Bourne v Scarborough Magistrates' Court [2017] EWHC 2828 (Admin)

[2017] EWHC 2828 (Admin)Case No CO/1402/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/11/2017
Before
LORD JUSTICE HOLROYDE AND MR JUSTICE DINGEMANS
Between
KEVIN BOURNEClaimantSCARBOROUGH MAGISTRATES’ COURTDefendantCROWN PROSECUTION SERVICEInterested Party
Jeremy Benson QC (instructed by Geoffrey Miller Solicitors) for ClaimantJames Boyd (instructed by Crown Prosecution Service) for Interested Party for The Defendant did not appear and was not representedHearing Hearing dates: 17 th October, 2017
JUDGMENT
[1]The Claimant Kevin Bourne (“Mr Bourne”) is the defendant in criminal proceedings brought by the Crown Prosecution Service (“CPS”) before the Scarborough Magistrates’ Court (“the Magistrates’ Court”). On 1st March 2017 a legal adviser to the Magistrates’ Court (“the legal adviser”) granted a prosecution application to vacate the fixed trial date of 9th March 2017. On 2nd March 2017 the legal adviser refused an application by Mr Bourne to review that decision at an oral hearing. Mr Bourne now applies for judicial review of those two decisions.[2]I am grateful for the submissions of Mr Benson QC, who represents Mr Bourne, and Mr Boyd, who represents the CPS. The Magistrates’ Court has not taken an active role in these judicial review proceedings, and was not represented. The facts giving rise to the proceedings:[3]For present purposes,it is sufficient to give a very brief summary of the circumstances in which Mr Bourne has been prosecuted, before turning to the relevant features of the proceedings in the Magistrates’ Court.[4]At about midnight on 15th October 2016 Mr Bourne was the driver of a car which collided with his partner. Eye witnesses to the collision, and a police officer who attended the scene within a short time, have made statements to the effect that Mr Bourne appeared to have been drinking. A roadside breath test proved positive, and Mr Bourne was arrested. The evidential breath test procedure was carried out at the police station by a PC Carter, and it is the prosecution’s case that the level of alcohol in Mr Bourne’s breath was found to be just over double the permitted maximum. The printout produced by the approved breath testing device did not show any error message or any other indication that the device was or might be defective. Mr Bourne signed that printout. When later interviewed he gave an account of the alcohol which he had consumed during the evening before the collision: in summary, he said he had had two pints of beer and had then shared two bottles of wine over a meal, though his partner had probably consumed “more than half” of the wine. The proceedings in the Magistrates’ Court:[5]Mr Bourne was initially charged with a single offence, of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988. He made his first appearance before the Magistrates’ Court on 10th November 2016, when he entered a not guilty plea. The prosecution and defence advocates prepared a Preparation for Effective Trial (“PET”) form. This indicated that all the prosecution witnesses were required by the defence to give oral evidence at trial: the eye witnesses to the collision, the arresting officer and PC Carter. It was however indicated that some of the witnesses might be capable of being agreed following service of the precise terms of their evidence. The defence advocate identified the issues in the case as including a challenge to the reliability of the evidential breath sample, the functionality of the breathalyser device, and the manner in which the procedure was carried out at the police station. An indication was given that the general nature of Mr Bourne’s case was that he had not consumed sufficient alcohol to take him over the permitted limit.[6]The Magistrates’ Court at that hearing directed the service of further prosecution evidence, and initial disclosure, within 28 days. The defence were directed to serve any expert evidence at least 28 days before the trial. The trial was fixed to be heard on 9th March 2017, and the prosecution were granted liberty to apply within 14 days to vacate that trial date in the event of witness unavailability.[7]The prosecution served their evidence in accordance with those directions. In response, Mr Bourne’s solicitors confirmed their witness requirements and reiterated their indication of the issues in the case. The defence thereafter served expert evidence and again repeated their witness requirements. Letters were sent to the CPS on the 9th and 21st February 2017 referring to outstanding requests for disclosure. No reply was received to those letters.[8]Then on 22nd February 2017 the CPS notified Mr Bourne’s solicitors that, following “a full evidential review”, the prosecution proposed to proceed on both the existing charge and a new charge of dangerous driving, contrary to section 2 of the Road Traffic Act 1988. With reference to the officer who had conducted the breath testing procedure at the police station, the letter said:
“Please note that PC435 Carter is unavailable to attend court on the trial date and thus the Crown will be seeking to adjourn the case. The officer had booked annual leave from 26th February until 31/3/16 (sic) inclusive prior to the warning being sent to him. I attach a copy of the letter sent to Scarborough Magistrates’ Court in this regard.”
[9]Also on 22nd February 2017, the CPS sent a letter to the Magistrates’ Court in which it was said – “Please note that the Crown will be seeking to adjourn the trial as a key witness, PC435 Carter, is on annual leave from 26/2/17 to 31/3/17 and thus will not be available on the trial date. This leave was booked prior to the time the officer was warned. Unfortunately this notification was overlooked until this stage. PC Carter is the officer who conducted the drink drive procedure in this case and the defence challenge this procedure as part of its defence to the charge.”[10]On the following day, 23rd February 2017, Mr Bourne’s solicitors wrote to the court indicating that they would “rigorously oppose the application to vacate”. They pointed out that their witness requirements, and the issues in the case, had been identified by the defence at the first hearing on 10th November 2016, and that the prosecutor had not said anything at that hearing to suggest that PC Carter was or might be unavailable for trial. The letter continued:
“We also note whilst the Crown suggest that PC Carter responded to the prosecution when they warned him “2 days after being warned” they are silent about when PC Carter was warned and when he responded albeit they allude to the delay being caused by prosecution oversight.”
The letter went on to refer to the decision of a Divisional Court in Crown Prosecution Service v Picton [2006] EWHC1108 (Admin), in which the court considered the principles which should be applied by a magistrates’ court when considering an application for an adjournment of a trial. The solicitors particularly emphasised a passage in that judgment in which the court had said that the reason why an adjournment was required should be examined and, if it arose through the fault of the party asking for an adjournment, that was a factor against granting the adjournment. They expressed Mr Bourne’s wish for a swift resolution to the allegations against him and repeated that there was strong opposition to any application for an adjournment. The letter concluded with these words: “In the event that the court is minded to agree to vacate the trial, we ask that a hearing be listed where our full submissions can be made”.[11]No response was received to that letter. Mr Bourne’s solicitors contacted the court by telephone on 28th February 2017, and were told that the application was yet to be considered.[12]On the afternoon of 1st March 2017, the legal adviser sent an email to the CPS, with a copy to Mr Bourne’s solicitors. It said - “Dear Sirs, I have considered your application to vacate the trial and I have also considered the representations put forward by the defence. I have further considered the case law on point and the Criminal Procedure Rules. I believe it is in the interest of justice to vacate the trial as the officer is a vital witness to the case and cannot be agreed. It is clear that the officer had booked leave prior to being warned therefore could not possibly have known he was going to be required for trial. I agree the Crown have delayed in making the application but the officer cannot be criticised for this. The principle of Picton goes further on to say that the innocent should be acquitted and the guilty convicted. Listings: Please re-fix the trial and notify the parties. I will extend the defendant’s bail to the new trial date. Kind regards …” Kind regards …”[13]At 0937 on the following morning, 2nd March 2017, Mr Bourne’s solicitors sent an email to the legal adviser and to the CPS. They acknowledged the legal adviser’s email and asked that the matter be listed for an urgent oral hearing pursuant to Criminal Procedure Rules rule 3.6 and section 142 of the Magistrates’ Courts Act 1980. The email went on to say, that, notwithstanding the right to request an oral hearing pursuant to that rule, a magistrates’ clerk “has no power to grant a contested application for an adjournment and the decision to vacate the trial is ultra vires and void ab initio”. Reference was made to dicta of Foskett J in R (on the application of the Director of Public Prosecutions) v Lancaster Magistrates’ Court [2010] EWHC662 (Admin). The email emphasised that the CPS should re-warn their witnesses, pending the outcome of the oral hearing, and asked for urgent confirmation of when that oral hearing would take place.[14]At 1032 that morning, a member of the Crime Team at the Scarborough Justice Centre emailed Mr Bourne’s solicitors, with a copy to the CPS. The subject line of the email referred to the “urgent request for oral hearing” in Mr Bourne’s case: I take that to be a reference to the solicitors’ application pursuant to rule 3.6. The email read:
“Good morning, Your clients case has been listed on Tuesday 7th March 2017 at 11.30am for an oral hearing as requested in your email. It would be appreciated if you could notify your client accordingly of this hearing. Regards …”
Regards …”[15]However, a few hours later, at 1418, the legal adviser sent a further email to Mr Bourne’s solicitors, with a copy to the CPS. The subject line again referred to the “urgent request for oral hearing” in Mr Bourne’s case. The content of the email was as follows:
“I acknowledge receipt of your correspondence and note your comments therein. Please note I am a Legal Adviser and I was acting as single Justice. Please see CPR3.5. The courts case management powers. 3.5(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage the case unless that direction or step would be inconsistent with legislation, including these Rules. (2) In particular, the court may – a) nominate a judge or justices’ legal adviser to manage the case. Please note I am appointed Case Manager. b) give a direction on its own initiative or on application by a party. c) ask or allow a party to propose direction d) for the purpose of giving directions, receive applications and representations by letter, by telephone or by any other means of electronic communication, and conduct a hearing by such means. Please note I considered the application to vacate after considering representation from both sides. e) give a direction – i) at a hearing at a public place or in private or ii) without a hearing. Please note I gave direction to vacate the trial. f) Fix, postpone, bring forward, extend, cancel or adjourn a hearing. Please note I vacated the trial, gave a direction to re-fix and extended the defendant’s bail. If you wish to renew your application with further information, then of course that will be considered, but at this stage a hearing is not necessary. Kind regards.”
Kind regards.”[16]Within about 45 minutes, at 1503, Mr Bourne’s solicitors responded to the legal adviser, again referring to rule 3.6. The solicitors referred to a recent decision by Mr Justice Sweeney, the transcript of which was not then available but which can now be cited as Director of Public Prosecutions v MJW [2017] EWHC1070(Admin). The email concluded – “The Crown’s oral application was already listed upon our earlier request to take place at 11.30am 7th March 2017. We again respectfully request the matter be heard on this date when full submissions can be considered by the court”.[17]About 45 minutes later, at 1548, the legal adviser replied saying – “I have considered the application to vacate fully and have taken into consideration the points you have raised and concluded the matter (this was a hearing see CPR3.5e). I do not believe a further hearing can be raised as I had taken into consideration the points you raised, unless you wish to put other information that was not in the original response to vacate the trial, the matter cannot be relisted”.[18]The outcome of that rapid exchange of email correspondence was that the initial trial date of 9th March 2017 was vacated, the oral hearing of Mr Bourne’s application which had briefly been listed for 7th March 2017 was vacated, and no new trial date had been set.[19]It was in those circumstances that Mr Bourne issued, on 20th March 2017, his claim for judicial review, in which he challenges both the initial decision granting an adjournment to the CPS, and the later decision refusing Mr Bourne’s application for an oral hearing. The relief sought is – “1: a quashing order / order of certiorari quashing the decision of the bench legal advisor at Scarborough Magistrates’ Court to adjourn the trial. and/or 2: an order of prohibition directed to Scarborough Magistrates’ Court prohibiting them from allowing the prosecutor to call evidence.” The application for judicial review was accompanied by an application for urgent consideration. On 31st March 2017 Sweeney J granted permission, gave directions and stayed the criminal proceedings in the Magistrates’ Court pending the outcome of the application for judicial review.

and/or

[20]In a witness statement prepared for the purposes of these judicial review proceedings, and relied upon by the CPS, the District Crown Prosecutor for North and West Yorkshire Crown Prosecution Service apologises for the fact that, as a result of a backlog of work, the evidence in this case was not reviewed until 22nd February 2017. He explains why that backlog had arisen and indicates the steps that have been taken to prevent a similar backlog in the future. It is clear from his evidence that, following the hearing of 10th November 2016, the CPS warned the North Yorkshire Police on 14th November 2016 that PC Carter was required to attend the trial. The Police replied promptly, on 16th November, indicating that PC Carter had already booked annual leave for a period which included the date of trial. That, of course, was within the period allowed by the court for the prosecution to apply to vacate the trial date in the event of any witness difficulties. Unhappily, however, no action was taken until the file was reviewed by a lawyer three months later on the 22nd February 2017. It was at that point that both the appropriateness of a further charge, and the difficulty of PC Carter’s absence on annual leave, were appreciated.[21]So it is that the matter comes before this court. It is common ground that an application for judicial review may in principle be an appropriate means by which to challenge a decision of a magistrates’ court as to an adjournment, though only in exceptional circumstances: see Balogun v DPP [2010] EWHC 799 (Admin), especially at paragraphs 31 and 32, and R (on the application of Jenkins) v Hammersmith Magistrates’ Court [2015] EWHC 3961 (Admin). Before summarising the submissions of counsel, it is convenient to set out the relevant statutory provisions and to cite some of the case law on which counsel relied. I shall not refer to section 142 of the Magistrates’ Courts Act 1980 which, though mentioned in correspondence, was not relied upon in the submissions, and in my view is not relevant to these judicial review proceedings. The legislative framework:[22]Section 10(1) of the Magistrates’ Courts Act 1980 provides – “A magistrates’ court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.” It is thus clear that a single justice may make a decision to adjourn a trial.[23]Section 49 of the Crime and Disorder Act 1998 prescribes a number of other powers of a magistrates’ court which may be exercised by a single justice of the peace. These include, at section 49(1)(m), the power – “to give, vary or revoke directions for the conduct of a criminal trial, including directions as to the following matters, namely –(i) the timetable for the proceedings;(ii) the attendance of the parties;(iii) the service of documents (including summaries of any legal arguments relied on by the parties);(iv) the manner in which evidence is to be given …” Section 49(2), as amended by the Courts Act 2003, provides that Criminal Procedure Rules may (subject to certain restrictions) provide that any of the things which section 49(1) permits to be done by a single justice may be done by a justices’ clerk. (i) the timetable for the proceedings; (ii) the attendance of the parties; (iii) the service of documents (including summaries of any legal arguments relied on by the parties); (iv) the manner in which evidence is to be given …”[24]Statutory power to make rules prescribing the extent to which the powers of a single justice may be exercised by a justices’ clerk or legal adviser is now conferred upon the Lord Chancellor by section 28 of the Courts Act 2003, which, so far as is material for present purposes, provides – “(1) Rules may make provision enabling things authorised to be done by, to or before a single justice of the peace to be done instead by, to or before a justices’ clerk. (2) Rules may also make provision enabling things authorised to be done by, to or before a justices’ clerk (whether by virtue of subsection (1) or otherwise) to be done instead by, to or before an assistant clerk. (3) An enactment or rule of law which –(a) regulates the exercise of any jurisdiction or power of justices of the peace, or(b) relates to things done in the exercise or purported exercise of any such jurisdiction or powers, applies in relation to the exercise or purported exercise of any such jurisdiction or powers by a justices’ clerk by virtue of subsection (1) as if he were a justice of the peace.”[25]In exercise of that power the Lord Chancellor, after the necessary consultation, has made the Justices’ Clerks Rules 2005. So far as is material for present purposes, those Rules provide – “2. The things specified in the Schedule to these Rules, being authorised to be done by, to or before a single justice of the peace, may be done by, to or before a justices’ clerk. 3. (1) The things specified in paragraphs 1 to 36 in the Schedule to the Rules, being authorised to be done by, to or before a justices’ clerk, may be done by, to or before an assistant, provided that that person has been specifically authorised by the justices’ clerk for that purpose, and any reference in the Schedule to a justices’ clerk shall be taken to include such a person.” 24.In the Schedule to those Rules, the things which may be done by a justices’ clerk or assistant clerk include the following which are of relevance in this case:
“7. The adjournment of the hearing of a complaint if the parties to the complaint consent to the complaint being adjourned … 9. The further adjournment of criminal proceedings with the consent of the prosecutor and the accused, if but only if, a) the accused, not having been remanded on the previous adjournment, is not remanded on the further adjournment; or b) the accused having been remanded on bail on the previous adjournment, is remanded on bail on like terms and conditions or, with the consent of the prosecutor and the accused, on other terms and conditions. 10. (1) The further adjournment of criminal proceedings, where there has been no objection by the prosecutor, where the accused, having been remanded on bail on the previous adjournment, is remanded on bail on the like terms and conditions in his absence… 15. The fixing or setting aside of a date, time and place for the trial of an information … 17. The giving, variation or revocation of directions for the conduct of a criminal trial, including directions as to the following matters, namely – the timetable for the proceedings; the attendance of the parties; the service of documents (including summaries of any legal arguments relied on by the parties); the manner in which evidence is to be given.” a) the accused, not having been remanded on the previous adjournment, is not remanded on the further adjournment; or b) the accused having been remanded on bail on the previous adjournment, is remanded on bail on like terms and conditions or, with the consent of the prosecutor and the accused, on other terms and conditions. the timetable for the proceedings; the attendance of the parties; the service of documents (including summaries of any legal arguments relied on by the parties); the manner in which evidence is to be given.” the manner in which evidence is to be given.”
[26]The Criminal Procedure Rules 2015 (“Crim PR”) made pursuant to section 69 of the Courts Act 2003, as subsequently amended, apply to the management of each case in a magistrates’ court. Rule 2.2 defines “justices’ legal adviser” as meaning a justices’ clerk or an assistant to a justices’ clerk: it is common ground in the present case that the legal adviser was a justices’ legal adviser within that definition.[27]Rule 3.2 imposes a duty on the court to further the overriding objective by actively managing the case. Rule 3.2(2) defines “active case management” as including, amongst other things – “(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings.”[28]The court’s case management powers are specifically dealt with in rule 3.5, which so far as is material for present purposes provides – “(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that step would be inconsistent with legislation, including these Rules. (2) In particular, the court may – a) nominate a judge, magistrate or justices’ legal adviser to manage the case; b) give a direction on its own initiative or on application by a party; … d) receive applications, notices, representations and information by letter, by telephone, by live link, by email or by any other means of electronic communication, and conduct a hearing by live link, telephone or other such electronic means; e) give a direction –(i) at a hearing, in public or in private, or(ii) without a hearing; f) fix, postpone, bring forward, extend, cancel or adjourn a hearing…” a) nominate a judge, magistrate or justices’ legal adviser to manage the case; b) give a direction on its own initiative or on application by a party; … d) receive applications, notices, representations and information by letter, by telephone, by live link, by email or by any other means of electronic communication, and conduct a hearing by live link, telephone or other such electronic means; e) give a direction – (i) at a hearing, in public or in private, or (ii) without a hearing;[29]Rule 3.6, headed “Application to vary a direction”, provides – “(1) A party may apply to vary a direction if –(a) the court gave it without a hearing;(b) the court gave it at a hearing in that party’s absence;(c) circumstances have changed. (2) A party who applies to vary a direction must – (a) apply as soon as practicable after becoming aware of the grounds for doing so; and (b) give as much notice to the other parties as the nature and urgency of the application permits.” (a) the court gave it without a hearing; (b) the court gave it at a hearing in that party’s absence; (c) circumstances have changed. (2) A party who applies to vary a direction must – (a) apply as soon as practicable after becoming aware of the grounds for doing so; and (b) give as much notice to the other parties as the nature and urgency of the application permits.”[30]Turning to some of the case law mentioned by counsel, the matters relevant to a magistrates’ court’s determination of an application for an adjournment were considered by a Divisional Court in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin). Jack J reviewed in his judgment earlier case law on the topic and summarised it as establishing the following points:
“(a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown. b) 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; an application for an adjournment should be rigorously scrutinized. c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight. d) where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able to fully present his defence and, if he will not be able to so do, the degree to which his ability to do so is compromised. e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh. f) 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 been at fault, that will favour an adjournment. g) The magistrate should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why. h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.”
[31]I do not think it necessary to refer to the earlier cases which were considered in Picton, as the summary just quoted extracts the essential points from them. The decision in Picton is now very well established, and is cited in the current edition of Stone’s Justices’ Manual as containing the points which a magistrates’ court must consider.[32]On behalf of Mr Bourne, reliance is placed on dicta of Foskett J in R (on the application of the Director of Public Prosecutions) v Lancaster Magistrates’ Court, a case in which a legal adviser had refused an application by the CPS to adjourn a trial. The CPS had then made an application for an adjournment to the magistrates on the day of trial: that too was refused, with the result that the CPS had no alternative but to offer no evidence. It is important to note that by the time the matter came before Foskett J, it was common ground that both those decisions should be quashed, the only issue being as to the relief consequential upon that quashing.[33]Having made his decision on that issue, Foskett J was invited by the parties to say something about the then procedures in the Lancaster Youth Court, which appeared to involve all questions concerning possible adjournments being dealt with by legal advisers. The learned judge expressed his wish not to go beyond what was appropriate to the circumstances of that case, because the Court had not been represented and there was no evidence before him as to the procedures in other courts. He continued, at paragraph 30 of his judgment - “However, it is clear from parag to the Justices’ Clerks Rules 2005 that a Justices’ Clerk or a duly authorised assistant may sanction the adjournment of a case where both parties agree. It does not, however, as it seems to me, mean that such a person has the power to refuse an adjournment simply because one party objects. Since questions of adjournment essentially involve the exercise of a judicial discretion, it seems to me that where there is no agreement about adjourning a case, the application for the adjournment should be listed before the magistrates for consideration before the date of trial. This, as I understand it, was what was intended originally in this case. If that had happened, the question of what happened to the case would have been in control of the magistrates, which it seems to me is where the true exercise of the relevant judicial discretion lies”.[34]By an unfortunate typographical error, the number of the relevant “parag” is not given in the transcript. The wording which follows suggests that the reference is to paragraph 7 of the Schedule. However, as Mr Boyd points out, paragraph 7 is concerned with the adjournment of the hearing of a complaint: that is to say with the civil, rather than the criminal, jurisdiction of a magistrates’ court. Mr Benson suggest that the reference is to paragraph 9 of the Schedule, which is concerned with a further adjournment of criminal proceedings in circumstances which are narrowly defined. I do not think it necessary to resolve this issue, because it is not suggested by either Mr Benson or Mr Boyd that either paragraph 7 or paragraph 9 is directly applicable to the decision of the legal adviser in the present case.[35]In MJW, the case referred to by Mr Bourne’s solicitors, a legal team manager acting under delegated authority had made a decision on the papers to vacate a trial date on a prosecution application to which the defence objected. There was then an oral hearing, before a District Judge (Magistrates’ Courts), at which it was submitted that the initial decision had been made on the basis of information from the CPS which was inaccurate. Before the Divisional Court, it was common ground between the parties that a magistrates’ court has power to revisit a decision to vacate a trial if the court has been materially misled (see paragraph 1.41 in the judgment of Sweeney J). The court was however satisfied that that was not the only ground available to the claimant, because Criminal Procedure Rules rule 3.6 also assisted him (see paragraph 1.43). It may be noted that in that case it was accepted by the parties that the legal team manager did have the power to decide a contested application for an adjournment. The submissions:[36]The submissions of counsel raise the following issues:a. Whether the legal adviser had the power to rule upon a contested application for adjournment;b. If he did, whether his decision granting an adjournment was unreasonable, irrational, outwith his discretion or wrong in law;c. Whether – having received written representations and granted the adjournment – he had the power to refuse to list Mr Bourne’s application for a hearing before the magistrates;d. Whether his refusal to allow Mr Bourne to apply to vary the direction to adjourn was unreasonable, irrational, outwith his discretion or wrong in law.[37]As to the first of those issues, Mr Benson QC submits that the legal adviser had no such power. He relies on the passage which I have quoted from the Lancaster Magistrates’ Court case in support of his submission that a decision on a contested application for an adjournment requires the exercise of a judicial discretion, and that a legal adviser has not taken the judicial oath. Referring to the various powers conferred by section 49 of the Crime and Disorder Act 1998, the Justices’ Clerks Rules 2005 and the Criminal Procedure Rules, he submits that none of those provisions either expressly, or by necessary implication, permits a legal adviser to rule on a contested application for an adjournment.[38]Mr Boyd resists that submission, arguing that the combined effect of paragraphs 15 and 10 of the Schedule to the Justices’ Clerks Rules 2005, and/or paragraph 17 of that Schedule, gave the legal adviser the power to grant an application by the CPS for an adjournment. Principally, however, he relies on Crim PR rule 3.5(2)(f). The legal adviser here was acting as the nominated case manager, and therefore had power to “fix, postpone, bring forward, extend, cancel or adjourn a hearing”.[39]Mr Benson’s response to that submission is that rule 3.5(1) prohibits the court from taking a step which would be inconsistent with legislation. Given that the other provisions to which reference has been made above are either silent about any power to grant an adjournment, or confer a power which is subject to clear limitations (such as the limited powers of further adjournment given by paragraphs 9 and 10 of the Schedule to the 2005 Rules), he contends that Crim PR rule 3.5 would be inconsistent with those provisions, and therefore ultra vires, if it purported to confer upon a legal adviser a general power to decide a contested application for an adjournment. If rule 3.5 purports to do that, he submits, it is not an addition to the previously-existing powers of a legal adviser: it is inconsistent with the limitations upon those powers.[40]Mr Benson frankly accepts that his argument based on inconsistency is the only ground on which he submits that Crim PR rule 3.5 is ultra vires.[41]As to the second issue, Mr Benson submits that the legal adviser – even if he had the power to grant the adjournment – acted wholly unreasonably in doing so. He failed to take into account, or to give sufficient weight to, the points made by Mr Bourne’s solicitors as to the absence of any indication of when PC Carter was warned, or when he notified his leave dates. Further, the solicitors had referred to Picton, which requires the court to subject the application for an adjournment to rigorous scrutiny, and had made it clear that if the legal adviser was minded to grant the adjournment they would wish to have the matter listed for hearing so that they could make their full submissions. In those circumstances, he submits, no reasonable exercise of judicial discretion could have resulted in the CPS’s request for an adjournment being granted.[42]Mr Boyd in response emphasises the point made in Picton, that this court should be slow to interfere with an exercise of discretion, and submits that the legal adviser’s emails show that he knew the issues in the case, and knew and applied the relevant law.[43]As to the third and fourth issues, Mr Benson submits that the effect of Crim PR rule 3.6 is that, even if the legal adviser had power to grant an adjournment on the papers, Mr Bourne was entitled to apply for a hearing. He argues that Mr Bourne’s solicitors clearly did all that was required of them by rule 3.6, and that it was not necessary to identify any further information in order to seek an oral hearing. He submits that in those circumstances it was not open to the legal adviser to refuse that application simply on the basis that he had already made his decision. In refusing to list for a hearing before the magistrates the legal adviser was again acting in a way which no reasonable court could act.[44]Mr Boyd sought to sustain the legal adviser’s decisions as being within the spirit of rule 3.6. He acknowledged however that the decision was flawed because the legal adviser was in error when he said, in the last of his relevant emails, that “this was a hearing see CPR3.5e”. Discussion:[45]On the first issue, I accept Mr Benson’s submission that neither section 49 of the Crime and Disorder Act 1998, nor the provisions of the Magistrates’ Clerks Rules 2005, confer any general power – either expressly or by necessary implication – for a legal adviser to decide a contested application for an adjournment. Paragraphs 9 and 10 of the 2005 Rules relate to closely-defined circumstances which do not arise in this case. Paragraph 17 is in my view clearly limited to directions as to the conduct of a trial, rather than the date of the trial, and the reference to “the timetable for proceedings” must be read in that context. Paragraph 17 does not use the word “adjourn”. It is apt to cover, for example, a direction as to when the evidence of a particular witness will be heard; but I cannot read it as extending to a decision to vacate a fixed trial date.[46]That does not however conclude the first issue in Mr Bourne’s favour, because I cannot accept Mr Benson’s submission in relation to Crim PR rule 3.5. It is not in dispute that the legal adviser had been nominated by the court to manage this case. The plain terms of rule 3.5(2)(f) empower a nominated case manager to “adjourn a hearing”, and in my view “hearing” in this context must include a trial. The use in rule 3.5(2)(a) of the phrase “to manage the case” must be a reference to managing the case in accordance with the court’s case management powers conferred by rule 3.5 as a whole. I can see no warrant for saying that only some of the powers conferred by that rule may be exercised by a justices’ legal adviser who has been nominated to manage a particular case. True it is, as Mr Benson points out, that a legal adviser has not taken the judicial oath; but in my view, that does not mean that the Criminal Procedure Rules cannot lawfully confer upon a legal adviser a function which requires the exercise of a judicial discretion. Foskett J’s dicta in the Lancaster Magistrates’ Court case cannot assist Mr Bourne, because it does not appear that Crim PR rule 3.5 was specifically brought to the attention of the learned judge in that case. I therefore reject Mr Benson’s submission that rule 3.5 was made ultra vires.[47]In my judgment, and for those reasons, the legal adviser did have power by virtue of rule 3.5(2)(f) to adjourn the trial on the prosecution’s application.[48]Turning to the second issue, I have no doubt that in exercising his power under rule 3.5(2)(f) the legal adviser was endeavouring conscientiously to further the overriding objective, and to save time and costs by making a decision which he felt he could properly make on the papers. In my judgment, however, he fell into error in making his decision to vacate the fixed trial date, and there are at least three reasons why his decision of 1st March 2017 cannot stand.[49]First, with all respect to the legal adviser, it seems to me that he did not have sufficient information to enable him properly to grant an adjournment without at least requiring further details from CPS. It might be doubted whether any application for an adjournment was actually being made to him: the CPS’s letters of 22nd February 2017 both said that the Crown “will be seeking an adjournment”, but those words arguably fall short of making an application. On the assumption that an application was made, the legal adviser did not have the evidence now available to this court, and so knew only what was contained in the letter to the court of 22nd February. Whilst he was undoubtedly entitled to take into account the fact that the witness PC Carter was not himself at fault, the legal adviser’s observation that “the Crown have delayed in making the application” does not constitute a sufficient examination of the reason why an adjournment was sought, or of the seriousness of any default on the part of the CPS. Crucially, and as Mr Bourne’s solicitors pointed out in their letter of 23rd February, the legal adviser did not have any information from the CPS as to precisely when PC Carter had been warned and when he had responded. He therefore had no opportunity to assess the culpability involved in the CPS’s failure to conduct a timely review of this case because of a backlog of other work. He thus failed to consider what Picton (to which, of course, he referred) identifies (at (f), quoted above) as an important factor in relation to the merits of granting or refusing an adjournment.[50]Secondly, so far as can be seen from the evidence before the court today, the legal adviser granted the adjournment with no knowledge of its duration. He vacated the trial date, but merely directed the listing office of the court to fix an alternative date. So far as his correspondence shows, he appears not to have considered whether that would involve a comparatively short delay or a comparatively lengthy one. He appears not to have considered whether the likely period of delay would cause significant difficulties for witnesses trying to remember relevant circumstances, or for the availability of any expert witness, or for the defendant in trying to meet the allegations. It is true that the case had thus far made only one appearance before the court, and it was therefore possible in principle that an adjourned trial might still be heard within a reasonable period from the date of the relevant events; but without any information at all as to how long an adjournment would be likely to last, the legal adviser prevented himself from considering another important factor (at (e) in Picton), and also prevented himself from assessing the extent to which the granting of an adjournment would conflict with the need for expedition.[51]Thirdly, given that Mr Bourne’s solicitors in their letter of the 23rd February had specifically asked, if the court were minded to accede to the prosecution’s application, for a hearing at which “our full submissions can be made”, I am troubled by the fact that the application for an adjournment was dealt with on the papers. Crim PR rule 3.5(2)(e) makes it plain that the court may give a direction without a hearing. Thus the court is in principle entitled to decide that a fair decision can be made on the basis of written representations. It will often be appropriate to do so, and there may well be circumstances in which the court can proceed in that way without having given any specific indication to the parties that it is minded to make a decision on the papers rather than at a hearing. In the particular circumstances of this case, however, I do not think it was right for the legal adviser to treat the CPS’s letter of the 22nd February, and Mr Bourne’s solicitor’s letter of the 23rd February, as written representations, on the basis of which a decision would be made. Had the parties known that their correspondence was to be treated as the entirety of their representations on this contentious application, both parties would surely have wished to say more than they did. Mr Bourne’s solicitors had indeed made it perfectly plain that their letter did not contain their “full submissions”. Given that the court lacked the important information to which I have referred above, I am afraid I think it unsatisfactory for the legal adviser retrospectively to have informed the parties that he had made his decision on the basis of their correspondence.[52]For those reasons, with respect to the legal adviser, he made a decision which in my judgment was not properly open to him. Put shortly, he did not have sufficient information to enable him to make a properly-informed decision in accordance with the principles set out in Picton. He should either have permitted the parties to make their submissions at an oral hearing, or should have invited them to submit further written representations on the explicit basis that he would then make a decision on the papers and without a hearing. Although the listed trial date was fast approaching, the situation was not so critical that an immediate decision had to be made.[53]I should add that Mr Boyd in his written submissions suggested that, although the legal adviser did not have the full picture, he had sufficient information to know that the prosecution were at fault. That is true, but in my view it is insufficient to answer the criticisms I have made above.[54]It follows that, although the legal adviser did have the power to make a decision as a contested application for an adjournment, he did so in such a way that his decision cannot stand.[55]I turn to the third and fourth issues, which relate to Crim PR rule 3.6. I can deal with these briefly. In his email sent at 1418 on 2nd March 2017, the legal adviser indicated that he had given his direction to vacate the trial without a hearing. However, in his later email sent at 1548 that same afternoon, when he refused the application for a hearing at which full submissions could be made, he appeared to say that his decision had been made at a hearing. On that basis, he appears to have taken the view that rule 3.6 did not apply, and that there could be no variation, and no hearing, unless Mr Bourne was seeking to rely on further information. It is in my view clear that his initial decision to vacate the trial was a direction in accordance with 3.5(2)(e)(ii) “without a hearing”. Rule 3.6(1)(a) therefore entitled Mr Bourne to apply to vary, and Mr Bourne’s solicitors had undoubtedly complied with the requirements of rule 3.6(2). It is true, as Mr Boyd submits, that that rule does not entitle a party to a hearing: it merely entitles a party to make an application for a hearing. For that reason, the legal adviser did have the power to refuse the application. In the circumstances of this case, however, it is difficult to see how he could treat Mr Bourne’s solicitors as having made their full submissions when their emails specifically said they had not done so. In my judgement, in the circumstances of this case it was not open to the legal adviser to refuse to grant the application to vary as he did: he should either have directed a hearing, or at the very least have given both parties an explicit opportunity to make full written submissions.[56]For those reasons, I am satisfied that both of the challenged decisions must be quashed. It is then necessary to consider what, if any, other relief should be granted. As I have indicated, I have come to the conclusion that the legal adviser fell into error because he failed to consider important factors when making each of his decisions. Mr Benson submits that if all relevant factors had been taken into account, and properly considered, there could only have been one outcome: the legal adviser would have been bound to refuse to vacate the trial date. Mr Boyd submits that, on the contrary, the legal adviser would have granted the application for an adjournment: it was the first such application (though that, of course, does not give rise to any expectation that it will be granted), in a case which did not depend on detailed recollections of eye witnesses, and in which there would in any event have been a trial on the charge of dangerous driving (in relation to which, PC Carter’s evidence was of no relevance). Mr Boyd also submits that it might have been possible for the prosecution to proceed to trial on the excess alcohol charge in PC Carter’s absence, relying on the print-out of the test result and on CCTV footage which showed the whole of the breath-testing procedure at the police station.[57]Mr Benson advances cogent submissions, based on a careful analysis of the chronology of disclosure of evidence, as to why that latter course would not have been open to the prosecution; and in any event, it seems to me that Mr Boyd was to some extent arguing against his principal points in submitting that the excess alcohol charge might have proceeded without PC Carter, because that would seem to indicate that no adjournment was necessary. But be that as it may, it is in my view impossible to say – as Mr Benson acknowledges the court must say, if he is to obtain the relief he seeks – that on a proper consideration of all relevant matters the legal adviser must inevitably have refused to vacate the trial date. There would have been significant points to consider on both sides, and the court would no doubt have wanted to be addressed as to why – having regard to Mr Bourne’s account of his drinking that evening, and to the availability of documentary and video evidence relating to the procedure at the police station - the defence required the attendance of PC Carter.[58]In those circumstances, I would not think it right to grant discretionary relief beyond quashing the two challenged decisions. In the events which have happened, I do not think it would be right now to require the Magistrates’ Court to engage in the artificial exercise of considering the application to vacate afresh after the trial date has passed. The appropriate course, in my view, is to quash the decisions and to remit the matter to the Magistrates’ Court with a direction that it be listed for trial as soon as possible and in any event within 10 weeks from the date on which this judgment is handed down.[59]If my Lord agrees, the parties should submit a draft order, if possible in agreed terms, which gives effect to this judgment, and which makes provision for costs and any other consequential matters.[60]I agree.

Cited in 1 later judgment