Rowlands, R (on the application of) v Hereford Magistrates' Court [1997] EWHC Admin 119 (10th February, 1997)

1. These three applications for judicial review arise on quite different facts. But common to each is a question of considerable legal and practical significance concerning the use of RSC Order 53 to challenge (on grounds of procedural impropriety, unfairness or bias) decisions of magistrates' courts where the applicant has a right to re-trial (or, if he had exercised it in time, would have had a right to re-trial) in the crown court. The question is prompted by the recent decision of this court in R v Peterborough Magistrates' Court ex parte Dowler [1996] 2 Cr. App. R 561: while all the applicants accept that that case was rightly decided by the court on the findings it made they criticise the rationale of the decision and the practical guidance it is understood to have given.

2. As is well known, the magistrates' courts are the work-horses of the criminal justice system in England and Wales. They handle the vast majority of criminal cases, and for most citizens they represent the face of criminal justice. Given their central role, it is of obvious importance that magistrates' courts should, so far as possible, interpret and apply the law correctly and reach sound factual decisions. It is also important that proceedings in them, as in other courts, should be regularly and fairly conducted by an independent and unbiased tribunal with appropriate regard to the requirements of natural justice.

3. The business of magistrates' courts is in the main handled according to the highest standards, but, as in all other courts, errors may be made and procedural lapses and irregularities may occur. To protect convicted defendants against the possibility of injustice, Parliament has conferred two rights of appeal. The first, provided by section 108 of the Magistrates' Courts Act 1980, enables a convicted defendant to appeal to the crown court against conviction or sentence. A defendant who exercises this right of appeal within the prescribed period of 21 days is entitled to full retrial before a judge of the crown court sitting with justices. The burden of proving the case is on the prosecutor, as in the magistrates' court. Full evidence may be called, whether or not it had been given in the magistrates' court. A decision is reached on the case as presented in the crown court. This is the ordinary avenue of appeal for a defendant who complains that the magistrates' court reached a wrong decision of fact, or a wrong decision of mixed law and fact.

4. An alternative right of appeal is conferred by section 111 of the 1980 Act on any party to proceedings before a magistrates' court who is aggrieved by a conviction, order, determination or other proceeding of the court, who may question the proceeding on the ground that it is "wrong in law or is in excess of jurisdiction" by applying to the justices to state a case for the opinion of the High Court on the question of law or jurisdiction involved. This right also must be exercised within 21 days, and section 111 (4) provides that on the making of an application for a case to be stated any right of the applicant to appeal against the decision to the crown court shall cease. This is the ordinary avenue of appeal for a convicted defendant who contends that the justices erred in law: the usual question posed for the opinion of the High Court is whether on the facts which they found the justices were entitled to convict the defendant; but sometimes the question is whether there was any evidence upon which the justices could properly convict the defendant, which has traditionally been regarded as an issue of law.

5. It is clear from authority that if a magistrates' court convicts a defendant after radically departing from well-known principles of justice and procedure, the defendant may challenge his conviction as wrong in law by way of case stated. In Rigby v Woodward [1957] 1 WLR 250, a defendant was denied the opportunity to cross-examine his co-defendant, and appealed to the Queen's Bench Divisional Court by way of case stated. He was held to be entitled to do so, and the question was answered in his favour. Lord Goddard CJ said at page 253:

"There follows the much more difficult question as to what course this court can take. Ordinarily speaking this matter would have been brought before the court by certiorari and on certiorari it would have been said that not to allow cross-examination of a witness who had given evidence against the appellant was a departure from the common principles of justice. We should then have had to consider whether the irregularity was such that we ought to quash the conviction. It has been brought before us by case stated which, as I have said, is an unusual procedure and it would have been far more regular to have applied for an order of certiorari."

"It remains to consider the argument that the remedy of certiorari is not open to the applicant because others were available. It would be ludicrous in such a case as the present for the convicted person to ask for a case to be stated. It would mean asking this court to consider as a question of law whether the justices were right in convicting a man without hearing his evidence. That is so extravagant an argument as not to merit a moment's consideration. As to the right of appeal to quarter sessions, it may be that the applicant could have had his remedy if he had pursued that course, but I am not aware of any reason why, if in such circumstances as these, he preferred to apply for an order of certiorari to quash his conviction, the court should be debarred from granting his application. It has been admitted by the justices that a mistake was made. This court is in a position to remedy that mistake by making an order of certiorari to quash the conviction, and that is the order which this court should make."

"The only question which remains is whether there is some other remedy which, in the language in Short and Mellor's Practice of the Crown Office, is 'equally convenient', because there is ample authority for saying that this court will not grant writs of certiorari or mandamus where there is some other course equally convenient open to the applicant for the writ. For the reasons which my Lord has stated it must be apparent on the facts of this case that the remedy by case stated was not available. It would be ridiculous to state a case on the only question of law which arose. In my opinion, this is also not the type of case which was intended to be the subject of an appeal to quarter sessions. Quarter sessions may, it is true, hear appeals on questions of law, but that court primarily exists in its appellate jurisdiction to deal with disputed questions of fact. The applicant, having come before quarter sessions, would have said: 'I appeal against my conviction. I do not know why I was convicted. I cannot say that any wrong evidence was heard because no evidence was given. My real complaint is that I do not know any of these things and that I was never heard'. That would be the only matter which would come before quarter sessions. The standpoint of the London County Council, the prosecutors, is that if the applicant had appealed to quarter sessions, they would have had the opportunity to put their house in order and to give the evidence which they did not attempt to give before the justices. There is no reason why a person who has been wrongly convicted without evidence should assist the prosecution to go to some other tribunal at which, it may be, the necessary evidence will be adduced. He is fully entitled to come to this court and maintain, on precedent and on authority, that he was convicted as the result of a denial of justice, and that he is entitled to justice, which can only be done by the quashing of his conviction."

8. For most of this century at least, certiorari has provided the usual if not invariable means of pursuing challenges based on unfairness, bias or procedural irregularity in magistrates' courts. The cases which show this are legion. It is only necessary to mention, by way of example: R v Sussex Justices ex parte McCarthy [1924] 1 KB 256; R v East Kerrier Justices ex parte Mundy [1952] 2 QB 719; R v Barry Justices ex parte Nagi Kashim [1953] 1 WLR 1320; R v Oldham Justices ex parte Morrissey [1959] 1 WLR 58; R v Brighton Justices ex parte Robinson [1973] 1 WLR 69; R v Liverpool City Justices ex parte Topping [1983] 1 WLR 119; and R v Bolton Magistrates' Court ex parte Merna [1991] Crim. L.R. 848.

9. In a number of cases, of which some are cited in Dowler at pages 567 - 8, the courts have stated that a remedy by way of judicial review should not be granted where an alternative remedy exists. An applicant is expected to exhaust all other remedies open to him before seeking judicial review; otherwise, the court may in the exercise of its discretion deny relief. For many years, however, it does not appear to have been argued that defendants complaining of unfairness and procedural irregularity in magistrates' courts should exhaust their right of appeal in the crown court before seeking relief under Order 53. But in R v Bradford Justices ex parte Wilkinson [1990] 1 WLR 692 the point was argued. The applicant, who had been convicted by justices, complained that they had wrongly refused to issue warrants to compel the attendance of witnesses and had wrongly refused to adjourn a trial in the absence of the witnesses. The applicant sought an order for judicial review of the justices' decision. This was resisted on the ground that since the applicant had a right of appeal to the crown court, the Divisional Court should not interfere by way of judicial review. The court rejected that submission. Having been referred to observations of Megarry J in Leary v National Union of Vehicle Builders [1971] Ch. 34 at 49, Lord Wilberforce in Calvin v Carr [1980] AC 574 at 593, and Lord Bridge and Lord Templeman in Lloyd v McMahon [1987] AC 625 at 708 and 716, Mann LJ said at page 695:

"It is to be observed that those remarks are confined, as were Lord Bridge's remarks, to domestic or administrative proceedings. In my judgment domestic or administrative proceedings are a long way from judicial proceedings. I believe that a defendant is entitled to have a proper trial and a proper appeal. If he does not have a proper trial, he may, if he wishes, seek leave to come to this court and that is what has here occurred. I say with regret that I think this decision is flawed and I would allow the order to go".

10. The earliest case drawn to our attention in which the right of appeal to quarter sessions or the crown court was treated as a ground for denying judicial review was R v Barnes and Others, ex parte Lord Vernon (1910) 102 LT 860. The facts were exceptional. A defendant convicted by justices exercised his right of appeal to quarter sessions. While the appeal was pending, but without disclosing that fact to the Divisional Court, an order nisi of certiorari was obtained. The Crown Office Rules in force at the time provided:

11. By the time the applicant sought to make the order of certiorari absolute, his appeal to quarter sessions had been dismissed and his conviction affirmed. In that situation the Divisional Court was of opinion that it would be useless to make the rule absolute to quash the order of the justices since the conviction at quarter sessions would still stand. In our judgment that case is of little value as a precedent.

12. More relevant is R v Mid-Worcestershire Justices ex parte Hart [1989] COD 397. In that case a defendant convicted by justices of speeding appealed to the crown court under section 108 and obtained leave to move for judicial review on grounds of procedural unfairness, omitting to mention when seeking leave to move that his appeal to the crown court was pending. Refusing relief, Parker LJ said:

"I do not propose, because it is unnecessary, to go into the question of whether the existence of the pending appeal is a bar to proceeding by judicial review in the sense that it is an inevitable bar, for it appears to me that in some cases it may be possible for a judicial review to proceed notwithstanding such an appeal. But in this case I have no doubt that judicial review should not be granted.

The issues which arise appear to me to be much more suitable to be tried on appeal to the Crown Court, and there are a number of points which clearly can be made and no doubt will be made on the hearing of the appeal. I propose to say no more about them because if there is an appeal coming before the Crown Court, it would not be right that this court should make observations about the merits of the case."

14. These last two cases were relied on by the court in Dowler. In that case a defendant was convicted by justices and appealed to the crown court. On the day fixed for hearing of the appeal counsel for the Crown disclosed to the defendant's counsel the statement of a witness of whose existence the defendant had not previously been made aware. The attendance of the witness at court was procured, and he attended court ready to give evidence, but the case was not reached for want of time and an adjourned hearing date was fixed. Before that hearing, the defendant sought relief by way of judicial review. The issue before the Divisional Court was succinctly summarised by Henry LJ in these terms at page 562C:

"where the conviction before the magistrates was flawed by procedural unfairness (failure to disclose to the defendant a potentially helpful witness statement), which has since been rectified (by delivery of the statement), and the defendant has in train an appeal by way of complete re-hearing to the Crown Court judge sitting with justices under section 108 of the Magistrates' Courts Act 1980, should this Court, in the exercise of its discretion: (i) quash the conviction (by certiorari) and remit the case to the magistrates for retrial; or (ii) refuse to grant relief on the basis that the statutory appeal under section 108 provides a satisfactory remedy?"

"Having decided that under the appeal procedures of the Magistrates' Courts Act 1980 a procedurally unfair conviction before the magistrates may be cured by a fair trial on appeal to the Crown Court, the question of discretion to quash the conviction before the magistrates answers itself for the following reasons. First, the non-disclosure had been cured, in that the witness had been seen, and was available for the rehearing. Secondly, the availability of the appeal by way of rehearing renders the issue of procedural unfairness and the relief sought in the judicial review academic. Therefore the remedy by way of section 108 appeal is clearly more effective and more convenient as well as being more expeditious. Thirdly, there is no real disadvantage (not remediable by a costs order) in the appellant getting a fair trial from the Crown Court rather than from the magistrates. Fourthly, to give leave for judicial review would be to inject an unnecessary hearing, causing further delay. The appellant's stated interest in further delay, to persuade the CPS to drop the prosecution, provides not only no reason for granting leave or relief but rather the reverse. Nor does the suggestion, advanced before us but withdrawn, that relief should be given to discipline the CPS provide any such reason.

So in our judgment, there can be no doubt as to which side of the line this case falls. Judicial review should be refused. More difficult cases may arise where the defendant has not appealed under section 108, but has gone straight for the judicial review remedy for procedural irregularity. But assuming as we do that the procedural irregularity will not recur in the section 108 rehearing, why should not the applicant be refused leave on the basis that the section 108 appeal can be made available to him, whether or not any judicial review succeeds? This would allow exceptional cases still to be brought by way of judicial review when the court considered that such a course would best meet the real justice of the case, as where it might be determinative of the whole case. But usually interposing a judicial review hearing would lead to an unnecessary hearing, unnecessary costs and unnecessary delay. This is a point for the leave stage, on which the potential respondent should be heard."

17. This decision, accepted as correct on its own facts, has in practice been treated as authority for denying relief by way of judicial review even in cases where there is no pending appeal to the crown court and the applicant is not accused of seeking to procure delay for ulterior reasons. In the present cases leave to move was refused by the single judge, and only granted on renewed application, in the first two cases expressly in order that the law might be further considered. The point at issue is accordingly one of some importance, and it is therefore necessary to examine the principles which led the court to its decision.

18. The court held, first, that there was no principle, let alone authority, to suggest that a person was entitled to more than one fair trial. There was no reason in law or in sense for a defendant to be given an extra life. While different considerations might apply to domestic and other specialist tribunals, the court placed reliance on the observations of Lord Wilberforce in Calvin v Carr . There are, in our opinion, three objections to this reasoning. The first is that Parliament has expressly conferred a right to retrial in the crown court on appeal following a trial before justices, and in providing for two trials Parliament must be taken to have intended that there should be two trials not vitiated by unfairness or procedural irregularity. The second objection is that if a defendant, complaining of unfairness or procedural irregularity in the magistrates' court, pursues his appeal (as he is strictly entitled to do) by way of case stated, he will if successful obtain two fair trials: the ordinary result would be a quashing of the unfair conviction, and an order for retrial before the justices; if the defendant were again convicted, he would still have his right to obtain a retrial in the crown court. Thirdly, we do not read the advice of the board in Calvin v Carr as supportive of the court's decision in Dowler. At page 592 Lord Wilberforce said:

19. Lord Wilberforce then went on to consider three different situations. The first was where rules provided for a rehearing by the original body, or some fuller or enlarged form of it. In such cases it was not difficult to reach the conclusion that the first hearing was superseded by the second. The second situation was where, after examining the whole hearing structure in the context of the particular activity to which it related, the conclusion was reached that a complainant had the right to nothing less than a fair hearing both at the original and at the appeal stage. In such cases the dictum of Megarry J in Leary at page 49, that a failure of natural justice in the trial body could not be cured by a sufficiency of natural justice in an appellate body, might be correct. But Lord Wilberforce drew attention to an intermediate class of case, in which it was the task of the court, in the light of the agreements made, and having regard to the course of proceedings, to decide whether at the end of the day there had been a fair result reached by fair methods such as the parties should fairly be taken to have accepted when they joined the association. There might be instances where the defect was so flagrant and the consequences so severe that the most perfect of appeals or rehearings would not be sufficient to produce a just result, but in other cases that might not be so. All these observations were directed to administrative and domestic proceedings. The board was not dealing with cases in which a criminal penalty had been imposed following an unfair procedure. The board did, however, observe at page 593G:

R v Barnes and the Mid-Worcestershire Justices case, pointing out that if the convictions were repeated on appeal these would be unaffected by the quashing of the justices' decision. These were both on their facts unusual cases; they can have no application where a defendant has not appealed to the crown court; and even where he has, it must always be a question of discretion whether relief by way of judicial review should be granted or not.

21. Thirdly, the court pointed out that if a defendant convicted by magistrates wished both to challenge the conviction on its merits and to seek redress for procedural unfairness, he must do so by appealing to the crown court under section 108 since if he appeals by way of case stated under section 111 he loses his right of appeal to the crown court. We do not entirely accept this reasoning. It is true that in the ordinary case where a defendant challenges by way of case stated a decision of justices on substantive legal grounds, he thereby loses his right of appeal to the crown court. But if, contrary to the prevailing practice, he raises a complaint of procedural unfairness by way of case stated, he may (as already indicated), if successful, obtain a fair retrial before the justices, with a further right of appeal to the crown court. It is also relevant to note that if the defendant appeals to the crown court, while he will obtain a fair retrial, he will not obtain redress for the unfairness in the magistrates' court of which he complains, since the crown court has no supervisory jurisdiction over the conduct of magistrates' courts. Where, for example, a defendant sought to challenge in the crown court the justices' exercise of discretion to amend a charge in the course of proceedings before them, this court held that that was a question to be raised in the Divisional Court rather than the crown court: Fairgrieve v Newman (1986) 82 Crim. App. R 60.

22. While we do not doubt that Dowler was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates' court should be denied leave to move for judicial review and left to whatever rights he may have in the crown court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates' courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. The crucial role of the magistrates' courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained.

23. Two notes of caution should however be sounded. First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates' court. Immaterial and minor deviations from best practice would not have that effect, and the court should be respectful of discretionary decisions of magistrates' courts as of all other courts. This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. Many factors may properly influence the exercise of discretion, and it would be both foolish and impossible to seek to anticipate them all. The need for an applicant to make full disclosure of all matters relevant to the exercise of discretion should require no emphasis. We do not, however, consider that the existence of a right of appeal to the crown court, particularly if unexercised, should ordinarily weigh against the grant of leave to move for judicial review, or the grant of substantive relief, in a proper case.

24. These two applicants move to quash decisions of the Hereford Justices made on 7 and 8 March 1996 refusing to adjourn their trial and on 8 March 1996 convicting the applicants. The issue in both applications is whether the refusal of an adjournment, which deprived the applicants of an opportunity to call witnesses in their defence, was so unfair as to require the intervention of this court.

25. Tracy Rowlands was charged with three offences of assaulting a constable in the execution of his duty. Karl Ingram was charged with two offences, assaulting a constable in the execution of his duty and being drunk and disorderly in a public place. All the offences were alleged to have taken place in the early hours of 2 July 1995. The progress of these prosecutions demonstrates substantial delay. Eight months elapsed before the conclusion of the trial.

21 August 1995 not guilty pleas were entered and the case was adjourned until 20 October 1995. On 6 October 1995 the Crown Prosecution Service sent a schedule of unused material which referred to a statement from Cassie Attwood and to a statement from Robert Sidwell. The case could not proceed on 20 October 1995 because the applicant Ingram had begun to serve a custodial sentence in August 1995 and the prison authorities said they could not produce him. On 30 November 1995 the trial was again adjourned for the same reason. On 13 December 1995 it was set down for trial on 2 February 1996.

27. On 12 January 1996 full instructions were taken from the applicant Rowlands. On 18 January 1996, for the first time, the defence solicitor asked the Crown Prosecution Service, by telephone, for the unused witness statements ,the existence of which had been disclosed in October. On 25 January 1996 full instructions were taken from Ingram whereupon it became apparent that there was a conflict with his co-accused. On 30 January 1996 oral and written requests were made to the police for the unused witness statements. The statements were received on the following day, 31 January 1996. Those statements came from two apparently independent witnesses. Taken at face value, they cast considerable doubt upon the prosecution's account of the events on 2 July 1995 and raised serious questions about the conduct of the police; if those witnesses were to be believed they were of considerable assistance to the defendants. We say no more about their evidence , since there may be a fresh trial.

28. On 1 February 1996 both the police and the Crown Prosecution Service were asked for the addresses or telephone numbers of the witnesses. The Crown Prosecutor was not prepared to supply details at that time but it was agreed that the matter should be discussed at court the following day when an application for an adjournment was to be made. That application was made on 2 February 1996 ,founded on the need to call those two witnesses and the need for the applicants to be separately represented as a result of the conflict which had emerged the month before. The trial was adjourned to 8 March 1996. On 12 February 1996, in response to a further request, those addresses were disclosed and the details received the following day. On 15 February 1996 letters were sent to both witnesses and the Crown Prosecutor was informed of the steps taken to contact them. On 23 February 1996 it emerged that Miss Attwood could not be found at the address given. However, on 26 February 1996 Mr Sidwell confirmed he would attend court on 8 March 1996. On 6 March 1996 Miss Attwood told Rowlands' solicitor that she was prepared to attend court but could not do so on 8 March because she had to attend an interview for admission to university. She confirmed the contents of her witness statement. On that date the solicitor contacted all parties to ask that the case be listed for 7 March 1996 so that an application for an adjournment could be made.

29. On 7 March 1996 Rowlands' solicitor applied for an adjournment. Before the application was made he learnt from Ingram's solicitor that Mr Sidwell could not attend on 8 March 1996 because he was unable to take time off work. The justices were told that neither witness could attend on 8 March. We were not told about the details of that application although the solicitor representing the Crown Prosecution Service accepts that the magistrates were told that Miss Attwood was an essential witness. There may well have been understandable difficulties in elaborating on the evidence it was hoped both those witnesses were to give before justices who might have to try the case. The application for an adjournment was opposed by the Crown Prosecution Service on the grounds that several previous trial dates had been adjourned and the matter had gone on far too long. She also complained as to the delay in seeking details of the unused witness statements. The justices refused the application for an adjournment and directed that the trial should proceed on 8 March 1996. On that date the justices were again told that the defence witnesses were not available. They proceeded to try both defendants and convicted them on all the charges. The sentence was adjourned to enable both defendants to apply for judicial review.

30. The power to adjourn a trial is conferred upon justices by statute (see section 10(1) Magistrates' Courts Act 1980). There is no shortage of examples demonstrating that this court will intervene where defendants have been deprived of a fair opportunity to present their case either because of their own unavoidable absence (see e.g. R v Bolton Magistrates' Court, ex parte Merna and R v Richmond Justices ex parte Haines [1991] Crim. LR 848) or the inability to call witnesses whose evidence went to critical issues of fact (see R v Bradford Justices ex parte Wilkinson [1990] 1 WLR 692 and R v Bristol Magistrates' Court ex parte Rowles [1994] RTR 40). The decision whether to grant an adjournment does not depend upon a mechanical exercise of comparing previous delays in those cases with the delay in the instant applications. It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances.

31. 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. 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 e.g. R v Macclesfield Justices ex parte Jones [1983] 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 frequent such applications (see Farquharson LJ in ex parte Rowles, supra, page 45 E-F). It is important that in those cases where this court 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.

32. In these applications we do not have the reasons for the refusal of the application for an adjournment on 7 March 1996. It seems to us that that is the critical date. Once an adjournment was refused on that date it was not surprising that on the following day the court ordered the trial to proceed even though it was again informed that the defence witnesses were unavailable. We understand and sympathise with the difficulties with which these justices were faced when the events which gave rise to the charges had taken place some eight months previously. The trial had been adjourned on three previous occasions. We need not reach any final conclusion as to responsibility for this substantial delay. It was not the fault of the prosecution or the defence between October and December 1995 when the prison service did not produce one of the defendants. It was suggested that the defence was tardy in applying for details of the unused witness statements. On the other hand, we were told that defence solicitors hoped, before January 1996, to reach an agreement with the prosecution which would have avoided the need for trial. Thereafter they cannot be blamed for delay in obtaining details of the witnesses. The witnesses themselves were critical to the defence. Their non-availability was not the fault of the defence. Having regard to the history of this matter we are of the view that these applicants were deprived of a reasonable opportunity to put forward their defence by the refusal of the adjournment. A fair trial was not possible without a reasonable opportunity to call the two independent witnesses.

33. It was suggested, on behalf of the Crown Prosecution Service, that the defendants could have applied to the justices for witness summonses. Such an application could not sensibly have been made until 7 March 1996, by which time it would have been too late to serve and enforce the appearance of Miss Attwood. In any event, we understand the reluctance of defence solicitors to take that course having regard to the favourable nature of the witnesses' proposed evidence. It was also suggested that the defence should have asked for an adjournment on 8 March 1996 , after calling the defendants. We do not think that that would have been a sensible or reasonable course to adopt. The absence of the independent witnesses clearly affected the nature of the cross-examination of the police officers and we do not think it was unreasonable for the defence to seek to avoid aggravating the justices by making yet a further application for an adjournment. We conclude that the decision to refuse an adjournment, having regard to the causes of the previous delay and the significant nature of the evidence of those two witnesses, resulted in unfairness which requires us to intervene. Accordingly these applications are allowed, the order of certiorari will go and the decisions of the justices of 7 and 8 March 1996 will be quashed.

34. The issue in this application is whether knowledge by the justices that a defendant had been remanded in custody in relation to a more serious criminal charge gave rise to a real danger of bias. The applicant seeks to quash decisions of the justices whereby they refused to order that the applicant sit in open court at his trial, rather than in the dock, refused to disqualify themselves on learning of a more serious criminal charge he faced and convicted him of assaulting a police officer with intent to prevent his lawful apprehension.

35. On 2 April 1996 the applicant appeared at the Harrow Youth Court to face trial for theft of a pedal cycle and assault with intent to resist arrest. The offences were alleged to have occurred in August 1995. He had been remanded on unconditional bail. At the time of the offences he was under 18 but he became 18 on 31 January 1996. In early 1996 he was arrested, charged with robbery and remanded in custody. On 2 April 1996, although he was on bail in relation to the charges he faced, he was produced before the justices in custody, that is to say brought from the cells into the court where he was required to stay in the dock flanked by two custody officers. The usual practice in youth courts and in the Harrow Youth Court is for a youth to sit next to the legal representative and not in the dock. The youth will however sit in the dock if he has been remanded in custody in the matter on which he is being tried or has been remanded in custody pending other charges or is a serving prisoner or for some other reason.

36. The charges against the defendant could not proceed because of the non-appearance of a prosecution witness. Accordingly the justices adjourned the hearing and granted bail to the applicant in respect of the charges he faced. The chairman was about to tell the defendant that he was free to leave the court when he noticed he was to be led to the cells. He then said:

37. Counsel for the applicant then asked that the justices should make an order, binding any subsequent bench who tried the case, that the applicant should not sit in the dock lest the justices draw the conclusion that he was a serving prisoner or remanded in custody on other matters. During the course of this application counsel for the applicant told the justices that the applicant had been remanded in custody on another more serious matter. He made a further application that the justices sitting on 2 April 1996 should not sit on the trial date because they knew of outstanding matters against the applicant. The justices refused both applications but did direct that the clerk's file be marked so that a fresh bench should, if possible, sit on the reconvened trial which was due to take place on 21 May 1996.

"(a) We did not think that any serious prejudice would be occasioned. It is not uncommon for defendants on bail to be produced from custody. This can happen for a variety of reasons, and does not necessarily mean the defendant has been found guilty of any other offence. Our only knowledge of any other proceedings was what Mr Prussia's counsel told us in the course of his application. I have no recollection now of the details of the other proceedings, but we disagreed with counsel's contention that a bench would be bound to infer that he faced a very serious charge elsewhere. Mr Prussia had reached the age of 18 by this time, and would be treated as an adult in any fresh proceedings.

(c) We did not regard it as acceptable to make an order the effect of which would be to release a defendant from lawful custody to which he was otherwise subject, albeit on a very limited basis. It is not feasible to secure the whole courtroom for the duration of the hearing, nor could gaolers (even if they were in plain clothes) remain in court without identifying themselves as it is our practice to ensure that only those who are properly admitted are present in the youth court.

As we refused the application, we did not think it necessary to consider whether we had power to make any order binding another bench. We thought that it was not appropriate to disqualify ourselves as the pool of available Magistrates is more limited in the youth court than in the adult court. We did, however, suggest that there would be merit in the case coming before a differently constituted bench if possible."

"...If, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice ..., justice requires that the decision should not be allowed to stand. ... there is, so far as I can see, no practical distinction between the test as I have stated it, and a test which requires a real danger of bias ..."(at 668 B-E)

It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed."

45. This court has quashed convictions on the grounds of bias due to the irregular disclosure of evidence of bad character. Although the relevant examples of such intervention occurred before the decision of their Lordships' House in Gough, they continue to provide useful guidance. In R v Downham Market Magistrates' Court ex parte Nudd (1988) 152 JP 511 this court quashed convictions for failure to supply specimens for analysis. The chairman of the justices had, one month before the trial of the defendant, been a member of a bench which convicted the applicant of making threats to kill his wife. He had had, on that occasion, reports detailing a substantial criminal record including an offence of driving whilst unfit through drink. Watkins LJ approved the following test:

"The public could not, in my judgment, have come to any other conclusion than that, try as he might, experienced though he was, he might not have been able to put out of his mind what he knew about this applicant in coming to the conclusion as to whether or not, in a very hotly disputed case, his word was to be relied upon in opposition to the evidence of police officers who had arrested him and who dealt with him thereafter in the police station."

In R v Birmingham Magistrates' Court ex parte Robinson (1985) 150 JP 1 one of three magistrates, who took the dissenting view that the case should be dismissed, saw a police officer looking through a file of papers which included a record of the applicant's previous convictions. The magistrate made no mention of this fact before the court announced its majority decision to convict. The conviction was quashed. The court concluded that a bystander would have been unaware that it was the dissenting magistrate who had seen the convictions because he made no public announcement of the disclosure. Since the decisions in R v Gough and ex parte Dallaglio this court, personifying the reasonable man, will consider the evidence exercising a primary judgment and will not be concerned with that which might appear to a reasonable man. As was observed in ex parte Dallaglio (at page 162g):

48. Those authorities support the proposition that not every disclosure of previous convictions will give rise to a real danger of bias. Magistrates will, from time to time, inevitably be aware of a defendant's criminal past, particularly in an area where some appear before them with depressing regularity (see Tudor Evans J in ex parte Robinson at page 3). In R v Blyth Valley Juvenile Court ex parte S (1987) 151 JP 805 a juvenile's application for legal aid disclosed to the justices previous offences. In addition a further charge was also revealed. Despite an application for a fresh panel an adjournment was refused and the magistrates continued to hear his case. Kerr LJ stated that the decision to quash:

"should not be taken as laying down any general rule that the mere presence on the bench of a juvenile or magistrates' court of a member of the court who had been present on a previous occasion when the same accused had faced some criminal charge, or who might otherwise have been familiar with the record of that person due to previous occasions, would necessarily provide a ground for quashing the later decision. In some courts and in relation to some defendants it may be almost unavoidable for that to occur." (page 809 C)

49. Mr Richard Gordon QC, on behalf of this applicant drew attention to Parliament's concern as to the risk of prejudice by reason of disclosure of previous convictions. By section 42 of the Magistrates' Courts Act 1980 justices are prohibited from trying the issue of guilt after disclosure of previous convictions in a bail application. Fear of prejudice lies behind the prohibition against adducing evidence of bad character contained in section 1(f) of the Criminal Evidence Act 1898. He also drew attention to the decision of the Court of Appeal Criminal Division in R v Vratsides [1988] Crim LR 251 where the court quashed a conviction because a discussion whether the defendant should wear handcuffs had taken place in the presence of the jury. It is to be noted that the mere fact that the defendant wore handcuffs was not objectionable provided an appropriate direction was given to the jury.

53. The use of the adjective "serious", he contended, implied an acceptance by the deputy chairman that some prejudice would be occasioned. He also referred to the suggestion that there would be merit in the case coming before a differently constituted bench. Reading the deputy chairman's evidence as a whole, we do not think that he is to be understood as accepting that there was, in his mind, a fear that there was a real danger of prejudice. Not infrequently a judge, faced with an application to discharge himself on the grounds of bias, will express the hope that a differently constituted tribunal can be found without making any binding order or concession that real danger of bias exists. Moreover, it is for this court to decide afresh, on examination of all the evidence whether there was a real danger of bias, although evidence which disclosed a fear of such danger at the time in the minds of the adjudicating tribunal would be powerful evidence that such a danger did exist.

54. The first question we must decide is whether the fact that a defendant, on bail for the offences for which he is being tried, appears in custody gives rise to a real danger of bias. There are many reasons why he may be in custody, but the most likely are that a defendant is serving a sentence or is waiting trial on a charge the gravity of which merits custody.

55. Such inferences are distinguishable from circumstances where a justice learns of specific previous offences shortly before or during a trial. They are general and unspecific. Justices can be trusted not to speculate as to the reasons for detention in custody. Mr Richard Gordon QC drew attention to the significance of the design of youth courts and the practice when trying cases in those courts. Both the design and practice, he said, are aimed at achieving the objective that the court remains unaware of any previous convictions or pending charges. We decline to attach significance to those features , which lessen the pressure a young person may feel when appearing in the dock. In those circumstances, we conclude that the appearance of the applicant in the dock did not give rise to a real danger of injustice; the justices were right to refuse the application that he be released from custody at trial.

56. It was suggested by Mr Gordon that it was incumbent on the magistrates to embark upon an inquiry as to whether it was necessary for the applicant to remain in custody during his trial. It was conceded that, if such an inquiry was adopted, it would be necessary for different justices to adjudicate in the trial should anything adverse to the defendant be disclosed during the course of that inquiry. We do not accept this suggestion. It seems to us that any inquiry as to why a defendant is in custody may cause the very mischief that such an inquiry is designed to avoid. Since, for the reasons given above, we do not think that the mere fact a defendant is in custody gives rise to a real danger of bias, such an inquiry is unnecessary and should not be undertaken.

57. Once the application that the applicant sit outside the dock was rightly refused, we do not think that the real reason for his detention in custody should have been revealed. Whilst we appreciate that disclosure was made by counsel acting in what he understandably believed to be the best interests of his client, we do not think that such disclosure was necessary. Such disclosure may give the appearance of seeking to force the justices to discharge themselves.

58. There remains the fact that both justices learnt that the applicant faced a more serious charge. We do not think that disclosure that a defendant is awaiting trial on a more serious charge leads to a real danger of bias on the part of a magistrate trying a different charge. We believe that such a magistrate would be well able to bear in mind that the defendant has only been charged and not convicted of that more serious offence. In our judgment disclosure of a pending charge, albeit more serious, is to be distinguished from disclosure of previous convictions shortly before or at the time of trial. Magistrates can be trusted to have in mind the distinction between a charge and a conviction. We conclude that there was no real danger of bias as a result of the disclosure that this applicant was facing a separate more serious charge. Accordingly, this application is dismissed.

62. MR CLARKE: Yes, because sentence has not been passed. Your Lordship quashes the conviction and I am not instructed, as it were, to persuade you to remit it. I would ask that your Lordships reserve the fate of the case. The Justices may enquire of those instructing me whether the conviction was merely quashed and your Lordships made a deliberate decision not to remit it.

66. MR GLEN: My Lord, the ordinary course is not to remit on the evidence of the authorities which we examined. In the Bradford case the conviction was simply quashed and not remitted, also in the Bristol case, the Thames case, the Leyland case and the Wandsworth case. The only case I could find where it was remitted for re-hearing was the Weston Super-Mare case of the sleeping magistrate --

68. MR GLEN: The normal rule has not been to order a re-hearing. It may be based upon the fact that a defendant has been to sufficient courts and had enough consideration of his case without going back. You will be setting in motion now a procedure which will have another summary trial with these witnesses. The background of it of course is the police complaints, and those matters will need to be brought up. Between the date of the offence and the present time Mr Ingram has suffered a custodial sentence which will affect the sentence which is proper to pass upon him in any event. If he fails in the magistrates' court he will probably appeal to the Crown Court because of the strength of the witnesses and the obvious value to be attached to them. It may be that the normal rule -- and I have been through the various authorities -- which does not normally lead to remittal is based upon the principle of exhaustion really rather than anything else.

70. MR GLEN: I think there would be. My Lord, the way that I have detected that (if I rightly have) is by looking at the power. The power is contained in section 31(5) of the Supreme Court Act 1981. It is a specific and separate power which has to be exercised and one would assume that in the Law Reports it would be mentioned, as indeed it is in the Weston Super-Mare case.

72. MR GLEN: It is rather like, in my submission, the Criminal Division of the Court of Appeal quashing a conviction. There is not a fresh start unless there is a separate power invoked for a re-hearing. You have to do more if you want it re-heard than you have ordered already because at the moment sentence is adjourned and you cannot be sentenced on a quashed conviction. So your judgment, as far as it goes, will quash the conviction and that will be the end of this case. That will fall in line with all but one of the authorities which we have looked at together. It is a question of drawing the line somewhere. You saw the attendance note upon the witness and what she said about the police complaints and so on. She was told by the police that the matter had been resolved in some way. My Lord, I would submit that you should resolve this case now by letting it lie.

74. MR CLARKE: My Lord, may I, very briefly? Firstly, there are not in those reported cases, as I understand it, any positive decisions not to remit. Frequently the judgment is delivered and there is the discussion that occurs thereafter which does not go into the report. Secondly, I would remind your Lordships that my learned friend himself said that he was not very keen on showing us the solicitor's memorandum because there might be a retrial (not that that is conclusive), but in the knowledge that this was a supervisory jurisdiction and I would ask your Lordship to say that yours is a supervisory jurisdiction rather than an appellate jurisdiction. You are sitting as supervisors of the lower court. Although it did not grant the adjournment your Lordships, in my submission, are putting it back to square one where it should start again.

75. THE LORD CHIEF JUSTICE: In the cases of Rowlands and Ingram we will make an order that the matter be remitted to the magistrates' court. In doing so we wish to make it plain that we do not seek to pre-empt any decision on the part of the Crown Prosecution Service as to whether the prosecution proceeds or not. We hope that the Crown Prosecution Service will give careful thought as to whether or not it is in the public interest to proceed at this stage, bearing in mind the lapse of time, the availability of witnesses and so on. We would urge that serious consideration be given, but in the last resort we think that it is a decision for them as to whether or not they wish to pursue this matter.

England and Wales High Court (Administrative Court) Decisions

R v. HEREFORD MAGISTRATES' COURT (Ex parte TRACY ROWLANDS) R v. HEREFORD MAGISTRATES' COURT (Ex parte KARL DAVID INGRAM) R v. HARROW YOUTH COURT (Ex parte GARY PRUSSIA) [1997] EWHC Admin 119 (10th February, 1997)

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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rowlands, R (on the application of) v Hereford Magistrates' Court [1997] EWHC Admin 119 (10th February, 1997) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/119.html Cite as: [1997] 2 WLR 854, [1997] 2 Cr App R 340, [1997] EWHC Admin 119, [1998] QB 110