Irwin, R (on the application of) v Sutton Magistrates' Court

Neutral Citation Number: [2004] EWHC 1820 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/2036/2004 Royal Courts of Justice Strand London WC2 Tuesday, 13 July 2004 B E F O R E: MR JUSTICE MCCOMBE - - - - - - - THE QUEEN ON THE APPLICATION OF IRWIN -v- SUTTON MAGISTRATES' COURT - - - - - - - Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - (CLAIMANT) (DEFENDANT) MISS J LEVINSON (instructed by Carpenters) appeared on behalf of the CLAIMANT THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED - - - - - - - J U D G M E N T SMITH BERNAL WORDWAVE 1. MR JUSTICE MCCOMBE: In this matter I have before me an application for judicial review of a decision of the Sutton Magistrates' Court on 13th February of this year by which they acceded to a prosecution request to adjourn a trial of Mr Irwin, the applicant, where prosecution witnesses had not been warned and, therefore, failed to attend at court. 2. 3. 4. 5. 6. 7. The chronology of the matter is important and instructive in the decision of the court. On 20th December 2002 the applicant was arrested in relation to the allegations that he had made 12 hoax calls to a fire brigade. He was interviewed and bailed to return to Sutton Police Station on 26th March 2003, subsequently varied to 24th April 2003. That in itself led to his being re-bailed to 6th May 2003. On that last date he was charged with 12 offences of making hoax calls and was bailed to attend the Magistrates' Court at Sutton on 12th May. On 12th May, the first appearance before the magistrates, the prosecution applied to adjourn for, as has been politely called, a review of the file; in short, they were not ready. The case was adjourned to 28th May 2003. This was the second appearance before that court and there was a further application by the prosecution to adjourn to consider whether the informations had been laid out of time as required by the statutory time limit for those alleged offences. The adjournment date was 11th June 2003. This was the third appearance before the justices. On that occasion the Crown accepted that 11 of the charges related to incidents about which informations had been preferred out of time under the statutory regime. A plea of not guilty was entered in respect of the remaining single charge out of the 12 and the case was adjourned to 18th June for pre-trial review. On that last mentioned date, 18th June, a trial date was fixed for 1st August 2003. On 30th June the case was listed again for pre-trial review; in other words, two days before the scheduled trial date, since the Crown had failed to serve its primary disclosure and an expert report had been served very shortly prior to that. Therefore, on the defence application at that stage the trial was vacated and a further pre-trial review was scheduled for 10 th September. On 10th September at the further pre-trial review the new trial date was fixed for 14 th November and a further final review was envisaged for 1st October. On 1st October the trial date was fixed again for 14th November. On 14th November -- this was the eighth appearance before the justices -- Mr Irwin had been admitted to hospital for treatment on the previous day and, therefore, through no one's fault, the trial was adjourned on that date and another review was listed for 1st December 2003. On 15th January 2004 a letter was dispatched by the Crown Prosecution Services saying that a prosecution witness could not attend on the trial date. 8. When 30th January came, which, I think, was the trial date fixed at the final review, the tenth appearance before the justices, a new trial date was fixed for 13th February 2004. On 12 th February 2004 the Crown Prosecution Service made what has been called by the applicant's counsel "a courtesy call" to say that the witnesses had not been warned although the file had clearly been endorsed to show that warnings of prosecution witnesses were required. On that occasion, during that telephone call, the prosecutor informed the defence that the prosecution would again apply to adjourn the hearing. 9. On 13th February, the trial date, the applicant attended at court and no prosecution witnesses did. As intimated on the previous day, the prosecution applied to adjourn the trial once more but could give no further explanation as to why the adjournment was being requested or why witnesses had not been warned. The defence opposed the adjournment and the chronology, SMITH BERNAL WORDWAVE which I have endeavoured to set out already, was referred to, as were certain authorities. The Bench were also addressed on the fact, as was obvious from the chronology, that Mr Irwin was in a poor state of health, sufficiently, indeed, for him to be unable to sit down during the hearing. He suffered from long-term kidney problems and had had the matter hanging over him for the lengthy period which I have already indicated. After the opposition to the adjournment there was apparently no reply on behalf of the prosecution but nonetheless the Bench, as they put it, "reluctantly" granted the adjournment requested and marked the file indicating that the case had to proceed on the next possible occasion and that some explanation had to be provided by both parties as to the reason for the proceedings in the case having taken so long. I am informed by counsel on behalf of Mr Irwin that clarification was sought on this last point as to what explanation was to be provided. The Bench explained that the situation was arising far too often. 10. A further pre-trial review was again fixed for 24th February. At that stage the applicant applied for judicial review of the justices' decision and permission was duly granted by the single judge. 11. On behalf of the applicant I have been referred to a series of authorities, two of which seem to me to be particularly pertinent. As a precursor to referring to those, however, I should note that I have also been referred to the statutory provision contained in section 10 of the Magistrates' Court Act permitting the justices at any time to adjourn trials that come before them. 12. The first case to which counsel refers is that of R v Hereford Magistrates' Court, ex parte Rowlands [1998] QB 110 and other cases listed together. In a judgment in which the power to adjourn, which magistrates undoubtedly have, was extensively reviewed, the judgment by Bingham LJ (as he then was) in the Divisional Court, contained the following passages to which I have had regard. At page 127 of the report Bingham LJ said: "This court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when a defendant is denied a full opportunity to present his case. But neither defendants nor their legal advisers should be permitted to frustrate the objective of a speedy trial without substantial grounds." 13. I close the quotation for a moment to interpolate. That case was concerned with applications by a defendant to adjourn. Continuing the quotation: "Applications for adjournments must be subjected to rigorous scrutiny. Any defendant who is guilty of deliberately seeking to postpone a trial without good reason has no cause for complaint if his application for an adjournment is refused: see, for example, Reg. v Macclesfield Justices, Ex parte Jones [1993] RTR 143. In deciding whether to grant an adjournment justices will bear in mind that they have a responsibility for ensuring, so far as possible, that summary justice is speedy justice. This is not a matter of mere administrative convenience, although efficient administration and economy are in themselves very desirable ends. Delays in bringing summary charges to trial are, unfortunately, not infrequent: last minute adjournments deprive other defendants of the opportunity of speedy trials when recollections are fresh. The difficulties adjournments cause give rise to a proper sense of frustration in justices confronted with such applications: see Ex parte Rowles [1994] RTR 40, 45E-F, per Farquharson LJ. It is important that in those cases where this court SMITH BERNAL WORDWAVE is compelled to intervene, its rulings should not be seen to be inhibiting justices from refusing repeated applications for adjournments where it is appropriate to do so." 14. It is to be noted in that passage that adjournments are to be granted where it is appropriate to do so and that applications for adjournments must be subjected to rigorous scrutiny. 15. The second case which I have found helpful in considering this matter is the R v Aberdare Justices, ex parte Director of Public Prosecutions, another decision of the Divisional Court reported in 1990 volume -- the volume is obscured in my copy I am afraid but it is the reports for 1990 at page 324. Again, the question of adjournments was looked into and Waterhouse J gave the principal judgment of the court where he set out the particular facts of that case, but drawing the threads together in the second judgment Bingham LJ said this: "First, a decision as to whether or not proceedings should be adjourned is, as counsel for the defendant rightly urged, a decision within the discretion of the trial court. It is pre-eminently a discretionary decision. It follows, as a matter of undoubted law, that it is a decision with which any appellate court will be very slow to interfere. It will accordingly interfere only if very clear grounds are shown for doing so. "Secondly, I wish to make it plain that the justices in this case are in no way open to criticism for paying great attention to the need for expedition in the prosecution of criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are the more scandalous when it is criminal proceedings with which a court is concerned. The justices were, therefore, quite rightly concerned that this case against the defendant should not be unduly and unfairly protracted." 16. Moving on to the third factor and fourth factors identified by Bingham LJ which are of materiality in this case: "The third factor which impresses me is that I think that the justices failed to pay regard to the interests of justice as they affected both sides. They were conscious, and rightly conscious, of the defendant's desire that the matter alleged against him should be cleared up one way or another and were no doubt conscious of the fact that he had had this matter hanging over him for some time and that another adjournment would prolong his uncertainty and concern. On the other hand, of course, there was the interest of the prosecution, representing the public, that a charge properly preferred against the defendant should be the subject of proper adjudication. It is, of course, right that those about whose guilt there is any doubt should be acquitted, but it is equally in the interests of society that those against whom true allegations are made should be convicted. I think that, in their consideration of this matter, the justices perhaps failed to pay proper regard to the undesirable consequence of refusing an adjournment when, as they claim they understood, the result would be that the prosecution would thereupon collapse. "The fourth matter to which I pay attention is that the prosecution in this case were in no way at fault." 17. I close the quotation because the remainder of the passage relates to the examination of the possible fault on the part of the prosecution in that case. SMITH BERNAL WORDWAVE 18. I have regard to those matters for two reasons. First of all, as has been clear from the other case, this was a discretion that was exercised by the justices and one must be very careful before interfering with a discretion exercised in such circumstances. Secondly, one has to be bear in mind that the interests of society are brought into play in considering whether or not those who may be guilty are going to escape without adjudication of the allegations against them. However, discretions have to be exercised on proper judicial principles. What is needed to justify an adjournment of any case, civil or criminal, is a reason for doing so and an explanation why the adjournment was necessary. In this case none was proffered to the justices below, none was proffered to this court. Neither the justices nor the Crown Prosecution Service have made any representations of any substance to this court even indicating why the course that was taken was so taken. 19. Miss Levinson, on behalf of the applicant, is the only counsel who has appeared in this case. I am told by the court office that both respondents have indicated that they do not intend to participate in the substantive hearing. 20. It seems to me clear from the chronology that I have already given that the justices were not aware of the reasons why delay was required yet again after the sorry chronology that I have alluded to because they asked for an explanation to be given on the next occasion. That demonstrates clearly that they did not know the reason why they were being asked for or why they were granting the adjournment which was given. That seems to me to be a non-exercise of discretion and one with which this court ought to interfere. This whole process became so extenuated that fairness was, to my mind, no longer possible and the learned justices erred in granting the adjournment that they did. 21. I will allow the application. I will quash the decision to grant the adjournment and dismiss the remaining information that lay against Mr Irwin. 22. Miss Levinson, does anything else arise? 23. MISS LEVINSON: My Lord, I believe I have to apply for some order, taxation order. 24. MR JUSTICE MCCOMBE: You tell me, you are supposed to know. 25. MISS LEVINSON: I understand it is an order for costs to be -- 26. MR JUSTICE MCCOMBE: paid out of central funds? 27. MISS LEVINSON: -- (inaudible) on taxation. 28. MR JUSTICE MCCOMBE: You want your costs out of central funds to be assessed? 29. MISS LEVINSON: To be assessed. 30. MR JUSTICE MCCOMBE: Here? 31. MISS LEVINSON: Yes. 32. MR JUSTICE MCCOMBE: Because that would be a High Court application. 33. Miss Levinson, are you asking for costs, as it were, out of central funds in exoneration of any legal aid funding you have or are you asking simply for the assessment of your costs on a legal aid basis? SMITH BERNAL WORDWAVE 34. MISS LEVINSON: Yes, the second. 35. MR JUSTICE MCCOMBE: The second? 36. MISS LEVINSON: Yes. 37. MR JUSTICE MCCOMBE: All right. I will not make any order for costs out of central funds but I will direct the usual form of public funding assessment. 38. MISS LEVINSON: Thank you. 39. MR JUSTICE MCCOMBE: Thank you very much for your assistance, your skeleton argument and your chronology were very helpful. SMITH BERNAL WORDWAVE