Medway Ports Authority (Port of Sheerness) v Captain Michael James Ian Fincken [2010] EWHC 2229 (Admin)

Case No CO/3113/2010[2010] EWHC 2229 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 30 June 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE WYN WILLIAMS
Between
THE MEDWAY PORTS AUTHORITY (PORT OF SHEERNESS)Appellantv
Between
CAPTAIN MICHAEL JAMES IAN FINCKENRespondent(Master of the vessel RAINBOW WARRIOR)Respondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Ian Lawrie (Instructed By Furley Page Llp, Canterbury, Kent) Appeared for AppellantMr Francis Fitzgibbon Qc (Instructed By Bindmans Llp, London, Wc1) Appeared for Respondent
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal by way of case stated which raises the question as to whether it was lawful for the magistrates sitting at the Medway Court on 30th November 2009 to dismiss two summonses alleging a failure to notify the Ports Authority for the purposes of obtaining pilotage. The magistrates dismissed the summonses on the basis that no one had appeared on behalf of the prosecution to prosecute the case against a ship captained by Captain Fincken, and named the Rainbow Warrior.[2]The reasons for doing so were set out in a case stated by the magistrates, and in short stem from the view of the magistrates that, notwithstanding that the solicitors for the prosecuting authority, the Port of Sheerness acting as the Medway Ports Authority had only been informed of the appearance of the defendant, Captain Fincken, at 9.55 on the morning of 30th November, those solicitors should have appeared to prosecute the case by 11.30 am. When they failed to do so, the magistrates dismissed the case. The question for this court is whether that decision was outwith the range of reasonable conclusions, having regard to the need for the magistrates to consider fairness, not only to the defendant but also to the prosecution.[3]The allegations were old allegations and concerned the navigation by Captain Fincken of the Rainbow Warrior on 29th October 2008. The offences alleged against him were offences contrary to the Pilotage Act 1987. It is unnecessary to go into the detail of those offences, save to observe that the prosecuting authority was required to lay informations within six months of the offence pursuant to section 127 of the Magistrates Courts' Act 1980, and further that the maximum penalty for those offences were fines of £500. One thing we should make clear from the outset is the responsible behaviour of Captain Fincken himself. He is a South African national. He spends many months of each year at sea. He was not informed about these summonses until he returned home to South Africa where they were sent on or about 14th September 2009. He was out of the jurisdiction of the United Kingdom between 5th November 2008 until 24th June 2009 when he came for a few days for a private visit. He was then outside the jurisdiction from 28th June 2009 until 19th November 2009. For those reasons he, without any fault of his own, was not present at court on the return date for the summonses, 28th May 2009, and the prosecution who did attend asked for a warrant backed for bail.[4]On 23rd September 2009 Bindmans, the captain's solicitors, contacted both Medway Magistrates' Court and the appellant's solicitors that they now acted for Captain Fincken, indicating that he was now aware of the informations and asking for information about the evidence against their client. On 12th November 2009 they wrote to the Medway Magistrates' Court and copied that letter, again with complete frankness and in a co-operative attitude, indicating that their client, Captain Fincken, would be in the United Kingdom around 20th November 2009 and asking where he should go to surrender to his warrant. There appears to have been no further communication save that Captain Fincken, must have been informed where he had to go, and he surrendered to the police on 23rd November 2009. There matters seem to have gone wrong.[5]The captain was bailed to attend Medway Magistrates' Court at 9.45 am on 30th November 2009 but it is apparent from the Case Stated by the magistrates and from everything else that we have heard that the magistrates' court was not told of that date by the police. Nor was the prosecution. Neither Captain Fincken nor Bindmans would have had any reason to realise that that was information to which only they were privy. Far from it. They would have expected the police to tell the prosecutor and the court. When Captain Fincken turned up with a representative of Bindmans LLP, no one was expecting them. The case was not listed. The court had to be alerted by Captain Fincken's solicitors that he was there on the surrender day.[6]As so often happens in these cases, "when troubles come they come not in a single spy but in battalions." They certainly came in battalions on that morning. Some hapless individual in the prosecuting solicitor's office, a well known and respected firm, Furley Page, was informed at about 9.55am that Captain Fincken was at the court and he had appeared to surrender to his bail. The magistrates record and were aware that a member of the court staff had telephoned the solicitors for the prosecuting authority at 9.55am.[7]It is important to observe that this was the first time that the prosecuting authority or their solicitors were aware that Captain Fincken would attend that day; there was no possibility of them learning of that fact earlier. The letter from Bindmans saying when their client would be in the United Kingdom could not possibly have been notice of an appearance for that day. The magistrates record that because of the warning that the prosecuting authority had received that the Captain would be in the country on or about the 20th November, had some warning that it might have to attend court with little notice. I pause to observe that there is no basis for that comment at all. All that the prosecuting authority and their solicitors might expect would be that someone, whether the police or whatever the system in place was, would be told the date on which the defendant was required to surrender. It is unreasonable to expect any prosecuting authority or their solicitors to take action merely on the basis that the defendant is expected to be in the country "around 20th November".[8]The magistrates were correct in recording that a telephone conversation between the court staff and the solicitors but it does not appear from the case stated that they were told the full content of it. This is what is likely to go wrong if full inquiries are not made before further action is taken.[9]In fact, an Attendance Note from Furley Page records that they were told that the defendant had surrendered to his bail. The person receiving the call told that member of the Medway Magistrates' Court staff that the office was in Canterbury and "this is too short notice. Further we have not served our evidence". The Attendance Note then records that the member of staff said that "she would go and see the clerk and come back to me. She confirms that there is probably a duty solicitor on duty and when she had spoken to the clerk" she said that she would give the solicitors details. The solicitor said that he had given her his direct dial number. None of that is recorded in the case stated. I must assume that the magistrates were not told the full content of that conversation. It is not a criticism of them, still less of a member of the staff. It is just the sort of thing that happens when unexpected events occur and people have to act on the spur of the moment.[10]The magistrates were not expecting to hear that case that day since it was not listed. There was a further phone call which the magistrates record as being made by a member of staff at 10.15. They say that the prosecuting authority, was asked to provide a prosecutor. The case stated continues:
"The solicitors for the appellant replied that they were not aware that the respondent had been bailed to attend court that morning and that they were unable to get anyone to attend court to prosecute the case but they asked if the duty solicitor could deal with the case on their behalf or if the case could be adjourned to a later date (no application being made to adjourn the case to later that day to give more time for the solicitors for the appellant to attend). These messages were conveyed to the court orally by a member of the court staff to the court. The respondent's legal representative (that is someone from Bindmans) opposed the case being adjourned to a later date. The court made no further contact with the solicitors for the appellant."
We have a further Attendance Note that gives a completely different picture as to what happened at 10.15. According to that Attendance Note, the member of staff did telephone Furley Page acting for the prosecutor and said:
"The clerk has not come back to her and she does not think he will till the lunch break or later this afternoon. She expects the matter to be adjourned. It is not possible for the duty solicitor to deal as they only deal with overnight stays etc. She will ring me back as soon as she hears from the clerk."
[11]That is quite different from the information the magistrates were given. The magistrates were not told what that attendance note records Furley Page being told. Anyone receiving that information from that member of staff would expect that they should wait until they hear from the clerk. With hindsight, it may be that an astute solicitor would have said "that does not sound very satisfactory. We need to know that the magistrates are not going to do anything until the clerk has been contacted. Please make clear to them they are not to do anything until we have heard from the clerk. That is our understanding." But, there is no reason why the solicitors should not have accepted what they were told by a member of the staff. Again, I would emphasize that is not to blame anybody. It is just that when information is recorded at second or third hand -- nobody would have had the benefit of a written attendance note at that stage -- it is not surprising that it becomes skewed. But there is a curiosity about that which is recorded, as I have set out in the case stated at paragraph 6, namely that the magistrates were under the impression that there was an application that the case should be adjourned to a later date. It is unclear to me how they came to that conclusion.[12]The respondent was clearly seeking to have the case dismissed on the basis that there should not be further delay and that the solicitors for the prosecutor were at fault in failing to supply someone to prosecute the case by the time of the hearing at 11.30am. It does not appear therefore that the respondent was under any impression that there had been an application for an adjournment for a later date.[13]In helpful and clear submission, Mr Fitzgibbon QC on behalf of the respondent says that any competent solicitor ought to have made an application for an adjournment on hearing that the respondent had surrendered or to have taken steps to provide someone to prosecute the case. There was an office of Furley Page in Chatham. There were barristers in chambers, certainly in Maidstone, and there are a number of solicitors in Chatham who might have been prepared to act as agents. In my view, whilst further steps could have been taken to prosecute that case in one of the ways Mr Fitzgibbon QC describes, the problem was that nothing was done to make clear to the applicant's solicitors of the need to do that to prevent the case being dismissed. Had those solicitors been aware that the case was at risk of being dismissed by 11.30 that morning, perhaps they might have done more. But, on the contrary, they were not told that the case was going to be heard at 11.30. They were not warned that the magistrates were going to think about dismissing the case on the application of Bindmans on behalf of Captain Fincken. Quite the contrary. They were told, as I have recorded, that the clerk could not be found until the lunch break or later that afternoon and were told that they would be rung once the member of the magistrates staff had heard from the clerk. In other words, they were misled into thinking that they need do nothing until they heard from the member of the staff and/or the court clerk.[14]In fact, the next thing they heard was that the court had dismissed the proceedings, as indeed they had, at 11.30 on the basis of the submissions that the respondent made that the case was a stale, old case. The magistrates were clearly under the impression that there had been an application for an adjournment to a later date and that the solicitors were going to do nothing to find somebody to prosecute the case on that date. It is therefore not surprising that they took the view that they should exercise their power under section 15 to dismiss the case, as they did.[15]They had powers of adjournment under section 10 of the Magistrates Courts Act 1980. I draw attention to section 15(1) which provides:
"Where at the time and place appointed for the trial or adjourned trial of an information the accused appears or is brought before the court and the prosecutor does not appear, the court may dismiss the information."
[16]Mr Lawrie on behalf of the prosecutor points out that section 15 refers to the time and place appointed for the trial or adjourned trial. He rightly underlines the fact that there had been no time and place appointed for the trial or adjourned trial and therefore it is strongly argued that the powers conferred by section 15 did not arise. The magistrates therefore had no jurisdiction to dismiss the information, their jurisdiction being purely statutory.[17]He is right that there was no time and place appointed for the trial, but I would prefer to consider this case on the basis of the well established principles of fairness which I know the magistrates at Medway Magistrates' Court deploy day by day, rather than on the interesting question of the statutory scope of their jurisdiction.[18]The principles which magistrates have to apply are well established. They are set out in a number of cases to which we have been referred and which it is unnecessary to set out again. The obligation upon the court is to hear both sides. In those circumstances, generally it is incumbent upon magistrates to hear the prosecution as well as the defence. Secondly, in considering how to exercise the power conferred by section 15, the obligation on the magistrates is to be fair to both sides. The question of dismissal is not a matter of discipline but a matter of fairness. If one needs authority for so obvious a proposition it is to be found in the judgment of Mustill LJ in R v Swansea Justices and Davies, ex parte DPP [1990] 154 JP 709.[19]In many of the cases where this court has intervened the prosecutor is on his way to court and the magistrates have not waited. This case, so far as one can see, is unusual in that the prosecutor was unaware that the hearing was to take place. There was no means by which the prosecutor could have learned of the hearing. It is not a case of a mistake or an unfortunate set of events that prevented a prosecutor knowing of the hearing from attending or having his witnesses there. Nobody knew. The case was not listed. It was therefore incumbent upon the magistrates to make careful inquiries as to the possibility of disposing of the case that day before the informations were dismissed.[20]The magistrates were clearly and rightly concerned to see that the case was disposed of that day. Captain Fincken, having behaved in the admirable way in which he had behaved in the face of stale allegations, can hardly be expected to turn up on another day to face those informations or certainly not after an adjournment of more than a day or two. Obviously, the magistrates were concerned that the case should be disposed of. If they were going to dispose of the case that day or very shortly thereafter in fairness to Captain Fincken, they had to make sure, so far as reasonably possible, that the prosecutor had a fair opportunity to present its case. The prosecutor had no such opportunity. It had not learned of the case until 9.55, and once it had learned of the case was effectively being told to wait until the hapless member of the court staff could find the court clerk. No warning was given that the magistrates were proposing to consider dismissing the information that morning. It should have been. No fair opportunity to provide someone to prevent that happening was given. That fair opportunity could have been given by suggesting that the magistrates would hear the case after the lunch adjournment at 2 o'clock and that Furley Page be ready to appear by 2 o'clock. If that warning had been given I am confident that a firm of that competence, with the support of their allies around and about the Medway towns in Kent, could have arranged for somebody to be there. They should have been given that opportunity. They were not.[21]In my judgment, in those circumstances, no doubt misled by what they believed had happened, the magistrates in my judgment did not treat the prosecution with the fairness to which it was entitled. They failed to identify the important fact that there had been no possibility of the prosecution doing anything until 9.55 and failed to appreciate the difficulties that the sudden and unexpected piece of information would have caused to those solicitors.[22]Again, I would emphasize that I do not blame the magistrates in any way because it does not appear that they had learned of the full picture. The lessons perhaps now to be learned is the importance of standing back before taking the severe and significant step of dismissing an information without giving a fair opportunity to the prosecution to be heard. In those circumstances and for those reasons, looking at the questions which the magistrates asked, namely, firstly, "were we wrong in law in refusing to adjourn the informations to a later date to enable a prosecutor to be present?" I would, for my part, answer that question no, but that they were wrong in refusing to adjourn the informations without giving the prosecutor a fair opportunity to be present later that day. The second question, "were we wrong in law in not further contacting the solicitors for the appellant and warning them of our wish to consider dismissing the informations and giving them further opportunity to make representations and/or provide an advocate to prosecute the case and/or adjourn the proceedings," I would answer yes.[23]In those circumstances, in exercise of our power under section 28A(3) of the Supreme Courts act 1981, I would reverse the determination to dismiss the informations. However, that section confers the power on this court to make such other order in relation to the matter, including as to costs, as it thinks fit. Having regard to the responsible attitude of Captain Fincken, with the aid of Bindmans LLP, and having regard to the nature of the allegations against him and the date of those allegations, it would be quite wrong to require him to have to face this matter any further. He has done all he reasonably could. He is not to blame. In those circumstances, I would order that the matter should not be remitted for further hearing and that the Captain should hear nothing further about it.[24]MR. JUSTICE WYN WILLIAMS: I agree.[25]MR. LAWRIE: There is an application for prosecution costs pursuant to section 17 of the Prosecution of Offenders Act which permits an order in costs to be made where there are proceedings before the Divisional Court.

THE JUDGE: Who pays them?

[27]MR. LAWRIE: Central funds.[28]MR. FITZGIBBON: May I draw the court's attention to Mr. Fincken's position? He is legally aided.

LORD JUSTICE MOSES: We will make such an order.

[30]MR. LAWRIE: Those who instruct me will submit an itemized bill within seven days to be taxed in the usual way.[31]MR. FITZGIBBON: He has the benefit of a representation order for these proceedings, for a solicitor and a junior. May I invite you to consider his position under the legal aid fund?

LORD JUSTICE MOSES: It would come out of central funds and go to the legal aid fund.

[33]MR. FITZGIBBON: I think I am under a duty to invite you to consider the position of the legal aid fund.[34]MR. JUSTICE WYN WILLIAMS: Does that mean that you are asking us to consider making an order against the prosecuting authority?[35]MR. FITZGIBBON: No. It is section 28A, such order as to costs as the court thinks fit.

LORD JUSTICE MOSES: We make no order.