Hamberger, R (On the Application Of) v Crown Prosecution Service [2014] EWHC 2814 (Admin)

[2014] EWHC 2814 (Admin)Case No CO/11798/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand London WC2A 2LLDate Tuesday, 20 May 2014
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE NICOL
Between
THE QUEEN ON THE APPLICATION OF HAMBERGERClaimantCROWN PROSECUTION SERVICEDefendant
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 P Simon (instructed by TV Edwards) appeared for ClaimantMr S Heptonstall (instructed by the Crown Prosecution Service) appeared for theDefendant
J U D G M E N T
[1]MR JUSTICE NICOL: This is a renewed application for permission to apply for judicial review of a decision of the Crown Prosecution Service to continue with the prosecution of the claimant in relation to two matters. The first is conspiracy to supply something over 200 kilos of cannabis resin. The second is four offences under section 5(1)(b) of the Firearms Act 1968 in relation to the purchase of weapons for discharging of CS gas.[2]The application for permission was refused on the papers by Foskett J. The renewed application first came before Blake J, but he adjourned it for the Crown to be able to attend. I am grateful to the submissions that we have received, both from Mr Simon on behalf the claimant and Mr Heptonstall on behalf of the CPS.[3]The cannabis matter is currently before the Southwark Crown Court. HHJ Robbins is the trial judge. He has severed the indictment, so that the conspiracy charge relating to the co-defendants can continue separate from the trial of the claimant. The firearms charges are presently in the Westminster Magistrates' Court and stand adjourned.[4]The offences under the provision of the Firearms Act are triable either way but the Magistrates' Court has not yet taken a decision. Any further decision in whether they would be suitable to be tried in the Magistrates' Court ought to be sent for trial to the Crown Court.[5]The claimant has submitted to the Crown Prosecution Service that both sets of charges should be dropped because of his state of health. A number of medical reports have been prepared on the claimant. Two cardiologists, Professor Coates and Dr Byrne, have provided reports. Both refer to the fact that the claimant unfortunately suffers from angina.[6]Professor Coates, in a report dated 13 December 2012, said that he would predict that the claimant was highly likely to have further episodes of severe angina which could be life threatening, and that the chances of further episodes would be increased by attendance at court because of the physical and emotional stress that such attendance would place on him. He placed the risk as medium to high that a court appearance would trigger an angina attack that may require him to be admitted as an emergency to hospital and that a further low (but not insignificant) risk that such attendance at court could increase the risk of precipitating a heart attack or death.[7]Dr Byrne was instructed by the CPS, and reported on 15 February 2013. He agreed that there was a reasonable risk that the claimant would have further episodes of unstable angina, in the light of stress during any proposed court proceedings.[8]He would disagree that those episodes would be life threatening, but they may be deleterious to his long term health. They are also likely to result in hospital admission, in-patient stay and the administration of drugs to control his symptoms. He agreed that the claimant was not fit to withstand court arrangements in his current condition and was unlikely to be able to do so in the future.[9]The claimant's physical health has also impacted on his mental health. Reports have been prepared by Dr Seevaratnam, a consultant psychiatrist, the first dated 2 December 2012. He thought that the claimant was not suffering from a mental disorder within the meaning of the Mental Health Act 1983 but he was suffering from an adjustment disorder, with mixed anxiety and depressive reaction. In his view, because of the stress, the claimant was not fit to plead and not fit to stand trial. He confirmed those views in an addendum report dated 19 August 2013.[10]Broadly similar views were reached by another consultant psychiatrist, Dr Bowers, in his report of 28 January 2013. There have been a number of hearings in the Crown Court at Southwark, including before Judge Robbins. One of the issues canvassed was whether the claimant was fit to plead.[11]Judge Robbins made a decision having heard live evidence that the defendant was fit to plead. Judge Robbins went on to consider what could be done about easing the potential stress on the claimant from attending a trial at the Crown Court.[12]It was proposed by the prosecution that a video link could be established in the home of the claimant's partner, or ex-partner. Judge Robbins was prepared to countenance that arrangement but it has come to nought since the now ex-partner was unwilling to co-operate because of what she feared might be the consequences for the claimant's state of health if he were to go through that procedure in her home.[13]Another possibility had been canvassed by the Crown, namely that arrangements could be made for the claimant to attend a nearby location to his home and to attend the trial hearing by means of a video link.[14]The claimant asked the Crown to reflect on submissions that were made by his legal representatives that the continued prosecution was contrary to his rights under Article 2 and Article 3 in the European Convention on Human Rights but the Crown decided, nonetheless, that it was appropriate in this case to continue the prosecution. It was that decision which triggered this application for judicial review.[15]In refusing the claimant permission to apply on the papers, Foskett J commented that:
"On 31 May this year, after hearing all relevant medical evidence including evidence as to arrangements which could be made to facilitate the claimant's participation in his trial, HHJ Robbins found the claimant fit to stand trial. In the light of that, and having reviewed the position in accordance with its human rights obligations, on 9 August the prosecution indicated its intention to continue with the prosecution against him. He seeks to challenge that decision by way of judicial review. I am very doubtful as to whether he is entitled to proceed in this way."
[16]Foskett J referred to paragraph 19 of the defendant's summary ground. He then continued:
"But on the assumption that he has, I can see no basis upon which it can be said that the decision is susceptible to challenge on normal Wednesbury grounds or upon any less stringent approach developed by the ECHR. "
This was a perfectly rational decision, taken against the background of the availability of statistics that would enable the claimant to participate in the trial. It is impossible not to observe also that the prosecution evidence suggests that in July and August 2012 [in other words, 12 months previously] the claimant had little difficulty in undertaking meetings and making journeys by car."[Quote unchecked][17]Mr Simon, on behalf of the claimant, submits that what both the Crown Court and Foskett J overlooked was that the courts have consistently held that a person may only give evidence, other than by being personally present and giving oral evidence in court, if there is statutory authority. The cases which confirm that include R v Ukpabio [2008] 1 Cr App R 6, and R v Hamson [unreported] [2014] 1 Cr App R 4.[18]There is statutory authority in the Youth Justice and Criminal Evidence Act for witnesses to give evidence via video link. In its original form, the 1999 Act specifically excluded the accused from any of those means. However, the 1999 Act was amended in 2006 by the Police and Justice Act 2006, section 47. That added section 33A to the 1999 statute.[19]Section 33A allows video link testimony to be given by a defendant on his own application, in two circumstances. The first is where the accused is aged under 18. That is not the case with the claimant, and therefore I can set that aside. The second is set out in sub section 5 of section 33A, it says this:
"(5) Where the accused has attained the age of 18 at that time, the conditions are that — (a)he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function. (b)he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court, and (c)use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise)."
[20]It is Mr Simon's contention that the defendant cannot take advantage of sub section 5, even if he wished to do so, because on the opinion of Dr Seevaratnam he does not suffer from a mental disorder within the meaning of the Mental Health Act 1983, nor does he have otherwise a significant impairment of intelligence and social function.[21]Mr Simon submits, therefore, that the basis on which Judge Robbins contemplated that the claimant could fully participate in the trial process was flawed and that the Crown Prosecution Service ought to have appreciated that the risk to his physical health was such that it would not be compatible with Article 2 and Article 3 of the European Convention on Human Rights for it to continue with these prosecutions.[22]Of course, the matter that we have to consider today is whether the contentions of the claimant are sufficiently arguable that the permission to apply for judicial review should be given. Speaking for myself, however, I have reached the clear conclusion that they are not arguable.[23]It is an important part of the context of this case that the claimant is facing a trial on indictment, and indeed a trial where the proceedings have commenced in the Crown Court.[24]In R v DPP, ex parte Kebilene [2000] 2 AC 326, the House of Lords confirmed that, even if section 29(3) of what is now the Senior Courts Act 1981 did not preclude such an application for judicial review, there was nonetheless a common law principle that the Administrative Court should not entertain applications for judicial review save in exceptional circumstances where the matter was proceeding in the Crown Court, even though the decision maker whose decision was sought to be challenged was the Director of Public Prosecutions rather than the Crown Court itself.[25]The Divisional Court in R on the application of D v the Central Criminal Court [2004] 1 CAR 41, affirmed that approach, and indeed reiterated that it was only in the most exceptional circumstances that a decision to prosecute or continue a prosecution should be open to judicial review. One justification for both that common law approach and for section 29(3) is that the trial upon indictment process itself has many protections that can be afforded to a defendant.[26]A second principle is that there is a public policy that tends against the interruption of a trial on indictment. If the defendant is acquitted, then the proceedings are superfluous. If the defendant is convicted, there is the power of review and control in the Court of Appeal Criminal Division.[27]Speaking for myself, I would respectfully endorse those two reasons as to why this court should be extremely loathe to countenance a review of the CPS where a trial on indictment is in progress.[28]Mr Simon has a point that the power to receive evidence is conditional on there being a statutory provision that would allow the evidence to be received other than by the claimant giving oral evidence in court in the conventional way.[29]The point at which that becomes a live issue, though, would only be at the end of the prosecution's case. At that stage, it may be appropriate to review the claimant's physical and mental condition. The reports of the consultant psychiatrist, it may be, are currently insufficient to come within sub section 5 of section 33A of the 199 Act. We do not know whether that will remain the position at the conclusion of the Crown's case. Even if by then those conditions are not fulfilled, there are other means by which the trial judge may ensure that the claimant's right to a fair trial under common law and Article 6 of the European Convention on Human Rights are not violated.[30]One possibility, although it is not necessary for us to offer a view as to whether this would be an appropriate in those circumstances, is for the claimant to apply to adduce a proof of evidence as hearsay evidence based on section 116(2)(b) of the Criminal Justice Act 2003.[31]Another possibility is for the claimant to ask the judge to indicate that he will direct the jury not to treat his failure to give evidence as potentially supportive of the prosecution's case. (See section 35 of the Criminal Justice and Public Order Act 1994).[32]Ultimately, if the trial judge was persuaded that none of those methods were sufficient to ensure that the claimant had a fair trial, he could entertain an application by the claimant for the jury to be discharged.[33]I emphasise that it is not our function at this stage to rule on whether any of those matters would necessarily find favour with the trial judge. That would be matter for him at the appropriate time.[34]The Fabio case does confirm another matter that is of some importance. On the claimant's application and if the trial judge consented it would be open to him to participate in the proceedings by video link up to the point where he wished to give evidence himself.[35]Mr Simon, on his behalf, emphasises that such a course is dependent upon the claimant's application. That may be the case. But, if the claimant chose not to make an application that was open to him, that would be a very significant matter when deciding whether or not the claimant had a fair trial.[36]In all the circumstances, notwithstanding the submissions that Mr Simon has made to us, I am clear that this is not an application for judicial review on arguable grounds and accordingly, I would refuse the application.

LORD JUSTICE TREACY: I agree. I consider that there is no sufficiently arguable case for this matter to go forward for two principal reasons.

[38]First of all, the judge held a hearing in June 2013 in the Crown Court which included evidence from the medical experts which was tested by cross-examination. The judge concluded that the claimant was fit to plead and to take his trial. In effect, this application seeks to prevent that prosecution of this claimant from going forward at all. In my judgment, this is the sort of undesirable satellite litigation which the House of Lords had in mind in ex parte Kebilene and which is referred to further in D v Central Criminal Court.[39]There are to my mind no exceptional circumstances which should permit this court to review the decision of the prosecutor to continue with this prosecution so for that first reason, I would decline to grant leave.[40]Secondly, it seems to me that the application overlooks the fact that the trial process is a dynamic process and in the context of this case it is one where, when the trial goes forward, the judge will have to make decisions arising from the claimant's difficulties as and when they arise.[41]It seems to me that there is no obstacle to case management decisions being made in relation to the claimant's participation in the trial. My Lord has referred to Ukpabio in that context. I would reserve the question as to whether the court of its own motion may make case management orders enabling a defendant to participate in the trial without application from the defendant himself.[42]As far as the giving of evidence is concerned, that is a step presently remote from the proceedings before this court. As my Lord has illustrated, there will be a range of considerations available to the judge at the point if and when that particular issue arises. It would be wrong for this court to foreclose the possibility of steps being taken which will manage the difficulties, from which this claimant undoubtedly suffers, with a view to securing a fair trial for him.[43]The point in time for dealing with those matters which I consider are effective potential other available remedies has not been arrived at. It follows, therefore, that this application is premature in so far as it seeks to suggest to the contrary. For those reasons, I would refuse this renewed application.

Cited in 1 later judgment