Case No: CO/9974/2009
Neutral Citation Number: [2010] EWHC 662 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Cardiff County Court
Address 1 
Address 2

Date: Wednesday, 17th February 2010

Before:

MR JUSTICE FOSKETT

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Between:

The Queen on the Application of
DIRECTOR OF PUBLIC PROSECUTIONS	

 Claimant	
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LANCASTER MAGISTRATES’ COURT

Defendant	
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(DAR Transcript of 
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Mr Greene appeared on behalf of the Claimant.

Mr Eccles appeared on behalf of the Interested Party.

The Defendant did not appear and was not represented.

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Judgment
Mr Justice Foskett

1.	On 2 April 2009 an incident occurred in Lancaster involving the interested party and, as I shall call her, the complainant, a friend of the interested party’s former girlfriend.  Both the interested party and the complainant were aged 17 at the time.  According to the complainant, the interested party, who had been behaving aggressively towards her for a while, came up to her and spat forcefully in her face.  He denies this allegation.  The interested party at that time was someone coming within the definition of a persistent young offender, namely, someone aged 10 to 17 years who has been sentenced “by any criminal court in the United Kingdom on three or more occasions for one or more recordable offences, and within three years of the last sentencing occasion is subsequently arrested or has an information laid against him for a further recordable offence.”  

2.	The complainant made a statement about the incident that day.  At the time of the incident she was with a friend, who I will simply identify as E, who does not claim to have seen the incident of spitting, but does speak of matters that, taken at face value, would be generally supportive of the complainant’s account.  She gave a statement a few days later.

3.	The interested party was arrested on 18 April on suspicion of common assault.  He declined to comment on the allegations when interviewed.  He was charged with common assault on 15 May and appeared before the Lancaster Youth Court on 2 June, when he pleaded not guilty.  The case was adjourned for trial to 7 July.  At that stage the prosecution was unaware that the complainant would be unavailable for the trial because of a previously-booked holiday abroad.  There was nothing on the reverse of her witness statement about dates of unavailability, which is where these matters are normally recorded.  It is not clear whether this was because neither she nor her mother was asked about it by the police or whether, when asked, they overlooked it.  When asked subsequently about this, the complainant could not remember being asked by the police about it.  

4.	At all events, when the complainant’s mother became aware of the proposed trial date she realized the conflict and telephoned the police.  She was asked to provide confirmation that the holiday had indeed been pre-booked and on 17 June she provided the police with a copy of the booking documentation that did indeed confirm that the holiday had been booked much earlier that year.  

5.	Armed with that information, on Monday 22 June the CPS wrote to the court asking for the trial date to be vacated.  The letter confirmed that neither the complainant nor her mother recalled the question about dates to avoid being asked.  On 23 June a telephone call from the court to the CPS indicated that the interested party was opposing the application and that therefore the case would be listed for an application to vacate before a bench of Magistrates on 25 June.  However, later that day it appears that another legal advisor looked at the matter and decided that the case should not be adjourned.  This was communicated by telephone to the CPS the following day, 24 June, when a document entitled “Vacated Trials Monitoring Form” was also faxed showing the reasons for this decision.  The paragraph recording the reasons was in the following terms: 

“Application refused -- this should not have been listed in [court].  Defence were not contacted + not in line with protocol.  

I have considered [the application].  Although holiday was clearly booked before [the court] date was set, proper witness availability should have been before the [court].   The defendant is a PYO [persistent young offender] + trial should be expedited.  Application refused.”
 
6.	A letter was sent by the prosecution to the court expressing concern at the procedure adopted and suggesting that it was “grossly unfair and not line with the protocol as understood by the CPS”.  A reply dated the same date was received from the legal advisor setting out the reasons for making the decision she did.  Since it is now common ground that the decision should not have been made and that it should be quashed, I need not deal with the reasons given.  However, in order to put what happened into context it should be noted that the legal advisor concluded the letter in the following way: 

“As you are aware, applications to vacate are now all determined by the Legal Advisors, unfortunately, the proper process was not followed in this instance, for which I apologise.  

It is, of course open to the Crown to apply to the Magistrates on the day of trial, however, unless there are any new grounds to put before the court, your application would be unlikely to succeed.”

In fact, as will be plain, the proper process had not been followed in relation to that decision and it is that decision which it is recognised must be quashed.

7.	The prosecution was left with no alternative in those circumstances but to make an application for an adjournment to the Magistrates on the day of the trial and this was done.  According to the statement of Mr Robert Smith, the CPS solicitor who was to present the case on 7 July, the legal advisor present in court advised the court that a decision had been made by a legal advisor on 23 June and that since no new information was put before the court, the court should not hear the prosecution application.  He says that the Magistrates followed this advice and refused to consider the further application to adjourn and directed the trial to proceed.  At that stage, in the absence of the complainant, the prosecution considered that it had no alternative but to offer their evidence against the interested party and the case was dismissed.

8.	I should record that the witness known as E also did not attend at court on 7 July, having, it emerged, assumed that because the complainant was unavailable she also would not be required.  That she would not attend that day had not been anticipated by the prosecution and it was only when enquiries were made that morning that her reason for not attending became plain.  Furthermore she had confirmed that she would not be available to come to court because she was working.

9.	As I have already said, it is common ground that the legal advisor’s decision was wrong and that it cannot stand.  It is also common ground that the decision of the Magistrates on 7 July was also tainted by the invalidity that affected the legal advisor’s decision.  To that extent it is accepted both by the Magistrates and by the interested party that the refusal of the adjournment was unreasonable and as a decision cannot stand.  

10.	What, however, is in issue is the consequent relief sought by the CPS, namely, an order quashing the dismissal of the case against the interested party and a mandatory order requiring its relisting with a view to trial.  It is argued that the court should exercise its residual discretion not to grant these aspects of the relief sought by the CPS.  

11.	Mr Eccles in his skeleton argument has put forward the following essential propositions in support of that submission, which is supplemented in his helpful submissions this morning: (a) the prosecution could in fact have pursued a trial with a sensible prospect of success on 7 July; (b) quashing the conviction and ordering a further trial would be prejudicial to the interested party; (c) quashing the conviction and ordering a trial would be contrary to good administration; (d) the case is now too old for that approach to be adopted.  

12.	He developed each of these propositions in the following way.  As to the first proposition, he says that the prosecution should have (1) endeavoured to use the hearsay provisions in the Criminal Justice Act 2003 to put the evidence of the complainant before the court, (2) arranged to call E and (3) invited the court to draw an adverse inference from the interested party’s “no comment” police interview.  He argues that had the prosecution followed this course, there would have been a realistic and sensible prospect of achieving a conviction.  Bearing in mind that the interested party is a persistent young offender and that there is a public interest in ensuring a trial within a relatively short time after any alleged offence, pursuing such an approach, he submits, was by far the best and most appropriate method of pursuing the case.  He concedes, as I understand his position, that it might not have been possible for the prosecution to try to rely on double hearsay in the sense of inviting a reception of the statements both of the complainant and of E; but he says that E’s potential absence should have been foreseen and steps taken to ensure her attendance.

13.	As to the second of the propositions he advances, he argues that since the interested party has been acquitted he has believed until these proceedings were brought that, whatever the rights or wrongs of the matter, the charge against him had been dismissed.  Accordingly, inherently he suffers, it is said, the prejudice of having to face a trial when he thought that such would not be the case and also the possibility of a further conviction reinforcing his categorisation as a persistent young offender together with a possible sanction consequent upon any conviction, albeit a sanction that would probably not be serious in the circumstances.  

14.	As to the third proposition, Mr Eccles submits the problem in this case arose by reason of the failure of the prosecution to check witness availability prior to the court hearing on 2 June.  Good administration demands, he says, that cases are properly and efficiently run and, bearing in mind in particular that the interested party was a young person and that a speedy trial was thus necessary, proper checks as to witness availability should have been made prior to that hearing.  He draws attention to the fact that the local protocol indicates that cases involving persistent young offenders should be dealt with within a four to six-week period after charge, the rationale for which of course is that young people should be able to see quickly the direct connection between their actions and the consequences of those actions.  If this case is permitted to proceed, it would mean that no salutary warning would be given to prosecuting authorities in relation to their obligations and duties in cases involving persistent young offenders.

15.	As to the fourth matter, he submits that it is wholly inappropriate for a trial of this nature against a young person to be delayed as long as one year or thereabouts.  Whilst he recognises that the offence if committed was unpleasant and distasteful, it was in the overall scale of offences essentially of a minor nature.  He says that no proper criticism can be made of the interested party in relation to the problems that have arisen.  

16.	Mr Maurice Greene for the CPS rejects that approach.  He accepts that the court has a residual discretion as to whether or not to grant the relief sought by the CPS but submits that, having quashed the decisions rejecting the adjournment applications, the only proper course is to quash the dismissal of the charge flowing from those invalid decisions and to remit the matter for trial.  He accepts that in the overall scale of offences “the offence is not the most serious”, but says that in the nature of things most cases before a Magistrates’ Court will fall into that category.

17.	So far as prejudice to the interested party is concerned, he submits that it would be limited and that the delay, whilst not ideal, is not so great as to make it unfair to try the case.  The acquittal, he submits, resulted from a technicality.  So far as the decision of the CPS to offer no evidence in the circumstances with which it was presented on 7 July, he accepts that the statements of the two main witnesses could have been potentially admissible as hearsay but submits that to admit them would have been grossly unfair and that any application to do so would have failed under section 78 of the Police and Criminal Evidence Act 1984 and/or section 126 of the 2003 Act.  

18.	On the question of adverse inference, he draws attention to the fact that the interested party was a youth at the time who had the benefit of the advice and presence of a solicitor during his interview.  It is highly unlikely that the court would have found an adverse inference if, for example, he had said he was advised not to comment. 

19.	I can express a view immediately on the decision to offer no evidence in the circumstances that presented themselves on 7 July.  I have no doubt that it was an entirely correct, fair and well-judged decision.  Endeavouring to secure a conviction, even for a relatively trivial albeit very unpleasant assault of the nature alleged here, without the complainant and her principal supporting witness being present for cross-examination, and inviting the court to draw inferences from a “no comment” interview of a 17 year-old advised by an experienced solicitor, could easily be characterised as pushing the boundaries of acceptable prosecution practice.  I venture to think that Mr Eccles, had he been at the Youth Court, would have been making some strident submissions about such a course.  Equally, whilst Mr Mainwaring asserts in his witness statement that this course should have been followed, I doubt whether that would have been the gist of his submissions to the Magistrates had Mr Smith endeavoured to pursue it.  If his client had been convicted in such circumstances, it is impossible to envisage the result being accepted with equanimity by his representatives.  In any event, had the interested party had been convicted, and had he exercised his right to appeal to the Crown Court, then both the complainant and E, if available, could have been called to give evidence at that stage.

20.	In relation to the question of prejudice to good administration, Mr Greene in his skeleton argument submits that the logical consequence of Mr Eccles’ submission is that if a trial does not take place within the target time of the protocol then it should not be tried at all.  He says, doubtless with justification, that cases in Magistrates’ Courts, or indeed in Crown Courts, are not always tried when protocols or targets suggest they should be.  That can happen for a myriad of reasons and can of course lead to a case being dismissed other than on the merits.  However, he submits, that cannot govern every situation and each case must be looked at on its facts.

21.	The delay in this case started with the objection to an adjournment by the interested party’s solicitors when they knew that the complainant was unable for trial and followed by now what is now accepted to be the irrational decision of the legal advisor not to look favourably on an adjournment, thus effectively tying the hands of the Magistrates a few weeks later.  Even if it was the fault of the police officer not to ask the question about the availability as a witness of the complainant, if common sense had prevailed it is likely that the inevitable adjournment would have been very short.  The complainant’s family arrived back in the United Kingdom on 15 July, just 8 days after the date scheduled for the hearing.  Given that the Clerk to the Justices had acknowledged by 21 August that the decisions taken were unsustainable and was prepared on the Magistrates’ behalf to sign a consent order quashing the decisions, Mr Greene is in my judgment entitled to say that the delay since then has arisen because of the need to take these proceedings, which have been extended because the interested party has not been prepared to agree to the quashing of the dismissal of the charge.

22.	Mr Greene is also entitled to say that, but for the original objection to the adjournment by the interested party’s solicitor and the maintenance of that objection before the Magistrates on 7 July, this whole issue would not have arisen.  The case might not have been heard within four to six weeks of the charge but it would have been heard quickly.  With a degree of cooperation on all sides, it is difficult to believe that the case would not have been heard before the end of July and, local protocols and national objectives notwithstanding, that could hardly be said to have been unreasonable in the circumstances.

23.	Mr Greene submits that when considering whether to remit a criminal matter for hearing, account must be taken of the overriding objective in Rule 1 of the Criminal Procedure Rules which provides that criminal cases should be dealt with justly.  That includes acquitting the innocent and convicting the guilty, dealing with the prosecution and defence fairly as well as recognising the rights of a defendant and the interests of witnesses.  To that of course must be added the need to deal with a case efficiently and expeditiously.  He submits that if this case is not remitted for trial, the overriding objective will not have been complied with, in particular the objective of acquitting the innocent and convicting the guilty.

24.	The issue plainly involves balancing a number of competing factors and views may, of course, differ about where the balance is struck in this case.  Given that it involves the interests of someone who, but for what has happened, would have been tried by the Youth Court and witnesses of about the same age were involved, there is a good argument for saying that such a court, with all its experience of dealing with cases involving young people, is better placed than a judge of the Administrative Court to weigh up these factors.  

25.	However, I cannot avoid responsibility for making the decision because it might be better made elsewhere.  If I do order the remission of the case for trial it will mean that any trial will take place getting on for a year after the material incident, an incident that in the scale of things - and if it occurred - was very unpleasant but not the most serious in the criminal calendar.  On the other hand, if it reflected just one day’s manifestation of boorish and aggressive behaviour by the interested party during a longer period over which he was displaying such behaviour, why should it not be there on his record for consideration and, if possible, for the behaviour to be addressed positively and constructively in an endeavour to eradicate it?  

26.	If no trial takes place then there will be no finding as to whether or not the assault took place.  As I have said, if it did it would be something that ought to be recorded.  If it did not, the interested party ought to have the satisfaction of knowing that the allegation has been rejected on its merits rather than on what would rightly be characterised as a technicality.  

27.	The delay is the one matter that has concerned me most, given the well-known objective of endeavouring to bring persistent young offenders before a court very quickly, the national target being approximately ten weeks from arrest to sentence where there is a conviction.  However, much of the prolonged delay since last summer has been the result of the decision of his advisors to object to what in the ordinary run of cases would have been a reasonably requested adjournment, and of supporting the view of the legal advisor at the hearing on 7 July that the Magistrates could not consider fully the question of whether there should be an adjournment.

28.	It would, in my judgment, be wrong for advantage to be taken of a delay arising in those circumstances in the sense of concluding that a trial on the merits should now not take place.  Although I express myself in that way, I should make it plain that I am not being critical of the decision to object to the adjournment if that represented the instructions that they had received.  The criticism is really directed at the processes within the Youth Court that led to the merits of the adjournment not being considered judicially.  Nonetheless, it was the decision to object to the adjournment that started the process leading to the present position.

29.	Balancing therefore the various factors to which I have referred, in my judgment, there is a greater interest in this relatively straightforward case being considered on its merits even now rather than leaving it effectively unresolved on the back of an irrational decision not to permit an adjournment.  Subject to any submissions as to the precise terms of the order, I will grant the CPS the relief sought with a view to the matter being remitted to the Youth Court for trial.

30.	Both counsel have invited me to say something about the processes adopted about issues of adjournment in the Lancaster Youth Court.  I am anxious not to go beyond what is appropriate because I am unaware of practices in other courts and I have not received submissions on behalf of the court.  However, it is clear from paragraph 7 of the Schedule to the Justices’ Clerks Rules 2005 that a Justice’s Clerk or a duly authorised assistant may sanction the adjournment of a case where both parties agree.  It does not, however, as it seems to me, mean that such a person has the power to refuse an adjournment simply because one party objects.  Since questions of adjournment essentially involve the exercise of a judicial discretion, it seems to me that where there is no agreement about adjourning a case, the application for the adjournment should be listed before the Magistrates for consideration before the date of trial.  This, as I understand it, was what was intended originally in this case.  If that had happened, the question of what happened to the case would have been in the control of the Magistrates, which it seems to me is where the true exercise of the relevant judicial discretion lies.  If the practice is that all questions concerning possible adjournments within the Lancaster Youth Court are handled by legal advisors, then I think it is an area that needs reconsideration.

MR JUSTICE FOSKETT:  Right.  Well, the precise terms of the order?

MR GREENE: Yes, my Lord, there is in fact a signed consent order between the claimant and the defendant.

MR JUSTICE FOSKETT:  Yes.

MR GREENE:  It probably needs very slightly rejigging.

MR JUSTICE FOSKETT:  All right.

MR GREENE:  But I am sure that my learned friend and I between us could do that.

MR JUSTICE FOSKETT:  If you would.

MR GREENE:  If we could deal with that electronically, we will get it typed and we will email it to the court.

MR JUSTICE FOSKETT:  That is fine by me.  I am here until the end of the week, but if you could do it today then so much the better.

MR GREENE:  Yes.  But the relevant bit, just to read it out:

“The decision of the Magistrates on 7 July to dismiss the trial of the interested party is quashed.”

And:

“Fourthly, a mandatory order requiring the trial take place.”

MR JUSTICE FOSKETT:  Yes.

MR GREENE:  So we will put that in the order. 

MR JUSTICE FOSKETT:   Put that in.  Well, that is fine.  Thank you very much.  And I suppose matters of costs are --

MR GREENE:  Well, I am legally aided.

MR JUSTICE FOSKETT:  Well, no order as to costs, then, presumably.  So you require a legal aid taxation or public funding assessment, whatever it is called?

MR GREENE:  Yes, thank you very much indeed.

MR JUSTICE FOSKETT:  Well, thank you both very much for your assistance.