Aanjaneya Mishra (First Claimant) v Colchester Magistrates' Court Director of Public Prosecutions (Interested Party)

Hearing dates: 26 th October 2017

Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

This is the judgment of the Court.

The principal issue of law that arises in each of the cases before us, is whether magistrates' courts have a discretion to extend the time to state a case after the expiration of the 21 days specified in section 111(2) of the Magistrates' Courts Act 1980 (the 1980 Act) as the time within which an application for a case to be stated for the opinion of the High Court must be made.

The facts

The brief facts of each case are as follows.

The first claimant was convicted of assault by beating contrary to section 39 of the Criminal Justice Act 1988 before a deputy district judge at Colchester Magistrates' Court on the 18 November 2016. On the 24 November 2016 his solicitors wrote to the court asking for a copy of the findings and sentencing remarks of the deputy district judge. They repeated their request on the 18 January 2017. On the 14, 16 and 24 February 2017 the first claimant, acting in person, communicated with the court, again seeking the deputy district judge's notes. Those notes were provided on the 27 February 2017. The deputy justices' clerk at Colchester Magistrates Court made clear however, in letters of the 28 February 2017, and 2 March 2017, that the court had not received a request to state a case from the first claimant or his solicitors. On the 31 March 2017 an application to state a case was made by the first claimant's current solicitors (then newly instructed). On the 5 April 2017 the deputy justices' clerk wrote back to the first claimant's solicitors explaining that the application was out of time and there was no power for time to be extended.

On the 13 April 2017 an application notice in form N244 was issued in this court seeking an order "to vary the time limit for filing an appeal notice to state a case" from the magistrates' court.

At the hearing before us we questioned whether there was any basis for such an application, in the absence of any cause in existence or in immediate contemplation to which such an application could relate. In the event, the point was conceded. Mr Croskell on behalf of the first claimant accepted that what was sought in substance was an application for judicial review of the decision of Colchester Magistrates' Court to refuse to state a case on the basis that time had expired; and for that decision to be quashed and re-considered in the light of the argument that there was discretion to extend time under section 111(2) of the 1980 Act. An undertaking was then given to the court that judicial review proceedings would be commenced and the requisite fee paid by close of business on the 30 October 2017 (as in fact occurred). The hearing before us then proceeded on that basis. Our decision to allow this course to be taken was a pragmatic one, in circumstances where there was no objection from the Interested Party, and we were satisfied there would be no prejudice to the parties concerned. For the avoidance of doubt however, the procedure adopted by the first claimant was irregular, and should not be repeated. It should not be necessary to emphasise that parties cannot bring a matter before the court by such means in the absence of a claim in existence or, in cases of genuine urgency, where a claim is in immediate contemplation in which case appropriate undertakings will be required.

The second claimant was convicted following a trial at the Stratford Magistrates' Court on the 21 April 2017 of two offences of assaulting a constable in the execution of his duty contrary to section 89(1) of the Police Act 1996 and one charge of resisting a constable in the execution of his duty contrary to section 89(2) of the Police Act 1996. He was sentenced for these offences on the 26 April 2017. On the 17 May 2017, the time specified in section 111(2) of the 1980 Act for applying to the court for it to state a case, expired. We were told that the second claimant had given instructions to his solicitors to state a case at some point before the 15 May 2017 (we were not told when). We were also told that his solicitors' computer system malfunctioned so that the solicitors were unable to submit the application on that day (the evidence on this was somewhat vague). In the event, the application was made the following day, on the 18 May 2017, and thus a day outside the 21 day time limit. On the 1 June 2017 the district judge refused to consider the application to state a case as it was out of time and there was no discretion to extend time. She nonetheless provided a draft of a case which she would have stated to cover the possibility that this court might conclude that there was a discretion to extend time and that it ought to be exercised in the second claimant's favour.

Since the question whether or not there is a discretion to extend time under section 111(2) of the 1980 Act goes to jurisdiction, it is appropriate to deal with that issue at the outset.

The relevant legal framework

Section 111 of the 1980 Act provides as follows:

"Statement of case by magistrates' court

(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved;

(2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.

(4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to the Crown Court shall cease."

It is important to note that there is a parallel and alternative right of appeal to the Crown Court under section 108 of the 1980 Act, which provides a power for the Crown Court to hear an appeal from the magistrates' court against conviction or sentence on a full merits basis.

The Criminal Procedure Rules (the CrimPR) govern (i) an appeal from the magistrates' court to the Crown Court under section 108 of 1980 Act: see CrimPR Part 34; (ii) an appeal by way of case stated to the High Court under section 111 of the 1980 Act: see CrimPR Part 35; and (iii) an appeal to the High Court against a decision of the Crown Court by way of case stated under section 28 of the Senior Courts Act 19811 (the 1981 Act): see CrimPR Part 35.

In case there should be any doubt about the matter, Para 2.1 of the Civil Practice Direction 52E states that the procedure in such cases is set out in the CrimPR as set out below.

The following provisions of CrimPR Part 35 are relevant for present purposes:

"35.2 Application to state a case

(1) A party who wants the court to state a case for the opinion of the High Court must –

(a) apply in writing, not more than 21 days after the decision against which the application was to appeal; and

(b) serve the application on –

(i) the court officer, and

(ii) each other party.

(2) The application must –

(a) specify the decision in issue;

(b) specify the proposed question or questions of law or jurisdiction on which the opinion of the High Court will be asked;

(c) indicate the proposed grounds of appeal; and

(d) include or attach any application for the following, with reasons—

(i) if the application is to the Crown Court, an extension of time within which to apply to state a case,

…

(3) A party who wants to make representations about the application must—

(a) serve the representations on—

(i) the court officer, and

(ii) each other party; and

(b) do so not more than 14 days after the service of the application.

(4) The court may determine the application without a hearing.

(5) If the court decides not to state a case, the court officer must serve on each party—

(a) notice of that decision; and

(b) the court's written reasons for that decision, if not more than 21 days later the applicant asks for those reasons.

35.3 Preparation of case stated

(1) This rule applies where the court decides to state a case for the opinion of the High Court.

(2) The court officer must serve on each party notice of—

(a) the decision to state a case, and

(b) any recognizance ordered by the court.

(3) Unless the court otherwise directs, not more than 21 days after the court's decision to state a case—

(a) in a magistrate's court, the court officer must serve a draft case on each party

(b) in the Crown Court, the applicant must serve a draft case on the court officer and each other party.

(4) The draft case must—

(a) specify the decision in issue;

(b) specify the question(s) of aw or jurisdiction on which the opinion of the High Court will be asked;

(c) include a succinct summary of—

(i) the nature and history of the proceedings,

(ii) the court's relevant findings of fact, and

(iii) the relevant contentions of the parties;

…

(6) A...