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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Costello, R (on the application of) v North East Essex Magistrates [2006] EWHC 3145 (Admin) (22 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3145.html Cite as: [2006] EWHC 3145 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22nd November 2006

1. MR JUSTICE COLLINS: This is a claim for judicial review of a decision of the North East Essex Magistrates' Court, whereby the claimant was convicted of an offence of common assault. He was sentenced to a short period of imprisonment suspended for six months, and was made the subject of a curfew order which also was to take effect for a period of six months. As perhaps is obvious from the nature of the penalty, having regard to the charge, he was a man who had some previous convictions against him. That is not strictly material to the issues that are before me.
2. The charge in question arose from an incident which occurred in August 2005. The victim of the alleged assault was a taxi driver, who had taken the claimant home from a public house. The taxi driver's evidence was that the claimant had, as he put it, rushed off without paying and had told the taxi driver to come to the house. The taxi driver went up to the house and knocked on the door, which had been closed. In fact the door had not been fully closed, but had been left ajar. He pushed the door open, called that he was there for his fare, whereupon the claimant came at him, shouting and swearing. Although the taxi driver had not gone into the house, the claimant had said, "How dare you come into my house?" and then punched him, having pushed him, on the nose. In fact there was no question that he sustained a nose bleed as a result of whatever it was that happened. The taxi driver called the police. A police officer attended, noted the nose bleed and noted that the claimant appeared to be drunk.
3. The claimant's defence, putting it broadly, was that he had had about four pints of beer, and he had gone into his house because he needed to get some money off his wife and also needed to go to the lavatory, perhaps not entirely surprisingly if he had drunk quite a lot of beer. He was annoyed because he saw the taxi driver had come into the house. He told him to get out and pushed him, he said on his upper chest. He did nothing which could explain why the bloody nose had been caused. His evidence was supported by that of his wife.
4. That broadly is the background. The justices clearly believed the taxi driver and disbelieved the claimant and his wife.
5. This claim arises because an application was made for an adjournment and that application was refused. It is that decision of the justices which has led to this claim for judicial review. Normally when this court is concerned with decisions of justices, case stated is the right route, not judicial review. However, this is one of those rare cases where judicial review is appropriate, because the attack is not so much upon the basis of the decision reached by the justices, but upon their practice in reaching it. Accordingly, it is sometimes more appropriate that such a case is brought via judicial review because there may be factual issues whether the justices have or have not exercised their jurisdiction in a fair manner.
6. I have no one here from either the justices or the Crown Prosecution Service, who resisted the application for the adjournment. The hearing before the justices was on 11th January 2006. The claimant's son, a 36-year old, had attempted suicide and had been seen in casualty at Colchester General Hospital at 6.30am on the 9th. He was it seems discharged on that day, but certainly that confirms that something had gone wrong. Indeed, there is a further letter from, I imagine, a general practitioner who indicates that the diagnosis given was that he had overdosed on some sort of drug and had been drinking as well. Clearly there was an attempt at self-harm. Whether it was suicide or not perhaps one does not know. However, the point was that it had had a serious effect upon the claimant and his wife. They had been understandably enormously concerned and upset. They had had very little sleep over the preceding 36 hours, and they felt that they would not be able to do themselves justice if they had to face the charge and give evidence on that day.
7. Those grounds were put by Mr Hook, who was appearing on the claimant's behalf, to the justices. He argued, as is noted, that their grown-up son had taken the overdose. They had been in Colchester all the previous day, no doubt with him, and they were both in an exceedingly emotional state. Mr Hook submitted that it would be unfair for the claimant to have to be tried in that state and it was very important that they were able to concentrate, the claimant in particular, on the proceedings against him.
8. The prosecution resisted the application, on the basis that the witness in question was nervous; the case was ready for trial; it was a short matter; and it was necessary to get on with it if possible. The justices refused the adjournment. They gave no specific reasons, other than that it was a very short trial and all witnesses were present.
9. There is of course an obligation on justices to endeavour to ensure that each side, whether prosecution or defence, is treated fairly. In this case they had evidence, and there was no reason to doubt it, that the claimant, the defendant before them, and his wife, who was his only witness, had gone through a severe trauma in what had happened to their son during the previous 36 hours. The justices had been told that they had not been able to sleep properly over that period, there was little reason to doubt that, and in the circumstances they felt that they were in no fit state to deal with the matters that were in issue against the claimant. Certainly, they would not be able, they felt, to do justice to the case.
10. It seems to me that it would have taken a very strong case for the justices not to have acceded to an adjournment in those circumstances. It is an ordeal, even for a person with previous appearances before the court, to have to face court proceedings. Whether or not his defence was a true one is, for these purposes, immaterial. If it was, he ought to have had every opportunity to put it in its best form, and not to have been distracted or concerned by extraneous matters which were not of his making and were not his fault.
11. There are a number of authorities on the question as to whether adjournments should or should not have been granted, most of which relate to absent parties or absent witnesses. It is clear that if, for example, through no fault of a defendant, witnesses do not attend who should have attended, or where a defendant does not attend because he is unfit to attend, the magistrates ought generally to grant adjournments. In R v Kingston-upon-Thames Magistrates, ex parte Martin [1994] Imm AR 172, this court set out some of the criteria which were relevant in adjournment cases. They included the importance of the proceedings and their adverse consequences for the party seeking the adjournment; the risk of prejudice to that party and to the other party in the case; the convenience of the court (which I am bound to say is perhaps the least of the factors which weigh); and whether the party seeking the adjournment was responsible for the problem that led to the application.
12. It is clear that these proceedings, as their result shows, were important for the claimant and the adverse consequences equally are shown. There was, as it seems to me, a clear risk of prejudice to the claimant if forced to defend himself and give evidence when his mind might well not have been on the issues that mattered, and where his credibility was crucial to the decision to be reached by the justices. It is not and cannot be suggested that he was responsible for the problems that had arisen.
13. It seems to me in those circumstances that this is one of those very rare cases when this court should intervene in the decision which was reached. This is a matter which is within the discretion of the justices, and accordingly this court will be most reluctant to grant any form of relief where challenges are brought. The court has to be persuaded that either the decision itself was an irrational one, or that the result of the decision means that the individual has not had a fair trial, or perhaps may not have had a fair trial. It seems to me that those criteria are, in the circumstances of this case, met.
14. The claimant has served the sentence, in the sense that the six months has now passed, and he has been subjected to and has successfully, as I understand it, dealt with the curfew order that was made against him. Accordingly, he will get from this decision no more than that the findings of the magistrates are quashed. In theory there can be a retrial, if the powers that be consider that that is the appropriate course to adopt. But it may well be that they will consider that the fact that he has served out the sentence which was imposed and has had the detriment of the curfew order for the six months, in the circumstances it may not be necessary to retry the issue. It is in the end a matter for the prosecuting authorities to make the decision. However, as I have indicated, it seems to me they should think long and hard before they decide that a further hearing is in the circumstances of this case necessary.
15. I should add that I am fortified in the view I have taken in this case by the fact that neither the magistrates nor the Crown Prosecution Service has decided that they will put up any argument in support of the decision that was reached by the justices. Accordingly, this application is allowed and the decision of the magistrates is quashed.
16. MR HOOK: My Lord, I am grateful. My Lord, I am publicly funded in this matter. I just ask you for a representation order.
17. MR JUSTICE COLLINS: Yes.
18. MR HOOK: I am grateful.
19. MR JUSTICE COLLINS: What about costs? You are publicly funded.
20. MR HOOK: Yes.
21. MR JUSTICE COLLINS: But I think, this being a criminal matter, you may have the possibility of costs out of central funds, may you not? Not from me, because I do not have any jurisdiction, but the Divisional Court, had this been before the Divisional Court, I think might have had the power. Let me just check. It certainly applies to cases stated. The reason I raise this is because it does actually matter from which boat --
22. MR HOOK: Yes.
23. MR JUSTICE COLLINS: -- public money comes. I am sure who is responsible for central funds, whether it is the Court Service or someone else, I do not know. (Pause)
24. Have you got an Archbold? It is in 6 I think. Costs out of central funds is section 16 of the Prosecution of Offences Act. That is magistrates. Appeals to the Crown Court. Court of Appeal. Yes, it is subsection (5) of section 16, I think:

"(5) Where—

(a) any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench Division;

...

the court may make a defendant's costs order in favour of the accused."

Now I am not a Divisional Court.

25. MR HOOK: My Lord, at 6-107 --
26. MR JUSTICE COLLINS: 6-107.
27. MR HOOK: -- that is page 928, it states the Administrative Court may make a defence costs order on terms.
28. MR JUSTICE COLLINS: On summary proceedings in a criminal cause or matter, that is right. But as I say, I cannot because of section 16(5) which says it has got to be a Divisional Court. But what we do is, if I take the view that it is an appropriate order to make, I will constitute a Divisional Court with another judge for the purpose of making that order.
29. MR HOOK: Yes.
30. MR JUSTICE COLLINS: And I think that you probably ought to apply for it --
31. MR HOOK: My Lord, yes.
32. MR JUSTICE COLLINS: -- having regard to.... You are legally aided from whom? Is this a civil legal aid certificate?
33. MR HOOK: I will just see if I can find the certificate here.
34. MR JUSTICE COLLINS: It is all very muddy here, because no one seems to know - you have obviously got legal aid, but can you remember who gave it to you? Perhaps your solicitor can help you.
35. MR HOOK: I have certainly seen a certificate.
36. MR JUSTICE COLLINS: I have not seen a certificate, I think.
37. MR HOOK: My Lord, I have a CLS funding certificate.
38. MR JUSTICE COLLINS: Yes. Well, I think that prima facie there is no reason why central funds should not pay you.
39. MR HOOK: I am grateful.
40. MR JUSTICE COLLINS: And I do not know whether that is the Legal Services Commission or whom.
41. MR HOOK: My Lord, yes, this is granted by the Legal Services Commission.
42. MR JUSTICE COLLINS: It is the Legal Services Commission.
43. MR HOOK: It is a certificate granted in March 2006.
44. MR JUSTICE COLLINS: Yes. Well in that case, assuming you apply for it --
45. MR HOOK: Yes, please.
46. MR JUSTICE COLLINS: -- as I think you ought to, you have a public duty to the legal aid people, I am minded to say that you should have your costs out of central funds.
47. MR HOOK: I am grateful.
48. MR JUSTICE COLLINS: And I will ensure that the necessary court makes the necessary order --
49. MR HOOK: Yes.
50. MR JUSTICE COLLINS: -- in due course.
51. MR HOOK: Shall my solicitor and I remain?
52. MR JUSTICE COLLINS: No, it will be done on paper.
53. MR HOOK: I am very grateful, my Lord.
54. MR JUSTICE COLLINS: I am not going to find a judge and bring him in now.
55. MR HOOK: So be it.
56. MR JUSTICE COLLINS: As I say, I am sorry that it took you so long to get that decision, but there we are.
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