DPP v Gowing
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffith Williams,Lord Justice Beatson |
| Judgment Date | 11 December 2013 |
| Neutral Citation | [2013] EWHC 4614 (Admin) |
| Date | 11 December 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9278/2013 |
[2013] EWHC 4614 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Griffith Williams
CO/9278/2013
Mr J Boyd (instructed by Crown Prosecution Service) appeared on behalf of the Appellant
The Respondent assisted by a McKenzie Friend appeared In Person
This is an appeal by the prosecution by way of case stated. The case was stated by the magistrates for the North East London area in respect of their decision sitting at Romford Magistrates' Court to order a stay of proceedings against Alan Gowing ("the Respondent") in respect of offences variously contrary to sections 2(1) and (6), 3(A) and 6 of the Scrap Metal Dealers Act 1964, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, as an abuse of process.
I take the facts as the magistrates found them from the Case Stated. The Respondent, who is a registered scrap metal dealer, was charged on 12 December 2012 with a total of 14 offences arising out of the operation of his business, FCR Metals, on 4, 6, 7, 8, 10, 11 and 12 December 2012.
The matter was first listed on 7 January 2013. The Court file noted, "A large bundle of documents is served very late". The case was adjourned until 22 January for "disclosure, including interview tape, custody records, exhibits, further statements and plea". The Respondent represented himself then and on all subsequent occasions. He has represented himself in this Court with the assistance of a McKenzie friend.
On 22 January 2013, the Magistrates' Court entered not guilty pleas. My understanding is that the Respondent had refused to enter pleas. The Court file recorded his change of address to K & H Trading Estate, at St Marys Lane, Upminster, the premises of FCR Metals. The case was adjourned for trial.
On 22 March, the case was listed for trial. The Respondent amended his address a third time, on this occasion to 6 Lee Gardens Avenue, Romford. In circumstances to which I shall shortly refer, the prosecution ("the Appellant") applied for "another adjournment" because there had not been disclosure. When the magistrates refused the application for an adjournment, the Appellant sought to proceed with the case, but after hearing submissions from the Appellant and the Respondent, the magistrates stayed the proceedings as an abuse of process.
On behalf of the Appellant it was submitted that the section 3 letter and the schedule of unused material had been sent by post on 25 February to the Respondent's home address; that the Criminal Procedure Rules provide that there was an obligation on the Respondent to inform the Court if there had been no disclosure and this the Respondent had failed to do, but initial disclosure was made in good faith by sending it to the Respondent's address on the Crown Prosecutor's file; that the Crown Prosecution Service's records show that the Respondent had refused to give an address to the Court on 7 January; that none of the items listed in the schedule would undermine the prosecution case or support the defence case, but if the Court found that the section 3 letter had not been served, there was no rule preventing it being served on the day of trial and the Respondent would then be entitled to request an adjournment, if necessary, to consider it and to prepare a defence statement; that many of the items on the schedule could not be disclosed or were contained in the initial bundle served on 7 January, although the details of what items were in the bundle could not be confirmed to the Court.
The Respondent submitted that the bundle of evidence purportedly served on 7 January had not, in fact, been served; that the section 3 letter had not been served; he was not living at the address to which that letter had been posted; and that due to lack of disclosure, he was unable to prepare his defence and so could not have a fair trial.
The magistrates were of the opinion that some evidence had been disclosed by the Appellant to the Respondent on 7 January, but the extent of that disclosure was not known. They were of the opinion that the section 3 letter and an "extensive" schedule of unused material which should have been sent to the Respondent's last known address as it appeared on the Court file had not been served and that delaying the proceedings any further due to lack of disclosure by the Appellant "was not appropriate, there being no good reason why service of the relevant material should not have taken place in good time and at the most recent address recorded in open court on 22 January 2013".
They took into account R (Ebrahim) v Feltham Magistrates' Court; Mouat v Director of Public Prosecutions [2001] Crim LR 741, "although the Appellant had not acted in bad faith, they were at serious fault by failing to disclose material to the Respondent, given the circumstances of that failure and the nature and the extent of the material in question. Some or all of those items might or might not have been relevant to the Respondent's case." The Respondent had been deprived of the opportunity to establish a defence which otherwise may have been open to him and that could not be rectified by the trial process on 22 March. In those circumstances and for those reasons, they stayed the proceedings.
The question for the opinion of this Court is "were we right to conclude that the proceedings should be stayed for abuse of process?"
On behalf of the Appellant, Mr Boyd accepted that the late compliance with its duty of disclosure merited censure of the prosecution, but he submitted that in the absence of bad faith, a prosecution should not be stayed for an abuse of process if there are other ways of achieving a fair trial such as by an adjournment. He submitted that there were no items on the schedule which undermined the prosecution's case or supported the defence case and there had been no bad faith in the failure to serve the section 3 letter and the schedule on the Respondent at his last known address. He submitted the magistrates should then either have proceeded to trial or adjourned the trial to afford the Respondent an opportunity to examine the schedule.
It was submitted that it was not open to the magistrates to stay the proceedings because they had not identified any item of unused material which potentially fell to be disclosed and which the Respondent would need time to examine before a fair trial could take place. It follows that there were no grounds for concluding it was impossible for the Respondent to receive a fair trial that day. Alternatively, if the Respondent could not have received a fair trial that day, there was nothing to suggest he would not have a fair trial on an adjourned trial date.
Mr Boyd submitted it would only have been open to the magistrates to stay proceedings on 22 March if they had identified an item of unused...
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