Crown Prosecution Service Berkshire Branch v Reading and West Berkshire Magistrates' Court [2010] EWHC 3260 (Admin)

Case No CO/10053/2009[2010] EWHC 3260 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 24 November 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE RODERICK EVANS
Between
THE CROWN PROSECUTION SERVICE BERKSHIRE BRANCHClaimantv
Between
READING AND WEST BERKSHIRE 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: 020 7404 1424(Official Shorthand Writers to the Court)
MR S HOPTONSTALL (instructed by THE CROWN PROSECUTION SERVICE) appeared for ClaimantThe Defendant was unrepresented
J U D G M E N T

LORD JUSTICE PILL:

[1]This is an application for judicial review to quash a decision of the Reading and West Berkshire Magistrates' Court, the respondents, to dismiss informations laid against Ramesh Banstola for offences of careless driving and of failing to stop after an accident. As such cases go this case was a serious one, in that a person in another vehicle broke her back, allegedly as a result of the defendant's lack of care. The justices refused an application by the prosecution to adjourn the case and proceeded to dismiss the charges. The application is brought by leave of Edwards-Stuart J on a consideration of the papers.[2]The offences are alleged to have been committed on 16 May 2008. Informations were laid 5 months later, on 15 October 2008. On 9 February 2009 not guilty pleas were entered and the case was listed for trial on 8 June 2009. On 29 May 2009 the prosecution applied to vacate the trial date. It was ordered that their application for an adjournment would be heard on 5 June 2009. The application could not be heard on that date because no interpreter had been booked by the court; Mr Banstola is from Sri Lanka.[3]The reason for the application, as put in the statement of Mr Thomas Emerson, the prosecutor responsible, was that the witnesses had not been warned for the trial date and statements had not been served. By 5 June the witnesses had been warned and that part of the duty had been performed. There were, however, as Mr Emerson has accepted, no schedules of unused material, and the prosecution needed to review it and consider whether it met or did not meet the test for disclosure. In relation to that, Mr Emerson stated at paragraph 13, first, that the police had the file available:
"We were therefore in a position to review all the unused material and consider whether it met the test for disclosure"
. Having referred to section 3(1)(b) of the Criminal Procedure and Investigations Act 1996, Mr Emerson added:
"Nonetheless, we were in a position to comply with the spirit of the disclosure regime, in that we could consider all the unused material. There was not a large amount of unused material in this case"
. Further matters were referred to by Mr Emerson as not having been done, first that there was no statement exhibiting the photographs of the scene of the accident, and secondly that there was no statement from the injured woman and the prosecution wanted such a statement. I am prepared to accept that the statement relating to the photographs was a mere formality.[4]The prosecution took the view that if their application to vacate was unsuccessful they would proceed with the trial. Mr Emerson put it in this way at paragraph 17: "Despite the missing items it was considered that there was sufficient evidence for a realistic prospect of conviction. Our position was that we would proceed with the trial if the application to vacate the trial was not successful".[5]On 5 June, and in the presence of a prosecution representative, the justices adjourned the application to the date which had been fixed for the trial, that is the following Monday, 8 June. Mr Emerson was to conduct the prosecution on that date. He is a barrister and legal trainee employed by the Crown Prosecution Service.[6]On Friday 5 June the file had not been available to him because it was in court for the application to vacate. On that date a member of the CPS administrative staff made enquiries with the court listing department about the result of the application and the listing of the case. He was told the matter had been adjourned to 8 September 2009. The witness care officer, to the contrary, had been told that the trial was still effective on 8 June but further enquiries were made, the message from the court about 8 September was confirmed and, understandably and properly, the witnesses were de-warned from attending on 8 June. The witnesses and the victim were understandably, as the care officer puts it, extremely angry at having made arrangements to attend on 8 June.[7]At about 6pm on 5 June the associate prosecutor who had made the application that day returned from court and told Mr Emerson that the justices had not vacated the trial date of 8 June. By that time no one was left in the Witness Care Unit to attempt to contact the witnesses again.[8]On 8 June Mr Emerson attended court with briefs for two trials in addition to the trial of Mr Banstola. The other trials proceeded until 7.40pm. Mr Banstola had attended court promptly, an interpreter was also present and in the course of the day, it is not clear from the evidence precisely when, legal representation was arranged and a representation order made in Mr Banstola's favour in relation to the trials. At 7.40pm Mr Emerson applied to adjourn the trial. He told the justices that if an application to vacate had been unsuccessful on 5 June the prosecution had intended to proceed on 8 June and witnesses had been warned accordingly.[9]It has emerged that a mistake was made by the court clerk on 5 June when the application to vacate could not proceed. The clerk had noted the adjournment date as 8/9 rather than 8/6. The wrong date was, in accordance with the usual procedure, put into the computer system, on enquiry the prosecution were notified accordingly.[10]Following Mr Emerson's application for an adjournment, which was put in a general way -- an application for a general adjournment -- the defence solicitor claimed in submissions to the justices that the witness attendance issue was a "smoke screen" to distract from the prosecution's inability to proceed. Had they intended to proceed on 8 June, they would not have made the application to vacate on 5 June. The solicitor also referred to the absence of the schedule of unused material and to the statement of the victim. That was because the prosecution had failed to perform their duties properly.[11]Mr Emerson challenges the smoke screen allegation and I accept that the prosecution proposals were as Mr Emerson has indicated, that is to proceed on 8 June even if the adjournment had not been granted.[12]The error of the court clerk in recording and putting into the computer system an adjournment date of 8 September instead of 8 June was both serious and unfortunate. In my judgment, the prosecution cannot be criticised, having received the message they did on 5 June, to de-warn witnesses and, having regard to the short time involved, they cannot be criticised for not attempting to re-warn them in time for a hearing on 8 June.[13]For the CPS, Mr Hoptonstall puts the case simply, as he can. The causative factor in the situation which had arisen was the mistake of the court clerk. That was the reason why the adjournment had to be requested, witnesses having reasonably been stood down from attendance on 8 June.[14]One aspect of the prosecution case for these proceedings I do not understand is why the court was not told on the morning of 8 June about the clerk's mistake and the consequence of it, namely that the prosecution witnesses had been de-warned. It was not until 7.40 in the evening that an application was made for an adjournment, even though the defendant, his solicitor and an interpreter had been present all day.[15]Mr Hoptonstall has referred to authorities. In R v Hendon Justices [1993] 96 Crim App R 227, Mann LJ stated that to succeed in an application such as the present, the prosecution need to establish that the justice's decision was so unreasonable that no reasonable bench of magistrates in like circumstances could have come to it. Mann LJ stated:
"The power conferred by section 15 of the Magistrates' Court Act is not one conferred for punitive purposes"
. Reference has also been made to the judgment of Roderick Evans J in DPP v Shuttleworth [2002] WL 347 1198. Roderick Evans J stated at paragraph 17:
"However, there are other interests which must also be borne in mind. There is, for example, a general public interest in prosecuting and convicting offenders. There is also the more particular interest of those who may be personally affected by the alleged offence. In the context of the kind of offence that Miss Shuttleworth is alleged to have committed, it may be that a member of the public had suffered personal injury as a result of the alleged offence or suffered damage to their property. To that member of the public, proper prosecution and appropriate conviction of an offender might be a very significant event. So far as these interests may be in competition one with another, a proper balance must be struck"
. That principle was echoed in the judgment of Jack J in CPS v Allen Pickton [2006] EWHC 1108 Admin at 8C: "Magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interests of the public that criminal charges should be adjudicated upon and the guilty convicted as well as the innocent acquitted. The more serious the charge, the public interest that there be a trial will carry greater weight".[16]In the judgment of Wilkie J in Naduri v Chester Magistrates' Court [2009] EWHC 1505 Admin, with which Stanley Burton LJ agreed, Wilkie J stated at paragraph 11: "In our judgment where, as is the case, the factors which the magistrates should consider are clearly set out in a convenient form which is well known to the legal advisers and they manifestly, as here, failed to have regard to them and only have regard to one to the exclusion of all others, it cannot then be said that the conclusion to which they come is one which was reached by them properly directing themselves. It therefore follows that we are driven to the conclusion, notwithstanding the fact that we should be very careful before interfering with the exercise by a trial court of its discretion in such a matter, that this decision to refuse the adjournment should not stand. We therefore quash the decision".[17]In making his submissions to the justices on behalf of the defendant, the solicitor, in addition to the submission I have already mentioned, referred to prosecution delays and the need of the defendant, it appears for family health reasons, to return for a prolonged period to Nepal.[18]The justices' reasons for refusing the application to adjourn were recorded by the clerk in this way: "Not to vacate today. CPS have had ample time to prepare case, incident over one year old, a trial fixed 4 months ago".[19]Attracted though I am by the simple proposition put forward by Mr Hoptonstall, it will be clear that there are other factors which need to be borne in mind, and their causative effect upon the decision of the justices considered. The reason why the application was delayed until 7.40pm, which is of course very much later than courts normally sit, has not been shown and no explanation attempted. I am unable to understand why the application was so delayed in the circumstances described. The sensible course would, it seems to me, have been to make the application earlier in the day, to tell the justices that because the witnesses had been de-warned as a result of an error by the court the case could not proceed on that day. It was not sensible, in my judgment, to defer that application until 7.40pm, a time at which no trial could sensibly proceed in any event, and it was not suggested that it should. The failure to make the application at a sensible time was, understandably, likely to create in the minds of the justices a sense that they were being treated less than transparently by the prosecution.[20]Secondly, the admitted failure of the prosecution to have prepared the case as they should have prepared it is, in my judgment, a relevant and causative factor. At paragraph 38 of his statement Mr Emerson properly accepted: "I wholly accept that the failures in obtaining unused schedules and further evidence in this case are highly undesirable".[21]In the course of his submissions, Mr Hoptonstall persisted in the submission that it all could have been dealt with that evening of the 8th, files could have been disclosed and agreement reached as to what material, if any, was relevant, and what further steps were to be taken. I regard that, with respect, as an unrealistic suggestion at that time of the evening, the magistrates certainly having had a full, and it appears difficult, day conducting trials. The most that could have been sought was a short period in which the prosecution could discharge their duties which they admitted to exist.[22]Further, I am somewhat disturbed at the statement of Mr Emerson, already cited, that despite the missing items it was considered that there was sufficient evidence for a realistic prospect of conviction. That may be, but the prosecution have a duty to act fairly and whether a trial is fair depends in part on their making proper disclosure having analysed the relevant material. Mr Emerson says that there was not a large amount of unused material in this case. That is no justification for failing to analyse it and make disclosure where and to the extent appropriate. The magistrates' would justifiably have been influenced by the failure of the prosecution, notwithstanding the substantial time they had, to perform their duties in that way; unused material had still not been analysed 7 months after the information had been laid and a year after the alleged offence was committed. It is not clear what approach the defence might have adopted had proper analysis and disclosure been made, because the defence had not been given that opportunity.[23]A third factor present -- although the justices did not refer to this -- was that the defendant was said to need to go to Nepal for a prolonged period of time which would almost certainly involve a considerable delay in the trial.[24]Mr Hoptonstall submits that, while those factors may be relevant, the justices did not sufficiently refer to them in their reasons and, following the decision of Naduri to which I have referred, their decision should accordingly be quashed.[25]It is necessary and appropriate for justices to give reasons, but the circumstances have to be considered. This application had commenced at 7.40pm, there are seven pages of notes by the clerk, and it was almost certainly at least in the region of 8pm when the magistrates came to give their reasons. A detailed exposition, such as has properly been provided this morning, could not reasonably be expected at that time. Moreover, what the justices said covered the substance of the points referred to, apart from the suggestion of the visit to Nepal.[26]Clearly, the justices were influenced by the delay in the prosecution performing their duties. I have referred to the times involved. Included within the justices' expression in relation to time must be the failure of the prosecution to carry out the duties they are expected to carry out to ensure the fairness of the trial. Thus, the simple approach advocated by Mr Hoptonstall, in his helpful submissions, must be seen in the context of other factors which, in my judgment, are relevant, and were properly causative of the decision to be made.[27]It may be that other justices on the same material would have given pre-eminence to the court error and, notwithstanding other factors, would have allowed the application for an adjournment. I am, however, far from satisfied that the decision reached by the justices was so unreasonable that no reasonable bench of magistrates in like circumstances could have come to it. Applying that test, as expressed by Mann LJ in the Hendon Justices case, I would refuse this application.

MR JUSTICE RODERICK EVANS: I agree.

LORD JUSTICE PILL: Does anything else arise?

[30]MR HOPTONSTALL: No, thank you, my Lord.

LORD JUSTICE PILL: Thank you.