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Cite as: [2010] EWHC 799 (Admin), [2010] WLR 1915, [2010] 1 WLR 1915

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Neutral Citation Number: [2010] EWHC 799 (Admin)
Case No. CO/14228/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2A 2LL
12 March 2010

B e f o r e :

LORD JUSTICE LEVESON
MR JUSTICE CRANSTON

____________________

Between:
BALOGUN Claimant
v
DIRECTOR OF PUBLIC PROSECUTIONS Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr Phillip Lucas appeared on behalf of the Claimant
Miss Rebekah Hummerstone appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
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  1. LORD JUSTICE LEVESON: This is an appeal by way of case stated from a decision of Deputy District Judge (Magistrates' Court) Dean, sitting in the City of Westminster Magistrates' Court, when he adjourned the hearing of a trial following the failure of the prosecution to identify and bring to court what was said to be a crucial witness.
  2. The facts can be summarised shortly. The appellant was charged with an offence alleged to have been committed on 1 November 2008, namely that in Brook Street W1 he drove a Bentley Continental motor car after consuming so much alcohol that the proportion of it in his blood, namely 146 milligrams in 100 millilitres, exceeded the prescribed limit.
  3. The case came to court on 5 January 2009 when the appellant pleaded not guilty. His representative indicated that although it was accepted that the appellant was the driver on the relevant date, the prosecution was put to "strict proof" of every element of the alleged offence although it was apparently said that there was an issue concerning the taking of a blood sample and its analysis. I shall return to this exchange later in the judgment.
  4. The case was adjourned because the prosecution was not in possession of those dates that had to be avoided in relation to their witnesses. Default directions were made under the Criminal Procedure Rules. On 19 January 2009 there was a pre-trial review at which the trial was fixed for 8 May 2009 with an estimate of half-a-day. A further case-management hearing was conducted on 16 February and, having been informed that the applicant was paying his legal costs on a private basis, the court made an order that the prosecution serve initial disclosure within 14 days or face a wasted costs order.
  5. So it was that on 8 May the case came on to be tried. Both sides were represented by counsel. Four prosecution witnesses attended court, comprising two police officers, the Divisional surgeon who had taken the sample of blood from the applicant and the forensic scientist who had analysed the sample of blood. A further prosecution witness - Police Sergeant Cloe - who had first made a witness statement on 20 April 2009 was not present. An unsigned copy of her statement was served on counsel only on the morning of the trial.
  6. Counsel then informed the district judge that the procedure adopted by the sergeant at the police station for obtaining the blood sample and its continuity was "disputed" and, as a result, the prosecution reluctantly applied for the trial to be adjourned to a new date in order that Police Sergeant Cloe could attend to give oral evidence: inquiries had established she was on annual leave until the following Monday. Additional facts both about the witness and about the time at which her unavailability was discovered have been identified in court today. They are not included in the case and it is not appropriate to refer to it: it was not before the deputy district judge and is irrelevant to his judgment.
  7. The deputy district judge then raised the possibility that the prosecution should proceed and the proceedings be adjourned on a part-heard basis. Both representatives urged against adopting that course, asserting that the evidence should be heard chronologically and there was a risk that witnesses would need to be recalled if evidence was heard out of order. Whether that is always the case is another matter but does not fall for further consideration.
  8. There was then a series of submissions during the course of which Mr Lucas referred to the need for rigorous scrutiny of any application to adjourn. In the event, the deputy district judge decided to do so, giving as his reasons the following:
  9. "(1) The prosecution candidly accepted that they were at fault in having failed to identify Sergeant Cloe as a relevant witness at an earlier stage and to warn her to attend court. I was satisfied that any further inquiries as to the circumstances in which this failure occurred was unlikely to be of assistance to me. All prosecution witnesses have attended court and would have been available to give evidence in the case adjourned part heard save that both parties' representatives have strongly urged against adopting such a course. These witnesses were either police officers or professional expert witnesses, and an adjournment was therefore unlikely to result in issues concerning loss of memory of relevant events;
    (2) This was the first occasion upon which the case had been listed for trial and neither party had sought to list the case to seek further directions concerning the service of evidence since the case management hearing on 16 February;
    (3) It was proper to decide in principle the issue as to whether or not to grant an adjournment before canvassing with the Listing Office the next available court date convenient to the witnesses and the parties upon which an adjourned trial can be heard;
    (4) Once the applicant did have a reasonable expectation that his case would be concluded on the date of trial, there was nevertheless a remedy available to him by way of an application for costs of the case should he be acquitted or alternatively wasted costs of today's hearing;
    (5) Having regard to these issues and the matters raised in submissions, there remains a legitimate public interest that the charge should be adjudicated upon."
  10. In those circumstances the deputy district judge adjourned the new trial date until 25 August 2009 with an estimate of three-quarters of a day, being the first available date at which the matter could be heard convenient to all involved. On that date the case was subsequently tried and found proved by a different tribunal. The question posed in the case is simply stated by the deputy district judge in these terms:
  11. "In all the circumstances did I err in law in granting an adjournment?"
  12. This area of the law has been well trodden over a number of years. In R v Aberdare Justices ex p Director of Public Prosecutions [1990] 155 JP 324, Bingham LJ (as he then was) emphasised two principles in these terms:
  13. "First, a decision as to whether or not proceedings should be adjourned is, as counsel for the defendant rightly urged, a decision within the discretion of the trial court. It is pre-eminently a discretionary decision. It follows as a matter of undoubted law that it is a decision with which any appellate court would be very slow to interfere and accordingly would interfere only if very clear grounds were shown for doing so.
    Secondly I wish to make it plain that the justices in this case are in no way open to criticism for paying great attention to the need for expedition and the prosecution's criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are more scandalous when it is criminal proceedings with which the court is concerned."
  14. Those observations were followed by Lord Bingham CJ (as he became) in R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110, at 127G:
  15. "It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications to delay, the reasons for those applications, the consequences both for the prosecution and defence. Ultimately they must decide what is fair in the light of all those circumstances. The court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when the defendant is denied a full opportunity to present his case. But neither defendants nor their legal advisers should be permitted to frustrate the objective of a speedy trial without substantial grounds. Applications for adjournments must be subjected to rigorous scrutiny."
  16. Inefficiency is always to be challenged. In a pithy but entirely apposite observation in R (Walden and Stern) v Highbury Corner Magistrates' Court [2003] EWHC 708, Mitchell J observed (at paragraph 17):
  17. "Furthermore, these reasons were given in the absence of any 'rigorous scrutiny' of the application. The longer courts tolerate the sort of inefficiency which seems, in each of these cases, to be the explanation for the failure of the witnesses to attend court on the date fixed for the hearing, the longer it will continue. To tolerate it is to encourage it."
  18. The anxiety of the law relating to delays is underlined by reference to the Criminal Procedure Rules 2005 which require the court actively to manage cases. This involves (paragraph 3.2 (2)):
  19. "(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 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."
  20. All those case management powers must be read in the context of the overriding objective of dealing with cases justly which specifically includes (paragraph 1.1 (2) (e)):
  21. "(e) dealing with the case efficiently and expeditiously;
    .....
    (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."
  22. In that regard the duty of the parties includes actively assisting the court in fulfilling its duties and, if necessary, applying for directions to further the overriding objective (paragraph 3.3 of the Rules).
  23. In the absence of evidence it would be wrong to criticise the way the applicant conducted the pre-trial hearing, and I do not do so, specifically as it is recorded that there was an issue unspecified concerning the taking of the blood samples and its analysis. For my part, however, I do not accept that the spirit or letter of the Criminal Procedure Rules is complied with by asserting that the Crown is put to "strict proof", in the absence of detail, so as to ensure precisely which witnesses should be brought to court because there are substantial or real challenges to their evidence rather than because of a desire to call witnesses to attend to see what might emerge and in the vague hope that some defence might appear or some failure might manifest itself in an unjust acquittal.
  24. How do these principles operate in this case? The authorities were cited to the deputy district judge. His reasons demonstrate that he considered a number of factors before reaching his decision. Mr Lucas challenges each one of the reasons given by the deputy district judge.
  25. Thus in relation to the question of rigorous scrutiny, he argues that the deputy district judge failed to demand an explanation as to why Sergeant Cloe's dates to avoid had not been taken into account when the trial date was fixed, why a witness statement from Sergeant Cloe was only obtained at a late stage of the proceedings and served on the appellant at court on the day of trial (rather than in advance) and why she had not been warned to attend court or an earlier application to adjourn pursued.
  26. In answer, Miss Hummerstone submitted that any explanation as to these failures would be unlikely to add anything to the application to adjourn and, indeed, that explanations might mitigate what the deputy district judge took as the underlying assumption, namely that the prosecution were wholly at fault. In my judgment, however, it goes somewhat further than that because it is beyond doubt that the witness statement of 20 April 2009 was only served on the morning at court. Had it been available earlier, as one anticipates it must have been given its date, considerable time might have been avoided at the very least by an earlier application to adjourn the hearing. Suffice to say, the deputy district judge clearly had firmly in mind the failure of the prosecution in that regard.
  27. Mr Lucas also criticised the deputy district judge's failure to take into account or alternatively to make any reference to the position of the defence. He mentioned four prosecution witnesses who were professional expert witnesses but made no mention of the defendant, his civilian witness or, indeed, his expert and, in particular, does not appear to address whether an adjournment would result in issues concerning loss of memory or the like for him or his witness.
  28. The second reason that the deputy district judge gave is that this was the first occasion on which the case had been listed for trial and neither party had sought to list the case for further directions concerning service of evidence. I have already referred to the Criminal Procedure Rules. Although the final responsibility inevitably falls on the Crown Prosecution Service, it must have been apparent to the defence - having reviewed the evidence available to them - that there was, or was likely to be, a further witness to emerge. Whether that should have been taken further I do not decide. Suffice to say that it does not seem to me appropriate to hold against the defendant the failure to seek earlier resolution of the position in the light of the prosecution's failure.
  29. The third reason was that the judge felt that it was proper to decide an issue whether to grant an adjournment before canvassing the next available court date. Mr Lucas argued that the proximity of the next trial date was indeed an important point to take into account. This feature, in reality, falls away given that agreement was reached about a new trial date with a longer time estimate, that date being insufficiently far in advance as to cause additional prejudice. I should not be taken as concluding however that the deputy district judge should not have sought to ascertain when a new date might be available on the basis that if the prosecution witnesses had not been available within a comparatively reasonable time that might have been a good reason for refusing the adjournment.
  30. The fourth reason concerned the remedies available to the applicant. Mr Lucas accepts and adopts the proposition that the applicant had a reasonable expectation that his case would be concluded on the day of trial but argues that in fact an expectation goes further. The applicant had deliberately fixed a return trip from Nigeria to attend his trial which not only involved expense but must also have involved considerable inconvenience. For my part, I do not weigh that feature very much in the balance.
  31. The final reason is that having regard to these issues and matters raised in submissions, there is a legitimate public interest that the charge should be adjudicated upon. Mr Lucas submitted that of offences in the criminal calendar, this was perhaps not the most serious. Be that as it might, in my judgment, driving with excess alcohol is a potentially serious matter. There is indeed a legitimate public interest in ensuring that those who do are prosecuted to conviction where it is appropriate so to do. Save for mentioning that element of the case, that additional reason appears to take the matter no further.
  32. I go back to the test identified by Lord Bingham CJ: has the deputy district judge subjected this application to rigorous scrutiny? In Aravinthan Visvaratnam v Brent Magistrates' Court [2009] EWHC 3017 (Admin) an application for judicial review to challenge a decision to adjourn a trial of driving whilst unfit through drugs was considered by the court in circumstances more egregious than those in this case. In that case no witnesses attended for the prosecution and no explanation was provided for not having served the evidence of the doctor, nor for having been ready in court to give evidence and no explanation was given for not previously having sought an adjournment once it had become clear that the forensic scientist would not attend.
  33. Giving the judgment of the court, Mr Justice Openshaw said:
  34. "19 I have no doubt that there is a high public interest in trials taking place on the date set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so. The sooner 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."

    I entirely agree with these observations.

  35. In my judgment there are sufficient and legitimate and proper criticisms of the approach of the deputy district judge to justify the challenge advanced by Mr Lucas that he did not submit the application to adjourn to appropriate rigorous scrutiny. Each of the reasons which the judge provides, if not flawed, is open to challenge.
  36. In those circumstances it seems to me that it is appropriate to answer the question posed in the stated case, namely whether the district judge erred in law in granting an adjournment, in the affirmative on the basis that his reasons for so doing do not sufficiently stand up to the scrutiny to which they should always be subject. In those circumstances on the face of it, the course open to this court would be to answer the question in the positive and send the case back to the Magistrates' Court to identify what should happen thereafter.
  37. Mr Lucas seeks to go further. Relying on the approach adopted in Essen v Director of Public Prosecutions [2005] EWHC 1077 (Admin), he submits that this court should simply quash the conviction. That case also concerned a decision to adjourn a trial of driving a motor vehicle while unfit through drink or drugs which came to the court by way of case stated rather than judicial review. Analysing the position, Mr Justice Beatson said:
  38. "22 In view of the time that has passed since the decision of the Justices and the fact that the trial took place (a trial at which the defendant was able to make its legal and other submissions at great length) I am troubled by the argument that the appellant, having decided not to seek judicial review of the decision to adjourn, is now entitled to come forward and challenge the decision made on 30 December 2002. Nevertheless, in view of the position in the authorities in relation to cases stated and the fact that the Justices in this case have stated a case, this court must deal with it."

    Having determined that no adjournment ought to be have been granted, he concludes his judgment simply by observing that he would -

    " ..... set aside the decision of the justices granting the adjournment and allow the appeal."
  39. Lord Justice Sedley dealt with the consequences of that conclusion. He said:
  40. "39 We are left with a case stated which discloses no good reason ..... for the granting the CPS an adjournment, the purpose and effect of which would be simply to rescue it from the consequences of its own neglect. Had it been refused, as on the material before us I consider it should have been, Miss Nash accepts, with complete candour, that the case would inexorably have failed there and then. That is the impasse which in this unsatisfactory factual and legal situation the appellant is entitled to be placed. I too, would accordingly, and without pleasure, allow the appeal and quash the conviction."

    There is no analysis of the jurisprudential basis upon which that approach was taken.

  41. 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 observations 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.
  42. 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.
  43. In the circumstances, in this case, I take the view that the proper course is to allow the applicant out of time to commence proceedings for judicial review of the decision of the magistrates to conduct the hearing which eventually took place, to dispense with the need for service and all other aspects of the procedural requirements of judicial review and to bring the decision before this court to be quashed on the basis that its conduct represents an abuse of process following the incorrect grant of an adjournment. That is the course that I would propose.
  44. MR JUSTICE CRANSTON: I agree.
  45. MR LUCAS: Having indicated that that is the court's proposal, I invite the court to stay the trial as an abuse of process.
  46. LORD JUSTICE LEVESON: No. We will quash the conviction.
  47. MR LUCAS: I therefore apply for an appellant's costs order subject to taxation.
  48. LORD JUSTICE LEVESON: For which?
  49. MR LUCAS: In relation to these proceedings in this court.
  50. LORD JUSTICE LEVESON: These proceedings? This appeal?
  51. MR LUCAS: This appeal.
  52. LORD JUSTICE LEVESON: Miss Hummerstone, what do you say about that?
  53. MISS HUMMERSTONE: Costs follow the event, of course. I do not think I can say much.
  54. LORD JUSTICE LEVESON: A costs order. Is that from central funds?
  55. MR LUCAS: From central funds.
  56. LORD JUSTICE LEVESON: Yes. Let me make it quite clear: that is not to include any costs of the hearing before the magistrates which resulted in the applicant's conviction.
  57. MR LUCAS: Yes.
  58. LORD JUSTICE LEVESON: In my judgment those costs were entirely wasted by the course which was chosen to be taken in relation to this challenge.
  59. MR LUCAS: That is why I confined my application - - - - -
  60. LORD JUSTICE LEVESON: Good. I do not want there to be any misunderstanding.


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