The Director of Public Prosecutions (DPP), R (On the Application Of) v Sunderland Magistrates' Court [2018] EWHC 229 (Admin)

[2018] EWHC 229 (Admin)

Case No CO/3186/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/02/2018

Before

LORD JUSTICE HAMBLEN

MR JUSTICE SWEENEY

Between

SUNDERLAND MAGISTRATES’ COURTDefendant

CITY OF LONDON MAGISTRATES’Defendant

Simon Heptonstall (instructed by CPS Appeals and Review Unit) for Claimant in (1)

John Dye (instructed by Warburtons) for Claimant in (2)

Duncan Atkinson QC (instructed by CPS Appeals and Review Unit) for Interested Party in (2)

Hearing Hearing date: 13 December 2017

Judgment Approved

Introduction

[1]In both of these cases, the Magistrates’ Court acted on a material mistake of fact when determining, on the day fixed for trial, a contested application to adjourn.

[2]In the Sunderland case, the Interested Party was charged with criminal damage. The mistake of fact upon which the Prosecutor and the Deputy District Judge acted was that the complainant had not attended court to give evidence – whereas, as the Interested Party knew, but did not reveal, the complainant had attended in good time (and was waiting to give evidence). In consequence, the Prosecution made an application to adjourn which was opposed, and which the judge refused. As a result of that, no evidence was offered and the charge against the Interested Party was dismissed.

[3]By permission of Julian Knowles J, the Claimant in the Sunderland case, the Director of Public Prosecutions, challenges the refusal of the adjournment and the dismissal of the charge. The Director argues, relying on a line of authority culminating in the decision of the Court of Appeal in E v Secretary of State of the Home Department

[2004] QB 1044

(“E v SSHD”), that a material mistake of fact giving rise to unfairness is a separate ground of challenge in judicial review proceedings; that it should be applied in this claim (albeit that it is one made in the context of criminal proceedings); and that therefore the decision to dismiss should be quashed.

[4]In the City of London case, the Claimant was charged with driving with excess alcohol. He attended the court for trial, as did the two prosecution witnesses. The mistake of fact upon which the Prosecutor and the Justices acted was that the Prosecution had done nothing at all to comply with a previous court order to serve its evidence and to disclose any relevant unused material by a specific date – whereas (in the absence of any secure email address having been provided by the Claimant’s representatives) the prosecution had, albeit only some 12 days before the trial hearing, served its evidence and dealt with disclosure by post addressed to the office of the Claimant’s solicitor, and the disclosure documentation had been received by the Claimant’s solicitor the day before the trial hearing. In consequence of the mistake, the Prosecution applied for an adjournment to enable it to serve its case and to deal with disclosure – without which, the Claimant contended, he was not able to proceed to trial that day. Notwithstanding the Prosecution’s apparent failings, the adjournment was granted.

[5]By permission of Dove J, the Claimant in the City of London case challenges the decision to adjourn – arguing that consideration of the challenge should be confined to the facts as they were believed (albeit erroneously) to be at the time. The Interested Party, the Crown Prosecution Service (“CPS”), resists the challenge and argues that, even on the facts as they were believed to be, the decision to adjourn was within the scope of the Justices’ discretion. In the alternative, the CPS argues that the Court should apply the material mistake of fact leading to unfairness ground of challenge identified in E v SSHD (above), in which event, it submits that on the true facts, the decision to adjourn was plainly right. The Claimant argues that the ground of judicial review identified in E v SSHD has no place in judicial review claims made in the context of criminal proceedings, but recognises that, if it does, there is little arguable merit in his claim.

[6]Before dealing in more detail with each of the instant cases I propose to:(1) Examine the decision in E v SSHD,and three subsequent decisions as to the application of material mistake of fact resulting in unfairness as a ground of challenge in claims for judicial review made in the context of criminal proceedings.

(2) Set out the aspects of the Criminal Procedure Rules and Criminal Practice Direction that are of relevance to the failings of the parties in the instant cases, and to the question (arising from the ground of challenge identified in E v SSHD) of whether the parties in criminal proceedings have a shared interest in co-operating to achieve the correct result.

(3) Summarise the principles applicable to applications to adjourn in the Magistrates’ Courts, and to the ability to challenge the resultant decision by way of judicial review – the leading authorities in relation to which are, respectively, the decisions of this Court in Crown Prosecution Service v Picton

[2006] EWHC 1108 (Admin)

; [2006] 170 J.P. 567 and in Balogun v Director of Public Prosecutions

[2010] EWHC 799 (Admin)

; [2010] 1 W.L.R. 1915.

E v SSHD [2004] QB 1044 and subsequent decisions

[7]E v SSHD was an asylum case in which the right of appeal was limited to points of law. The issue before the Court of Appeal (Lord Phillips MR, Mantell and Carnwarth LJJ) was as to the powers of the Immigration Appeal Tribunal and the Court of Appeal(a) to review the determination of the Tribunal where it was shown that an important part of its reasoning was based on ignorance or mistake as to the facts; and

(b) to admit new evidence to demonstrate the mistake.

[8]Taking the view that it would be surprising if the grounds for judicial review were more generous than those on an appeal on a point of law, the Court conducted an extensive review of the authorities and academic works in relation to the question of whether error of fact could be a ground for review in administrative law.

[9]In the result, the Court concluded that it could - as follows:

“63. In our view, the Criminal Injuries Compensation Board case [1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between ‘ignorance of fact’ and ‘unfairness’ as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness. On analysis, the ‘unfairness’ arose from the combination of five factors; (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was ‘established’, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant’s work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning. 64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of facts. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis. Similarly, in Tameside [1977] AC 1014, the council and the Secretary of State, notwithstanding their policy differences, had a shared interest in decisions being made on correct information as to practicalities. The same thinking can be applied to asylum cases. Although the Secretary of State has no general duty to assist the appellant by providing information about conditions in other countries (see R v Secretary of State for the Home Department, Ex p Abdi [1996] 1 WLR 298), he has a shared interest with the appellant and the tribunal in ensuring that decisions are reached on the best information. It is in the interest of all parties that decisions should be made on the best available information: see the comments of Sedley LJ in Batayav’s case [2003] EWCA Civ 1489 at [40]…. 65. The apparent unfairness in the Criminal Injuries Compensation Board case [1999] 2 AC 330 was accentuated because the police had in their possession the relevant information and failed to produce it. But, as we read the speeches, ‘fault’ on their part was not essential to the reasoning of the House. What mattered was that, because of their failure, and through no fault of her own, the claimant had not had ‘a fair crack of the whip’: see Fairmount Investments v Secretary State for the Environment [1976] 1 WLR 1255, 1266A, per Lord Russell of Killowen. If it is said that this is taking ‘fairness’ beyond its traditional role as an aspect of procedural regularity, it is no further than its use in cases such as HTV Ltd v Price Commission [1976] ICR 170, approved by the House of Lords in R v Inland Revenue Comrs Ex p Preston [1985] AC 835, 865-866.”

[10]In consequence, as to appeals on points of law in asylum cases, the Court concluded:

“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisors) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

[11]It is therefore clear that, in administrative law, mistake of fact resulting in unfairness can be a ground for judicial review if five conditions are met, namely that:(1) All the participants had a shared interest in co-operating to achieve the correct result.

(2) There was a mistake as to an existing fact (which could include a mistake as to the availability of evidence on a particular matter).

(3) The fact or evidence has been “established” – in the sense that it is uncontentious and objectively verifiable.

(4) The person relying on the mistake, and/or his advisers, was not responsible for the mistake.

(5) The mistake played a material (not necessarily decisive) part in the court’s reasoning.

[12]There is, it appears, no reported case in England and Wales in which mistake of fact resulting in unfairness has been specifically applied in a claim for judicial review made in the context of criminal proceedings.

[13]However, in R (D) v DPP

[2017] EWHC 1768 (Admin)

, and in R (Gilfoyle) v CCRC

[2017] EWHC 3008 (Admin)

, each of which involved a claim for judicial review made in the context of criminal proceedings (albeit in very different circumstances to the instant cases), this Court (at [27] and [58] respectively) was prepared to assume, without deciding, that it was possible to challenge a decision on the ground of material mistake of fact leading to unfairness.

[14]In Northern Ireland, in Gracey’s Application for Judicial Review, Re [2014] NIQB 131, the Divisional Court (Coghlin LJ, Gillen LJ and Weir J) was concerned with factual circumstances which were similar to those in the instant Sunderland case. The Prosecutor had offered no evidence in a Magistrates’ Court in the mistaken belief that the complainant had not attended to give evidence on the day fixed for trial when, to the knowledge of the Defendant, who said nothing about it, the complainant had attended and was waiting to give evidence. In further consequence of the mistake, the District Judge had dismissed the charge.

[15]At [19] – [21] of its judgment the Court concluded, by reference to R v Criminal Injuries Compensation Board ex p A

[1999] 2 AC 330

and E v SSHD (above), that there was well-established authority to support the proposition that the court had jurisdiction to quash a decision reached on a material error of fact. The Court took into account, amongst other things, Northern Irish authorities in relation to adjournment applications in the Magistrates’ Court; the overarching general principle that it is in the public interest that every person charged with a criminal offence should normally be tried; and that a prosecution should usually result in an adjudication of guilt or innocence and should not ordinarily be concluded in any other way.

[16]The Court also referred to the remarks of Lord Steyn in Attorney General’s Reference (No.3 of 1999)

[2001] 2 AC 91

, when he said:

“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case, this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”

[17]Against that background, the Court concluded that the interests of the victim and the public had not been respected, and that, in the particular circumstances of the case, the application of the common law concept of functus officio should not effectively thwart all of the relevant interests in the fair and public conduct of criminal proceedings. Accordingly, given that all parties accepted that the judge had proceeded upon a self-evident mistake of fact, the Court quashed the dismissal of the charge and remitted the case for trial.

Relevant aspects of the Criminal Procedure Rules and Criminal Practice Direction

[18]Criminal proceedings are, of course, adversarial. As to whether the participants have a shared interest in co-operating to achieve the correct result, and as to the parties’ failings in the instant cases, the Criminal Procedure Rules 2015 (SI 2015 No.1490), as amended, make clear that: “1.1 –(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes– (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under

Article 6 of the European Convention on Human Rights

; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (e) dealing with the case efficiently and expeditiously; (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (g) dealing with the case in ways that take into account– (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected; and (iv) the needs of other cases. 1.2 – (1) Each participant in the conduct of each case, must – (a) prepare and conduct the case in accordance with the overriding objective; (b) comply with these Rules, practice directions and directions made by the court; and (c) at once inform the court and all the parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective. (2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.” (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under

Article 6 of the European Convention on Human Rights

; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected; and (iv) the needs of other cases. (a) prepare and conduct the case in accordance with the overriding objective; (b) comply with these Rules, practice directions and directions made by the court; and (c) at once inform the court and all the parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

[19]Criminal Practice Direction I General Matters 1A: The Overriding Objective provides that:

“1A.1 The presumption of innocence and an adversarial process are essential features of English and Welsh legal tradition and of the defendant’s right to a fair trial. But it is no part of a fair trial that questions of guilt and innocence should be determined by procedural manoeuvres. On the contrary, fairness is best served when the issues between the parties are identified as early and as clearly as possible. As Lord Justice Auld noted, a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for the truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. 1A.2 Further, it is not just for a party to obstruct or delay the preparation of a case for trial in order to secure some procedural advantage, or to take advantage of a mistake made by someone else. If courts allow that to happen it damages public confidence in criminal justice. The rules and practice directions taken together, make it clear that that the courts must not allow it to happen.”

(emphasis added)

[20]That approach is further underlined in Rule 3, as follows:

“3.2 – (1) The court must further the overriding objective by actively managing the case. (2) Active case management includes – (a) the early identification of the real issues; (b) the early identification of the needs of witnesses; (c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (d) monitoring the progress of the case and compliance with directions; (e) ensuring that evidence, whether disputed or not is presented in the shortest and clearest possible way; (f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; (g) encouraging the participants to co-operate in the progression of the case; and (h) making use of technology …………. 3.3 – (1) Each party must – (a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and (b) apply for a direction if needed to further the overriding objective. (2) Active assistance for the purposes of this rule includes- (a) at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing; (b) after that, communication between the parties and with the court officer until the conclusion of the case; (c) by such communication establishing, among other things – (i) whether the defendant is likely to plead guilty or not guilty, (ii) what is agreed and what is likely to be disputed, (iii) what information, or other material, is required by one party or another, and why, and (iv) what is to be done, by whom, and when (with or without a direction) …… 3.10 – (1) This rule applies to a party’s preparation for trial or appeal, and in this rule and rule 3.11 “trial” includes any hearing at which evidence will be introduced. (2) In fulfilling its duty under rule 3.3 each party must – (a) comply with directions given by the court; (b) take every reasonable step to make sure that the party’s witnesses will attend when they are needed; (c) make appropriate arrangements to present any written or other material; and (d) promptly inform the court and other parties of anything that may – (i) affect the date or duration of the trial or appeal, or (ii) significantly affect the progress of the trial in any other way. (3) The court may require a party to give a certificate of readiness. 3.11 In order to manage a trial or an appeal, the court – (a) must establish, with the active assistance of the parties, what are the disputed issues ………” (a) the early identification of the real issues; (b) the early identification of the needs of witnesses; (c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (d) monitoring the progress of the case and compliance with directions; (e) ensuring that evidence, whether disputed or not is presented in the shortest and clearest possible way; (f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; (g) encouraging the participants to co-operate in the progression of the case; and (a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and (b) apply for a direction if needed to further the overriding objective. (a) at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing; (b) after that, communication between the parties and with the court officer until the conclusion of the case; (c) by such communication establishing, among other things – (i) whether the defendant is likely to plead guilty or not guilty, (ii) what is agreed and what is likely to be disputed, (iii) what information, or other material, is required by one party or another, and why, and (iv) what is to be done, by whom, and when (with or without a direction) (1) This rule applies to a party’s preparation for trial or appeal, and in this rule and rule 3.11 “trial” includes any hearing at which evidence will be introduced. (2) In fulfilling its duty under rule 3.3 each party must – (a) comply with directions given by the court; (b) take every reasonable step to make sure that the party’s witnesses will attend when they are needed; (c) make appropriate arrangements to present any written or other material; and (d) promptly inform the court and other parties of anything that may – (i) affect the date or duration of the trial or appeal, or (ii) significantly affect the progress of the trial in any other way. (3) The court may require a party to give a certificate of readiness. (a) must establish, with the active assistance of the parties, what are the disputed issues ………”

Adjourning trials in the Magistrates’ Courts and judicial review

[21]Section 10(1) of the Magistrates’ Courts Act 1980 provides a discretionary power to adjourn the hearing of a trial.

[22]As indicated above, Crown Prosecution Service v Picton is the leading authority on the principles to be applied in relation to an application to adjourn a trial in a Magistrates’ Court. At [9] Jack J, giving the principal judgment, identified the following:

“(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 scrutinised. (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 fully to present his defence and, if he will not be able to do so, 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 if 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 again 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 the adjournment. (g) The magistrates 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 they will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.”

[23]In Visvaratanam v Brent Magistrates’ Court

[2009] EWHC 3017 (Admin)

at [19] Openshaw J, giving the judgment of the Court, said:

“……there is a high public interest in trials taking place on the day set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so. The sooner that the prosecution understand this – that they cannot rely on their own serious failures properly to warn witnesses – the sooner the efficiency in the Magistrates’ Court system improves. An improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the Magistrates’ Court will bring about great benefits to victims and to witnesses and huge savings in time and money.”

[24]In Balogun v DPP (above) at [25] & [26] Leveson LJ stressed the need for an application to adjourn to be subjected to rigorous scrutiny, and entirely agreed with the observations of Openshaw J in Visvaratnam (above). At [31] & [32] he continued:

“31. I am aware that decisions such as Hoar-Stevens v Richmond Magistrates’ Court [2003] EWHC 2660 (Admin) and CPS v Sedgemoor Justices [2007] EWHC 1803 (Admin), following R v Rochford Justices ex parte Buck (1978) 68 Cr App R 114 deprecate attempts by way of judicial review to challenge interlocutory decisions of the magistrates. In the case of the first, the decision concerned disclosure; in the latter two issues of admissibility were raised. In my judgment, where the issue of an adjournment is raised, different considerations may apply; that is so not only because of the unsatisfactory nature of quashing a conviction which is not itself before the court but also because, in the interim, considerable expense has been incurred, not merely by the parties, but also by the court in conducting a hearing which in the event has proved entirely nugatory and thereafter setting aside the original decision; in that regard I take some support from the decision of Mitting J in R (Watson) v Dartford Magistrates’ Court [2005] EWHC 905 (Admin) who observed that there was no fetter on this court intervening. 32. Having said that, it is important that the position is fully understood by those conducting proceedings before the magistrates. I repeat the observations of Bingham LJ that the decision to adjourn is discretionary; challenges to such a decision will be difficult to mount, and should only be commenced if the circumstances are exceptional. If brought, however, an application for judicial review must be pursued as a matter of extreme urgency – within days rather than weeks – so as not to affect the continued progress of the case if the single judge (who will also consider the case as a matter of urgency) determines that permission should not be granted. If permission is granted, interim relief can be granted to prevent the continued prosecution while the matter is being investigated.”

[25]In Director of Public Prosecutions v Petrie

[2015] EWHC 48 (Admin)

, having set out the relevant aspects of the Criminal Procedure Rules, Gross LJ continued:

“19. It may thus be seen that efficiency, expedition, the discouraging of delay and the avoidance of unnecessary hearings are adjuncts of dealing with cases justly and, it may be said, in the summary jurisdiction, summarily. Adjournments, all too often historically encountered in the magistrates’ court, run contrary to these important objectives. 20. It is now against this background that successive initiatives (CJSS, Stop Delaying Justice and, now, Transforming Summary Justice) have repeatedly exhorted the magistracy and District Bench to case manage robustly and to resist the granting of adjournments. Although there are of course instances where the interests of justice require the grant of an adjournment, this should be a course of last rather than first resort – and after other alternatives have been considered. As observed by this Court in DPP v Picton (supra), at [9(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 scrutinised.”

It is essential that parties to proceedings in the magistrates’ court should proceed on the basis of a need to get matters right first time; any suggestion of a culture readily permitting an opportunity to correct failures of preparation should be firmly dispelled. For completeness, the recent decision of this Court in DPP v Radziwilowicz

[2014] EWHC 2283

, in no way casts doubt on this approach; as explained by Sir Brian Leveson P, giving the lead judgment (at [10] – [11]), the hearing in question had not been listed as a trial and there was thus no obligation on the prosecution in that case to have their witnesses available. 21. A necessary corollary of exhorting robust case management from the magistracy and District Bench is that appellate courts should be slow to interfere with case management decisions which have endeavoured to give effect to the approach outlined above. In any event, the grant or refusal of an adjournment is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong).” “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 scrutinised.”

[26]In R (Jenkins) v Hammersmith Magistrates Court

[2015] EWHC 3961 (Admin)

the Claimant was charged with driving with excess alcohol, and the judge had granted a Prosecution application, made on the day of trial, to adjourn. There had been numerous prior failures by the Prosecution. Having examined them, and the reasons given by the judge for granting the adjournment, Lloyd-Jones LJ said:

“32. The case is put by the applicant on the basis of an error of law or unreasonableness. I consider that the judge did not exercise her discretion in accordance with authority. Indeed, there was to my mind simply no basis on which the judge could reasonably grant an adjournment in this case. It is necessary to have regard to the public interest that those charged with driving under the influence of alcohol should be brought to trial and the charge adjudicated upon, but it (is) also necessary to have regard to the further public interest that this should be done promptly, fairly and efficiently. 33. The Crown Prosecution Service in this case were clearly at fault in that they appear to have done nothing to prepare the case for trial, beyond possibly drafting a letter which the Deputy District Judge found was not sent and making a request for a statement from HCP Duggan. No explanation for these failings was offered to the court. In the circumstances, it was wrong to allow the Crown Prosecution Service a second chance to try and get things right. I would wholeheartedly endorse the observations of Openshaw J in Visvaratnam that the prosecution must not think that they are always allowed a second chance but are always allowed at least one application to adjourn the case. In my view, the grant of an adjournment did result in the circumstances of this case in substantial unfairness to the applicant. It was common ground that had an adjournment been refused, the Crown could not have proceeded and the applicant would have been acquitted. In these circumstances, I would quash the order for an adjournment and I would direct an acquittal.”

[27]In R (Hassani) v West London Magistrates’ Court

[2017] EWHC 1270 (Admin)

, the Claimant had beenconvicted of driving with excess alcohol, and had belatedly sought judicial review on a number of grounds, all of which were wholly without merit. When granting the Claimant’s eventual application to withdraw his renewed application for permission, Irwin LJ observed: “9. The criminal law is not a game to be played in the hope of a lucky outcome, a game to be played as long and in as involved a fashion as the paying client is able or prepared to afford. 10. District Judge Snow practised firm case management in this case. He was absolutely right to do so. Other courts faced with this kind of approach must do the same, whether the court is constituted by a professional district judge or by lay magistrates. Courts must consider the Criminal Procedure Rules, which are there to be employed actively so as to preclude game-playing and ensure that the courts only have to address real issues with some substance. 11. The Criminal Procedure Rules provisions most in question might be thought to be as follows. Each participant in a criminal case, that is to say lawyers as well as parties, must prepare and conduct their case in accordance with the rules: see CPR 1.2(1)(a) and (b). The key objective under the rules is to deal fairly with the case, and that includes dealing with the case efficiently and expeditiously: CPR 1.1(2)(e). Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party's lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it. 12. Each participant in a case has the obligation set out in CPR 1.2(1)(c): "At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective." That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided "efficiently and expeditiously". If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused. 13. Critical rules affecting all parties, including defendants and their representatives, are rules 3.2, 3.3 and 3.11. It is not necessary for me to quote them in full, but the attention of a court dealing with such cases should be drawn to those rules and perhaps in particular to 3.2(2)(a) – active case management includes the early identification of the real issues; 3.3(1) - each party must(a) actively assist the court in fulfilling its duty under rule 3.2, with, or if necessary without, a direction and

(b) apply for a direction if needed to further the overriding objective; 3.3(2) active assistance for the purposes of this rule includes (a) at the beginning of the case communication between the prosecutor and the defendant at the first available opportunity; (c)(ii) what is agreed and what is likely to be disputed (in other words, what is agreed and what is likely to be disputed should be the subject of active assistance and early communication);

(c) (iii) likewise, what information or other material is required by one party of another and why; and (iv) what is to be done, by whom and when. CPR 3.11: in order to manage a trial or an appeal, the court (a) must establish with the active assistance of the parties what are the disputed issues; and

(d) may limit (i) the examination, cross-examination or re-examination of a witness and (ii) the duration of any stage of the hearing. …. 18. This judgment is an intentional reminder to criminal courts that active case management using the Criminal Procedure Rules is their duty. Increased rigour and firmness is needed. This judgment can be cited pursuant to the Practice Direction (Citation of Authorities)

[2001] 1 WLR 1001

. Counsel and solicitors acting in motoring cases, for the prosecution or defence, should cite this judgment when appropriate. Indeed, it will be the professional obligation of those with the conduct of such cases, to cite this judgment when issues of adjournment or case management arise. Likewise, legal advisers to magistrates should draw this judgment to the attention of the Court and the parties when applications arise. I direct that a copy of this judgment and the annex be sent to Mr Lucas of counsel, for his attention and future citation.” "At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective."

[28]We were also referred to the then unreported decision of this Court on 25 October 2017 in R (Decani) v City of London Magistrates’ Court, now reported at

[2017] EWHC 3422 (Admin)

in which, again, the charge was driving with excess alcohol, and the court quashed a decision to adjourn which had been made on the application of the Prosecution on the day fixed for trial. However, this Court’s decision that the necessary rigorous scrutiny had not been applied was reached on the particular facts of that case. No new principle was involved.

Sunderland – the facts

[29]The Interested Party, Mr Hanson, was in a relationship with the complainant Ms Batty, and they shared a home. In the evening of 24 February 2017, they had an argument, and Ms Batty asked Mr Hanson to leave the following morning. It was alleged that he had then criminally damaged a lamp and a table. The police were called and Mr Hanson was arrested. In interview, he claimed that she had caused the damage.

[30]In due course, the trial was fixed for hearing in the Sunderland Magistrates’ Court at 10am on 10 April 2017. It was one of three cases listed for trial that morning. The Court, of its own motion, had issued a witness summons in relation to Ms Batty, who had indicated that she was going to attend.

[31]The procedure for the reception of witnesses at the main entrance to the Court was that the security guards would be provided with a list of the names of the witnesses in each trial, which they would tick off as each witness arrived. If a representative of the Witness Service was available they would be contacted and would collect the witness from the security guards and take them to the Witness Room. If a representative of the Witness Service was not available, the security guards would place the witness in a room (typically one of the interview rooms outside a court, which was temporarily dedicated to the case in which they were giving evidence) until a representative of the Witness Service attended, collected them and took them to the Witness Room.

[32]Ms Batty arrived at the Court at 9.11am on 10 April 2017, accompanied by her parents. Her name was ticked on the list and, as no-one from the Witness Service had yet arrived, she and her parents were shown into an interview room by a security guard. Witnesses in the other cases also arrived and were shown into two other rooms – one of which was an interview room adjacent to the one occupied by Ms Batty and her parents.

[33]Later investigation showed that a Witness Service representative arrived at the court at around 9.26am, was informed that three lots of witnesses had arrived, and that they were in three separate rooms, and went to the Witness Service room to collect her paperwork.

[34]CCTV footage later confirmed that at around that time Ms Batty left the interview room where she and her parents were waiting, and went across the corridor to the toilet – whereupon she encountered Mr Hanson who winked at her. She carried on to the toilet and thereafter returned to the interview room.

[35]At around 9.35am the Witness Service representative, who was still on her own, returned to the security guards, asked where the witnesses were, and was shown the three rooms. However, something then went wrong as, whilst all the other witnesses were taken to the Witness Room, Ms Batty and her parents were not spoken to and were left where they were.

[36]Not long afterwards, the usher for the court in which Mr Hanson’s trial was to be heard went to the Witness Service room, and was told, in error, by another representative of the Witness Service, that Ms Batty had not attended.

[37]The Prosecutor was informed and she asked the Witness Service to telephone Ms Batty. However, Ms Batty’s the phone was off. At 10.15am the Prosecutor asked the judge for an adjournment until 10.30am so that further enquiries could be made. However, by 10.30am no further information had come to light. Significantly, in that regard, Mr Hanson had failed to reveal that earlier he had seen Ms Batty in the court building. In those circumstances, the judge indicated that the case must proceed – in consequence of which the Prosecutor offered no evidence and the charge against Mr Hanson was dismissed.

[38]It was not until just after 11am that it was realised that Ms Batty, who was found still in the interview room with her parents, had been at court all along. However, by then, it was too late for the judge to do anything about it – as he was functus officio (see, for example, R (O) v Stratford Youth Court

[2004] EWHC 1553 (Admin)

at [8]).

Sunderland - submissions

[39]Neither the Defendant, nor the Interested Party, took any part in the proceedings in this Court.

[40]On behalf of the Claimant, Mr Heptonstall submitted, by reference to Criminal Procedure Rules1.1 and

1.2 (above), and to paras 1A.1 and 1A.2 of the Criminal Practice Direction General Matters 1A: The Overriding Objective (also above) that, whilst (as recognised in Yasain

[2015] EWCA Crim 1277

;

[2016] QB 146

) there is a strong public interest in finality in criminal proceedings, the courts could not allow public confidence in criminal justice to be damaged by allowing a party to take unfair advantage of a material mistake by someone else on an application to adjourn a trial in the Magistrates’ Court.

[41]Mr Heptonstall argued that, accordingly, the existence of material mistake of fact leading to unfairness, identified in E v SSHD as a separate ground for judicial review, should also be recognised and applied in the instant case, albeit in the context of the criminal proceedings, to quash the dismissal – the more so as the Interested Party had, in breach of his duty to the Court, taken deliberate advantage of the error rather than correcting it.

[42]Mr Heptonstall underlined that the correct factual position was that Ms Batty was present at court (and had been all along), that the mistake was not her fault, and that the case could have proceeded immediately to trial. All five requirements identified in E v SSHD were therefore present – given, he submitted, that in criminal proceedings, the parties share a common interest in co-operating to achieve a just result; that the mistake was as to an existing fact; that it had plainly been “established” in the requisite sense via indisputable CCTV footage; that it had not been the fault of the Claimant as the Prosecutor had made proper enquiries; and that it had obviously played a material part in the judge’s reasoning.

[43]I will deal below with my view as to the merits of these submissions. It is necessary first to summarise the facts and submissions in the City of London case.

City of London – the facts

[44]For reasons that will become obvious, it is necessary to set out a more detailed summary of the facts in this case.

[45]The Prosecution case was that on the afternoon of 22 January 2017 PC Manning, who was on duty in full uniform and driving a marked police motorcycle, observed the Claimant (who was then aged 50 and of previous good character) driving a Harley Davidson motorcycle in Walton Street in Knightsbridge. The Claimant overtook PC Manning - who noted that he appeared to be having difficulty in keeping his motorcycle upright, and was swaying. The Claimant then turned into Brompton Road and then Pelham Street. PC Manning gave chase and stopped the Claimant - who was swaying and had obviously been drinking.

[46]The Claimant eventually gave a breath test which resulted in a “fail” indication. He was arrested. He then became agitated and so PC Manning handcuffed him. The Claimant was then taken, still agitated, to Charing Cross police station. He remained agitated on arrival, but eventually calmed down.

[47]Starting at 7.19pm PC Webb, accompanied by PC Manning, conducted the breath test procedure at the police station using an Intoximeter machine. The procedure was recorded on CCTV – with examination of the footage later confirming that the necessary statutory warning had been given. The Claimant, taking two attempts at each, completed the two breath samples required – which gave readings of 96 and 100 (i.e. nearly three times the limit). The Intoximeter machine indicated that there had been no errors.

[48]PC Manning and PC Webb each completed their witness statements that evening – with PC Webb exhibiting the MGDD forms that he had used during the breath test procedure at the police station and the printouts from the machine.

[49]Shortly after midnight the following morning (23 January 2017), the Claimant was charged with driving with excess alcohol by PC Socratous (the Officer in the Case), and was bailed to appear at Westminster Magistrates’ Court on 20 February 2017.

[50]PC Socratous signed her witness statement that same day, and completed a Case Summary which included a declaration, which she signed, to the effect that she had reviewed the MG5; that she certified that the form was suitable for release to the Defence and the Court; and that she had considered all the material in her possession and that there was nothing that could undermine the Prosecution case or assist the Defence (we note that the only entry on the MG6C form, the schedule of non-sensitive unused material subsequently prepared, was the Claimant’s Custody Record). A CRO check confirmed that the Claimant had no previous convictions.

[51]Thus, the Initial Details of the Prosecution Case (“IDPC”) had all been created by the police on the day on which the Claimant was charged.

[52]Criminal Procedure Rule 8.2(3) makes clear that, where a Defendant does not request the IDPC, the Prosecution must make it available to him at, or before, the beginning of the day of the first hearing.

[53]Criminal Procedure Rule 4.2(2) provides a clear presumption (unsurprisingly, given that digitalisation is a vital part of the modernisation of the criminal justice system) in favour of electronic service. In accordance with the Attorney General’s Guideline on Information Security and Government Work and the Director of Public Prosecution’s own Guidance (again unsurprisingly, and as is well known amongst criminal practitioners) potential recipients are required to provide a secure cjsm email address.

[54]No request for the IDPC was made before the day of the first hearing, which duly took place at Westminster Magistrates’ Court on 20 February 2017. Mr Dye appeared then, as now, for the Claimant, instructed by Warburtons.

[55]The only papers that the Prosecutor had on his computer were the Case Summary and the CRO check – which, with his help, Mr Dye read. The only officer named in the Summary was PC Manning.

[56]Mr Dye was asked to email the CPS (at a dedicated address) to request digital service of the IDPC. He did so but, as his cjsm email address was not working, he gave a non-cjsm address. Therefore, the IDPC was not sent to him.

[57]At all events, the Claimant pleaded not guilty and both sides completed entries in a Preparation for Effective Trial (“PET”) form. Warburtons’ details were given, including their postal address in Cheshire and an email address – but, again, it was not a cjsm address.

[58]The issues in the case were recorded on the PET form by Mr Dye as being whether the correct procedure, including the giving of the necessary statutory warning, had been carried out at the police station, and whether the breath reading was reliable. He indicated that PC Manning was required to attend the trial, and that the Defence were considering instructing an expert, Dr Trafford. CCTV footage of the procedure in the police station was requested, and it was further indicated that it was very likely that a Defence statement would be served in due course.

[59]The Court ordered that the Prosecution evidence and initial disclosure were to be served by 20 March 2017, and the trial was fixed for 3 May 2017 in the City of London Magistrates’ Court.

[60]On 21 February 2017, the case was allocated to a Senior Crown Prosecutor who, that day, sent a request to the police for a full file to be provided.

[61]That same day, Warburtons wrote to the CPS indicating that the issues in the case were – the functionality of the breath test machine at the police station; the reliability of the breath sample; whether PACE Code C was fully complied with; whether the guidance in the breath test procedure form was fully complied with; and whether the necessary statutory warning had been given. It was stated that the Claimant would be calling an expert who had requested the metrological log for the Intoximeter for the three months before and after the Claimant’s breath test, and the CCTV footage of the procedure. A copy of the Claimant’s Custody Record (to which, although not mentioned in the letter, he was entitled under PACE Code C para. 2.4A) was also requested, as was service of the Prosecution evidence and the Disclosure Schedule.

[62]There was no reply to that letter.

[63]However, on 27 February 2017 a colleague of the CPS Reviewing Lawyer sent a request to the police to upload the Claimant’s custody record onto the CPS system, and further requested that a copy of it be sent to Warburtons, whose postal address was provided. However, it appears that nothing was sent.

[64]The court order that the Prosecution serve its evidence and deal with initial disclosure by 20 March 2017 was not complied with. Indeed, because of pressure of work, the CPS Reviewing Lawyer had not even considered the papers by that stage. Contrary to Rule 1.2 – (1) (c) of the Criminal Procedure Rules (above), neither side informed the court of that significant failure at any stage prior to the hearing on the trial date.

[65]On 4 April 2017, Warburtons sent a second letter to the CPS – which was in the same terms as the letter sent on 21 February – thus it did not point out that the court order for service had not been met.

[66]The case was finally considered by the CPS Reviewing Lawyer on 19 April 2017 (a month after the deadline for service of the Prosecution case had passed, and two weeks before the trial date). The Reviewing Lawyer decided to serve the IDPC material – consisting of copies of the Case Summary; the statements of the three officers (totalling 6 pages); the MGDD forms (totalling 19 pages); the charge sheet; the Claimant’s CRO check; and the Preparation for Effective Trial form completed at the first hearing.

[67]The Reviewing Lawyer also decided to serve the disclosure schedule (the sole entry on which, as touched on above, was the Claimant’s custody record), and to send a letter to Warburtons to confirm that initial disclosure had been completed, and (taking the view at that stage that the custody record was not disclosable) directing the solicitors to the police to obtain a copy of it – which Warburtons later tried to do, but were referred back to the CPS.

[68]The Reviewing Lawyer also sent a request to the police to establish whether there was CCTV footage of the booking in and breath test procedures at the police station.

[69]The disclosure letter and schedule were emailed to the court. However, as Warburtons had not provided a secure cjsm email address, the papers had to be posted to them. As a review of contemporaneous computer records later confirmed, the papers were all printed out in the early afternoon on 19 April 2017. In her witness statement, the Reviewing Lawyer says that both the IDPC and disclosure materials (including the letter) were put into a single envelope and posted to Warburtons that same day. Again, a later review of contemporaneous computer records confirmed the posting on that date. In accordance with Criminal Procedure Rule 4.11 service was thus deemed to have been effected on 21 April 2017 – just over one month late, and only some 12 days before the trial hearing.

[70]In the meanwhile, Warburtons’ letter of 4 April had finally been uploaded onto the CPS system on 20 April 2017 – on which date it was read by the Reviewing Lawyer. However, taking the view that she had served or disclosed all the requisite material by post the day before, she took no action.

[71]Also on 20 April 2017, Warburtons wrote a third letter to the CPS – in similar terms to its predecessors and again with no mention of the Prosecution’s breach of the order as to service.

[72]However, until the hearing on the trial date, Warburtons gave no indication to the court that the case was not ready for trial.

[73]The Statement of Facts indicates that on 2 May 2017 (the day before the trial was fixed for hearing) Warburtons received the disclosure letter and schedule posted by the CPS on 19 April 2017, but not the IDPC materials (although said by the Reviewing Lawyer to have been posted in the same envelope).

[74]Early in the morning of 3 May 2017, the CPS Reviewing Lawyer read Warburtons letter of 20 April 2017 but again, given that the IDPC and disclosure materials had been posted on 19 April, believed that Warburtons letter had crossed in the post, and so took no action.

[75]Later that morning, at the City of London Magistrates’ Court, the Prosecution was represented by Mr Crivelli, a Senior Crown Prosecutor, and the Claimant (who attended) was represented by Mr Dye. PC Manning and PC Webb attended to give evidence.

[76]Mr Crivelli’s witness statement as to what happened at the hearing is not disputed – save as to a discussion with Mr Dye about offering no evidence, to which I will return below.

[77]Mr Crivelli says that Mr Dye informed him that the CPS had not served anything on his instructing solicitors, and drew his attention to the court order requiring the CPS to have done so by 20 March 2017. In this Court, Mr Dye accepted that he was aware of the delivery of the disclosure letter and schedule to Warburtons the day before, but said that there must have been a misunderstanding between him and Mr Crivelli in that regard.

[78]At all events, Mr Crivelli used his computer to check the CPS system but, at that stage, could find nothing to indicate that service had been effected. He did not, it seems, try to contact the Reviewing Lawyer to check, but rather accepted the assertion made on the Claimant’s behalf that nothing had been served to date.

[79]Mr Crivelli did, nevertheless, have the witness statements and MGDD forms on his computer. However, he was not able to serve them electronically on Mr Dye, as (exceptionally rarely in Mr Crivelli’s experience of defence lawyers) Mr Dye had no computer with him. Therefore, Mr Crivelli offered, subject to being given time to print them out, to supply hard copies to him.

[80]Mr Dye submitted to the Justices that the Court’s order as to service had not been complied with, and underlined that, in the PET form, and in subsequent correspondence, the Defence had indicated its intention to instruct an expert; the need for disclosure of the relevant CCTV footage; and the need for the disclosure of Intoximeter records. Mr Dye further submitted that, if the trial was to proceed, there was a consequent potential for it to amount to an abuse of process.

[81]Mr Crivelli records in his witness statement that the Justices appeared particularly concerned that the CPS had not complied with the direction as to service, or with the requests made by Warburtons – as to which, having no information to the contrary, he could furnish no explanation. Mr Dye indicated to the Justices that the Defence would not be in a position to proceed to trial as, having received nothing, they had not taken instructions, and still wished to instruct an expert.

[82]Although the Prosecution was trial ready, when pressed by the Justices as to how he intended to proceed, Mr Crivelli submitted that an adjournment was the only feasible option, as that would allow the CPS to fulfil its service and disclosure obligations, and would give the defence time thereafter to take instructions and to potentially instruct an expert witness. In support of the application to adjourn, Mr Crivelli reminded the Justices of the serious nature of the offence, and stressed the weight of the evidence against the Claimant.

[83]In opposing the application to adjourn, Mr Dye stressed that the Claimant had not received a copy of his custody record, and that nor had he been provided with any CCTV footage – indeed that such footage was not even referred to on the disclosure schedule. Mr Dye provided the Justices with copies of CPS v Picton and R (Jenkins) v Hammersmith Magistrates’ Court (both above). He then variously highlighted the Claimant’s age and previous good character; the fact that he was funding his defence; that he lived in France and had attended the hearing at some expense and inconvenience; and that he had found the whole court experience rather distressing.

[84]The Justices retired to consider the application to adjourn.

[85]It was whilst the Justices were in retirement that there was mention by Mr Crivelli to Mr Dye of the Prosecution offering no evidence if the adjournment was refused. In his witness statement Mr Crivelli recalls that it was mentioned in the context of him stating that, if the application to adjourn failed, he would take advice from a CPS legal manager – in consequence of which he could potentially offer no evidence (i.e. that it was one of the options open to him). In the Statement of Facts, Mr Dye asserts that there was an unqualified indication, as he understood it in conformity with [148] & [149] of the Magistrates’ Court Disclosure Review, that in the event of the adjournment being refused no evidence would be offered. However, for the reasons that I explain below, it is not necessary to resolve this dispute (which would otherwise involve Mr Dye becoming a witness).

[86]When the Justices returned, they announced their conclusions, as follows:

“We will grant an adjournment. Looking at Picton, we clearly believe that the seriousness of the offence, with the facts that we have heard, means that the weight of public interest outweighs the inconvenience to the Defendant of an adjournment. We have also considered the (Jenkins)….appeal. We believe that there are differentiating factors in this case. We agree that disclosure has not been made in proper time. However, in the case of (Jenkins) there was complete inertia from the crown whereas here, though the disclosure has not been fulfilled, the crown have got statements to provide today, and so if the trial was to proceed today the crown would have evidence to offer and would be able to pursue the prosecution. By allowing an adjournment we are fulfilling Picton’s overriding duty to do justice between the parties (and) allowing the defence time to provide a full defence.”

[87]As indicated above, the trial was re-fixed for 11 August 2017 – but that date was later broken to allow the completion of these proceedings first.

City of London - submissions

[88]The Defendant Court played no part in the proceedings in this Court

[89]On behalf of the Claimant Mr Dye realistically accepted that, although it is not yet compulsory for Defence lawyers to provide cjsm email addresses to the CPS, the lack of such provision by the Defence in the instant case made an undoubted contribution to the problems. Mr Dye also accepted (as was, or should have been, apparent during the hearing on 3 May 2017) that the Defence had been at fault in not alerting the Magistrates’ Court at once to the Prosecution’s failure to serve and disclose by 20 March 2017; in not alerting the Court as to the Prosecution’s apparent continuing failure thereafter to do so; and, finally, in not (as the date for the trial hearing approached) alerting the Court to the fact that, in their view, the case was not ready for trial and why – see e.g. Criminal Procedure Rules 1.2 – (1) (c) and 3.3 – (1), together with Criminal Practice Direction I General Matters 1A.2, and the passages from the judgment of Irwin LJ in R (Hassani) v West London Magistrates’ Court cited in [27] above.

[90]Nevertheless, Mr Dye submitted, on the information as it was known to the Court at the time of the hearing, the Prosecution had been at fault in not serving its evidence at all, and had only purported to deal with disclosure in a letter delivered the day before (albeit that, as a result of a misunderstanding between himself and Mr Crivelli, the Court had proceeded upon the mistaken belief that disclosure had not been dealt with at all). In any event, Mr Dye submitted, the purported dealing with disclosure by the Prosecution had been wholly deficient. The Custody Record (which contained contemporaneously recorded details of the Claimant’s account to the police as to the amount of alcohol that he had consumed) should have been disclosed - as was later conceded by the Reviewing Lawyer. The CCTV footage should have been included on the disclosure schedule and should also have been disclosed, as should the records that the Defence had sought in relation to the relevant Intoximeter machine.

[91]Against that background, Mr Dye submitted that, in all the circumstances as they appeared to be on 3 May 2017, the decision of the Justices to grant the Prosecution’s application for an adjournment had been Wednesbury unreasonable, as they had failed to pay sufficient regard to the factors set out in CPS v Picton (above) and, in particular, to the the need for expedition - which was highlighted by Mitchell J in R (Walden) v Highbury Magistrates’ Court

[2003] EWHC 708 (Admin)

at [17] (which was referred to with approval in Balogun v DPP above). Mr Dye underlined that, by the time of the then proposed new trial date, the events would have been some seven months old, and submitted that that would pose difficulties of accurate recollection for the Claimant as he had not been interviewed at the time, and (unlike the police witnesses) did not have the benefit of contemporaneous documentation to assist his recollection.

[92]Nor, Mr Dye submitted, had the Justices paid proper regard to the extent to which the Prosecution had been at fault and were the authors of their own misfortune – in not providing the IDPC at the first hearing; in ignoring the court order to serve and disclose by 20 March 2017 (or at all); and in ignoring Warburtons letters. Nor had any explanation for those failures been provided. In the result, there had been no “good and compelling” reason to adjourn the case.

[93]Mr Dye further submitted that the Justices had failed to have sufficient regard to other prejudice caused to the Claimant – both financial (in funding his defence) and personal (the additional stress, necessary travel arrangements etc).

[94]Overall therefore, Mr Dye submitted, on the facts as they were believed to be at the time, the Justices had not done justice between the parties.

[95]Finally, Mr Dye argued, it was not appropriate to apply material mistake of fact leading to unfairness as a ground for judicial review in the context of criminal proceedings – as, in what is an adversarial system, the parties did not share an interest in co-operating to achieve the correct result. However, as already indicated above, Mr Dye recognised that, if he was wrong about that, there was little arguable merit in the claim.

[96]On behalf of the Interested Party, the CPS, Mr Duncan Atkinson QC submitted that, even on the facts as they were believed to be at the time, the decision to adjourn was within the scope of the Justices’ discretion. In the alternative, he submitted that the court should, in accordance with E v SSHD, apply material mistake of fact leading to unfairness as a ground for judicial review – in which event, on the true facts, the decision to adjourn had plainly been right.

[97]As to his first submission, and whilst accepting that the CPS had been at fault in not complying with the court order to serve and disclose by 20 March 2017, Mr Atkinson argued that a number of other matters were relevant on the facts as they were understood to be at the time, namely:(1) Much of the difficulty could have been avoided if the Defence had provided a cjsm email address.

(2) It was, at the very least, open to question as to whether the disclosure requested did in fact represent proper disclosure – for example: (a) In accordance with DPP v Spalluto

[2015] EWHC 2211 (Admin)

, the obligation on the Prosecution was to ensure that the CCTV footage had been retained, which it had been (albeit that it was not, as it should have been, on the disclosure schedule). (b) Equally, in contrast to the position in R (Jenkins) v Hammersmith Magistrates’ Court (above), in this case the court had not ordered the service of the footage. (c) Even though the CCTV footage was not available at the hearing on 3 May 2017 the two police witnesses were and, as touched on above, it is now clear that the footage assists the Prosecution. (d) Applying the principles identified in DPP v Manchester and Salford Magistrates’ Court ex parte Blakeley

[2017] EWHC 1708 (Admin)

, and albeit that the device used in the Claimant’s case at the police station was different, no proper expert evidential basis for the disclosure of the requested records in relation to the Intoximeter had been provided.

[98]In any event, Mr Atkinson submitted, the Justices had given the application to adjourn the appropriate degree of scrutiny, and had considered the relevant authorities, the conduct of the parties and the real issues involved – including, as explained to them: the strength of the evidence; the seriousness of the allegation being made (given how high the breath test readings were, and the fact that the machine used had recorded contemporaneously that there had been “no error” in its operation); the public interest in criminal charges being adjudicated upon; and the lack of prejudice to the Claimant in adjourning from 3 May 2017 to 11 August 2017. Therefore, Mr Atkinson submitted, the decision to adjourn was made in accordance with the law and was within the range of the legitimate exercise of the Justices’ discretion.

[99]Mr Atkinson further underlined that:(1) As was recognised in R (Jenkins) v Hammersmith Magistrates’ Court (above), at [31]-[32] of the judgment, there is a public interest in those charged with driving whilst being intoxicated being prosecuted, and with that being done not only efficiently but fairly.

(2) Whilst the court was entitled to proceed, upon the basis presented to it, that there had been a failure by the Prosecution to serve evidence and to disclose unused material, the fact was that the material, save for the CCTV footage and the custody record, could all have been made available in hard copy on the day of the hearing, and the witnesses were at court, in consequence of which the Justices had been right to conclude that the Claimant could still have been tried that day, and were also correct to note that unlike in Jenkins (above) no specific order had been made as to the disclosure of the CCTV footage.

(3) It had been indicated on behalf of the Claimant that, if the application to adjourn was not granted, he was not in a position to proceed to trial.

[100]Accordingly, Mr Atkinson submitted, what had begun as an application by the Prosecution to adjourn became, once the Justices made the findings that they appropriately did as to the Prosecution’s ability to proceed to trial that day, effectively an application by the Claimant adjourn – which was what the Justices decided the overriding duty to do justice required.

[101]As to his alternative submission, Mr Atkinson argued that, in accordance with E v SSHD (above) material mistake of fact leading to unfairness is clearly a ground of challenge in judicial review proceedings; that it ought to apply in the context of these criminal proceedings; and that all five criteria were present in the instant case (with contemporaneous computer records demonstrating beyond doubt that the material was all printed out and posted on 19 April 2017, and that thus service of it was deemed to have been effected on 21 April 2017).

[102]Thus, Mr Atkinson submitted, if the Justices had been apprised of the true position, including the lack of provision of a cjsm email address by those representing the Claimant, and of their failures (in not alerting the Court) to comply with the Criminal Procedure Rules, the decision to adjourn would plainly have been right – as effectively acknowledged by Mr Dye’s concession that, if judged on the true facts, there was little arguable merit in the claim.

The merits

[103]These claims are concerned with the judicial review of discretionary decisions made on applications to adjourn trial hearings in the Magistrates’ Court – which, as was made clear in Balogun v DPP (see [24] above), should only be mounted in exceptional circumstances and, if brought, must be pursued as a matter of great urgency.

[104]In the Sunderland case, on the facts as they appeared to be, namely that the complainant had, without reasonable excuse, failed to attend to give evidence, the District Judge’s decision to refuse the Prosecution’s application for an adjournment was plainly within the legitimate exercise of his discretion, and the consequent dismissal of the charge was inevitable.

[105]However, the facts were not as they appeared to be. The complainant had been at court, ready to give evidence, all along. The Interested Party knew that she was there but, in flagrant breach of his duties to the court under the combination of Criminal Procedure Rules 1.1 and 1.2, and paragraphs 1A.1 & 1A.2 of the Criminal Practice Direction General Matters 1A: The Overriding Objective (see [18] & [19] above), he deliberately chose not to alert the court to the true position – clearly doing so in order to achieve the refusal of the application to adjourn, and the consequent dismissal of the charge.

[106]Even in those circumstances, when the truth was discovered shortly afterwards, the District Judge was functus officio, and so there was nothing that he could do about it.

[107]As reflected in the authorities that I have referred to above, it is plainly in the public interest, and in the interest of victims, that every person charged with a criminal offence should normally be tried, and that a prosecution should usually result in an adjudication of guilt or innocence, and should not ordinarily be concluded in any other way.

[108]As in Gracey’s Application for Judicial Review, Re (see [14] above), it is obvious that on the true facts in the Sunderland case, the interests of the public and the victim were not respected and the fact that, by the time the truth came to light, the judge was functus officio should not effectively thwart the relevant interests in the fair and public conduct of criminal proceedings – particularly when the Interested Party acted in such flagrant breach of his duties to the court.

[109]Notwithstanding the argument to the contrary advanced by the Claimant in the City of London case, I have no doubt that mistake of material fact leading to unfairness is available as a ground of judicial review in the Sunderland case, as all five requisite conditions (see [11] above) are met, as follows:(1) Under the combined effect of Criminal Procedure Rules 1.1, 1.2 and 3, Criminal Practice Direction IA General Matters: The Overriding Objective paragraphs 1A.1 & 1A.2, and the authorities that I have cited (in particular R (Hassani) v West London Magistrates’ Court at [27] above) the parties shared a common interest in co-operating to achieve a just result – which, in the context of an application to adjourn a trial in the Magistrates’ Court, included a common interest in the court’s determination of the application being made upon the correct factual basis – rather than upon a factual basis that was materially incorrect.

(2) The mistake was as to an existing fact, namely that the complainant had not attended court to give evidence, when she had.

(3) The true fact has been “established” by uncontentious evidence, which has been objectively verified by CCTV footage.

(4) Neither the Claimant, nor her advisers, were responsible for the mistake.

(5) The mistake played a material part (indeed, in this instance, was decisive) in the judge’s reasoning.

[110]Given that all five conditions are met, I would uphold the claim in the Sunderland case on the basis of a material mistake of fact resulting in unfairness.

[111]The first question in the City of London case is whether, on the facts as they were mistakenly believed to be at the time, the Justices’ decision to adjourn was within the legitimate exercise of their discretion.

[112]Although it appeared at the time that the Prosecution had not complied at all with the order to serve and disclose by 20 March 2017, the Claimant and his advisers had clearly failed to comply with their duties to bring that to the attention of the court at an early stage, and thereafter to warn the court about their consequent lack of readiness for trial.

[113]At all events, for the reasons advanced on behalf of the Interested Party (as summarised in [98] – [100] above), I conclude that, in the specific circumstances of the City of London case as they were believed to be at the time, the Justices were entitled, in the exercise of their discretion, to grant the adjournment.

[114]In those circumstances, it is not necessary to consider whether the five conditions in relation to the ground of mistake of fact leading to unfairness are met in the City of London case.

Conclusions

[115]For the reasons given above, I would:(1) Quash the refusal of the adjournment and the dismissal of the charge in the Sunderland case, and remit the case to the Magistrates’ Court for rehearing.

(2) Dismiss the claim in the City of London case.

[116]Finally, I would underline that:(1) Given the danger of opening unintended floodgates, my conclusion as to the application of material mistake of fact leading to unfairness being available as a ground of judicial review in the context of criminal proceedings is strictly limited to applications concerned with the determination of applications to adjourn trials in the Magistrates’ Courts - which, as Balogun v DPP already makes clear, should only be made if the circumstances are exceptional.

(2) At the permission stage, it will be necessary to demonstrate, in particular, that the fact or evidence has been “established” (i.e. is uncontentious and objectively verifiable); that the Claimant, and/or the Claimant’s advisers, were not responsible for the mistake; and that the mistake played a material part in the court’s reasoning.

(3) Nothing that I have said should be taken as diluting the rigorous approach to applications to adjourn trials in the Magistrates Courts set out in CPS v Picton and the other cases cited above.

(4) Whilst, at present, it is not compulsory for criminal defence practitioners to provide a secure cjsm email address to the CPS for the service of materials, the potential detrimental consequences of not doing so are well illustrated in the City of London case, and should be borne in mind by Magistrates’ Courts when considering responsibility for faults in relation to service or other communications.

[117]I agree and, in particular, endorse the comments made by Mr Justice Sweeney at paragraph 116 of his judgment.