F, R (on the application of) v Knowsley Magistrates Court [2006] EWHC 695 (Admin)

Case No CO/5399/2005[2006] EWHC 695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 15th March 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF FClaimant(James F, a Minor by his litigation friend, Collette F)Claimant-v-
Between
KNOWSLEY MAGISTRATES COURTDefendantTHE QUEEN ON THE APPLICATION OF RClaimant(Christopher Michael R, a Minor, by his litigation friend,ClaimantSandra D)Claimant-v-KNOWSLEY MAGISTRATES COURT(DEFENDANT)
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 S MILLS instructed by Patrick McLoughlin and Company, Liverpool L36 9UR) appeared for FIRST CLAIMANTMISS C GIANOTA (instructed by Mackrell and Thomas, Liverpool L36 3RG) appeared for SECOND CLAIMANT for The Defendant did not appear and was not representedMISS A HARWOOD (instructed by the Crown Prosecution Party) appeared for Interested Party, the Crown Prosecution Service.
J U D G M E N T
[1]MR JUSTICE SULLIVAN: In these applications for judicial review the claimants challenge the decision of District Judge Chatelier, sitting at Knowsley Youth Court on 4 July 2005, to adjourn their joint trial at the request of the CPS.[2]A brief statement of the factual background will suffice for present purposes. At the relevant time both claimants were 16 years old and of previous good character. They were jointly charged with attempted criminal damage which they both denied. On 25 May 2005, they attended court and the case was adjourned to 6 June to enable their solicitors to take full instructions. On 6 June both claimants pleaded not guilty and since it was agreed that no pre-trial review was required the case was listed for trial. District Judge Shelby gave all parties 14 days liberty to apply to vacate the trial date in the event of it being inconvenient. The trial was listed for Monday, 4 July 2005 at 1.45 pm.[3]On Friday, 1 July, the claimant's solicitors received a telephone call from the Magistrates' Court informing them that the CPS had requested that the trial date be vacated because they had not received the full file of evidence from the Merseyside Police. The first claimant's solicitors objected and the CPS application to vacate the trial date was listed at the Knowsley Youth Court at 9.15am on 4 July.[4]The CPS was represented and made an application to the court (a bench of Lay Justices) on the basis that, since they had not received the full file of evidence from the police, they were not in a position to proceed. The first claimant's solicitor opposed the application and the court refused the CPS's application for an adjournment. So the case remained listed for 1.45 that afternoon.[5]In the afternoon the CPS was represented by a different prosecutor, who told District Judge Chatelier that there were no prosecution witnesses at court because their attendance had been cancelled. The Crown Prosecutor made a further application for an adjournment relying upon the same grounds as those advanced before the other bench of justices in the morning. District Judge Chatelier was told by the solicitor representing the first claimant that the application was identical to the application that had been made and refused that morning. The solicitors for both claimants opposed the application. District Judge Chatelier granted the application, relisted the case for pre-trial review and fixed a new trial date for 1 August 2005.[6]Before turning to the District Judge's response to the first claimant's application for permission to apply for judicial review, it is helpful to refer to the relevant authorities. In R v Acton Youth Court ex-parte DPP (2002) Crim L.R. 75 the Divisional Court had to consider the circumstances in which a second bench of magistrates could revisit and, if necessary, reverse a ruling (in that case as to the manner in which a child witness should give her evidence) made by an earlier bench. The court concluded that an earlier ruling could be revisited and, if necessary, reversed if there was a change of relevant circumstances, but if there was no such change the second bench should refuse the application. Laws LJ said in paragraph 26:
"... It is necessary for the efficacious administration of justice to take a strict approach to the power of a lower court to revisit and revoke an order earlier made by itself. Clearly there must be some power to do so in the interests of justice. It arises, as my Lord has indicated, where there is a change of circumstances. Plainly that must be a change of relevant circumstances."
[7]That approach was applied by Mitting J to a repeat application for an adjournment in R (on the application of Watson) v Dartford Magistrates' Court [2005] EWHC 905 (Admin): see paragraph 5. Having set out the passage from the judgment of Laws LJ (which I have cited above) Mitting J added:
"There was no change of circumstances. The justices, applying that clear principle, should therefore have refused the prosecution application."
[8]The question for District Judge Chatelier in these cases was therefore: had there been a change of relevant circumstances between the morning and the afternoon of 4 July so as to justify reversing the earlier order refusing an adjournment? The District Judge's statement in response to the first claimant's application for permission to apply for judicial review was in these terms:
"The District Judge was aware on the 4th July 2005 of the following: (1) That on the 6th June 2005 the defendant pleaded not guilty, and, that as the case appeared to be uncomplicated, a pre-trial review and the normal preparation time could be shortened. The trial was listed for the 4th July 2005 (2) The Crown Prosecution Service notified the defence a few days earlier that the police were unable to prepare a full file in time and that an adjournment would be sought. (3) The case was listed before lay magistrates in the morning of the 4th July 2005. They refused an application by the Crown for an adjournment. The District Judge sat in the afternoon of the 4th July and the following took place. (1) The prosecution had dewarned their witnesses but renewed their application for an adjournment, on the basis of insufficient time to get the full file. (2) Upon investigation by the District Judge it transpired the Crown could proceed if their witnesses were to return to court but could not comply with the rules on disclosure. (3) The District Judge gave the option to the defence of attempting to have the trial that afternoon. (4) The defence wanted disclosure and the District Judge granted the adjournment for that purpose. It was his belief that if the Crown could proceed, he was acceding to a defence application. (5) In any event the District Judge would have granted an adjournment to the Crown because (a) The prosecution witnesses had been dewarned, however there was nothing to suggest that they wouldn't give evidence. (b) The case was in difficulties only due to an attempt to speed matters up. The Crown would normally have had longer to prepare their case and a pre-trial review would have taken place. (c) It was the first trial date."
[9]The acknowledgment of service, filed on behalf of the CPS, said this:
"1. On the 6th June 2005 the defendant James F pleaded Not Guilty as did his co-accused Christopher R. The Court directed that an early trial date be set as the issues appeared to be straightforward. A trial date was fixed for the 4th July 2005. The full file was requested from the Police on that date. 2. The Crown Prosecution Service informed the defence and the Court on the 1st July 2005 that a full file could not be ready in time as there had been insufficient time to obtain all witness statements and a full unused material schedule. The Crown were therefore unable to comply with their disclosure obligations under the Criminal Procedure and Investigation Act 1996 and applied for the case to be adjourned for that purpose. 3. The case was listed for an application to vacate the trial on the morning of the 4th July 2005. This was refused by the Court. 4. The Crown dewarned the witnesses as the trial could not go ahead on that date due to the failure to comply with the disclosure obligations set out in the Criminal Procedure and Investigations Act 1996. 5. A further application to adjourn the case was made to District Judge Chatelier in the afternoon of the 4th July 2005 on the grounds that the usual time scales which the Police had to prepare cases had been reduced in this case and although efforts had been made to prepare the case within that timescale that had not proved possible. 6. The Crown would therefore agree with the statement submitted in this case by District Judge Chatelier."
[10]In granting the first claimant permission to apply for judicial review I said this:
"Having read the District Judge's statement I am not clear as to what, if any, change of circumstances there was between the morning and the afternoon on 4th July 2005."
[11]Miss Harwood, who has appeared before us this morning on behalf of the Crown Prosecution Service, very fairly conceded that the application made in the afternoon (although somewhat different words might have been used) was, to all intents and purposes, precisely the same as the application that had been made in the morning and further conceded that there had, indeed, been no change of circumstances.[12]In the light of those concessions, very properly made, applying the clear principle in Acton, the repeat application should have been refused (see Watson). It follows that both applications for judicial review must be granted and the decision to adjourn must be quashed. In these circumstances I find it unnecessary to consider the further submissions advanced on behalf of both claimants, by Mr Mills and Miss Gianota respectively in their skeleton arguments, that the decision to adjourn was Wednesbury irrational, and the further submission, made on behalf of the second claimant, that in the absence of any relevant change of circumstances there was a legitimate expectation that the earlier decision would be adhered to. As I have indicated, there is a short sharp answer to this case, that is is to say that the principle set out in Acton should have been followed, and applying that principle the repeat application should have been refused.[13]Miss Harwood made it clear to us that had the repeat application been refused the Crown's intention was to offer no evidence against the two claimants in these proceedings. In these circumstances no useful purpose would be served by remitting the matter to the Magistrates' Court for a further substantive hearing and in addition to quashing the decision to adjourn I would think it only right to direct the Magistrates to dismiss the charges against the claimants.[14]MR JUSTICE LATHAM: I agree. Yes, then as to costs, Mr Mills?[15]MR MILLS: Before I leave this issue the substantive issue perhaps I ought to formerly request an order under section 39 of the Children and Young Persons Act 1933 out of abundance of caution?

MR JUSTICE LATHAM: Yes.

[17]MR MILLS: Secondly, I ask this rhetorically: are those proceedings now distinct in the Magistrates' Court?[18]MR JUSTICE LATHAM: I suspect out of an abundance of caution we ought to remit it with a direction to acquit and to dismiss (?) charges.[19]MR MILLS: It seems they are lingering in the Magistrates' Court without any formal resolution.[20]MR JUSTICE LATHAM: The Magistrates' Court could, I think, deal with it on receipt of an order from us but if we remit it they know they have to. Remit it with a direction that the charges be dismissed.[21]MR MILLS: I am very grateful. Finally a questions of costs. It seems from my reading of the Act that an order should be made for a defendant's costs order to be.

MR JUSTICE LATHAM: That will result in the payment from Central Funds.

[23]MR MILLS: The payment of the claimants costs from Central Funds under section 16(5)(a) of the Prosecution of Offences Act 1985.

MR JUSTICE LATHAM: Do you have any submissions to make, Miss Harwood, in relation to costs?

[25]MISS HARWOOD: No.[26]MR JUSTICE LATHAM: What I think is of concern is the extent to which it is appropriate to make two orders because was there in truth any distinction between your case and your co-opponents case? That is really looking at you, Miss Gianota.[27]MISS GIANOTA: The distinction is this, on the Friday the Magistrates' Court had telephoned my instructing solicitors and in fact they were not present on the morning when the first application to adjourn was made because they had not opposed the morning application. It was only in the afternoon that they opposed the adjournment. From that point of view, Mr Christopher R's second claimant is in a slightly different position, I would submit, my Lords to that of the first claimant, hence the additional ground of legitimate expectation which I had added to my skeleton argument.[28]MR JUSTICE LATHAM: We are content to make the appropriate defendant's Cost Order in respect of both appellants.

Cited in 3 later judgments