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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 >> Popovic, R (On the Application Of) v Ealing Magistrates Court & Ors (Rev1)  EWHC 1875 (Admin) (28 July 2023)
Cite as:  EWHC 1875 (Admin)
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE KING ON THE APPLICATION OF
|- and -
|(1) EALING MAGISTRATES COURT
(2) WILLESDEN MAGISTRATES COURT
(3) CROWN COURT AT HARROW
(4) CROWN COURT AT ISLEWORTH
|DIRECTOR OF PUBLIC PROSECUTIONS
The other parties did not appear and were not represented
Hearing date: 11 July 2023
Crown Copyright ©
Mr Justice Julian Knowles:
List of issues and CPS response
a. in each case, the Claimant has not acted promptly and / or not later than three months after the grounds to make the claim first arose (CPR r.54.5(1);
b. the Claimant had alternative avenues for challenging his conviction and sentence;
c. the Claimant instead exercised a different avenue for appeal, by applying or having application made on his behalf to the trial judge DDJ Studdert to state a case on 31 October 2019. That was refused. That had the effect of extinguishing any further right of appeal to the Crown Court (s 111(4) Magistrates Court Act 1980) (there appears to be an issue whether this application was done of the Claimant's authority);
d. judicial review is a remedy of last resort and where a claimant had adequate alternative remedies available to him at an earlier stage, permission should be refused;
e. even if (which is denied) there was any arguable error of law or jurisdiction in any of the challenged decisions, it is highly likely that the outcome would not have been substantially different for the Claimant (s 31(2A), Senior Courts Act 1981).
"The Claimant attended court but repeatedly declined to identify himself or to surrender despite being given multiple opportunities. At length, the judge ordered the court to be cleared of all persons other than the Claimant. The Claimant chose to leave court with his supporters. Thereafter the judge proceeded with the trial in his absence, on the Crown's application. He was entitled to do so."
"The Claimant also recollects that after entering the court room he requested the court to proceed 'in equity', as he was making a special appearance 'in propia persona' and the Claimant made this request to the Deputy District Judge 3 times.
The Claimant further recollects that the Deputy District Judge left the courtroom 3 times and after the final exit, he returned and told everyone in the courtroom to 'leave the court'."
Sir Duncan Ouseley's reasons and my decision
"(1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
"1. The 10 decisions which the Claimant seeks permission to challenge all arise out of his prosecution, conviction and sentence for assaulting an usher at a County Court possession order hearing in which he was not a party, but part of a group, claiming to assist the tenant, which refused to obey an order that the court be cleared of what the judge saw as their disruptive presence. The conviction was dated 19 October 2019, and he was sentenced to 10 weeks in prison on 22 October 2019. Proceedings were sent to the Admin Court on 24 June 2022, returned as defective on 7 July, and resubmitted on 16 July 2022.
2. The first three decisions being challenged are the conviction and sentence decisions, plus a decision seemingly of the Uxbridge Youth Court, which has nothing to do with the adult Claimant, and that court is not a party [in fact, as the Claimant points out, it appears that it was a judge sitting at that court who issued the warrant but he was not sitting as a judge of the Youth Court so the point does not matter]. Either way, time has long past for a judicial review challenge to those decisions. The only discernible basis upon which an extension of time, not requested but said not to be necessary, is that the Claimant was pursuing other remedies. That can be a basis for an extension, if sought, but the timetable of events after 19 October 2019 shows that over a year passed before any alternative remedy was sought. The response that the Claimant was unrepresented, and could not take legal advice, sits ill with the level of legal analysis with which the Claimant has favoured the court.
3. The fact that he was not represented is not of itself a good excuse for the lapse of time, nor the fact that he was in prison for 10 weeks. That could explain a delay of a month or so. Nor that he was unaware of the grounds of appeal. He may not have been able to research all the recondite, and unsound points he takes, but they are all grist to the one point he did know which is that he was convicted after a trial when he was not in court, although he was in court when his case was called on. (He says that he did hear himself being called to identify himself; and it follows that he did not hear the District Judge say that the one called Popopvic was to stay in court when it was cleared; the court notes say he did not identify himself or admit to being the defendant, when the case was called on, or stay when the conditions in the court led to it being cleared). Thereafter he appears to have taken, on his case, no steps at all to point out that he was the defendant and should be let back in. Accordingly, the challenge to those decision is out of time, and to the extent that it is sought, I refuse to extend time.
4. The next two decisions are decisions of Willesden Magistrates Court on 6 and 14 January 2022 to refuse to reopen the conviction and sentence decisions under s142 Magistrates Courts Act 1980. The applications were made on 19 December 2021, after the Claimant had received informal legal advice. There may or may not have been an arguable case on the merits that s142 does not only apply where a defendant has been absent. However, where a defendant has been present, and has failed to identify himself, whether or not because of noise in the court created by his friends and supporters, and no steps have then been taken to draw that point to the attention of the court, and the point has been left for over a year, the only rational decision the Court could have reached was to refuse to reopen the case. The challenge to those decision is three months out of time, and again no reasonable basis has been shown for an extension of time.
4. The next two decisions are those of HHJ Wood at Harrow and Isleworth Crown Courts on 15 and 24 March 2022 [in fact, as I have said, there were two HHJ Woods – one male, one female], refusing an extension of time for an appeal to be lodged against the 2019 conviction and sentence. Although there was some toing and froing between the two Courts, about which the Claimant makes various legal claims, there is nothing in that procedural aspect. Nor is there anything arguable in the contention, if I understand it aright, that there was some delegation of decision-making: the Judge clearly made the decisions. The Judge may have misunderstood the point that the Claimant was making about new law, Mitchell, and Terence Ewing v Brentford County Court (a very different case on the facts), but nothing arguable turns on that. Her reasoning as set out in the DPP/CPS AoS is perfectly clear, and contains no arguable error of law. The Claimant knew what had happened at the hearing, and of his sentence and could have appealed straightaway, or while in prison, or immediately upon release. His claim at root is that what happened was fundamentally unfair, and he knew what facts he intended to rely on. he may not have worked his way through all the recondite points he now wishes to develop in support of that point, but that is not the issue. Even if some extension could have been granted, the Claimant had to show that the whole period of extension should be granted. The only rational decision would be to refuse the extension of time. If these two challenges had had arguable merit, I would not have refused an extension of time to bring these judicial review proceedings.
5. The decision of 30 May 2022, by HHJ Wood, to refuse to state a case in relation to her refusal of an extension of time has no merit, for the reasons I have given above.
6. There are then two decisions in relation to documents. (i) The Claimant challenges the refusal of HHJ Wood to provide him with her notes of her decision of 24 March 2022, and a typed version. As I read the papers, he now has that note of her reasons. In so far as he seeks some other notes which the judge may have made, he is not entitled to those. (ii) The Claimant also seeks to challenge the ongoing refusal or failure of the Magistrates Court to provide the court clerk's notes of the hearing of 16 October 2019, which have been provided to the CPS, and which are cited in the AoS. I consider that he should have been provided with those notes, at the same time as they were sent to the CPS. He should be sent them now, so that all are treated equally. However, I decline to grant permission for that to be pursued to an order, because the challenges to the various decisions are out of time or hopeless, with or without them. Nonetheless, I hope that the CPS and Court Service, reading this will provide them to the Claimant so that if there is a renewed application everybody is on an equal footing, and there will be no suspicion that something favourable to the Claimant has been omitted.
7. This is not a case for a protected costs order. The public interest points are not sustainable on the his own case, and in view of the delay. The provision of a financial statement is not a breach of Article 8, and arrangements can be made for the protection of private and confidential material."
"10. Challenges 7 and 8, against Harrow Crown Court and Isleworth Crown Court in respect of refusing to extend time for appealing conviction and sentence, on 15.3.22 and 24.3.22. The Claimant's application to appeal (seemingly filed on or around 4.2.22) stated he had 'recently' been advised that an arguable defence may exist if the court officer said to have been assaulted was not acting in execution of his duty. No date was given, nor any explanation for why advice had not been sought sooner. No reasons at all were given for delay in bringing the multiple other grounds of appeal which the Claimant sought to advance, all of which could have been brought in time. The Crown Court had no jurisdiction to consider these applications given the Claimant had applied to state a case on 31 October 2019 (s.111(4) MCA 1980). In any event, even if that jurisdictional bar did not exist, the learned judges were entitled not to permit an extension of time and made no error by not doing so. Her Honour Judge Wood at Harrow gave an appropriate decision on 15.3.22, as follows:
"There is no good reason for giving leave to appeal out of time. A change in the law has not been regarded as a good reason (R v Mitchell: 1977). If correct, the fact that the appellant may have an arguable defence of which he has only recently become aware is not, in itself, a good reason for extending time. There is no reason put forward for the need to extend time to appeal on the other grounds: those grounds were known and evident at the time of conviction."
11. The Claimant's application for leave to appeal out of time appears also to have been separately referred to His Honour Judge Wood at Isleworth on 24.3.22. The reasons for that referral are unclear. His Honour Judge Wood endorsed "application refused" on the same date, mirroring the decision of Her Honour Judge Wood at Isleworth."