Dunlop, R (on the application of) v Director of Public Prosecutions [2004] EWHC 225 (Admin)

Case No CO/4800/2002[2004] EWHC 225 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Sitting at the Birmingham Civil Justice Centre
33 Bull Street
Venue Birmingham B4 6DWDate Thursday, 22nd January 2004
B E F O R E:
MR JUSTICE FORBES
Between
THE QUEEN ON THE APPLICATION OF JAMES ROBERT JOHN DUNLOPClaimant-v-
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J REED (instructed by Messrs Trevor Griffiths & Humphries) appeared for CLAIMANTMR M JARMAN QC (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE FORBES: This is an appeal by way of case stated from a decision of the Caerphilly Magistrates' Court on 10th July 2002 when they refused the appellant's application, made pursuant to section 142(2) of the Magistrates' Court Act 1980, to re-hear the case that had been brought against the appellant and had resulted in his conviction and sentence in respect of three road traffic offences of using a motor vehicle without insurance; driving without a driving licence; and having no test certificate. The offences were alleged to have been committed by the appellant on 9th February 2001 on the A472 at Crumlin.[2]The information in respect of the offences was laid by the Chief Constable of Gwent on 30th March 2001. The appellant was duly summoned to attend Abertillery Magistrates' Court on 25th April 2001. On that date, the case was found proved against him in his absence and, again in his absence, he was sentenced on 16th May 2001.[3]It has been the appellant's case throughout that he had never been served with the summonses in the case, and the same point is made by him in relation to a disqualification notice that is said to have been served on him for the purposes of the sentencing hearing on 16th May 2001.[4]Section 142(2) of the Magistrates' Court Act 1980 provides, so far as is material, as follows:
"Where a person is convicted by Magistrates' Court and it subsequently appears to the Court that it would be in the interests of justice that the case should be heard again by different justices, the Court may so direct."
[5]It is necessary to refer briefly to the factual circumstances as set out in the case. The Magistrates sitting on 25th April 2001 were K Dykes Esq, Ms EJ James and KO Jones Esq. There is no record of the advocate who represented the Crown Prosecution Service on that date. According to paragraph 1 of the case, what happened was this:
"The case was proved on that date in the appellant's absence. The evidence of service was given to the court by the representative of the Crown in accordance with the certificate of service endorsed on the back of their papers. Service being by first class post. The certificate of service remains with the Crown's papers. No documentation was handed to the Court. The postal authority did not return the summons and section 9 evidence. Having heard this evidence the Bench were satisfied that the summons had been served and proceeded in the appellant's absence. There was therefore no need for any deliberation as to personal service. In view of the fact that the Justices on that occasion felt that the appellant should be disqualified, the matter was adjourned for a disqualification notice to be served upon him. The case was adjourned until 16th May 2001. "
On 16th May 2001, the appellant failed to attend court once again and the case was concluded. Their legal advisor informed the justices that the matter had been proved on the 25th April 2001 and the matter adjourned until the 16th May 2001 as the Justices were considering imposing a disqualification. The notice of adjournment informing the appellant that he may be disqualified on 16th May 2001 was served by fist class post. The appellant was fined and disqualified for a period of two months. The disqualification notice would have been served on the appellant, again, by first class post."[6]Although there is no specific finding to this effect in the case stated, it appears that it is the practice of the Crown Prosecution Service to retain the file relating to a case for a period of 12 months, following which it is destroyed. The anniversary in this particular case would have been 16th May 2002. According to the affidavit of Mr Martyn Wayne Morgan of the Crown Prosecution Service dated 16th May 2003, the file in this case was noted on the Crown Prosecution Service computer records for destruction in May 2002. Again according to Mr Morgan's affidavit, a member of staff at the Crown Prosecution Service Registry, where the file would have been stored, has confirmed that the file has now been destroyed.[7]It is important to note that the precise date upon which the file was destroyed is not given by Mr Morgan. All one can say is that, in accordance with the normal practice followed by the CPS, the file in this case would have been at risk of destruction from 16th May 2002 onwards. We do not know precisely on which date the file was actually destroyed.[8]One of the unfortunate features of this particular appeal has been that it is necessary to refer to certain evidential material outside the ambit of the case. This is not satisfactory and, strictly speaking, should not occur. I have done so because there are certain facts relating to this case, that are not referred to in the case stated itself and relate to matters about which there appears to be no real dispute, which are of importance when considering this appeal.[9]The subsequent events can be stated as follows. Again, I have to make reference to material which lies outside the ambit of the case itself but which is not, strictly speaking, the subject matter of dispute.[10]The appellant has sworn a statutory declaration in 2002 which has been lodged in its sworn form with the Magistrates' Court. It is not possible to give the precise date of the statutory declaration, because apparently it has not been possible to get access to the original sworn document. However, there is in the papers before me a copy of the declaration which does not actually contain details of the jurat but which makes it clear that it was prepared and sworn in 2002. According to that declaration, the first that the applicant knew of these various matters was when he became aware that a warrant had been issued for his arrest in respect of the non-payment of fines resulting from the convictions to which I have already referred. I am told (and very fairly, on behalf of the Crown Prosecution Service, Mr Jarman QC has not disputed) that the appellant became aware of the warrant for his arrest on the day before he actually voluntarily surrendered himself to the Blackwood Magistrates' Court in respect of that warrant. According to his statutory declaration, he surrendered himself to the Blackwood Magistrates' Court on 26th March 2002. It follows from what I have just said that he became aware of the existence of the warrant on 25th March 2002.[11]What occurred at the Magistrates' Court after he voluntarily surrendered is not entirely clear, but it appears that matters were adjourned for further investigation. What is apparent, however, is that at that stage, the Crown Prosecution Service were not directly involved in what was taking place.[12]I now return to the case stated for the Magistrates' account of what occurred thereafter. I quote again from paragraph 1 of the case stated. "On the 17th May 2002 a letter was received from solicitors acting on behalf of the appellant requesting that the above matter be listed for consideration of a re-hearing under section 142 of the Magistrates' Court Act 1980. "The matter was then listed on the 19th June 2002 for consideration of a re-hearing. Again the appellant failed to attend Court, however, his legal representative, Mr Mark Davies of Trevor Griffiths & Humphries, was present and requested an adjournment in order to obtain copies of the section 9 statements from the Crown Prosecution Service and also in order for the appellant to attend court. Mr Davies had received the necessary papers from the DVLA on this occasion. The matter was adjourned until the 10th July 2002. The court gave no directions on that day."[13]Again, it is necessary to refer to some of the apparently undisputed factual matters that lie outside the ambit of the case stated, so as better to understand and deal with the issues raised by this appeal. The appellant's non-attendance at the Magistrates' Court was because there was some confusion as to which court he should attend. It appears that on 19th June 2002, he appeared at the Blackwood Magistrates' Court rather than the Abertillery Magistrates' Court, and that was the explanation for his non-attendance.[14]I resume the quotation from the case stated, paragraph 2. "We heard the said application on 10th July 2002. "The Crown Prosecutor on that day was Mr David Coleman, Senior Crown prosecutor. The Magistrates sitting on that day were Mrs J Child, V Williams Esq, and K Smallman Esq. "It was contended by the appellant that he had never received any summons in respect of these matters. That he had never owned a car, never held a driving licence and had never been stopped whilst driving a car in Crumlin and certainly not on the 9th February 2001. The address to which the summons was sent was '10 Cwrt yr Ysgol, Risca', an address of a former partner of the appellant."[15]Again, I interpolate to make reference to other factual material which is not in dispute. It appears that the appellant had also been fined by the Abertillery Magistrates' Court on 20th July 2001 for an offence of not displaying a current vehicle excise licence. Again, he had been convicted in his absence. Again, the summons in respect of the vehicle licence offence had been sent to the same address as the one relating to the summons giving rise to this appeal, namely the address in Risca.[16]It appears that the circumstances of the vehicle licence offence were very similar to the circumstances of the three offences with which this appeal is concerned. The vehicle licence offence appears to have been committed on the A472 and its location was very close to, if not in the immediate vicinity of, Crumlin. The offence in relation to the vehicle licence was prosecuted by the licensing authority and not by the CPS. It is also important to note that the appellant made a successful application under section 142 of the Magistrates' Court Act 1980 in respect of that vehicle licence conviction and that the court ordered that there be a re-hearing before a differently constituted bench.[17]I return to the case stated, paragraph 5:
"We were referred to the following case, R v Ealing Magistrates' Court ex parte Sahota (1997) The Times, December 9th, by the Prosecuting solicitor who was opposed to the application. The main objection being that after such time the Crown would not be in possession of their original papers. That being the papers that were dealt with by the court on the 16th May 2001. The Divisional Court held in this case that delay was a relevant consideration for justices when considering an application by a convicted person that his case be re-heard. The old statutory 28-day limit for such applications should be treated as a guideline. "
Following the above case we were of the opinion that in view of the length of time that had elapsed since the date of sentence and the date of the application for re-hearing, it would be improper to reopen the case under section 142 of the Magistrates' Court Act 1980 and accordingly we refused the application. "The vehicle excise matter was heard on the same day but in a separate court. Court number 2. We cannot recollect whether the vehicle excise matter was dealt with prior to the application for a re-hearing in the police matter. Both matters were listed at 10.00 am. We cannot recollect whether we were made aware of the decision in the vehicle excise matter. We cannot recollect whether we were notified of the decision in the vehicle excise court to permit a re-hearing."[18]Again I interpolate to observe, as indicated by the final sentence of paragraph 7 of the case stated, the decision of the other court in relation to the vehicle licence matter was that the application be granted; namely that the appellant be granted a re-hearing of that offence.[19]I return to the case stated. "The vehicle excise matter was further adjourned until the 7th August 2002. The matter was withdrawn on that occasion. "The only record and notes in respect of the hearings would be contained within the original court papers and the decision recorded upon the court register. "Question. "The questions for the opinion of the High Court are whether the decision not to allow the appellant's application was wrong in law. Whether it breached his Human Rights in particular his right to a fair trial and whether the time to request a re-listing should run from first knowledge, ie the moment when the appellant was made aware of the dates of conviction and the fines imposed."[20]On behalf of the appellant, Mr Reed made two central submissions in support of his argument that the decision of the Magistrates not to grant a re-hearing was wrong in law. The way he put it was this:(1) the appellant had not been given a fair trial as a potentially innocent man who had no knowledge whatsoever of the original hearing, and that it was wrong in principle to deny him a re-hearing in such circumstances;(2) that it was wrong in principle not to grant a re-hearing in such circumstances was underlined by the fact that another bench of magistrates dealing with a very similar set of circumstances on the same day had reached a completely different conclusion.[21]As the matter proceeded before me, it became clear that the essential point raised by this appeal was whether the Magistrates had a sufficient and proper reason for refusing to exercise their discretion in favour of granting a re-hearing. It is common ground that the Magistrates in such a matter, when dealing with an application under section 142 of the 1980 Act, do have a very wide discretion.[22]The matter has been the subject of consideration by the Divisional Court in the case to which the Magistrates referred, namely R v Ealing Magistrates' Court ex parte Sahota, which was heard on 10th November 1997. The court consisted of Pill LJ and Garland J. It is not necessary to set out the facts of the case other than to say that it was a case in which an application had been made for a re-hearing under section 142 of the 1980 Act which had been rejected by the Magistrates. The appellant had then appealed. His appeal was successful. In my view, it is only necessary to refer to a short passage from the judgment of Garland J who gave the principal judgment in that case. "We take the view that the respondent failed to exercise the very wide discretion given by section 142 judicially because a number of matters, which have been very briefly outlined, apparently were not considered and only one matter, albeit a relevant matter, was. In those circumstances we take the view that the decision of July 3 was fatally flawed and should be quashed. However, we do wish to add (and to add with emphasis) that the repeal of the old 28-day time-limit should not be taken as a licence to delay applications of this sort indefinitely, perhaps until papers have been lost or memories have faded, and an adherence to the appeal time limit as a guideline would be a very salutary thing. Delay in matters of this sort is always harmful: memories fade, records may be lost and the essence of doing justice is that it should be done expeditiously."[23]Mr Jarman has very fairly accepted that, when looking at the period of delay which had to be considered by the Magistrates, the critical dates were the date upon which the appellant became aware of the convictions and the date upon which he took some steps to deal with the matter. In this case, it is accepted that the date of awareness was 25th March 2002. Mr Jarman pointed out that it was not until 17th May 2002 that the Magistrates received the letter indicating that the appellant was seeking a re-hearing of the original summonses. That was a period of delay of roughly two months. More importantly, Mr Jarman pointed out, it was a critical period of delay because it took the timescale just beyond the anniversary of the date of the original sentencing and thus put the case file at risk of destruction in accordance with the standard practice of the Crown Prosecution Service. Mr Jarman submitted that, on a fair reading of the case, it was clear that the Magistrates had regard to the fact that the prosecuting solicitor had raised the objection that the Crown Prosecution Service would no longer be in possession of their original papers and thus would not be in a position to deal with a re-hearing.[24]Mr Jarman submitted that on a fair reading of the case, it must be assumed that the Magistrates took that particular matter very much into account when coming to the conclusion that they did, as expressed in paragraph 6 of the case, that having regard to the length of time that had elapsed, it would have been improper to reopen the case under section 142 and, for that reason, refusing the application.[25]On behalf of the appellant, Mr Reed submitted that the reasons given were simply not sufficient. I agree with that submission. As it seems to me, it is not enough for the Magistrates simply to say that the length of time is such that it is no longer proper to open the case under section 142. However, more substantial reasoning than that has to be given, so that one can understand why it is no longer proper to deal with the matter. In my view, it is important to identify the sort of problems that give rise to the inability to deal with the matter properly and fairly of the type identified in Sahota. That is important, because it is only by so doing that it can be seen that the Magistrates have taken into account relevant and material considerations when arriving at a decision of the type arrived at in this case.[26]In my view, it was important to make sure that the case papers were no longer in existence. However, it does not appear that this fact was actually established. It seems to me that it simply is not sufficient to state baldly that the length of time that has elapsed is so long that it is improper to reopen the case under section 142.[27]I am fortified in that opinion because, as it seems to me, the Magistrates had regard to a period of time which was not the appropriate period of time. The period of time that they identified in paragraph 6 as being the critical period of time was the period from the date of sentence to the date of application. Now, as it seems to me, what the Magistrates had in mind was the period of 13 months that had elapsed from the date of the original conviction until the date upon which the appellant made his application for a re-hearing. However, that was a period of time during which, according to the appellant, he had no knowledge of the convictions until 25th March 2002 (ie 11 months after the date of conviction).[28]The correct period of time to which the Magistrates should have had regard was that identified by Mr Jarman: namely the period of time between 25th March 2002 and 17th March 2003. As I have already said, it is clear that towards the end of that period of time, the case papers were at risk of destruction. What was important, however, was to discover whether the papers had been destroyed or whether they were still in existence. The answer to that question cannot be given in these proceedings because, even with reference to the affidavit of Mr Morgan, it is not possible to say whether the papers were in existence on 17th May or for a week after 17th May or for a fortnight after 17th May, because we do not know the date on which they were actually destroyed. All we know is that by May 2003 they had been destroyed, and had been noted for destruction at some date unspecified in May 2002.[29]As it seems to me, therefore, the reason given by the Magistrates in paragraph 6 of the case stated is wholly insufficient and unsatisfactory. A reason which is based on consideration of the wrong period of time and without specifying the problems created by the correct period of delay that made a fair and just re-hearing inappropriate or impossible seems to me to be a decision to which no reasonable bench of magistrates could come when directing themselves in the proper exercise of their wide discretion under section 142. Adopting the wording of the judgment in Sahota, the decision for the reason as expressed in paragraph 6 of the case stated is accordingly fatally flawed.[30]I am fortified in that view by the fact that a different result occurred in relation to the vehicle licence matter. Mr Jarman made the powerful point that, in that particular case, we are in a position to know that at the date of the application for a re-hearing, some of the papers at least were still in existence. We do not know that that is the case with regard to the present appeal, but equally we do not know that the case papers were not in existence. For the reasons I have already given, that remains an open question.[31]Accordingly, I have come to the firm conclusion that the decision of the Magistrates in this case in refusing a re-hearing cannot stand. It is only necessary for me to answer the question by reference to the first sentence of the question. The answer to the first sentence is yes, and that answer is given for the reasons indicated earlier in this judgment. Accordingly, for those reasons, this appeal is allowed and the decision of the Magistrates is quashed.[32]Any further consequential directions? Mr Reed?[33]MR REED: My Lord, two things arise: firstly, it being remitted for the matter to be heard by a Magistrates' Court; and secondly, the question of costs.[34]MR JUSTICE FORBES: Let us deal with the first thing first. What do you say about an order remitting the matter for a re-hearing before the Magistrates' Court?[35]MR JARMAN: Yes, my Lord. I agree with that.[36]MR JUSTICE FORBES: Very well. I make that order. The order is of course that the matter be remitted to a re-hearing before a differently constituted bench of magistrates. And as far as costs are concerned?[37]MR REED: My Lord, I would ask for the costs of this case. I understand the ordinary position is that costs may be given to the successful party, and in this case, the case stated has effectively succeeded, my Lord.[38]MR JUSTICE FORBES: Yes. Well, who are you asking for costs against?[39]MR REED: Well, my Lord, there are two options effectively, and I think we may be getting, to a large extent, down to which public body pays.

MR JUSTICE FORBES: You are the chap making the application, Mr Reed.

[41]MR REED: My Lord, yes. I think probably the formal route is to ask for costs against the DPP in responding to the case stated. Against the respondent for this application.

MR JUSTICE FORBES: Mr Jarman?

[43]MR JARMAN: My Lord, in my respectful submission, it would be very unusual to visit the Crown Prosecution Service with costs. They played no part of fault in this matter at all. Obviously the outcome was of interest to the public body, the Crown Prosecution Service, but they have come and I hope helped the court.[44]MR JUSTICE FORBES: What is the position with regard to costs for public funds in a case such as this?[45]MR JARMAN: My Lord, as I understand it, the applicant is legally aided.[46]MR JUSTICE FORBES: So there is no need. Is there any contribution?[47]MR REED: My Lord, there is not. No.[48]MR JUSTICE FORBES: No order for costs. Does there need to be an order for legal aid taxation, or is that an automatic process? It is an automatic process. To the extent that there is any need for an order as to the appropriate order of taxation, you may have that as well, but otherwise no order as to costs.[49]MR REED: I am very much obliged.

MR JUSTICE FORBES: Is there anything else?

[51]MR JARMAN: No thank you, my Lord.

MR JUSTICE FORBES: Thank you both very much.