(1) The Queen (on the application of the Director of Public Prosecutions) v Sunderland Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Mr Justice Sweeney |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] EWHC 229 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3186/2017; CO/2620/2017 |
| Date | 14 February 2018 |
[2018] EWHC 229 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hamblen
Mr Justice Sweeney
Case No: CO/3186/2017; CO/2620/2017
and
and
Simon Heptonstall (instructed by CPS Appeals and Review Unit) for the Claimant in (1)
John Dye (instructed by Warburtons) for the Claimant in (2)
Duncan Atkinson QC (instructed by CPS Appeals and Review Unit) for the Interested Party in (2)
Hearing date: 13 December 2017
Judgment Approved
Introduction
In both of these cases, the Magistrates' Court acted on a material mistake of fact when determining, on the day fixed for trial, a contested application to adjourn.
In the Sunderland case, the Interested Party was charged with criminal damage. The mistake of fact upon which the Prosecutor and the Deputy District Judge acted was that the complainant had not attended court to give evidence – whereas, as the Interested Party knew, but did not reveal, the complainant had attended in good time (and was waiting to give evidence). In consequence, the Prosecution made an application to adjourn which was opposed, and which the judge refused. As a result of that, no evidence was offered and the charge against the Interested Party was dismissed.
By permission of Julian Knowles J, the Claimant in the Sunderland case, the Director of Public Prosecutions, challenges the refusal of the adjournment and the dismissal of the charge. The Director argues, relying on a line of authority culminating in the decision of the Court of Appeal in E v Secretary of State of the Home Department [2004] QB 1044 (“ E v SSHD”), that a material mistake of fact giving rise to unfairness is a separate ground of challenge in judicial review proceedings; that it should be applied in this claim (albeit that it is one made in the context of criminal proceedings); and that therefore the decision to dismiss should be quashed.
In the City of London case, the Claimant was charged with driving with excess alcohol. He attended the court for trial, as did the two prosecution witnesses. The mistake of fact upon which the Prosecutor and the Justices acted was that the Prosecution had done nothing at all to comply with a previous court order to serve its evidence and to disclose any relevant unused material by a specific date – whereas (in the absence of any secure email address having been provided by the Claimant's representatives) the prosecution had, albeit only some 12 days before the trial hearing, served its evidence and dealt with disclosure by post addressed to the office of the Claimant's solicitor, and the disclosure documentation had been received by the Claimant's solicitor the day before the trial hearing. In consequence of the mistake, the Prosecution applied for an adjournment to enable it to serve its case and to deal with disclosure – without which, the Claimant contended, he was not able to proceed to trial that day. Notwithstanding the Prosecution's apparent failings, the adjournment was granted.
By permission of Dove J, the Claimant in the City of London case challenges the decision to adjourn – arguing that consideration of the challenge should be confined to the facts as they were believed (albeit erroneously) to be at the time. The Interested Party, the Crown Prosecution Service (“CPS”), resists the challenge and argues that, even on the facts as they were believed to be, the decision to adjourn was within the scope of the Justices' discretion. In the alternative, the CPS argues that the Court should apply the material mistake of fact leading to unfairness ground of challenge identified in E v SSHD (above), in which event, it submits that on the true facts, the decision to adjourn was plainly right. The Claimant argues that the ground of judicial review identified in E v SSHD has no place in judicial review claims made in the context of criminal proceedings, but recognises that, if it does, there is little arguable merit in his claim.
Before dealing in more detail with each of the instant cases I propose to:
(1) Examine the decision in E v SSHD, and three subsequent decisions as to the application of material mistake of fact resulting in unfairness as a ground of challenge in claims for judicial review made in the context of criminal proceedings.
(2) Set out the aspects of the Criminal Procedure Rules and Criminal Practice Direction that are of relevance to the failings of the parties in the instant cases, and to the question (arising from the ground of challenge identified in E v SSHD) of whether the parties in criminal proceedings have a shared interest in co-operating to achieve the correct result.
(3) Summarise the principles applicable to applications to adjourn in the Magistrates' Courts, and to the ability to challenge the resultant decision by way of judicial review – the leading authorities in relation to which are, respectively, the decisions of this Court in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin); [2006] 170 J.P. 567 and in Balogun v Director of Public Prosecutions [2010] EWHC 799 (Admin); [2010] 1 W.L.R. 1915.
E v SSHD [2004] QB 1044 and subsequent decisions
E v SSHD was an asylum case in which the right of appeal was limited to points of law. The issue before the Court of Appeal (Lord Phillips MR, Mantell and Carnwarth LJJ) was as to the powers of the Immigration Appeal Tribunal and the Court of Appeal (a) to review the determination of the Tribunal where it was shown that an important part of its reasoning was based on ignorance or mistake as to the facts; and (b) to admit new evidence to demonstrate the mistake.
Taking the view that it would be surprising if the grounds for judicial review were more generous than those on an appeal on a point of law, the Court conducted an extensive review of the authorities and academic works in relation to the question of whether error of fact could be a ground for review in administrative law.
In the result, the Court concluded that it could — as follows:
“ 63. In our view, theCriminal Injuries Compensation Boardcase [1999] 2 AC 330points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between ‘ignorance of fact’ and ‘unfairness’ as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness. On analysis, the ‘unfairness’ arose from the combination of five factors; (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was ‘established’, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) althoughthere was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.
64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of facts. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis. Similarly, in Tameside [1977] AC 1014 , the council and the Secretary of State, notwithstanding their policy differences, had a shared interest in decisions being made on correct information as to practicalities. The same thinking can be applied to asylum cases. Although the Secretary of State has no general duty to assist the appellant by providing information about conditions in other countries (seeR v Secretary of State for the Home Department, Ex p Abdi [1996] 1 WLR 298), he has a shared interest with the appellant and the tribunal in ensuring that decisions are reached on the best information. It is in the interest of all parties that decisions should be made on the best available information: see the comments of Sedley LJ inBatayav'scase [2003] EWCA Civ 1489at [40]….
65. The apparent unfairness in the Criminal Injuries Compensation Board case [1999] 2 AC 330 was accentuated because the police had in their possession the relevant information and failed to produce it. But, as we read the speeches, ‘fault’ on their part was not essential to the reasoning of the House. What mattered was that, because of their failure, and through no fault of her own, the claimant had not had ‘a fair crack of the whip’: see Fairmount Investments v Secretary State for the Environment [1976] 1 WLR 1255, 1266A , per Lord Russell of Killowen. If it is said that this is taking ‘fairness’ beyond its traditional role as an aspect of procedural regularity, it is no further than its use in cases such asHTV Ltd v Price Commission [1976] ICR 170, approved by the House of Lords inR v Inland Revenue Comrs Ex p Preston [1985] AC 835, 865–866.”
In consequence, as to appeals on points of law in asylum cases, the Court concluded:
“ 66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of...
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