the substance of the “ordinary language” requirement. The Claimant says it was an error of approach to “assume” compliance with the statutory duty (Ruling §11), and to reject the evidence of the Claimant, his father and brother, because “it would fly in the face of the statutory obligation laid down” (Ruling §15). But the assumption, derived from Gould §102, operates only “unless the contrary is shown”, as the Judge said when drawing attention to Gould (transcript p.2) and the Court did no more than give the statutory duty significant weight alongside consideration of the evidence as a whole. The Claimant says that the Crown Court should have recognised the need for a “record” of the “consent”, but this (another new point) is not a precondition within the Hodgson question. The Claimant submits that the Ruling rejected the evidence of the Claimant’s father (Stanley Storey) and brother (Edward Storey), that the Claimant was addressed by the District Judge only to confirm his details and enter his not guilty plea, without it being put to those witnesses that they were lying. But this is another new point (Ms Melly QC did not submit that the nature of the cross-examination of those witnesses meant the Application must succeed) and the reliability of such evidence could be evaluated, alongside the other evidence, and did not involve finding – or putting – that they were telling lies.

I can group together a number of points about the evidence. The Claimant says that the issue was ultimately his word against Mr Patel’s; that the contemporaneous documents supported him; that the January Email strongly evidences his state of knowledge; and that the January Letter reflects Mr Patel’s misunderstanding. He says Mr Patel’s limited degree of recollection undermined his evidence; as did his state of health. The Claimant submits that key matters were not grappled with in the Ruling. But the Court plainly had well in mind the evidence given, and points ventilated. It gave legally adequate reasons which dealt with the principal controversial issues.

I can group together a number of points about procedure. The Claimant points out, correctly, that the Ruling gives incorrect names for his father and brother. But that is not a vitiating error, material to the reasoning or outcome; nor was it picked up for correction in the written reasons, by anybody, when the Judge used incorrect names in the oral reasons. The Claimant says that the Judge was dismissive of those two witnesses before they even gave their evidence by saying “family members, well, there we are, whatever they’re going to say”. But that was in the context of their evidence being limited in nature (“limited” was the very word used about their evidence by Ms Melly QC). The Claimant says that the Judge wrongly warned Ms Melly QC “this is the last time this question is going to be asked” (transcript p.35). But that was a reference to a specific question, in “the area of repetition” and the cross-examination continued for another 9 pages of the transcript. The Claimant says the Judge was wrong, during Ms Melly QC’s closing submissions, not to let her deal with a point by taking “instructions” from the Claimant. But the point was whether Mr Patel’s hearing note “MOT” reference showed that he had not thought at the hearing that he was dealing with a summary-only offence. That was properly a matter for submission. The Claimant says he would have been able to prompt Ms Melly QC to take the section 2A point, but if that were a good point, she would have been taking it already, and the contemporaneous CPS hearing record shows it to be a bad point. The Claimant says the Court should have heard closing submissions from Ms Metcalfe, to allow a “dialogue” and clarity as to what was or was not “accepted” by the CPS, which could then have affected Ms Melly QC’s position in relation to the email. But the Court did not need to trouble Ms Metcalfe having heard a closing speech in which Ms Melly QC was able to make all of her points, based on the evidence adduced. The Claimant submits that the hearing was all the wrong way round because it started by hearing from Mr Patel, the CPS witness. But the Court ventilated this with Ms Melly QC, was plainly a course open to the Court, involved no unfairness and rightly provoked no protest. The Claimant submits that 5 minutes was far too short a period for deliberation. But the Judge and Justices, who will have been prepared and had been involved with the case all day, were in a position to agree if they did – as they did – as to the analysis. The Claimant says the Judge’s use of the phrase “the difficulty” to describe the January Letter shows that an unfair predisposition. But “difficulty” was the word used by Ms Melly QC too, and the Court needed to consider – as it did – to what extent the January Letter undermined Mr Patel and supported the Claimant.

The Claimant is aware that were permission refused, there would be no costs order, and he has a right to apply to the Court of Appeal. The Order I make is simply that permission for judicial review is refused, with no order as to costs.

Having received the draft judgment, the Claimant asked for clarification – in light of this indication – as to access to the Court of Appeal. The reference to a right to apply direct to that Court had come from me at the end of the hearing, in identifying possible consequential matters. I communicated to the Claimant, via my Clerk, that I would add this clarification at the end of the Judgment: