CO/6734/2012
Neutral Citation Number: [2013] EWHC 617 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE  COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday  7  February  2013

B e f o r e:

LORD  JUSTICE GOLDRING

and

MR  JUSTICE  FULFORD

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B E T W E E N:

DIRECTOR  OF  PUBLIC  PROSECUTIONS
Claimant
- v -

STAFFORD  MAGISTRATES'  COURT
Defendant
and
DENNIS  WESTON
Interested Party
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Computer Aided Transcription by
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Mr J Boyd (instructed by the Crown Prosecution Service)
appeared on behalf of the Claimant

The Defendant did not appear and was not represented
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J U D G M E N T
Thursday  7  February  2013

LORD JUSTICE GOLDRING:
1.  This is an application by the Director of Public Prosecutions seeking a mandatory order compelling Stafford Magistrates' Court to hear and determine a charge made against Mr Dennis Weston (the interested party).  Permission has been granted by Kenneth Parker J.

2.  The essential submission is that no reasonable tribunal could in the circumstances which had arisen have dismissed the charge.  In short, the court did so because of the failure of the prosecutor to attend.

The Relevant Facts
3.  The charge related to an allegation of minor criminal damage.  The context was a neighbour dispute in which the defendant and interested party, Dennis Weston, and his brother Graham, asserted that some land belonged to them while their neighbours, Nicholas and Deborah Mortimore, said it did not. 

4.  The allegation was that on 22 January 2012 Dennis Weston threw, among other things, a wooden pallet which hit and caused damage to a car belonging to Mrs Mortimore's daughter.  At the time of the alleged incident Graham Weston (the brother) faced an allegation of assaulting Mr Mortimore.  Although it was much in dispute, there was evidence supporting the charge.  It is fair, too, to say that on the prosecution version of events it was an incident in an escalating dispute which needed to be dealt with.

5.  On 14 February 2012 the case was listed at Stoke Magistrates' Court.  Dennis Weston pleaded not guilty.  It was adjourned for trial to 5 April 2012 to Stafford Magistrates' Court.  It was not to be heard at Stoke because the court was being refurbished.

The Events of 5 April 2012
6.  On 5 April 2012 the case was called on at 10am.  The witnesses, the defendant and his solicitor were present.  There was no prosecutor.  In error the CPS office had sent her to Stoke.  When she arrived at Stoke she realised that something was wrong because no one in the case had appeared.  She contacted the CPS Stoke office and was informed that the case was to be heard in Stafford.  She asked her office to telephone Stafford to inform them of what had happened, that she was leaving Stoke, and for her apologies to be conveyed to Stafford.  This was done.

7.  The journey from Stoke to Stafford has variously been estimated at 25 to 40 minutes.  I shall take it at the higher figure for present purposes.

8.  The detail of what occurred is set out by the claimant as follows:

		"11.  At 9.58am the clerk to the justices entered Stafford Magistrates' Court's 'ushers reception area' and overheard a telephone conversation between an usher and a member of staff at Stoke Magistrates' Court.  According to the clerk's note, 'She (ie the usher) was taking a call from North Staffs and relayed that Fiona Cortese was the Prosecutor and had gone to Stoke.  She was just leaving at that time' (see exhibit FC/2 at page 55)…

		12.  The clerk then entered court, as did the justices.  The Interested Party's solicitor invited the justices to dismiss the prosecution due to the absence of the prosecutor.  The justices' clerk then 'relayed all the information' she had to the justices to assist them in deciding whether to dismiss the charge… 
The justices then retired to consider their decision.  At 10.25am the justices returned to court and dismissed the charge.  The stated reasons for doing so are as follows:

			'We have considered an application under section 15 of the Magistrates' Court Act 1980.  The trial fixing form is clear and we dismiss this case for want of prosecution.  We are a North Staffs Bench who have travelled to get here on time.  The witnesses have all arrived on time from North Staffs.  There is no explanation why the prosecution have gone to Fenton.  Sanctions would have been considered against the defendant had he not arrived on time.  We are satisfied that this case is not wrongly listed.'

		13.  At around 10.30am the prosecutor entered the court building and was told the charge had been dismissed due to her absence."

9.  In response to the claimant's letter before claim this was said in a letter dated 16 May 2012 on behalf of the Magistrates Court:

		"I am not aware of any requirement upon the court to have to make enquiries regarding the reason for a prosecutor not having attended a trial any more than it could be expected to do so in relation to an absent defendant.  The Legal Adviser had gone out of court and is seen on CCTV at 9.59am speaking to Court Ushers trying to find out whether the prosecutor had now attended or if any reason was known for the prosecutor's absence.  I require the Magistrates and Legal Adviser to be in court room at 10am promptly to show efficiency and to set the standard that everyone should be in court at 10am (see paragraph 10 of exhibit CM/5).

		....  The Court had received no information from the CPS and only a confusing message relayed by one set of court admin staff to the court admin staff at Stafford as to the prosecutor's whereabouts and with no estimated time of arrival.  That may be partly the fault of court admin staff in relaying or recording a message between themselves but it was the responsibility of the CPS to contact the court staff at Stafford and to make sure that an accurate message as to the prosecutor's whereabouts and estimated time of arrival at Stafford was given. That did not happen and so the Magistrates used such information as they had and acted reasonably in all of the above circumstances."

The Relevant Law
10.  In dismissing the charge the magistrates purported to exercise the power that they have under section 15(1) of the Magistrates' Courts Act 1980.  So far as is relevant, that provides:

		"(1)  Where at the time and place appointed for the trial and adjourned trial of an information the accused appears or is brought before the court and the prosecutor does not appear, the court may dismiss the information or, if evidence has been received on a previous occasion, proceed in the absence of the prosecutor."

Section 10(1) provides:

		"A magistrates' court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice."

11.  Under the Criminal Procedure Rules, rule 37.11(2) provides:

		"Where the prosecutor is absent, the court may  --

			(a)	if it has received evidence, deal with the case as if the prosecutor were present; and

			(b)	in any other case --

				i.	enquire into the reasons for the prosecutor's absence, and

				ii.	if satisfied there is no good reason, exercise its power to dismiss the allegation."

12.  An issue not dissimilar to the present was considered by this court in Hendon Justices, ex parte Director of Public Prosecutions [1994] QB 167.  That case followed shortly after a previous, again not dissimilar case, namely Sutton Justices, ex parte Director of Public Prosecutions [1992] 2 All ER 129.  In the Hendon Justices case, relying on wrong information, the prosecutor did not attend court.  He believed that the case was not in the list.  When it became clear that that was a mistake, a senior prosecution lawyer informed the court that he was on his way from his office eight miles away and would prosecute the case on his arrival.  When he arrived at 11.45am he found that the justices had dismissed the charge for want of prosecution.  In delivering the judgment of the court Mann LJ said this (at page 174C):

		"We regret to say that in our judgment the decision of the respondent justices in the present case was so unreasonable that no reasonable bench in like circumstances could have come to it .... the duty of the court is to hear informations which are properly before it. The prosecution has a right to be heard and there is a public interest that, save in exceptional circumstances, it should be heard.  A court's irritation at the absence of a prosecutor at the appointed time is understandable.  That said, it can seldom be reasonable to exercise the power under section 15 of the Act 1980 (as opposed to that under section 10(1)) where the justices know that a prosecutor is on the way to their court and the case is otherwise ready to be presented.  In this case, according to the custody officer, the justices knew Mr Blake was on his way and in any event a further telephone call would have established the position precisely.  The exercise was not reasonable in this case as it was not in Sutton Justices, ex parte Director of Public Prosecutions (1992) 95 Cr App R 180, [1992] 2 All ER 129....  We also think that the power conferred by section 15 is not one conferred for punitive purposes."

13.  In London Borough of Bromley v Bromley Magistrates' Court (2011) 175 JP 175, the defendant was arrested on a warrant for previously having failed to attend the hearing.  The local authority told the court that counsel could not attend until 2pm.  Counsel arrived at 2.20pm.  The case had been called on at 2.10pm.  The justices dismissed the charges for want of attendance by the prosecutor.  The Divisional Court held that the decision was outside the reasonable range of responses and was unfair.  In particular it was plain to the justices that counsel was on her way.  No attempt had been made to enquire as to her whereabouts and estimated time of arrival.

The Argument of the Interested Party
14.  I have read and bear in mind the submissions made personally by Mr Weston.  In short, he submits that the magistrates were entirely justified in dismissing the charge.  There was no contact from the CPS while the magistrates waited for the prosecutor.  This was an example of a "litany of incompetence" by the CPS.  He sets out examples of that incompetence and "corruption" of the CPS.  He, too, at some length recites the history of the dispute.

My conclusion
15.  I can well understand and sympathise with the irritation plainly felt by the magistrates.  I can well understand how they wished to impose some sanction on the Crown Prosecution Service for what was an example of obvious inefficiency -- conceivably not the first they had experienced.  They are, I know, constantly told to start cases on time and to act robustly.  That is an approach I thoroughly endorse.  They, too, have a wide discretion.

16.  Having said all that, I am afraid, on these facts -- and each of these cases is very fact specific -- I am unable to find that it was appropriate to dismiss the charge.  The prosecution witnesses, for whom had the magistrates enquired this case was plainly important, were present.  They had an interest which the magistrates had to consider.   If the prosecution was right, this was part of a sequence of escalating behaviour involving Dennis Weston and his brother.  The magistrates knew that by error the prosecutor had gone to the wrong court.  It seems inconceivable they were not told that she had gone to Stoke.  Even if they did not in terms know that she was on her way to Stafford, which I would find surprising in the light of the legal adviser's note to which I have referred, it was plainly likely that she was on her way.  They knew how long the journey would take.  It seems to me highly likely that this case could still have been completed in one day, albeit there appears to be a suggestion to the contrary.  A proper enquiry would speedily have revealed all those things.  Moreover, in accordance with rule 37.11(2), it was incumbent on the magistrates to make some enquiry before dismissing the case.  I cannot accept the suggestion made in the Acknowledgement of Service that it is not incumbent on the magistrates to make any enquiry before dismissing a charge.  Without an enquiry it is difficult to see how the court cannot be satisfied that there is no good reason to exercise its power to dismiss the charge.

17.  In short, therefore, I accept the submission that here justice required that the magistrates should have acted on the information they had received.  They should have made proper enquiry.  They should have waited for the prosecutor to arrive.  If they wished to punish the prosecution, they should have sought to do so in a way different from that which they chose.  In short, I have concluded that the magistrates could not reasonably have dismissed this charge.  It seems to me just to make the order which is sought.

MR JUSTICE FULFORD:  I agree.

MR BOYD:  I am grateful.

LORD JUSTICE GOLDRING:  So you want from us, Mr Boyd, a mandatory order in the terms set out in the application?

MR BOYD:  Yes, please, my Lord.

LORD JUSTICE GOLDRING:  I think it would be helpful for the court, Mr Boyd, if you would draft the order.  We will confirm it and then the court will have it.

MR BOYD:  My Lord, there are two ways, in my submission of approaching this.  The decision could be quashed and then direction be given that the case be heard by a differently constituted court; or, alternatively, the relief granted which is the relief, I appreciate, that I asked for, the mandatory order.  I am entirely in your Lordships' hands as to which is the more appropriate form.

LORD JUSTICE GOLDRING:  It seems to me that it plainly should be the case that a different court hears it.  It may for that reason -- if only that reason -- be more sensible for the first course that you suggest (not the one that is in your application in fact), but the first course be adopted.  I think my Lord agrees.

MR BOYD:  Yes, I had thought so when I looked at the papers again last night.  I thought that that might be the better course.

LORD JUSTICE GOLDRING:  Yes, we all agree about that.  Would you therefore draft the order to reflect that?

MR BOYD:  Yes, my Lord.