Balogun v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEVESON,MR JUSTICE CRANSTON |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] EWHC 799 (Admin) |
| Docket Number | CO/14228/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 March 2010 |
[2010] EWHC 799 (Admin)
Before: Lord Justice Leveson
Mr Justice Cranston
CO/14228/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Mr Phillip Lucas appeared on behalf of the Claimant
Miss Rebekah Hummerstone appeared on behalf of the Defendant
(Draft for approval)
: This is an appeal by way of case stated from a decision of Deputy District Judge (Magistrates' Court) Dean, sitting in the City of Westminster Magistrates' Court, when he adjourned the hearing of a trial following the failure of the prosecution to identify and bring to court what was said to be a crucial witness.
The facts can be summarised shortly. The appellant was charged with an offence alleged to have been committed on 1 November 2008, namely that in Brook Street W1 he drove a Bentley Continental motor car after consuming so much alcohol that the proportion of it in his blood, namely 146 milligrams in 100 millilitres, exceeded the prescribed limit.
The case came to court on 5 January 2009 when the appellant pleaded not guilty. His representative indicated that although it was accepted that the appellant was the driver on the relevant date, the prosecution was put to “strict proof” of every element of the alleged offence although it was apparently said that there was an issue concerning the taking of a blood sample and its analysis. I shall return to this exchange later in the judgment.
The case was adjourned because the prosecution was not in possession of those dates that had to be avoided in relation to their witnesses. Default directions were made under the Criminal Procedure Rules. On 19 January 2009 there was a pre-trial review at which the trial was fixed for 8 May 2009 with an estimate of half-a-day. A further case-management hearing was conducted on 16 February and, having been informed that the applicant was paying his legal costs on a private basis, the court made an order that the prosecution serve initial disclosure within 14 days or face a wasted costs order.
So it was that on 8 May the case came on to be tried. Both sides were represented by counsel. Four prosecution witnesses attended court, comprising two police officers, the Divisional surgeon who had taken the sample of blood from the applicant and the forensic scientist who had analysed the sample of blood. A further prosecution witness —Police Sergeant Cloe —who had first made a witness statement on 20 April 2009 was not present. An unsigned copy of her statement was served on counsel only on the morning of the trial.
Counsel then informed the district judge that the procedure adopted by the sergeant at the police station for obtaining the blood sample and its continuity was “disputed” and, as a result, the prosecution reluctantly applied for the trial to be adjourned to a new date in order that Police Sergeant Cloe could attend to give oral evidence: inquiries had established she was on annual leave until the following Monday. Additional facts both about the witness and about the time at which her unavailability was discovered have been identified in court today. They are not included in the case and it is not appropriate to refer to it: it was not before the deputy district judge and is irrelevant to his judgment.
The deputy district judge then raised the possibility that the prosecution should proceed and the proceedings be adjourned on a part-heard basis. Both representatives urged against adopting that course, asserting that the evidence should be heard chronologically and there was a risk that witnesses would need to be recalled if evidence was heard out of order. Whether that is always the case is another matter but does not fall for further consideration.
There was then a series of submissions during the course of which Mr Lucas referred to the need for rigorous scrutiny of any application to adjourn. In the event, the deputy district judge decided to do so, giving as his reasons the following:
“(1) The prosecution candidly accepted that they were at fault in having failed to identify Sergeant Cloe as a relevant witness at an earlier stage and to warn her to attend court. I was satisfied that any further inquiries as to the circumstances in which this failure occurred was unlikely to be of assistance to me. All prosecution witnesses have attended court and would have been available to give evidence in the case adjourned part heard save that both parties' representatives have strongly urged against adopting such a course. These witnesses were either police officers or professional expert witnesses, and an adjournment was therefore unlikely to result in issues concerning loss of memory of relevant events;
(2) This was the first occasion upon which the case had been listed for trial and neither party had sought to list the case to seek further directions concerning the service of evidence since the case management hearing on 16 February;
(3) It was proper to decide in principle the issue as to whether or not to grant an adjournment before canvassing with the Listing Office the next available court date convenient to the witnesses and the parties upon which an adjourned trial can be heard;
(4) Once the applicant did have a reasonable expectation that his case would be concluded on the date of trial, there was nevertheless a remedy available to him by way of an application for costs of the case should he be acquitted or alternatively wasted costs of today's hearing;
(5) Having regard to these issues and the matters raised in submissions, there remains a legitimate public interest that the charge should be adjudicated upon.”
In those circumstances the deputy district judge adjourned the new trial date until 25 August 2009 with an estimate of three-quarters of a day, being the first available date at which the matter could be heard convenient to all involved. On that date the case was subsequently tried and found proved by a different tribunal. The question posed in the case is simply stated by the deputy district judge in these terms:
“In all the circumstances did I err in law in granting an adjournment?”
This area of the law has been well trodden over a number of years. In R v Aberdare Justices ex p Director of Public Prosecutions [1990] 155 JP 324, Bingham LJ (as he then was) emphasised two principles in these terms:
“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 would be very slow to interfere and accordingly would interfere only if very clear grounds were 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 and the prosecution's criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are more scandalous when it is criminal proceedings with which the court is concerned.”
Those observations were followed by Lord Bingham CJ (as he became) in R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110, at 127G:
“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 to delay, the reasons for those applications, the consequences both for the prosecution and defence. Ultimately they must decide what is fair in the light of all those circumstances. The 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 the 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.”
Inefficiency is always to be challenged. In a pithy but entirely apposite observation in R (Walden and Stern) v Highbury Corner Magistrates' Court [2003] EWHC 708, Mitchell J observed (at paragraph 17):
“Furthermore, these reasons were given in the absence of any 'rigorous scrutiny' of the application. The longer courts tolerate the sort of inefficiency which seems, in each of these cases, to be the explanation for the failure of the witnesses to attend court on the date fixed for the hearing, the longer it will continue. To tolerate it is to encourage it.”
The anxiety of the law relating to delays is underlined by reference to the Criminal Procedure Rules 2005 which require the court actively to manage cases. This involves (paragraph 3.2 (2)):
“(a) the early identification of the real issues;
(b) the early identification of the needs of witnesses;
(c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding...
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