Case No. CO/4558/2014 
Neutral Citation Number: [2015] EWHC 579 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 5 February 2015
 
B e f o r e:
 
LADY JUSTICE HALLETT DBE 

MR JUSTICE LEWIS 
- - - - - - - - - - - - - - -
Between: 
ABBAS 
Appellant

v

CPS 
Respondent 
- - - - - - - - - - - - - - -
Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -

Mr S Fidler (instructed by Stephen Fidler & Co) appeared on behalf of the Appellant 
Mr P Lodato (instructed by CPS Appeals Unit) appeared on behalf of the Respondent 
- - - - - - - - - - - - - - -
J U D G M E N T 

LADY JUSTICE HALLETT:  
Background 
1.	This is a case stated by the Stratford Justices in relation to criminal proceedings against the appellant in which he was accused of assaulting Sajida Shafiq.  The alleged offence occurred on 24 December 2014.  The appellant was charged 2 days later, and his first appearance at the Magistrates' Court was on 27 December.  He pleaded not guilty and the trial date was fixed for 11 March 2014, with a time estimate of 3 hours.
2.	Solicitors, Messrs Stephen Fidler, who were then representing him but on an unpaid basis, it seems, completed a case management hearing form that included the assertion that the appellant would not be providing a defence case statement.
3.	The court ordered that evidence and initial disclosure should be served by 24 January.  They provided for special measures for the complainant and prohibited the appellant from cross‑examining the complainant in person.  Stephen Fidler solicitors were appointed pursuant to section 38(3) of the Youth Justice and Criminal Evidence Act 1999 for that purpose.  They were notified of their appointment by letter dated 30 December 2013.
4.	The case should have been straightforward, as Mr Fidler conceded.  Miss Shafiq alleged that the appellant, her then boyfriend, had assaulted and abused her in the presence of her employer, Mr Tanvir Barbar.  Mr Barbar confirmed that he had seen the appellant holding Miss Shafiq by the hair, hitting and punching her.  They were the only witnesses required to attend trial.  The appellant insisted he reacted in self defence to an attack upon him and that Mr Barbar was not present when this happened.
Trial
5.	The appellant attended the trial with Miss Tomlinson from Stephen Fidler solicitors.  The court understood that she was there to cross-examine the complainant under section 38 cross‑examiner.  Mr Vitello represented the Crown.  
6.	Miss Tomlinson made an application for adjournment.  Her grounds were that disclosure on the solicitors had not been made until 26 February.  The defence case statement was served on 5 March but there had been no response from the Crown.  The defence case statement requested disclosure of the complainant's immigration forms and a record of the complainant's text messages to the appellant, these were said to be necessary to test her credibility.  Miss Tomlinson also complained that she had not had sufficient time to consider the papers.
7.	The application was opposed on the basis the documents required by the defence were not in the possession of the prosecution and never had been.  The appellant should have been able to provide any relevant material in relation to telephone or text messages between the parties.  The witnesses were present and Mr Vitello asserted the defence had had ample time to prepare what (as Mr Fidler, before us this morning, conceded) was but a small bundle of papers.
8.	The court refused the application as not being in the interests of justice.  The court noted that Stephen Fidler solicitors did not notify the respondents that the disclosure had not been received until 17 February.  They should have realised by then, said the magistrates, that the trial date could be in jeopardy if they had not received all relevant documents and served a defence case statement yet they had waited until the trial date to make the application to adjourn.  In any event, they had all disclosable material by 26 February which provided ample time to prepare the case.
9.	Miss Tomlinson then made a second application without notice to adduce a non‑defendant's bad character under section 100 of the Criminal Justice Act 2003 in respect of the complainant.  The appellant asserted, on the basis of information supplied to him from a source he did not name, that the complainant had falsified her student visa immigration application form.  Mr Fidler informed us that this was an issue that had been raised previously with the respondents but neither the appellant, nor Miss Tomlinson, it seems, had seen the form.  
10.	It was said that the questions should be asked and enquiries made because this was an issue that went to the complainant's credibility.  This application was also refused.  The magistrates noted that it had not been made in compliance with the rules.  They stated that it should have been written, served on the court and the respondent and, failing that, on notice at least to the respondent before the trial.  More importantly, the court held that the application was based on conjecture and came solely from a conversation between the appellant and an undisclosed person.  Further, Miss Tomlinson had not addressed the requirements in section 103 (a) to (d) of the Act let alone complied with them.  There was nothing in the material put before them which they were satisfied was of substantial probative value.
11.	Evidence from the complainant was called and Miss Tomlinson then embarked upon her cross‑examination.  She began asking questions about the complainant's immigration history, clearly designed to elicit some kind of misconduct.
12.	Having given Miss Tomlinson some leeway in asking her questions, the Chairman of the bench eventually intervened questioning the relevance of the cross‑examination.  Miss Tomlinson then repeated her application to adduce evidence of bad character.  Again, the application was refused.
13.	The prosecution case ended with the evidence of Mr Barbar and the statements of the arresting officers.  Miss Tomlinson remained in court.  Mr Vitello objected to her presence on the basis that she had fulfilled the terms of her appointment to cross‑examine the witness.
14.	The legal adviser had never come across an objection of that kind before and advised the bench that in the absence of authority, it might be thought unfair to prevent Miss Tomlinson from continuing to act if she was prepared to do so.  The Bench agreed and allowed her to remain assisting the appellant.  He gave his evidence, it was rejected, he was convicted.
15.	His lawyer, Stephen Fidler, solicitors, did not appeal the conviction to the Crown Court for a hearing de novo.  They launched two sets of proceedings.  One was an application for judicial review based on the disclosure point which was plainly misconceived. On 14 January 2015, McGowan J refused the application as being totally without merit and awarded costs against the then claimant, the appellant in these proceedings.  
16.	The second set of proceedings are these.  The appellant demanded of the magistrates that they state a case for consideration by this court and threatened judicial review if the court refused to do so.  
The issues 
17.	Taking them in their logical order, there are said to be four issues: 
    1) Whether the Magistrates' Court properly directed itself and reached a lawful conclusion in relation to the appellant's bad character application.
    2) Whether the court was correct to intervene in the cross‑examination of the complainant.  
    3) Whether it was improper of prosecuting counsel, Mr Vitello, to have taken exception to the continued presence of Miss Tomlinson assisting the appellant.  
    4) Whether the legal advice to the court was correct, whether the court dealt appropriately "with the issue of advocacy on pre‑trial and trial issues by the solicitor appointed for cross‑examination."
Bad character application
18.	I deal first of all with the bad character application.  Section 100 of the Criminal Justice Act 2003 provides under the heading Non‑defendant's bad character: 
"(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if — 
 (a) it is important explanatory evidence, 
 (b) it has substantial probative value in relation to a matter which —  
 (i) is a matter in issue in the proceedings, and, 
 (ii)is of substantial importance in the context of the case as a whole, 
Or 
 (c) all parties to the proceedings agree to the evidence being admissible. 
 (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if — 
    (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and 
    (b)its value for understanding the case as a whole is substantial. 
 (3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant) — 
    (a) the nature and number of the events, or other things, to which the evidence relates; 
    (b) when those events or things are alleged to have happened or existed; 
    (c) where —  
    (i) the evidence is evidence of a person’s misconduct, and 
    (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, 
    The nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
    (d) where — 
    (i) the evidence is evidence of a person’s misconduct, 
    (ii) it is suggested that that person is also responsible for the misconduct charged, and 
    (iii) the identity of the person responsible for the misconduct charged is disputed, 
    The extent to which the evidence shows or tends to show that the same person was responsible each time.
 (4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."
19.	The criminal procedure rules then provide for the procedure that must be adopted before making an application and it was that procedure to which the magistrates referred when refusing the application. It is accepted that no attempt was made to comply with the rules.  The appellant's bad character application was late and advanced without notice.
20.	Mr Fidler, however took exception to what he considered to be the unfair criticism made of his colleague by the magistrates. He insisted they should not have suggested that his firm should have submitted a written notice to adduce character. Had they done so they would not have been paid. His firm was appointed solely to conduct cross examination and payment of fees was subject to guidance from the Justices’ Clerks’ Society dated October 2007.
21.	In the section brought to our attention, the Society offers guidance to those responsible for authorising payment to advocates appointed under section 38 of the Youth  Justice and Criminal Evidence Act.  The guidance states:
"Payment should not be limited to the cross‑examination itself, but should allow for appropriate preparation and reading, including taking instructions and some pre‑court meeting time with the defendant if necessary, attendance at court for the examination in chief of the relevant witness and any other work which is strictly necessary for the purposes of the cross‑examination.  Claims must not include work outside the scope of the limited provision of section 38.(4).
"Payment should not cover any preliminary issues such as applications to admit bad character of the accused or applications for special measures to be used for the witness, as this should be done in the victim's absence and would not involve the victim being questioned.  If there an application to admit bad character evidence of the witness and this is pursued on the day of trial as part of cross‑examination this should normally be covered by the provisions."
22.	Mr Fidler informed us that the effect of this guidance is that an advocate appointed under section 38 will not be paid for making applications to adduce bad character of a witness if made in advance of the trial and will not be paid for an application to adjourn based on the ability of the advocate to cross‑examine the witness properly. If the Justices' Clerks' guidance is correct and if this interpretation of is correct, Miss Tomlinson cannot fairly be criticised for failing to make the application in time. Making the application would have been outwith her professional and statutory duty. She did nothing wrong.
23.	Looking at that guidance carefully, there seems to be some room for doubt as to its meaning. The words “If there is an application to admit bad character evidence of the witness and this is pursued on the day of trial as part of cross‑examination this should normally be covered by the provisions”  suggests an application to adduce the character of a witness will only be covered if pursued at trial. If an application to adduce bad character evidence of a witness is genuinely part of the duty of the section 38 advocate, one might have thought it should be covered whenever made. Further, if the guidance suggests payment will not be made for written applications made in accordance with the rules that would be unfortunate. I accept that the guidance is not clear and the Society may wish to make it clearer. But that does not assist Mr Fidler’s case. 
24.	The magistrates did not refuse the application solely on the basis of non- compliance with the rules. Had they done so I might have understood the relevance of Mr Fidler’s complaint to a case stated. As it is, this complaint seemed to me to be more about the payment of fees. 
25.	Whether or not the application was made in time and in proper form the application could only succeed if the court was satisfied that it had substantial probative value in relation to a matter in issue, and it was of substantial importance in the context of the case as a whole.
26.	Mr Fidler attempted to satisfy those criteria by a simple assertion that credibility was in issue here.  If it were true that the complainant had lied on her immigration form then that would undermine her credibility. It followed, he claimed, that once the allegation had been made that she had behaved dishonestly this was a reasonable line of enquiry that should have been pursued consistent with the prosecution's duty to conduct fair investigations.
27.	For my part, I would reject Mr Fidler's submission and I am surprised that it was ever thought appropriate to apply to adduce bad character on the basis of this kind of material.  Reliance was placed on the unsupported assertion of an unknown associate. It could not come close to satisfying the test of substantially probative.  As Mr Lodato described it, it was tenuous, uncertain and unimpressive.  It amounted to nothing more than speculation.  Credibility was undoubtedly indeed in issue, but there could be no probative value in the admission of such evidence in an attempt to undermine it.
28.	Useful guidance in R v Braithwaite [2010] 2 Cr App R 18 was put before the court by Mr Lodato.  In Braithwaite, Hughes LJ, as he then was, giving the court considered material of this kind:
"20. A defendant who asks to adduce a CRIS report to the police containing a complaint made in the past to the police by someone else who was not prepared to support it, is advancing a very different level of probative value. First, it is, at best, hearsay. Its admission would fall to be judged by reference to the conditions for the admission of hearsay and we venture to suggest that given the difficulties of the jury in assessing such evidence it would be rare for it to be judged to be of substantial probative value. Secondly, if the complainant has failed to support the allegation that robs it of a great deal of probative value. "
At paragraph 12, he added:
"The probative value of the evidence advanced falls to be assessed in the context of the case as a whole.  That means that it may in some cases be appropriate to consider whether or not it adds significantly to other more probative evidence directed to the same issue."
29.	Mr Fidler attempted to distinguish Braithwaite on the basis that the issue of the complainant's alleged bad character had been raised before trial. I see absolutely nothing in that distinction.  This is exactly the kind of evidence that Hughes LJ had in mind in Braithwaite. In itself it would be inadmissible and it did not in my view trigger any further reasonable lines of enquiry.
30.	I turn to the restrictions put upon cross‑examination by the court.  Here Mr Fidler's complaint is that Miss Tomlinson was prevented from exploring an issue that went to credibility of the witness namely her honesty in filling out the form.  I confess I had some difficulty in understanding this complaint in the light of the court's ruling under section 100. Miss Tomlinson asked questions which were clearly designed to elicit evidence relating to her failed bad character application. This was obvious to the court from the questions, hence the Chairman's intervention.  Miss Tomlinson put the matters beyond doubt when on being challenged she repeated her bad character application.  
31.	I am entirely satisfied that having court having refused Miss Tomlinson's leave to admit the evidence, it was fully entitled to prevent questioning which related to irrelevant and inadmissible material.
32.	In Braithwaite the court, again, at 12(iii) provided assistance on the approach to be adopted to cross‑examination where an application has been refused.  
33.	Hughes LJ said that:
" It was common ground before us, plainly correctly, that this means that bad character evidence cannot be adduced by any means, including cross examination of the witness, without leave."
It follows that the court was bound to stop the cross‑examination on this subject.  In any event, the court did not intervene until Miss Tomlinson had explored the issue to some extent, and sufficient extent.  
Role of the section 38 advocate
34.	I turn, therefore, to the role of the advocate appointed under section 38.  Section 36 sets the backdrop to section 38.  Section 36 is designed to prevent an accused in criminal proceedings from cross‑examining a witness in person.  It is important to bear very much in mind, therefore, that the role of the advocate under section 38 is to cross‑examine the witness.
35.	The statute under the heading "Defence representation for purposes of Cross‑examination" provides:
"(1) This section applies where an accused is prevented from cross‑examining a witness in person by virtue of section 34, 35 or 36.
 (2) Where it appears to the court that this section applies, it must — 
 (a) invite the accused to arrange for a legal representative to act for him for the purpose of cross‑examining the witness; and
 (b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
 (3) If by the end of the period mentioned in subsection (2)(b) either — 
 (a) the accused has notified the court that no legal representative is to act for him for the purpose of cross‑examining the witness, or 
 (b) no notification has been received by the court and it appears to the court that no legal representative is to so act.  
The court must consider whether it is necessary in the interests of justice for the witness to be cross‑examined by a legal representative appointed to represent the interests of the accused.
 (4) If the court decides that it is necessary in the interests of justice for the witness to be so cross‑examined, the court must appoint a qualified legal representative (chosen by the court) to cross‑examine the witness in the interests of the accused. 
 (5) A person so appointed shall not be responsible to the accused."
 (6) and (7) provide for rules of court.  
36.	Mr Vitello at trial relied upon the words of the statute, in particular sub‑section 5, which stated that a person appointed by the court under sub‑section 4 shall "not be responsible to the accused". He suggested that this meant that once her task of cross‑examining the witness was completed, Miss Tomlinson was not entitled to remain.  He drew this point to the court's attention.
37.	The legal adviser, perhaps somewhat understandably, had not come across such a point before.  She advised the court that she had no authority on the point.  She referred to the same Justices’ Clerks’ guidance to which I have already referred, which states at page 3:
"Where the representative is appointed by the court he should not assume any wider role."
She further advised the court that: 
 (a)  It could be considered unfair to the appellant if Miss Tomlinson was prevented from continuing.   
 (b) She was willing to continue and act upon the appellant's instructions.  
 (c) Miss Tomlinson had started and continued throughout the trial acting on the instructions of the appellant.
The court noted that although they were aware that she had been appointed only to cross‑examine, she had appeared to act throughout as if she was representing him.
38.	Having considered the advice, the Magistrates' Court wisely decided that whatever the state of the law it would be in the interests of justice simply to allow Miss Tomlinson to remain if she was prepared to do so.
39.	In the light of the guidance to which I have referred which has as a clear aim of ensuring that the role of the section 38 advocate is not given a wider ambit than that strictly required by statute, Mr Fidler invited us to give some guidance ourselves.  This too was an argument related to fees. Mr Fidler admitted that further guidance would have the benefit to members of the legal profession of ensuring that they would get paid for the work that they did on behalf of the accused.  
40.	Mr Fidler submitted that the way in which the section 38 is being interpreted means that advocates who believe it is necessary to apply for an adjournment because they are not in a position to cross‑examine will not get paid because that is considered outside the statutory duty.
41.	This again is not an appropriate way of challenging fees. There is here no point to be argued. The magistrates did not banish Miss Tomlinson. Mr Vitello's argument had no effect at all. I have to say that had I been the advocate, I am not sure I would have taken Mr Vitello’s point but it was certainly arguable.  The role of a section 38 advocate is, undoubtedly, limited to the proper performance of their duty as a cross‑examiner of a particular witness.  Sections 36 and 38 are all about protecting vulnerable witnesses from cross‑examination by the accused.  Therefore, it should not be thought that an advocate appointed under section 38 has a free‑ranging remit to conduct the trial on the accused's behalf. Their professional duty and their statutory duty would be to ensure that they are in a position properly to conduct the cross‑examination.  Their duties might include therefore applications to admit bad character of the witness and or applications for disclosure of material relevant to the cross examination. That is as far as one can go. All these matters must be entirely fact specific.  The important thing to note is that the section 38 advocate must ensure that s/he performs his/her duties in accordance with the words of the statute.  
42.	It means also that their appointment comes to an end, under section 38, at the conclusion of the cross‑examination, save to the extent that the court otherwise determines. Technically the lawyer no longer has a role in the proceedings thereafter.  However, if the lawyer is prepared to stay and assist the defendant on a pro bono basis, I see nothing in the Act and no logical reason why the court should oblige them to leave.  The advocate may well prove beneficial to the efficient and fair resolution of the proceedings.
43.	The aim of the legislation as I have said is simply to stop the accused cross‑examining the witness.  It is not to prevent the person appointed to cross‑examine from playing any other part in the trial.  I am therefore satisfied that, to the extent that the legal adviser was advising on the law in relation to this point, the advice was entirely appropriate.  
44.	It follows that it was not improper for the prosecutor to raise a procedural concern and it follows that the legal advice cannot be criticised, it was sensible and fair.
Other complaints
45.	Mr Fidler's written submissions made other complaints about disclosure and the magistrate's refusal to adjourn.  However, in his oral submissions, he accepted that he was bound by the confines of the case stated and the refusal to adjourn the proceedings was not part of it.  
46.	Had it been, I have to say that I would have unhesitatingly rejected the criticism of the magistrates, having rightly refused to allow other lines of enquiry to be pursued by way of disclosure in relation to the alleged bad character.  The court had before it a very simple allegation: basically, there were only two witnesses to be cross‑examined, and as Mr Fidler conceded before us, any advocate should have been able to prepare a case as straightforward as this in the time available.  If Miss Tomlinson had any doubt about her ability to do so, she could have always asked the magistrates to give her a little more time on the day.
47.	Taking the questions posed by the Magistrates' Court: 
"1. Were we correct in enquiring  whether the continued cross‑examination of the complainant concerning entry into the UK and study whilst in the UK was relevant?"  
48.	I answer that question unhesitatingly in the affirmative. 
"2. Whether it was improper of the prosecuting counsel to have made reference to the role of the defence solicitor under section 36 and 38 of the YJ and CE Act 1999, and whether the advice we received from the legal adviser was correct?"  
49.	In my view, there was nothing improper in Mr Vitello taking the point and the advice from the legal adviser, to the extent it was legal advice, was correct.  
"3. Did we deal with the issue of advocacy on pre‑trial and trial issues by the solicitor appointed for cross‑examination by the court appropriately?"  
50.	This is a somewhat broad and general question.  Both the courts and advocates must be careful to bear very much in mind the limited remit of the section 38 advocate but having considered the trial as a whole, and the way in which the court reached its conclusions I am satisfied that the court did deal with the issues appropriately.  Their decisions were based on perfectly rational grounds.
51.	I would therefore answer that question in the affirmative:
"4. Were we wrong to refuse an application in accordance with section 100 of the Criminal Justice Act 2003?"  
52.	I have a one word answer to that: No. 
53.	For all those reasons, I am satisfied that this appellant was in fact wrong to attempt to appeal by way of case stated and arguably has taken up unnecessarily precious time and resources of the court.
MR JUSTICE LEWIS:  I agree.
MR LODATO:  My Lady, in view of the court's conclusions and the outcome of this appeal there is an application for costs for the respondent's time in preparing this response.  I trust there is a schedule of costs was added to ‑‑
LADY JUSTICE HALLETT:  Yes, I had it yesterday, Mr Lodato.
MR FIDLER:  I have not received it, my Lady.
LADY JUSTICE HALLETT:  I doubt you will argue with the figures, Mr Fidler, the grand total is £1,069.
MR FIDLER:  No, I do not argue.
LADY JUSTICE HALLETT:  I did not think you would.  Are you actually privately paid, or?
MR FIDLER:  No, I am legally aided but let me say this, that he does live, I believe, on benefits, so I invite my Lady ‑‑ 
LADY JUSTICE HALLETT:  You had public funding for this, for a case stated?
MR FIDLER:  Yes, my Lady.
LADY JUSTICE HALLETT:  Did you get public funding for the judicial review?
MR FIDLER:  No, I did not that was pro bono.
LADY JUSTICE HALLETT:  But all the points you were taking were all, really, to do with payment.
MR FIDLER:  No, they were not, my Lady.
LADY JUSTICE HALLETT:  They were not going to the heart of the matter at all.
MR FIDLER:  Well, I submit that they were.  Could I deal with his financial position and invite your Ladyship to make the order to be in force without leave.
LADY JUSTICE HALLETT:  Well, Mr Lodato, do I have any choice if he is publicly funded?
MR LODATO:  As I understand it no, not if he is publicly funded.
LADY JUSTICE HALLETT:  We make the order not to be enforced.  Thank you again Mr Lodato, as ever, you were extremely helpful.