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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mishra v Colchester Magistrates' Court  EWHC 2869 (Admin) (14 November 2017)
Cite as:  WLR(D) 759,  Crim LR 245, (2018) 182 JP 89,  LLR 92,  1 WLR 1351,  EWHC 2869 (Admin),  1 Cr App R 24, 182 JP 89,  WLR 1351
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QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DOVE
| AANJANEYA MISHRA
- and -
|COLCHESTER MAGISTRATES' COURT
- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
- and -
- and -
|STRATFORD MAGISTRATES' COURT
- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Miriam Smith (instructed by TV Edwards LLP) for the Second Claimant
Neither Defendant appeared and neither was represented
John McGuinness QC (instructed by the CPS Appeals and Review Unit) for the Interested Party
Hearing dates: 26th October 2017
Crown Copyright ©
Lady Justice Sharp:
The relevant legal framework
"Statement of case by magistrates' court
(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved;
(2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.
(4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to the Crown Court shall cease."
"35.2 Application to state a case
(1) A party who wants the court to state a case for the opinion of the High Court must –
(a) apply in writing, not more than 21 days after the decision against which the application was to appeal; and
(b) serve the application on –
(i) the court officer, and
(ii) each other party.
(2) The application must –
(a) specify the decision in issue;
(b) specify the proposed question or questions of law or jurisdiction on which the opinion of the High Court will be asked;
(c) indicate the proposed grounds of appeal; and
(d) include or attach any application for the following, with reasons-
(i) if the application is to the Crown Court, an extension of time within which to apply to state a case,
(3) A party who wants to make representations about the application must-
(a) serve the representations on-
(i) the court officer, and
(ii) each other party; and
(b) do so not more than 14 days after the service of the application.
(4) The court may determine the application without a hearing.
(5) If the court decides not to state a case, the court officer must serve on each party-
(a) notice of that decision; and
(b) the court's written reasons for that decision, if not more than 21 days later the applicant asks for those reasons.
35.3 Preparation of case stated
(1) This rule applies where the court decides to state a case for the opinion of the High Court.
(2) The court officer must serve on each party notice of-
(a) the decision to state a case, and
(b) any recognizance ordered by the court.
(3) Unless the court otherwise directs, not more than 21 days after the court's decision to state a case-
(a) in a magistrate's court, the court officer must serve a draft case on each party
(b) in the Crown Court, the applicant must serve a draft case on the court officer and each other party.
(4) The draft case must-
(a) specify the decision in issue;
(b) specify the question(s) of aw or jurisdiction on which the opinion of the High Court will be asked;
(c) include a succinct summary of-
(i) the nature and history of the proceedings,
(ii) the court's relevant findings of fact, and
(iii) the relevant contentions of the parties;
(6) A party who wants to make representations about the content of the draft case, or to propose a revised draft, must-
(a) serve the representations, or revised draft, on-
(i) the court officer, and
(ii) each other party; and
(b) do so not more than 21 days after service of the draft case.
(7) the court must state the case not more than 21 days after the time for service of representations under paragraph (6) has expired.
35.5 Court's power to vary requirements under this Part
(1) The court may shorten or extend (even after it has expired) a time limit under this Part.
(2) A person who wants an extension of time must-
(a) apply when serving the application, representations or draft case for which it is needed; and
(b) explain the delay."
"28A. Proceedings on case stated by magistrates' court or Crown Court.
This section applies where a case is stated for the opinion of the High Court –
(a) by a magistrates' court under section 111 of the Magistrates' Courts Act 1980, or
(b) by the Crown Court under section 28(1) of this Act.
(2) The High Court may, if it thinks fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly.
(3) The High Court shall hear and determine the question arising on the case (or the case as amended) and shall –
(a) reverse, affirm or amend the determination in respect of which the case has been stated; or
(b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court, and make such other order in relation to the matter (including as to costs) as it thinks fit."
"52.2 Parties to comply with Practice Direction 52A to 52E
All parties to an appeal must comply with Practice Directions 52A to 52E"
Practice Direction 52E deals with appeals by way of case stated. In particular, Practice Direction 52E paragraphs 2.1 – 2.3 provides as follows:
"Section 2 Case stated by Crown Court of Magistrates' Court Application to state a case
2.1 The procedure for applying to the Crown Court or a Magistrates' Court to have a case stated for the opinion of the High Court is set out in the Criminal Procedure Rules [emphasis added].
Filing of appellant's notice
2.2 An appellant must file the appellant's notice at the appeal court within 10 days of the date of the case stated by the court.
Documents to be lodged
2.3 The appellant must lodge the following documents with the appellant's notice –
(a) the stated case;
(b) a copy of the judgment, order or decision in respect of which the case has been stated; and
(c) where the judgment, order or decision in respect of which the case has been stated was itself given or made on appeal, a copy the judgment, order or decision appealed from."
Part 52 provides as follows in relation to variations of time:
"52.15 Variation of time
(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.
(2) The parties may not agree to extend any date or time set by –
(a) these Rules:
(b) Practice Directions 52A to 52E; or
(c) an order of the appeal court or the lower court"
"The contrast is very clearly made in the notes to R.S.C., Ord. 56, r.6(1) in The Supreme Court Practice (1976), vol. 1, p.822, dealing with the application to justices to state a case, it says:
"The application to the justices must be made within 14 days after the day when the decision is given. The court will not make such an order unless the application to the justices was in time…
And then later, dealing with the stating of the case itself:
"The case must be stated within 3 months after the application, but the Divisional Court has power to extend time."
-and it cites among other cases Wittingham v Nattrass  1 WLR 1016. It seems to me that although the court has power to extend the time in respect of the actual stating of the case once the application is made, this court has no power to extend the time in respect of the application itself."
"I have come to the conclusion that even if there is a power to grant an extension of the 21 day period, that is not a power which we should exercise in the circumstances of this case. I, for my part, have very grave doubts as to whether there is indeed power to extend the time or whether Michael v Gowland has been overtaken by the rules. On the limited research that has been possible on the part of the court, it seems to me that it is highly probable that there is no power to grant the extension sought by Miss Smith."
"18. …We have not heard full argument on the extension of time point. Section 111(2) of the Magistrates' Court Act 1980 seems clear. The application for a case stated must be made within 21 days. Miss Smith for the appellant points to CPR 3.1, which sets out a list of powers given to the court "by any other rule or practice direction or by any other enactment or any power it may otherwise have": CPR 3.1(1). She points to 3.1(2)(a), where a court may make, extend or shorten the time for compliance with any rule, practice direction or court order, and may do that retrospectively. However, the phraseology of CPR 3.1 is significant. The opening clause is "Except where these Rules provide otherwise". Practice Direction 52, paragraph 18.3, provides that the procedure for a case stated is set out in the Criminal Procedure Rules. So it is those rules which govern. Rule 64.4 of the Criminal Procedure Rules, while providing for an extension of time in relation to some aspects of a case stated, does not do so in relation to the 21 day limit set out in section 111(2) of the Magistrates' Court Act. In the result, I agree with my Lord that there is every reason to think that Michael v Gowland  1 WLR 296 is still good law."
"4. On 12 February 2014, the appellant applied to the North Somerset Magistrates' Court to state a case, and on 14 February 2014 the Magistrates' Court provided the parties with a draft case and, following a request for their observations upon it, these were duly received. Thereafter the appellant sought instead to appeal to the Bristol Crown Court, where it was ultimately determined that pursuant to section 111(4) of the Magistrates' Courts Act 1980, he was precluded from doing so, and therefore the application for the case stated was revived and now comes before this court for determination.
5. It may be that a preliminary issue arises in this case, namely that jurisdiction of this court to consider the appeal in view of the fact that the original application to state a case may have been made on a date beyond that provided by section 111(2) of Magistrates' Court Act 1980, namely within 21 days of the day on which the decision of the Magistrates' Court was given.
6. In this regard, although rule 35.5(1) of the Criminal Procedure Rules 2015 provides that its own time limits may be extended, as the note to rule 35.5(2) makes clear, this does not permit a similar extension of time to the making of the original application to state a case under section 111(2) of the Magistrates' Court Act 1980. However, CPR 52.6(1) provides that application may be made to this court to vary the time limit for filing an appeal notice. In regard to the question as to whether the time limit should be extended, I remind myself of what Brooke LJ had to say in Foenander v Bond Lewis & Co  EWCA Civ 759 concerning the practical consequences which may flow from refusing such an application. In the event, if an extension is required in this case, then I consider that it is appropriate that an extension be granted so as to allow its merits to be determined."
"33. …the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing "the very essence" of the right, pursue a legitimate aim and involve a "reasonable relationship of proportionality between the means employed and the aim sought to be achieved" in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above.
34. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdom's Extradition Arrangements of 30 September 2011 identified the time limits as an "unsatisfactory feature about the appeals process", and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that "On the whole we prefer the former, as this is an area in which certainty and finality is important.
35. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The "very essence" of the right may be impaired in individual cases and there may still be no "reasonable relationship of proportionality between the means employed and the aim sought to be achieved…
37. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligen's case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair "the very essence of the right" of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be "a reasonable relationship of proportionality between the means employed and the aim sought to be achieved"…
39. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligan, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously."
"13. There are obvious contextual differences between extradition appeals and appeals in disciplinary or regulatory cases such as this. First, extradition carries with it the prospect of loss of liberty and involuntary removal to a different country. The consequences of removal from a nursing and midwifery Register, an admittedly serious detriment, are not as grave. Secondly, the time limits in the Extradition Act (14 days in Pomiechowski) are significantly shorter than the 28 days here. Thirdly, the putative appellant in an extradition case would often have to cope with the shorter time limits in the more difficult position of custody, where communications with advisers and access to information and facilities are more difficult. Fourthly, there was widespread recognition of the problems created by the short time limits in extradition (see paragraph 7, above) but there is no such evidence in relation to appeals such as these.
14. Are these differences sufficient to leave the Mitchell/Reddy line of authority untouched by Pomiechowski? In my judgment, they are not. The context, exclusion from a profession, is still one of great importance to an appellant. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair "the very essence" of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent (Nursing and Midwifery Council (Fitness to Practice) Rules 2004, rule 34(4)). In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal."
Note 1 Section 28(1) provides that: “Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.”
Note 1 Section 28(1) provides that: “Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.” [Back]