Visvaratnam v Brent Magistrates' Court [2009] EWHC 3017 (Admin)

Case No CO/8508/2008[2009] EWHC 3017 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 28 October 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE OPENSHAW
Between
ARAVINTHAN VISVARATNAMClaimantv
Between
BRENT MAGISTRATES' COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr A Hook (instructed by Tank Jowett Solicitors) appeared for Claimant for The Defendant did not appear and was not represented
J U D G M E N T

LORD JUSTICE ELIAS:

[1]I will ask Openshaw J to give the judgment.[2]MR JUSTICE OPENSHAW: This is an application by Aravinthan Visvaratnam, the claimant, for judicial review to challenge a decision of the Brent Magistrates' Court made on 6 June 2008 to adjourn his trial upon a charge of driving whilst unfit through drugs, on the application of the prosecution.[3]The facts, insofar as they are before us, are set out in the grounds, and we shall recite them shortly. We should, however, record that, late yesterday evening, the court received a witness statement from the Chairman of the Bench sitting on the day. In that witness statement the Chairman sets out his recollection of events, which differs entirely from the version put forward in the grounds in support of this application. The rules of this court plainly provide that statements in response to these applications must be served in proper form in time, and also, if the prosecution as an interested party wish to intervene, they also should do so in time in the proper form. It is not, in my judgment, in the least bit satisfactory for witness statements to appear the evening before the case is scheduled to be heard. We, therefore, have taken the view that we should not pay attention or have any regard to the witness statement served so late, and we propose to hear and determine the case in accordance with the grounds of the application.[4]The facts on which we hear and determine the case, therefore, are as follows. On the day long set for this trial, namely 6 June 2008, the prosecution intended to rely upon the evidence of a doctor who had examined the claimant upon his arrest. He was to give evidence as to the claimant's condition and fitness to drive. It is self-evident - indeed, it was conceded - that the evidence of the doctor was fundamental to the case for the prosecution. Without his evidence, there was no case against the claimant at all. For reasons which were then entirely unexplained, the doctor had not been warned to attend the trial. We draw inevitable inference that his non-attendance was due to the fault either of the police or the CPS, or a combination of both. In fact, their fault went rather further than that, because it seems that the doctor's evidence had not even been disclosed to, let alone served upon, the defence until they attended at court on the day of the trial.[5]The other vital witness was a forensic scientist, who had analysed the blood sample taken from the claimant at the time of his arrest, which suggested that the claimant had cannabis in his bloodstream at the time of his arrest, and the inference that was sought to be drawn was that he had cannabis in his bloodstream at the time that he had been driving. This forensic scientist had been warned to attend, but "well before the trial date", as it was put, he had already told the prosecution that he was unable to attend court on the day set for trial. Once the prosecution had been told that the witness was unavailable, they should immediately have made an application to adjourn the trial - an order which probably could have been made administratively without a further hearing. In fact, on the version upon which we must decide this case, the prosecution did nothing.[6]On the day fixed for trial, the claimant attended, represented by counsel. No witnesses attended for the prosecution, as we have already explained. The prosecution therefore applied to adjourn the case. As we have said, on the version on which we must proceed, no explanation was provided for not having served the evidence of the doctor, nor for having been ready at court to give evidence, and no explanation was given for not previously having sought an adjournment once it had become clear that the forensic scientist would not attend. Nevertheless, the prosecution argued that the allegations were serious, and that justice required that the case should be heard on its merits. Therefore, an adjournment was necessary in the interests of justice.[7]Mr Hook, appearing on behalf of the claimant, opposed the application. Since he had no warning of the situation, he did not have the authorities with him, but he did his best by drawing attention to the summary of the relevant cases as set out in the textbooks which were available to him. In essence, he submitted that the court should balance the prejudice to both sides. He argued that the fault lay entirely with the prosecution, and it was unreasonable to grant an adjournment. The magistrates, however, granted the adjournment. They did not give detailed reasons. On the version upon which we must proceed, they merely said that disputed criminal allegations should be disposed of by way of a trial, and they therefore ordered the adjournment. Mr Hook submits that the decision to adjourn the case was unfair and unreasonable.[8]In reviewing their decision to adjourn, I start with the statutory power, which is in section 10(1) of the Magistrates' Courts Act 1980, which reads as follows:
"A magistrates’ court may at any time, whether before or after beginning to try an information, adjourn the trial ..."
This power is not unrestricted, as a number of reported cases show. I start my short review of the authorities with the case of R v Chaaban [2003] EWCA Crim 1012, and the judgment of Judge LJ (as he then was). This is the case which first laid down the critical importance of robust case management. I read from paragraph 36 of that judgment:
"Virtually any adjournment produces inconvenience for someone. What used to be described as an adjournment culture, if it ever existed, is a thing of the past. Adjournments have to be justified. If at all possible, they must be avoided. Proper case preparation is required from both sides. When asked to consider an adjournment, the judge must closely scrutinise the application, and, unless satisfied that it is indeed necessary and justified, should refuse it."
[9]I move on to the overriding objective of the Criminal Procedure Rules, as set out in rule 1.1(2)(e):
"The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes— ... (e) dealing with the case efficiently and expeditiously ..."
[10]The high public interest in the courts delivering an efficient and effective system of timely justice has been highlighted by the success of the simple, speedy and summary justice initiative.[11]I move to the case of Essen v the DPP [2005] EWCA 1077 (Admin), where this court considered a decision of the Magistrates' Court to adjourn yet again a case with a long history of adjournments. This case established the proposition that this court can intervene when a decision to adjourn is made with no, or inadequate, reasons. Among the factors identified by the court as relevant were the listing history, where any blame lay, the prejudice resulting from the adjournment and the seriousness of the charge. Sedley LJ said he understood the resultant concern that an alleged serious crime may not be tried on its merits, but the seriousness of the charge could not of itself be a reason not to adjourn, otherwise "no prosecutor, however dilatory, need attend to the requirement to be ready for trial on the set date".[12]In R(Walden and Stern) v Highbury Corner Magistrates' Court [2002] EWCA 708 (Admin), the claimants' trial upon a charge of driving with excess alcohol was adjourned because prosecution witnesses had not attended as a result of a failure by the prosecution properly to warn them. In this case there was no listing history. Indeed, the adjournment was of a first trial date set. Mitchell J was in no doubt that an adjournment should have been granted. He said at paragraph 17:
"The longer the courts tolerate the sort of inefficiency which seems, in each of these cases, to be the explanation for the failure of the witnesses to attend court on the date fixed for the hearing, the longer it will continue. To tolerate it is to encourage it ... delays in the administration of justice are a scandal. They are the more scandalous when it is criminal proceedings with which the court is concerned."
[13]I turn to Picton [2006] EWHC 1108, where a trial on a charge of common assault was fixed for half past 10 in the morning and the witnesses had erroneously been warned not to attend until 2 o'clock in the afternoon. Upholding the magistrate's decision not to adjourn the case until the afternoon, Jack J summarised the principles to be distilled from the authorities. A decision on whether to adjourn the case is within the discretion of the trial court, and an appellate court will only interfere with that decision if very clear grounds to do so are shown. Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings. Delays are scandalous. They bring the law into disrepute. Summary justice should be speedy justice, and any application for an adjournment should be rigorously scrutinised. When an adjournment is sought by the prosecution, magistrates must consider the interests of both the defendant in getting the matter heard, and the interests of the public that criminal charges should be heard and determined upon their merits. It is in the public interest that the guilty are convicted, as well as the innocent acquitted. The more serious the charge, the greater the likelihood is that the public interest will require a trial. If an adjournment is sought by the defence, the magistrates must consider whether, if it is not granted, the defendant will be able fully to present his defence, and if he will not be able to do so, the degree to which the defence will be compromised.[14]In considering the competing interests of the parties, magistrates should examine the likely consequences of the proposed adjournment and its likely length, bearing particularly in mind the need to decide the facts while memories are fresh. The reason that the adjournment is required should be examined, and if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment; likewise if the party opposing the adjournment has themselves been at fault will favour an adjournment.[15]Magistrates should also take appropriate account of the listing history of the case, whether there have been earlier adjournments, and, if so, who has made the application and upon what grounds. It is the court's duty to balance all these matters so as to do justice between the parties and they should give reasons for their decisions.[16]The other cases cited to us by Mr Hook are really only examples of the application of those principles to particular facts. I turn to apply these general principles to the circumstances of this case.[17]The magistrates here had to balance the public interest in the claimant's trial for driving under the influence of drugs against the gravity of a series of very serious errors made by the prosecution, which were unexplained and indeed inexplicable. There was no indication of when it would be possible to re-fix the trial, but we all know that very frequently trial dates are set in the Magistrates' Courts very many months in the future. I do not doubt that this would have caused further anxiety and costs to the claimant. It is true that this was the first date that the case was set for trial and there was no history of other ineffective hearings. It is also true that this was not a case which depended upon recollection.[18]The prosecution must not think that they are always allowed at least one application to adjourn the case. If that idea were to gain currency, no trial would ever start on the first date set for trial.[19]So these are the competing considerations. I have no doubt that there is a high public interest in trials taking place on the date set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so. The sooner the prosecution understand this - that they cannot rely on their own serious failures properly to warn witnesses - the sooner the efficiency in the Magistrates' Court system improves. An improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the Magistrates' Court will bring about great benefits to victims and to witnesses and huge savings in time and money.[20]I have no doubt that the magistrates were wrong to grant this adjournment, and I would quash their decision to do so. It must follow that the claimant should be acquitted.

LORD JUSTICE ELIAS: I agree. I would only wish to add that it is quite astonishing that a statement is lodged from the Magistrates' Court the night before this full hearing for judicial review is to take place.

[22]At the permission stage, an acknowledgment of service was lodged by the magistrates indicating that the court did not intend to make any submission. That was in October 2008. No acknowledgment has been lodged by the interested party. It is astonishing also, if they wished to take issue with the fundamental facts on which this case relies, that they did not indicate in an acknowledgment of service. I understand that they have been contacted on numerous occasions both by the claimant and by the court administration, and they have simply not responded to any of the requests for information as to whether or not they wish to contest the claim. It really is not appropriate for information to be put before the court in that way, in circumstances in particular where the claimant has paid for his own counsel and where the information is produced from the magistrates some 18 months after the hearing.[23]Thank you very much.[24]MR HOOK: I am grateful. May I ask for an order for the costs out of central funds under section 16 of the Prosecution of Offences Act, in effect to recover by client's costs? Clearly it would be inappropriate to ask for an order against the respondent as they are a court, and therefore I ask for those out of central funds.

LORD JUSTICE ELIAS: Yes, we grant that.

Cited in 4 later judgments