S v Director of Public Prosecutions [2006] EWHC 1207 (Admin)

Case No CO/1877/2006[2006] EWHC 1207 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 28th April 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE OPENSHAW
Between
SAppellant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
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)
MISS SONIA BIRDEE appeared for APPELLANTMR VINCENT YIP appeared for RESPONDENT
J U D G M E N TFriday, 28th April 2006
[1]MR JUSTICE OPENSHAW: This is an appeal by way of Case Stated by S from a decision of the Magistrates' Court at Wigan on 23rd September last, by which they refused to adjourn his trial upon a charge of common assault which later that day resulted in his conviction. He has been granted leave to appeal.[2]The facts are as follows. He was charged with common assault upon his 16 year old son, whom we shall call N.[3]We should interpose here that we make an order under section 39 of the Children and Young Persons Act 1933 that N should not be named, nor should any particular be published by which he might be identified.[4]The assault upon N was alleged to have taken place on 29th June 2005. The appellant was charged the following day. He appeared before the Magistrates at Wigan on 18th July and entered a plea of not guilty. Pre-trial review took place on 15th August. The prosecution gave notice that they were considering a special measures application to allow N to give evidence from behind screens. There was some discussion as to whether the prosecution had fulfilled their duty in making primary disclosure, but it is unclear what was outstanding. N was, as we have said, only 16. He alleged that the appellant had struck him without justification. The appellant admitted using some force upon the boy but he alleged that he had been acting in self-defence. There was no other eye witnesses. The prosecution case depended upon the credibility and reliability of N. N at the time had no previous convictions, but he was then awaiting trial at the Crown Court on a serious allegation of affray. Appreciating the potential importance of that pending prosecution, those acting for the appellant had asked the prosecution to supply details of the outstanding case so that they could consider whether to make an application under section 100 of the Criminal Justice Act 2003 to put these matters in evidence during the appellant's trial, or at least to put the allegations to N in cross-examination. Regrettably, the prosecution did not provide those details, as they should have done.[5]On 23rd September the case came on for trial. When the case was first called on Miss Birdee, for the appellant, asked that further enquiries should be made there and then about these outstanding matters, but she suggested that she would not be asking for the case to be adjourned, even if the material was not found in time. The court went on to hear and, indeed, to grant the application by the prosecution that N give his evidence from behind screens. That application was opposed. When the application was granted it caused the appellant himself to shift his position and he gave clear instructions that the trial should not take place unless and until the further information relating to N's outstanding court appearance was obtained. By the time that the case was called on for trial later in the course of the morning, the information relating to N's outstanding prosecution was still not available and Miss Birdee, on behalf of the appellant, as she was instructed to do, applied to adjourn the case on the grounds that the defendant was entitled to the information which she sought and that the prosecution were under a duty to disclosure it. The prosecution case depended entirely on the word of N and if there was material which might reflect adversely upon him and his credit, then the defendant could not have a fair trial until the material had been disclosed. The prosecution, no doubt mindful of the extent of their fault and failings, did not oppose the application.[6]The Magistrates gave their decision in these terms:
"We have noted the applications and we feel that this court has been very accommodating today to all parties. This trial should have started at 10.00am and it is now 12 noon. Earlier there was an application to make enquiries and afterwards both parties agreed to carry on with the trial. Therefore we feel as a bench that this trial should go ahead and the case will be decided on the evidence put before it."
[7]In the Case Stated the Magistrates have set out the matters which they considered with rather more detail. They considered and made these points. First, they noted that the prosecution should have disclosed the material relating to the outstanding prosecution before the hearing and that, aware of their own fault, the prosecution did not oppose the application. Second, the Magistrates took the view that the outstanding matters against N in the Crown Court were then only unproved allegations which they suggested were unlikely to be admissible. Herein lies the problem. We doubt whether this conclusion could, still less should, have been reached without some consideration of the circumstances of the pending case against N which were, as it has later transpired, as follows.[8]It was alleged against N that on New Year's Eve he had been one of a number of youths who were engaged in some form of violent conflict. When the case was called on before the Crown Court there was even a question as to N's fitness to plead, for it became clear that he had some serious mental health problems. In the event, following further investigation, although he was fit to plead, it became clear that he was not fit to stand trial and, accordingly, the proceedings against him were compromised. But it is clear from what did in fact happen at the Crown Court that very serious question marks were raised over N's credibility and, indeed, it might even be said that N himself may have had a propensity for violence. These matters, of course, would have been highly relevant to the Magistrates when considering N's credibility in the course of the appellant's trial and the fact is that by refusing the application to adjourn, they deprived themselves of the opportunity of properly assessing N's evidence in the light of this further information.[9]The third matter to which the magistrates gave weight was that counsel for the defence had herself originally considered proceeding to trial, even if the material was not available. But it seems to us that the essential matter on which the Magistrates should have focused their attention is the strength of the argument which was eventually deployed.[10]The fourth matter to which the Magistrates gave consideration was this. They thought that if the defence considered that this outstanding information was so important, the defence should have applied for the trial to be vacated before the day of the trial. As a statement general principle, no doubt that is right, but if the interests of justice required an adjournment, then it should have been granted even if no advance application had been made, particularly when, as here, the defence had previously asked for this information and had thought, as it seems to me entirely reasonably, that the material would have been made available on the morning of the trial.[11]Of course, what was utmost in the mind of the Magistrates, and this was the fifth point that they made, was that this was a sensitive and emotionally charged case and they were exceedingly anxious to avoid the boy and, indeed, his 73 year old grandmother, both of whom who had attended at court to give evidence at once, doing so again.[12]The sixth point they made was that the offence was already three months old and they thought that further delay in a case involving a 16 year old should be avoided if at all possible, an approach which we entirely endorse.[13]The Magistrates attempted then to balance these conflicting factors and decided that the case should proceed to trial. As we have said, the appellant was, in fact, convicted and at a later hearing he was conditionally discharged for 12 months.[14]The questions posed for consideration by this court are as follows: 1. Was the Justices' decision to refuse the adjournment and accordingly deprive S of his right to disclosure under the Criminal Procedure and Investigations Act 1996 so unreasonable that no reasonable Bench properly directed would have reached that decision? 2. Did the Justices' refusal deprive S of his right to a fair trial under the Human Rights Act 1998 and Article 6.1?[15]Of course, a very wide measure of discretion must be given to Magistrates in case management decisions and that this court should not interfere unless the decision is plainly wrong. It is also right that the Magistrates' Court must have regard to the efficient dispatch of court business. Adjournments are costly in money and in time and must not be granted unless the imperatives of justice so require. But if they do, then an adjournment must be granted, however inconvenient and regrettable the consequences may be.[16]We have been referred to a number of decisions. The principle is clear, that if it is necessary to adjourn the case to enable justice to be done following a failure by the prosecution properly to disclose matters which ought to be disclosed, then the adjournment must be granted, unless the court is satisfied that no prejudice would be caused to the defendant by proceeding. In this case, it is clear to us from an examination of the facts now before us that everything depended on the credibility and reliability of N. The detail of the case pending against him in the Crown Court may well have damaged his credibility. It may well have borne upon his propensity for violence. In this sense it may have undermined the prosecution or assisted the defence. It should have been disclosed. If it had been, then the defence would have argued that the criteria for admissibility under the 2003 Act were fulfilled.[17]In the light of what we now know, it is highly likely that that application would have succeeded and these matters may well have adversely affected N's credibility. As it was, by ordering the trial to proceed, the defence were deprived of the opportunity of investigating these matters and although we have every sympathy with the Magistrates who were endeavouring to pursue this matter to trial at the earliest opportunity, I think that the decision they made not to adjourn the case was wrong and in the facts of this case I would answer both questions posed in the affirmative. Accordingly, I would allow this appeal.

LORD JUSTICE SCOTT BAKER: I agree. I would allow the appeal and answer the two questions posed in the affirmative.

[19]What other consequential orders do you need?[20]MISS BIRDEE: I would ask that the conviction be quashed.

LORD JUSTICE SCOTT BAKER: Yes, so we allow the appeal and quash the conviction.

[22]MISS BIRDEE: I am grateful.

LORD JUSTICE SCOTT BAKER: Thank you both very much.