Wilkinson, R (on the application of) v Director of Public Prosecutions [2006] EWHC 3012 (Admin)

Case No CO/559/2006[2006] EWHC 3012 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 22nd June 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF GAVIN WILKINSONClaimant-v -
Between
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 A BLAKE (instructed by Messrs Darby's, Oxford) appeared for CLAIMANTMR M STANGER (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAURICE KAY:

This

[1]is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Beatson J.[2]The circumstances are unusual, although it is right to say that they are circumstances which were foreseen at the time of the enactment of the Proceeds of Crime Act 2002. The claimant, now aged 20, was aged 19 at the time which gave rise to his prosecution. What happened was that a mini motor cycle was stolen in a burglary on 4th March 2005. Two days later the claimant was arrested when he was riding the stolen mini motor cycle. In due course he was charged, not with burglary or handling stolen goods but with an offence under section 329(1)(c) of the Proceeds of Crime Act 2002. He was so charged on 14th June 2005. That offence is defined in these terms:
"(1) A person commits an offence if he has possession of criminal property."
Criminal property is defined in section 340(3) in this way:
"Property is criminal property if - (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or in part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit."
It is then provided in section 340(4) that it is immaterial who carried out the conduct and who benefited from it.[3]No doubt when that offence was created in the 2002 Act it was in the context of legislation directed primarily at money laundering and matters of serious criminality. It is an offence which in one sense is easier to prove than that of handling stolen goods because the mens rea is one of "knowing or suspecting" that the property constituted or represents a benefit from criminal conduct rather than "knowing or believing" which applies in section 22 of the Theft Act 1968.[4]On 30th June 2005 the claimant's solicitors wrote to the CPS inviting the CPS not to proceed with the charge under section 329(1)(c) but instead to charge an offence of handling stolen goods. The letter stated that the claimant would have a defence to a charge of handling stolen goods because, as he had told the police, his state of mind in relation to the stolen motor cycle at the time when it was in his possession did not rise above suspicion. At the same time the solicitor indicated that he, the claimant, would have no defence to the charge under section 329. However, Mr Blake now resiles from that latter concession. The senior prosecutor replied by letter dated 25th July 2005 explaining the decision. Broadly speaking, it was to the effect that there was at least a suspicion that the claimant was one of the burglars rather than simply a handler and also it was considered that the charge was appropriate in view of what the claimant himself had said in interview. The letter stated:
"When considering charges, my guide is the Code for Crown Prosecutors. It is not the CPS website. I am satisfied that I have complied with the Code. It is ackowledged that there is an overlap on offences (Blackstones 2005, paragraph B22.15). I am prepared, if you so wish, to accept a plea to handling but I am not prepared to substitute it at this stage for the offence contrary to section 329 which would in my view be wrong. I have considered that this is a case that is in the public interest to charge."
The claimant's solicitor wrote another letter on 1st August but it elicited no response. Since that time the case has stood adjourned in the magistrates' court so that this application for permission to apply for judicial review might be pursued.[5]The first thing to say about the present application is that on any basis it was not made promptly. It was not lodged with the court until 20th January 2006, some six and a half months after the Crown Prosecution Service had written the letter to which I have referred. We are invited to extend time on the basis that the case raises an important point which ought to be litigated and the claimant, who has no previous convictions, ought to be indulged, because one of the explanations for delay is a problem with the funding of this application. So far as that is concerned, there is a statement from his solicitor in the bundle before us. I am bound to say that, whilst it describes the problems with funding, it does not at all indicate prompt action once the initial problem had been overcome. Indeed, there was a delay of two months immediately prior to the lodging of the application with the court for which Mr Blake has provided a personal explanation, but it is not a compelling explanation.[6]As has been said before, where an attempt is made by way of an application for judicial review to obtain a decision from this court in a matter relating to pending proceedings in a magistrates' court, it is absolutely essential that the application is made promptly and with a request for expedition which, if there is anything in the application, will normally be granted. The chronology of this case illustrates why that is so. It is now some 15 months since the claimant was arrested. It is 12 months since he was charged. This matter ought to have been completed in the magistrates' court long ago. If there was to be any hiatus in the proceedings as a result of a further application to this court, that should have taken place long ago. It is quite inappropriate for long adjournments to occur in the magistrates' court with problems about separate funding and subsequent manifestations of behaviour which do not bear the hallmark of promptness. When Beatson J refused permission the first ground on which he did so was by reference to delay having regard to CPR 54.5. For my part I too would refuse the application on that ground.[7]However, in deference to what has been said, it is appropriate to say a little more about the merits and how they may be accommodated within an application of this kind. As I have indicated, Mr Blake expresses the view that the claimant would have a defence to the money laundering offence. If that is so, then it seems to me that he should run that defence before the magistrates which may provide him with an alternative remedy, namely acquittal. I do not feel able to form or express any view as to the viability of such a defence. More to the point, having considered the Code for Crown Prosecutors and the CPS's own document on money laundering, I feel unable to say that the decision to proceed under section 329 was arguably vitiated by some public law consideration. The passages to which we have been referred seem to me to be encouragement to crown prosecutors to resort to offences under the 2002 Act in serious cases. They are less obviously expressed as discouragement to resort to offences in less serious cases, of which this is one. The question of who should be charged and with what offence is essentially one for the Crown Prosecution Service. I am bound to say that when I used to preside over criminal trials and indeed during the far more numerous years when I used to appear as counsel in them, it was a regular occurrence for the judge to criticize the prosecution if he thought that a particular defendant had been over -charged and that a different offence would be preferable by way of charge. I make it clear that if this case had come before me sitting in the Crown Court, I would have taken precisely that course, encouraging the Crown Prosecution Service to substitute a charge of handling stolen goods. But encouragement is where it would stop. It is ultimately a matter for them. Notwithstanding the obvious wider intention of the 2002 legislation it cannot be said that the conduct sought to be attributed to the claimant does not fall within section 329. In my judgment, it would not be for this court, even on a timely application, to interfere with what are proceedings in the magistrates' court, although in my view it would be entirely appropriate for the magistrates' court to comment to the Crown Prosecution entirely as I would have done if I had been the trial judge.[8]This is an untimely application which in my view does not in any event raise arguable grounds for judicial review. The matter should continue on its way in the magistrates' court and the magistrates will be able to have regard to what I have just said and give it such a weight as they see fit.[9]MR JUSTICE MITTING: I agree for the reasons given. I add the following. I would wish to discourage satellite litigation arising out of criminal proceedings. Most problems arising in such proceedings can be dealt within them. Where a legally valid but inappropriate charge is laid the appropriate step is for the magistrates' court to take that step which my Lord has suggested. For these reasons I too would dismiss the application.

Cited in 4 later judgments