Nicola v Enfield Magistrates Court [2007] EWHC 1974 (Admin)

Case No CO/4318/2006

[2007] EWHC 1974 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 18 July 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE SEDLEY

MR JUSTICE NELSON

Between

NICOLAClaimant

Between

ENFIELD MAGISTRATES' COURTDefendant

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MR ANTONY HOOK appeared for Claimant

for The Defendant was not represented and did not attend

J U D G M E N T

LORD JUSTICE SEDLEY:

[1]The claimant, Michael Nicola, was due to be tried by the Enfield Justices on a quite serious group of charges arising out of the alleged unlawful taking of a motor vehicle: taking without consent, driving whilst disqualified, driving without insurance, driving without due consideration. His co-accused, Sean Clayton, was to be tried with him for allowing himself to be carried. They had both pleaded not guilty and, following more than one pre-trial review, the trial of the charges had been set for 2 pm on 7 April 2006. The afternoon had been set aside for it. At 2 pm neither the accused nor the prosecution witnesses were present.

[2]The court adjourned to find out what had happened. While they were waiting Mr Nicola arrived with what the justices decided was an acceptable excuse for his lateness. After 30 minutes the justices sat again. Neither the co-accused nor either of the two police officers on whose evidence the prosecution case depended were there although the co-accused's counsel was. According to the affidavit of the chair of the justices, Hazel Miall, the Crown prosecutor told the court that both police officers had been warned and that it was not known why they had not attended. He asked for an adjournment of the hearing.

[3]Mr Hook's recollection, in an advice which has been disclosed to the court, is that the Crown prosecutor had no proper explanation and suggested that an administrative failure explained the failure to warn his witnesses. He also, according to counsel, suggested that one of the witnesses had left the police service. It may not be necessary to resolve this conflict of recollection. Either way, it was made clear to the justices that there had been a breakdown at some point in the procedure for bringing police witnesses to court. It was, on the prosecution's assertion, not a failure of the Crown Prosecution Service directly. It was, on any view, a failure which had nothing to do with the defence.

[4]Both defence counsel opposed the application. Ms Miall recalls the competing submissions thus:

"The Crown prosecutor made an application to adjourn the trial to another day. He said that it was in the interests of justice to adjourn the case. The offences with which the defendant Mr Nicola had been charged were serious. They involved taking a high value motor vehicle without the owner's consent, driving whilst disqualified, driving without due care and attention and driving with no insurance. The prosecutor's case was that Mr Nicola had driven the car whilst disqualified, plainly disregarding the order of the court. The trial had only been listed once (today's date). It had not been effective in court. He went on to say that there was no explanation for the failure of the prosecution's witnesses to attend. It was unusual, given that they were police officers who had been warned to attend. It was in the interests of justice that the court heard the evidence and determined whether the defendants were guilty or not. If the court refused to grant the prosecution's application, the prosecution case in relation to Nicola would collapse because the prosecution would be compelled to offer no evidence. Mr Nicola's counsel objected to the application to adjourn, stating that it was for the Crown to ensure the attendance of their witnesses. His client, Mr Nicola, was ready to proceed and he should not have the case hanging over him for longer than was necessary. I deliberated with my two colleagues on the Bench and we all unanimously decided to grant the prosecution's request for an adjournment for the reasons given. I announced that the case would be adjourned because it was in the interests of justice that it should be adjourned."

[5]Mr Hook's recollection, set out at paragraphs 11 and 12 of his advice to which I have referred, amplifies this account.

[6]The next thing that happened was that one of the two police officers arrived at about 3.15, too late for the trial to be started. He explained that he had not been aware until that day that he was required to attend court, and that his colleague had not left the service but had been transferred to the Greater Manchester Police. One inference, though not necessarily the only one, is that neither officer had been warned. If so, we do not know whether the failure was that of the Crown Prosecution Service or the police or breakdown in communication at some point between those services and the individuals concerned. What does matter is that the prosecutor had felt able to tell the justices unequivocally that both witnesses had been duly warned when at least one of them, on arrival, indicated that he had not been. There may be an innocent explanation such that the Crown Prosecution Service and the police are not at fault. There may equally have been an error on the part of the prosecutor when telling the magistrates that the witnesses had been warned.

[7]It seems to us, as at present advised, that it is not fair for the claimant to be driven to base his application for judicial review on the facts which were told to the justices and formed the basis of their decision when subsequent events before the court rose that day made it at least possible that that information was incorrect. What the correct situation was ought, if possible, to be determined. The claimant ought to have the advantage, if advantage it turns out to be, of demonstrating to this court that the justices, through no fault of their own, took their decision on an incorrect basis of fact. How this court might then answer the question posed remains undecided, but it ought to depend, at least in part, upon the facts as they were, not necessarily as they were believed to be.

[8]Mr Hook, having considered the alternatives open to him, has, at the court's invitation, asked us to adjourn this matter so that the necessary information can be solicited from the Crown Prosecution Service. We propose to adjourn for that purpose. We cannot compel the Crown Prosecution Service to give evidence to the court, but we do invite the Director of Public Prosecutions to make available to the court - it need be in no more than a written statement - such information as is able to be assembled as to the steps taken, and the implementation of the steps taken, to warn the Crown's witnesses to be present at 2 pm on 7 April at Enfield Magistrates' Court. Mr Hook, I think we are going to have to allow the Crown Prosecution Service four weeks to do this. It will involve digging out files and probably chasing up information. We know they are overstretched. Do you have any representation to make on this?

[9]MR HOOK: No.

LORD JUSTICE SEDLEY: I think we should say that any information the Crown Prosecution Service is able to provide should be provided within four weeks of today's date to you and to the court. Whether the Crown Prosecution Service thereafter wishes to appear on the adjourned application is for them. We make no requirement of any kind. We make it clear that we want the completest possible account, not only of what but of why.

[11]MR HOOK: It occurred to me a moment ago it may be possible for those instructing me to contact directly the two officers concerned and ask them to make statements themselves.

LORD JUSTICE SEDLEY: You want to do that?

[13]MR HOOK: It occurred to me as a possibility that our - - - - -

LORD JUSTICE SEDLEY: There is no property in a witness at this stage. But you might be well advised to wait to see what the Crown Prosecution Service says. And you might be well advised also to copy the Crown Prosecution Service in on any steps you do take.

[15]MR HOOK: Yes, indeed. Is the matter reserved to your Lordships?

LORD JUSTICE SEDLEY: No. We will say that if it can be done, I should be a member of the court before which it comes, but it may not be practicable because the Divisional Court changes its composition quite regularly.

[17]MR HOOK: May I ask for the legal aid order that my solicitors currently have to be extended?

LORD JUSTICE SEDLEY: Is it issued by this court? LSC funding, is it?

[19]MR HOOK: It is, forgive me.