William Malone, R (on the application of) v Llandudno Magistrates' Court

Following his arrest on 28^th July 2024 on suspicion of having committed a motoring offence the Claimant was charged with the offence of failing without reasonable excuse to provide a specimen of breath contrary to section 7(6) of the Road Traffic Act 1988. The Claimant accepted that he had declined to provide a specimen but said that he had a reasonable excuse. That excuse was said to be that the Claimant suffers from Post Traumatic Stress Disorder and that he was subject to the effects of this condition and of a panic attack at the time he refused to provide a specimen. The Claimant’s trial was listed for hearing on 4^th October 2024 at Llandudno Magistrates’ Court. On the morning of the hearing the Prosecution applied for the adjournment of the trial. The Claimant resisted that application but the Magistrates granted it and adjourned the trial to 20^th December 2024. The Claimant seeks judicial review of that decision contending that it was wrong in law and/or irrational.

Permission was granted by Griffiths J. The Defendant has taken no part in the proceedings but a copy of the legal adviser’s notes of the hearing and of the Magistrates’ decision was provided to the Claimant and to the Prosecution and was put before me.

Just after midnight of 27^th July 2024 PC Roberts and another officer attended an address in Llanfairfechan to investigate a report that a car had been driven into a bush. The officers arrived to find the Claimant’s car which had been reversed into a hedge. The Claimant lived close to where the car was found and the police officers went to his house. In her subsequent statement PC Roberts said that the Claimant initially admitted both that he had been driving the car and that he had drunk alcohol. However, when asked to provide a specimen of breath the Claimant said that he had not been driving and refused to give a specimen of breath. The Claimant was then arrested and taken to the police custody unit in St Asaph.

In the custody unit the Claimant was again asked to provide a specimen of breath. This request was made by PS Hughes. The Claimant again refused to provide a specimen. As a result, he was charged with the offence of failing to provide a specimen of breath. I will consider more fully below the evidence on which the Prosecution sought to rely in respect of those events.

The first hearing was on 12^th August 2024 and the Claimant pleaded not guilty. By the time of that hearing the Prosecution had served the statement of PC Roberts. In addition to the account I have summarized above in respect of the events at the Claimant’s home this officer also said that the Claimant had been obstructive when he was being questioned by PS Hughes in the custody unit. PC Roberts said that when at St Asaph the Claimant had refused to provide a specimen of breath and that when asked if there were any medical reasons why he could not do so he had said “I’m not telling you, not interested”.

The Preparation for Effective Trial form was completed at the hearing on 12^th August 2024. Before me counsel were not in a position to say the precise order in which the entries had been made. However, a number of points appear from the form:

The trial was fixed on 12^th August 2024 for Friday 4^th October 2024.

In the Prosecution’s Summary Grounds of Defence the chronology includes an extract from the prosecutor’s note of the 12^th August 2024 hearing. The extract says:

“I make reps: PC Roberts, issue for Trial is PTSD not PC Roberts- not required (especially if we have the CCTV of the custody suite) ... The issue for trial is his PTSD, not PC Roberts-so PC Roberts does NOT need to be called. Need to get the CCTV of suite served... Trial date 4^th Oct (PC Roberts NOT required).”

The full note has not been provided and there is no statement from the prosecutor. It is not self-evident from the note whether the note is intended to convey that the court and/or the Claimant’s representatives accepted the submission that PC Roberts was not needed for the trial.

It follows that there was an inconsistency between the terms of the prosecutor’s note and the PET form as to whether PC Roberts was needed at trial.

On 5^th September 2024 the Prosecution served copies of the footage from the body-worn cameras of PC Roberts and her colleague and CCTV footage from inside the St Asaph custody unit. The covering email said that further statements were awaited from the officer who conducted the breath test procedure in the custody unit and from the health care professional. It also said:

“Please can it be confirmed that PC Roberts is not a witness required for trial. This is in accordance with the Prosecutors note from the first hearing, however, the PET form states that the officer is required.”

The Claimant’s lawyers made no response to that request for clarification. However, on 11^th September 2024 they applied for the trial date to be vacated. The application form said that the Claimant was unable to comply with the direction to serve expert evidence by 23^rd September 2024. This was said to be because the Claimant’s lawyers were awaiting further statements from the police witnesses and the health care professional. The application said that “the nature of [the Claimant’s] defence rests wholly on supportive expert evidence” and that the expert evidence could not be obtained until the Claimant had received the further statements from the Prosecution. The point was repeated later in the form where it was said that the expert evidence was needed for the Claimant to be able properly to advance his defence and that the trial would be likely to result in a conviction if it were to proceed without the disclosure of the statements and the expert evidence.

On 23^rd September 2024 the Prosecution served the statement of Julie Price. Miss Price was the custody nurse who had been on duty at the St Asaph custody unit in the early hours of 28^th July 2024. Miss Price had been asked to assess the Claimant and her statement described her assessment thus:

“MALONE presented as being under the influence of intoxicating substances and smelled strongly of intoxicants. He was slurring his words and difficult to keep on topic and therefore difficult to obtain an accurate medical history. He did say that he had high blood pressure and had suffered from Deep Vein Thrombosis In past as well has mental health issues, PTSD, depression and anxiety. He was not very clear on what medications he took and as far as I can recall he didn’t have any with him.

I asked specifically if he took any Inhalers or had any chest/breathing issues which he denied.

Clinical observations taken including blood pressure, heart rate, respiratory rate and temperature, all within normal limits. MALONE refused blood monitoring to be taken.

MALONE presented under the Influence of intoxicants, slurring word and unsteady on feet. Able to speak in full sentences and not unduly short of breath. MALONE at no point expressed any issues with his breathing or chest either to the custody Sergeant or to myself when I saw him in medical room.”

The Claimant’s adjournment application was heard by District Judge Jones on Wednesday 25^th September 2024. The Prosecution opposed the application and told the judge that they were trial ready. The judge refused the Claimant’s application and the trial remained listed for 4^th October 2024. There is no note of the reasons for the District Judge’s decision. The Prosecution’s Summary Grounds of Defence simply say in somewhat Delphic terms that the refusal was because “the Claimant had not acted in accordance with the Criminal Procedure Rules in obtaining report”.

It is to be noted that although the Claimant and the Prosecution were both represented at the hearing on 25^th September 2024 the Prosecution did not at that hearing seek any further clarification as to whether PC Roberts was needed for the trial.

It is also to be noted that the Prosecution did not tell the District Judge that they had not yet received, let alone served, a statement from PS Hughes. That statement was completed by PS Hughes at 7.19pm on Sunday 29^th September 2024. It was received by the Prosecution on Wednesday 2^nd October 2024 and sent to the Claimant’s lawyers at 7.46am on the morning of the day of the trial, Friday 4^th October 2024. The effect of the service of the statement having only taken place then was that it could not be adduced in evidence at the trial that day without the agreement of the Claimant.

In that statement PS Hughes said that the Claimant appeared to be drunk when he was in the custody unit. He said that the Claimant had refused to cooperate when PS Hughes asked him questions about his welfare. PS Hughes said that the Claimant had said “no chance” when asked to provide a specimen of breath. PS Hughes said the Claimant had answered “yes” when the officer had asked him if there were any medical reasons why he could not provide a specimen of breath but had refused to say what those reasons were. It was as a result of that exchange that PS Hughes arranged for Miss Price to examine the Claimant. It is to be noted that there is an inconsistency, albeit a comparatively modest one, between the accounts of PC Roberts and PS Hughes as to what the Claimant said in the custody unit. PS Hughes says that the Claimant did assert that there was a medical reason for his refusal to provide a specimen but declined to say what that reason was. PC Roberts says that the Claimant declined even to say whether or not there was a medical reason for his refusal.

Neither PC Roberts nor PS Hughes was present at the hearing on 4^th October 2024. It was not clear from the material before me whether the Prosecution had sought in advance of 4^th October 2024 to arrange for them to attend the hearing. In any event it was as a consequence of their absence that the Prosecution applied when the trial was called on for the hearing to be adjourned.

The legal adviser’s note contains a summary of the submissions which were made to the Magistrates. It is apparent that this is only a summary both of the submissions and the reasons given by the Magistrates. However, it was not suggested before me that any matter of substance was omitted from either part of the summary.

Hannah Williams for the Prosecution informed the court that it had not been possible to contact PC Roberts and that the “other officer” (presumably PS Hughes) was “unavailable”. It followed that Miss Price was the only witness who was at court. Miss Williams said that there had been “miscommunication” with the Prosecution information indicating that PC Roberts was not required and the PET form saying that she was. Miss Williams said that the Prosecution had only received the statement of PS Hughes two days before having been “chasing it for a month”.

For the Claimant Baljit Singh referred to the history of the case. He said that the need for PC Roberts to attend had been confirmed at the first hearing. Mr Singh referred to the Claimant’s earlier application to adjourn the trial and the refusal of that application by the District Judge. He pointed out that the Prosecution had opposed that adjournment application. He emphasized the need for the adjournment to be justified and the importance of speedy summary justice. Mr Singh pointed out that the Prosecution could have raised case management matters at the hearing only the week before in front of the District Judge. There was, he said, to be a balancing exercise but the need for the adjournment was because of failings on the part of the Prosecution and it was not right for the court to rescue the Prosecution from its errors.

The note records that the Magistrates then intervened referring Mr Singh to the fact that the Prosecution had sought clarification on 5^th September 2024 as to whether PC Roberts was required. Mr Singh said that there had been a response on 11^th September 2024 which highlighted the issues in the case. Mr Singh accepted that the Claimant’s lawyers had not answered the question about PC Roberts directly but he pointed out that the information had been recorded on the PET form.

The note records that the legal adviser referred the Magistrates to sections 24C.9 and 24C.10 of the Criminal Practice Directions 2015. Those directions were not in fact in force at the time of the decision having been revoked and superseded by the Criminal Practice Directions 2023.

The Magistrates granted the adjournment application and vacated the trial.

The reasons for the Magistrates’ decision were recorded in the following short terms:

“Decided to grant a very short adjournment, on the basis that CPS did request clarification which they didn’t get, not respond to it and went ahead assuming, the assumption was wrong, failing on both sides and we feel [it is in the] interests of justice to grant an adjournment”.

The Magistrates relisted the trial for 20^th December 2024. It is apparent that the adjournment for 2 ½ months rather than for the “very short” period to which the Magistrates had referred was in response to a submission on behalf of the Claimant (seemingly made after the decision to adjourn had been announced) that the adjournment should allow sufficient time for an expert report to be obtained. The Magistrates agreed to that and laid down a timetable for the sequential service of expert reports.

Section 10(1) of the Magistrates’ Courts Act 1980 gives the magistrates’ court a discretionary power to adjourn a trial. That discretion must be exercised in accordance with the Criminal Procedure Rules (and in particular having regard to the overriding objective) and the Criminal Practice Directions. Provided that the power is exercised lawfully and rationally this court will not interfere with a decision which is within the range of the magistrates’ discretion.

In Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin) Jack J, with whom Keene LJ agreed, summarised the principles thus, at [9]:

“In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 (then as Lord Bingham CJ). The following points emerge:

(a)

A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.

(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.

(c)

Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.

(d)

Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.

(e)

In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.

(f)

The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment.

(g)

The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.

(h)

Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen.”

Those principles formed the basis of the approach subsequently set out in the Criminal Practice Directions. As explained above, at the time of the decision under challenge the applicable practice directions were the Criminal Practice Directions 2023. The following provisions are of note for current purposes.

Trial adjournment was addressed thus at [5.4.3] – [5.4.5]:

“5.4.3

It should be rare for applications to adjourn to be made on the day of trial, except in circumstances that could not have been foreseen. It may be necessary to hear a contested application to adjourn a trial either very shortly before or even on the date on which that trial is due to begin.

5.4.4

Section 10 of the Magistrates’ Courts Act 1980 confers a discretionary power to adjourn. The starting point is that the trial should proceed. The court must not be deterred from a prompt and robust determination. As an exercise of discretion, the High Court will only interfere with a decision on adjournment if there are compelling reasons so to do.

5.4.5

A court may be justified in refusing an adjournment even if that means the prosecutor is unable to prove the prosecution case or a part of it, or that the defendant is unable to explore an issue. Even in the absence of fault on the part of either party it may not be in the interests of justice to adjourn, notwithstanding that an imperfect trial may be the result.”

At [5.4.10] the matters to be considered were listed as being:

“In reaching a decision whether to adjourn the court must consider the following matters:

a.

That the court's duty is to deal justly with the case, which includes doing justice between the parties.

b.

The need for expedition and that delay is generally inimical to the interests of justice – it has the potential to bring the criminal justice system into disrepute.

c.

That proceedings in a magistrates’ court should be simple and speedy.

d.

That applications for adjournments must be rigorously scrutinised and the court must have cogent reasons for adjourning.

e.

The need to review the history of the case.

f.

The need to examine the nature of the evidence and whether memories of relevant evidence are liable to fade.

g.

The interests of any co-defendant(s).

h.

The interests of any witness(es) who have attended, with particular emphasis on their age and/or vulnerability.

i.

The interest of the defendant(s) in resolving the matter without undue delay but also the public interest in ensuring that criminal charges are adjudicated upon thoroughly, with the guilty convicted as well as the innocent acquitted.

j.

The fact that the more serious the charge the greater the public interest in the trial proceeding and the greater the responsibility of the parties to have engaged in effective preparation.

k.

Where a defendant asks for an adjournment whether they will be able to present the defence fully without one and the extent to which the ability to do so may be compromised by an immediate trial.

l.

The court must consider the consequences of an adjournment on:

i.

the ability of witnesses and defendants accurately to recall events;

ii.

the impact of adjournment on other cases;

iii.

the length of time it may take to list the case for trial.

m.

The court must also consider the nature and gravity of fault on the part of the applicant for the adjournment and who is responsible for it.”

At [5.4.14] the Practice Directions set out the approach to be taken in the event that the adjournment application is made because a witness has failed to attend. That provided as follows. It is to be noted that the primary focus of that guidance appears to be on cases where a witness has failed to attend and not on those where a party has failed to arrange the attendance of a witness.

In this case the Magistrates were referred to the Criminal Practice Directions 2015. The passages to which they were referred were not in identical terms to those in the 2023 Practice Directions but the substance of the approach to be taken was the same in both iterations of the directions.

The approach to be taken by this court on an application for judicial review of an adjournment decision has been explained in consistent terms in a number of cases. The principles are well-established

R (Saunders) v Bristol Magistrates’ Court [2022] EWHC 2544 (Admin), [2023] Cr App R 8 arose, as does the current case, out of a prosecution for a failure to provide a specimen of breath where the defendant was advancing the defence of reasonable excuse. There, the magistrates had adjourned a trial on the day before the hearing in response to a prosecution application. The application had been necessary because the prosecution had failed to warn a necessary witness: the custody doctor. The Magistrates expressed their reasons for that decision in the shortest of terms saying only:

When pressed by the defence advocate to expand on those reasons the presiding magistrate had added only that “the failure on the admin side should not affect the interests of justice” and then declined to give any further reasons.

In allowing the judicial review application Chamberlain J referred to Miah v Crown Prosecution Service [2018] EWHC 3208 (Admin) where a decision to adjourn a trial had been upheld where the unavailability of witnesses had been the result of prosecution failings. Chamberlain J noted that there “the case stated contained full reasons for the decision, showing that the justices had considered the relevant authorities and factors, including the seriousness of the offences…” (see at [37]). He contrasted that with the position in the case before him saying in relation to the issue of whether the decision to adjourn was vitiated by a public law error:

Chamberlain J also found that the decision in that case was vitiated by apparent bias arising from a comment made by one of the magistrates. However, each ground was separate and it is clear that the inadequacy of the reasons given by the magistrates would itself have sufficed to render the decision unlawful.

In addressing relief Chamberlain J considered whether, if the matter had been approached properly by the magistrates, the adjournment application should have been refused. He concluded that it should have been. Chamberlain J also noted that it would not be fair to direct that the trial proceed without the evidence of the custody doctor. In light of those considerations he concluded that the appropriate relief was the quashing of the decision and remission of the case to the magistrates with a direction to acquit.

In R (Thandi) v Sevenoaks Magistrates’ Court [2023] EWHC 507 (Admin) there had been a failure of disclosure on the part of the prosecution. This became apparent during the course of the trial and the prosecution applied for an adjournment with a view to obtaining and disclosing the relevant material. The prosecution conceded that if the adjournment were not granted they would offer no evidence. The magistrates expressed their reasons in the following terms:

In summarising the approach to be taken Lavender J noted, at [44] – [54], the wide ambit of the magistrates’ discretion. He explained that there was nonetheless a requirement for adjournment applications to be subjected to rigorous scrutiny. Lavender J added that the “requirement to give cogent reasons” for decisions on adjournment applications went “hand in hand” with the requirement for rigorous scrutiny.

Lavender J set out his conclusion at [57] – [60] saying:

“57.

The claimant has permission to advance two grounds for judicial review, grounds 2 and 3. By ground 2, it is alleged that the magistrates erred by failing to take account of or, alternatively, giving insufficient weight to, relevant considerations set out in Part 24C of the CPD. By ground 3, it is alleged that the decision to adjourn the trial was Wednesbury unreasonable.

58.

Although the magistrates said that they had had regard to Part 24C of the CPD, the reasons which they gave were so brief that it is unclear how they had arrived at their decision and they did not demonstrate either that they had applied rigorous scrutiny to the case or that they had properly taken account of all relevant factors, which included, as the claimant contends:

i)

the starting point that the trial should proceed;

ii)

the fact that this was the third trial listing of the case and the defendant was paying privately; and

iii)

the fact that the alleged offence was over 19 months old.

59.

For the CPS, Mr Jarvis submitted that it was clear that the magistrates had applied the correct test, i.e. whether it was in the interests of justice to adjourn the trial, they had taken account of the right Part in the CPD, there were a range of interests for the magistrates to consider, including the interests of Mr Bains and the public interest in there being a trial of a serious charge, and that, having heard the trial thus far, they were familiar with the evidence.

60.

Nevertheless, it is clear that this was not the sort of cogently reasoned decision which Chamberlain J recognised in Saunders v Bristol Magistrates' Court is required when magistrates are deciding whether or not to adjourn a trial. It follows that the decision was unlawful.”

In Saunders Chamberlain J had concluded that the only correct decision for the magistrates would have been to refuse the application request. In Thandi, however, Lavender J identified a number of factors which could have been taken into account by the magistrates as supporting the adjournment application. He concluded that the magistrates could rationally and applying the correct principles have decided either to grant or to refuse the adjournment and that a properly reasoned decision resulting in either of those outcomes could have been lawful.

It was against that background that Lavender J addressed the question of remedy. In that case the claimant’s counsel had conceded that if Lavender J found that “the magistrates’ decision was unlawful but that a decision to grant the adjournment sought would have been within the magistrates’ discretion” then “it would not be open to [the court] to direct the Claimant’s acquittal”. Lavender J proceeded on the basis of that concession. In the light of that he was confronted with a choice between simply declaring the decision to have been unlawful (the course proposed by the prosecution before him) and remitting the case for the decision to be remade with directions as to the material which the magistrates could consider and a direction for an acquittal if the adjournment application were to be refused when remade.

At [76] Lavender J identified the overall basis on which his discretion was to be exercised saying:

“In exercising my discretion as to the appropriate remedy, I have to consider all the circumstances of the case, including, in particular, the potential for prejudice or unfairness to either party. I bear in mind the authorities to which I have referred and the paragraphs which I have cited from the Criminal Procedure Rules. I am very conscious that delays in the Magistrates' Courts are to be discouraged.”

He then addressed considerations relevant to the particular case saying, at [77]:

“One consideration is that a retrospective decision now by the magistrates as to whether the hearing should have been adjourned on 3 August 2022 would be an artificial exercise. As to that:

In light of that Lavender J confined the relief granted to the making of a declaration as to the unlawfulness of the decision to adjourn.

Finally, in R (Rusu) v Northamptonshire Magistrates’ Courts [2023] EWHC Admin (3290) Johnson J set out the approach to be taken to the judicial review of an adjournment decision saying, at [27]:

“The starting point is that the Justices had a broad discretionary power to adjourn but that discretion had to be exercised in accordance with the overriding objective in the Criminal Procedure Rules and Practice Direction and the case law. It also had to be adequately reasoned. This court has power to review the decision of the Magistrates' court and to quash that decision, but it may only do that where the Magistrates' Court erred on public law grounds. In considering whether it erred on public law grounds the nature of the decision, involving as it did the exercise of a broad discretionary case management power, is an important part of the context. That means, as the authorities show, that a reviewing court is not empowered to quash the decision merely because it would have taken a different view. It is necessary to show that the decision made by the Magistrates Court was outside the range of reasonable decisions that could have been made by a court properly directing itself in accordance with the Rules, the Practice Direction and case law. Alternatively, it must be shown that it made some other public law error; that might include a failure to have regard to a relevant factor, taking account of an irrelevant factor, or failing to give adequate reasons for its decision.”

In that case Johnson J concluded that the decision to adjourn on the day of the trial was within the range of those properly open to the magistrates. He also rejected an argument that insufficient reasons had been given explaining, at [36], that:

“the obligation to rigorously examine the need for an adjournment does not necessarily mean that lengthy or detailed reasons need to be given for the decision”.

The grounds of unlawfulness and irrationality are closely related in the circumstances of this case. The Claimant also asserted that the reasons given were inadequate. The reasons challenge was implicit in the Claimant’s pleaded case and Mr Jarvis took no point in relation to its inclusion in the case being advanced before me.

The Magistrates were referred to an out of date version of the Criminal Practice Directions. Of itself, that was not a fatal flaw because, as Mr Rosser accepted and as I have noted above, the version to which the Magistrates were referred and the correct version cover substantially the same ground and identify the same principles albeit in slightly different language. Nonetheless, the fact the Magistrates were advised by reference to the old version of the Practice Directions does provoke extra vigilance in considering whether they applied the correct test.

The reasons for a decision to adjourn or to decline an adjournment request can be succinct. They must, however, be sufficiently detailed to enable the parties to understand the reasons for the decision and for this court on review to see that the magistrates exercised their discretion on the correct legal basis. As Chamberlain and Lavender JJ explained in Saunders and Thandi respectively the decision must be cogently reasoned. It must demonstrate that the magistrates have applied the necessary rigorous scrutiny and that they have taken account of the necessary relevant considerations. Where the decision is not cogently reasoned and fails to meet those requirements it matters little whether the public law failing is described as a failure to give adequate reasons or a failure to apply the correct legal result. The outcome is the same because in the absence of adequate reasoning this court will be unable to accept that the correct approach was applied.

The Magistrates’ decision in this case was only barely more fully reasoned than that which was accepted in Saunders to have been inadequately reasoned and no more so (and arguably less so) than that in Thandi. It is apparent that the Magistrates understood that they had to have regard to the interests of justice and also apparent that they took the view that there had been fault on both sides. The reasoning did not go beyond that. Even when due account is taken of the need to see the reasons in the light of the submissions which had been made they failed to demonstrate that the Magistrates applied to the adjournment application the level of rigorous scrutiny which was required. It was not necessary for the Magistrates to refer expressly to the requirement of rigorous scrutiny in their reasons. It would have sufficed if the reasoning had demonstrated that such scrutiny had in fact been applied to the application for an adjournment. However, in the absence of such demonstration the absence of any reference to the requirement of rigorous scrutiny reinforces the conclusion that the Magistrates failed to apply the correct test. Here, the reasons given by the Magistrates wholly failed to demonstrate that the correct approach was applied. In the circumstances of this case there were a number of considerations to which the Magistrates should have referred in order to demonstrate that the correct approach had been adopted. Those were, moreover, considerations weighing against the grant of an adjournment. The Magistrates’ reasons gave no indication that they were taken into account and even less do they explain why they were outweighed by the finding that there had been fault on both sides.

In order to apply the correct approach the Magistrates should have taken account of the following matters and for their decision to be adequately reasoned it should have referred to them. The reference could have been brief but there should have been reference and an explanation of why the decision to adjourn had been made notwithstanding these matters.

First, the Magistrates should have made it clear that they were proceeding on the basis that the starting point was that the trial should continue and that there needed to be a clear reason for adjourning. That should have been coupled with an indication that account had been taken of the disadvantages which would flow from an adjournment. Those disadvantages were compounded in this case by the fact that the adjournment application was being made on the morning of the trial.

In order to apply the necessary level of rigorous scrutiny the Magistrates needed to review the history of the case. That history included the fact that the Claimant’s application to adjourn the trial had been refused only 10 days before. No reference was made to this in the Magistrates’ reasons even though the Claimant’s advocate had advanced it as a relevant consideration. The relevance of that earlier decision was not on some form of “tit for tat” basis whereby a Prosecution adjournment application was to be refused just because a defence application had been refused earlier. Each adjournment application had to be determined on its separate merits. Nonetheless, there are a number of matters which flow from the fact that the Claimant’s application had been refused and which should have been considered by the Magistrates.

Next, the Magistrates wholly failed to address the fact that PS Hughes was not present and that the Prosecution had only served his statement on the morning of the hearing. The Magistrates’ reasons approach the matter on the basis that the only difficulty was the absence of PC Roberts. The Magistrates focused on her absence and the Claimant’s failure to respond to the request for clarification as to whether she was needed. The reference to there being fault on both sides related to those matters. There can, however, be no suggestion that the Claimant was to blame either for the absence of PS Hughes or for the late service of his statement. The Magistrates failed to take any account of the absence of PS Hughes and of the Prosecution’s sole responsibility for that difficulty. They also failed to consider the importance of PS Hughes’s evidence. It was concerned with the Claimant’s actions in the police station and was clearly relevant to the core issue of whether there was a reasonable excuse for the Claimant’s refusal to provide a sample. This was not a case where a new witness had come to light or where it had only became apparent in the course of the proceedings that the evidence of PS Hughes would be relevant and would be in issue. In the PET form, completed on 12^th August 2024, the Claimant’s lawyers had identified as two of the issues the questions of whether the statutory warning was given and whether the Claimant had a reasonable excuse for his refusal to provide a specimen. The evidence of PS Hughes was highly relevant to both those issues. The Prosecution should have realised from the time of that first hearing that this officer’s evidence was needed and that he would be required to answer questions at the trial. Despite that it was only on the morning of the trial that his statement was served.

The Magistrates attached considerable weight to their conclusion that there had been “failings on both sides”. Indeed, that conclusion appears to have been the crucial factor in their decision. Although they did not say so expressly the tenor of the reasons is that the Magistrates regarded the Prosecution and the Claimant as being equally to blame for the absence of PC Roberts. There was, however, no proper analysis of the position. The explanation in the Magistrates’ reasons is in the shortest of terms with the failing of the Claimant apparently being that of not responding to the Prosecution request for clarification and that of the Prosecution being that of making an incorrect assumption. The fact that there had been a hearing on 25^th September 2024 was highly significant in this regard but the Magistrates took no account of it. In addressing the Magistrates the Claimant’s advocate expressly referred to that hearing and said that the Prosecution could have raised at that hearing the question of whether PC Roberts was needed at the trial. This was a powerful point. The Claimant and the Prosecution had both been represented at that hearing before the District Judge. The conclusion of the hearing had been that the Claimant’s adjournment application was refused and the trial remained listed for 4^th October 2024. The Prosecution position on 4^th October 2024 was that there had been uncertainty as to whether PC Roberts needed to attend the trial. That uncertainty was attributed in part to the Claimant’s failure to respond to the Prosecution request for clarification. Any uncertainty could have been completely resolved if the Prosecution had raised the point in open court on 25^th September 2024 when the future conduct of the case was being considered. This was a point which, at the very lowest, indicated that the predominant blame for the absence of PC Roberts lay with the Prosecution. The Magistrates’ reasons wholly failed to engage with that point.

In light of those deficiencies I am driven to the conclusion that the Magistrates failed to apply the correct legal test and that the adjournment application was not subjected to the required rigorous scrutiny. The Magistrates expressed the reasons for their decision in the shortest of terms which failed to have regard to a number of clearly relevant matters. That position can only be explained by the conclusion that the Magistrates failed to apply the correct approach and failed to have regard to relevant considerations. The decision was, therefore, unlawful and the challenge on ground 1 succeeds.

I have considered whether the Magistrates could have made a lawful and rational decision to adjourn. There is real force in the argument that it would have been open to the Magistrates to adjourn on the footing that any injustice to the Claimant flowing from the need for the adjournment and from the Prosecution’s failings could be addressed by allowing the Claimant to obtain expert evidence and by allowing time for that. I agree that such a course would have been within the range of lawful and rational outcomes if the only reason the adjournment was needed was the absence of PC Roberts and if the Prosecution had not resisted the Claimant’s adjournment application of the week before. Even in those circumstances a decision to adjourn would have been at the outer end of the range of rational decisions. That, however, was not the position. The Magistrates had to take account of the fact that the absence of PC Roberts was not the only reason the case was not ready to proceed. In addition to that failing they should have had regard to the facts that the Prosecution had only served PS Hughes’s statement on the morning of the trial (a failing for which the Claimant had no responsibility) and that 10 days before the Prosecution had resisted the Claimant’s adjournment application and had done so on the footing that the Prosecution was trial ready. The Prosecution’s obligation to put matters fairly before the court required it to tell the court that it had said on 25^th September 2024 that it was trial ready. If the necessary rigorous scrutiny were to be applied to those matters as a whole and if proper regard were to be had to the factors set out in the Practice Directions then the only proper conclusion would have been that the adjournment application should be refused. As a consequence, ground 2 also succeeds.

The claim, therefore, succeeds and the adjournment decision must be quashed.

The question of what, if any, further relief is appropriate is less straightforward.

For the reasons identified by Lavender J in Thandi and Chamberlain J in Saunders it will not normally be appropriate to remit the matter with a direction that the magistrates proceed on the basis of some but not all of the evidence. I respectfully agree with Lavender J that the court cannot prevent the prosecution from seeking to put forward such evidence as it chooses. The question of whether this court could nonetheless direct that the magistrates should exclude certain evidence or only proceed on the basis of other evidence is less clear. Such an order would, at least arguably, be within the scope of this court’s power to control the conduct of trials in the magistrates’ court with a view to preventing unfairness. It is akin to the power which this court has on an appeal by way of case stated to say that certain evidence should or should not have been admitted at the trial below as a matter of law. However, even on the assumption that this court has such a power it would only be appropriate to exercise it, if at all, in exceptional circumstances in the context of remitting a matter for trial following an adjournment application and where the excluded evidence would otherwise be admissible in law. It would amount to directing the magistrates to determine a defendant’s guilt or innocence on a basis which was known to be artificial.

The choice, therefore, is between (a) quashing the decision and remitting the matter with a direction to acquit and (b) quashing the decision and remitting the matter for the case to continue. A declaration as to the unlawfulness of the decision could accompany either course though such a declaration would add little to the effect of quashing the decision. In the context of cases such as this where the decision was to adjourn the trial the choice lies between directing an acquittal and allowing the proceedings to continue as if the adjournment had been granted. As Lavender J pointed out, at [77], remitting the matter with a direction for the magistrates to consider the adjournment application afresh would be a meaningless exercise because the option of refusing the adjournment and directing that the trial continue on the original date was not available.

The claimant in Thandi had conceded that if Lavender J concluded that the actual decision was unlawful but that a rational and lawful decision to adjourn could have been made then it was not open to the court to direct the claimant’s acquittal (see at [74]). Lavender J noted that concession without criticism, but I do not understand him to have been saying that as a matter of law the court cannot direct an acquittal in such circumstances. If that was being said to be a rule of law I would have expected to have been expressed as such in clear terms. Such a rule would be inconsistent with the wide ambit of the court’s discretion and would not sit easily with the broad range of factors which Lavender J said, at [76], were to be considered in deciding how the court’s discretion was to be exercised. The point does not arise here in light of my conclusion that the only rational and lawful decision for the Magistrates would have been to refuse the adjournment application.

It follows that I have a wide discretion but it is one which is to be exercised in a principled manner. I have to look at all the circumstances focusing, as Lavender J said, on the “potential for prejudice or unfairness to either party”. I must have regard to the Overriding Objective and the need to ensure that the case is dealt with justly. I must keep in mind the principle that determination of a defendant’s guilt or innocence is for the magistrates as the body charged with hearing the evidence and determining the facts. I must guard against speculating as to what would have happened at a hearing if an adjournment had been refused. I must also keep in mind the public interest in the guilt or innocence of criminal charges being determined in a trial.

Some cases will be clear. Where the court is satisfied that magistrates properly considering an adjournment application could only have refused the adjournment and that a not guilty verdict would necessarily have followed the refusal then justice calls for a direction to acquit. Thus, in Visaratnam v Brent Magistrates’ Court [2009] EWHC 3017 (Admin) the Divisional Court was satisfied that an adjournment should have been refused. It was also satisfied that if that had happened the prosecution would have been without the evidence of a witness who was “fundamental to the case for the prosecution” such that “without his evidence there was no case against the claimant at all” (per Openshaw J at [4]). Similarly, in Saunders Chamberlain J was satisfied that the adjournment application should have been refused and the adjournment application there had been expressly made on the footing that without the missing witness the prosecution could not prove its case.

The position is less straightforward where, as here, the prosecution did not concede at the time that it would offer no evidence if the adjournment application were to be refused and where it is now not accepted that the continuation of the trial at that time would necessarily have resulted in an acquittal. Mr Jarvis submitted that the court can only remit the matter with a direction to acquit where it was inevitable that if the adjournment was refused the prosecution would have to offer no evidence. I do not accept that there is a rule of law to that effect. No authority was cited establishing that as a rule and it would be inconsistent with the court’s wide discretion and with the requirement to do what is just in the particular circumstances. The court retains a discretion to remit the matter with a direction to acquit. The touchstone remains the interests of justice and whether there is a real risk of unfairness to either party. I accept, however, that considerable caution is needed before the court can remit with a direction to acquit where the prosecution contends that there remains sufficient evidence and where it is not conceded that the offering of no evidence would have followed refusal of an adjournment. It is only in the clearest of cases that this court can conclude that the magistrates would not have been able to be sure of a defendant’s guilt following a trial in such circumstances. Where the court cannot be satisfied that the outcome of a trial at the posited stage (namely upon the adjournment application having been refused) would have been an acquittal even greater caution is needed before the court can conclude the interests of justice require remission with a direction to acquit. Nonetheless, there will be cases where the interests of justice do require such a course.

Against that background there are a number of factors which are of particular relevance in the circumstances of this case.

First, the onus would have been on the Prosecution to disprove the defence of reasonable excuse and to do so to the criminal standard provided that the Claimant had sufficiently adduced that defence. On the facts here the Claimant had done enough to advance that defence and to put the onus on the Prosecution. He had referred to his mental health difficulties when he had been asked for a specimen in the police station. The Claimant had made the point with sufficient clarity at that stage for PS Hughes to cause Miss Price to make an assessment of the Claimant and the Claimant referred again to his difficulties when being examined by Miss Price. The defence of reasonable excuse had also been identified as the basis of the defence in the PET form.

Next, there is considerable force in the Claimant’s argument that if the Prosecution had believed they could obtain a conviction without the evidence of PC Roberts and PS Hughes then they would not have sought the adjournment. Although there is force in this argument it is not conclusive. That is because it was understandable that tactically the Prosecution would wish to have the strongest possible case at trial and to seek an adjournment in order to achieve that. Having obtained the adjournment the Prosecution did not need to consider what it would have done if the adjournment had not been granted. It cannot be said that the making of the adjournment application necessarily involved an acceptance that the Prosecution would fail without the evidence of PC Roberts and PS Hughes. I am not able to conclude that the Prosecution would have offered no evidence if the adjournment had been refused. Certainly, there is no indication that the Prosecution said to the Magistrates that they would offer no evidence if the adjournment was refused.

The Prosecution did have evidence which it could have put before the court if the adjournment had been refused. In that regard:

If the trial had proceeded on 4^th October 2024 the Prosecution case would have rested on the evidence of Julie Price. The Magistrates would have had to consider whether that evidence made them sure that the Claimant did not have a reasonable excuse for declining to provide a specimen. That evidence was such that a conviction based on it would not have been unsafe and the evidence could have enabled the Magistrates to be sure that there was no reasonable excuse. However, that would have been by the narrowest of margins and there would have been real scope for the Magistrates concluding that Miss Price’s evidence did not exclude the presence of a reasonable excuse based on the Claimant’s mental health difficulties.

The fact that the need for an adjournment was brought about by Prosecution failings is relevant to the question of the basis on which the matter should be remitted. In addition, considerable weight is to be given to the facts that the Prosecution had incorrectly told the court 10 days earlier that it was trial ready and that this assurance had been given in the course of resisting the Claimant’s adjournment application.

There would be a legitimate feeling of grievance on the part of the Claimant and a perception of unfairness if the case were to be remitted without a direction to acquit with the consequence that there would be a trial at which the Prosecution is able to call PC Roberts and PS Hughes. The effect would be that the Prosecution would in practical terms obtain the benefit of the decision to adjourn: a decision which I have concluded was neither lawful nor rationally open to the Magistrates. In this regard it is relevant to note that remission for trial would result in a trial at which all the Prosecution evidence was before the court but also one at which the Claimant could advance the medical evidence which, he says, demonstrates that his mental health difficulties precluded the giving of a specimen or amounted to a reasonable excuse. This would go some way to alleviating the unfairness resulting from the Prosecution being able to rely on the evidence of PC Roberts and PS Hughes. Nonetheless, a real prospect of unfairness would remain. This is particularly so given that I have concluded that the only rational and lawful conclusion for the Magistrates would have been to refuse the adjournment application and so to deprive the Prosecution of the evidence of PC Roberts and PS Hughes.

I have also taken account of the passage of time and the gravity of the offence. The offence of refusing a specimen is a serious matter. It is, nonetheless, not the most serious of offences even by the standards of the Magistrates’ Court. The alleged offence took place in July 2024 and the trial was listed for hearing on 4^th October 2024. If the case were to be remitted for a hearing further time would be needed for the Claimant to obtain medical evidence and for a date to be found when the witnesses are available. I was not addressed about a potential timetable but even if matters were to proceed smoothly and with reasonable expedition it is unlikely that any trial would take place before October this year and it may well be that it would be a little later. This would have the consequence that the trial would be taking place 18 months or more after the alleged offence and a year or more after the date when it should have taken place.

I am very conscious of the public interest in guilt or innocence being resolved at a trial and of the principle that it is for the Prosecution to judge whether the public interest justifies taking a matter to trial. Nonetheless, when considering the effect of the passage of time and of the gravity of the offence, it is relevant to note that the Claimant is now aged 77. It is, moreover, not disputed that he has genuine health difficulties both mental and physical. It is also a relevant factor, albeit one of limited weight, that the Claimant has only one previous conviction. That was for an unrelated but serious matter and the relevant offence took place over 15 years ago. Those factors heighten the undesirability of the matter proceeding to trial so long after the alleged offence.

No one factor is conclusive but considering matters as a whole I am satisfied that even when all caution is exercised fairness requires that having quashed the decision I remit the matter with a direction to acquit. I will invite submissions as to the appropriate form of order to give effect to that intention.