Maryam Halcrow v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mrs Justice Steyn |
| Judgment Date | 10 March 2021 |
| Neutral Citation | [2021] EWHC 483 (Admin) |
| Docket Number | Case No: CO/3915/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 March 2021 |
[2021] EWHC 483 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
and
Mrs Justice Steyn
Case No: CO/3915/2020
Audrey Cherryl Mogan (instructed by Bindmans Solicitors) for Maryam Halcrow
Tihomir Mak (instructed by Bindmans Solicitors) for Angel Grace
Conall Bailie (instructed by Bindmans Solicitors) for Lisa Mead
Paul Jarvis (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 25 February 2021
Approved Judgment
Introduction
This appeal raises the issue of whether the appellants had a reasonable excuse, within the meaning of the Stonehenge Regulations 1997, for entering the stone circle at Stonehenge on 4 February 2018 and 6 May 2018. The reasonable excuse was that the restrictions on entry to the stone circle impermissibly infringed the appellants' rights under articles 9, 10 and 11 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), to which domestic effect was given by the Human Rights Act 1998.
The appeal is by way of case stated from a written judgment and order of the Crown Court at Swindon (His Honour Judge Crabtree and Magistrates) dated 29 November 2019, dismissing an appeal by the appellants from their convictions at Swindon Magistrates' Court on 15 November 2018. The appellants' convictions were for offences contrary to regulation 3(h) of the Stonehenge Regulations 1997 and section 19 of the Ancient Monuments and Archaeological Areas Act 1979. The appellants were sentenced to a conditional discharge.
Extension of time for filing the case stated
There is a procedural point which needs to be addressed. The appeal in the Crown Court was heard on 8 and 9 August 2019. Judgment was reserved and delivered on 29 November 2019. An application to state a case was made in time and in accordance with the Criminal Procedure Rules 35.2(1) on 19 December 2019, but it was returned by the Crown Court because one question was frivolous.
The application was amended and returned to the Crown Court. Thereafter there were delays caused by the COVID-19 pandemic in drafting the case and making representations on it. The appellants' solicitors responded to a request to provide part of the transcript on 24 June 2020.
It appears that the final case stated was issued by the Crown Court on 30 June 2020 and it was sent to the High Court on that date. A copy of the letter sent by the Crown Court to the High Court and the enclosed case stated was copied by DX to Bindmans, the appellants' solicitors, on 30 June 2020. However as there was no letter addressed directly to Bindmans there was an oversight by administrative staff employed by Bindmans and the case stated was scanned but was not forwarded to the relevant fee earner or any fee earner. The administrative staff were working in difficult circumstances because of changes to working practices as a result of the COVID-19 pandemic.
It appears from the witness statement of the solicitor dealing with the case at Bindmans, that there were communications with the court on 25 August, 2 September, 28 September, 8 October and 15 October 2020. The court had informed a trainee solicitor making the inquiry on 25 August that the case stated had been sent to the High Court and a copy of the case stated was requested on 2 September 2020. The Court replied on 16 October 2020 stating that the case stated had been sent on 30 June 2020. Thereafter the case stated was located and the appellant's notice filed.
Once a Case has been stated for the opinion of the High Court the procedure ceases to be governed by the Criminal Procedure Rules and is governed by the Civil Procedure Rules, and in particular CPR 52 Practice Direction 52E. Paragraph 2.2 of Practice Direction 52E provides that “an appellant must file the appellant's notice at the appeal court within 10 days of the date of the case stated by the court”. This meant that the appellant's notice should have been filed on 10 July 2020. In fact the appellant's notice was filed on 26 October 2020, which was some 3 and a half months out of time. The appellants seek an extension of time for filing the statement of case.
There is power to extend time for service of the appellant's notice pursuant to the Civil Procedure Rules 52.15 and 3.1. It was common ground that the relevant guidance set out in Denton v TH White Limited [2014] 1 WLR 3926 at paragraph 24 should be applied.
It was accepted on behalf of the appellants that there was a serious default in this case, because there was a delay of over 3 and a half months in filing the appellant's notice after receipt of the case stated from the Crown Court.
The reason that the default occurred is because the case stated was not forwarded to any fee earner by the administrative staff who had received the case stated in the DX. It was recognised on behalf of the appellants that this should have happened.
In considering all of the circumstances of the case it is relevant to note that all of the parties were aware that the appellants were appealing by way of case stated because the appellants had applied to the Crown Court to state a case in time. The case stated was not forwarded to the relevant fee earner by the member of the administrative staff who dealt with it. There were difficulties caused to the firm's administration by the COVID-19 pandemic. The fee earner, after receipt by the firm of the case stated which was not known to her, contacted the Crown Court to find out what had happened to the case stated. The errors which led to the serious delay in filing the appellant's notice were made by the appellants' firm and not by the appellants themselves. These proceedings are criminal so that it is appropriate to have some regard to the distinction between the legal representatives on the one hand and the appellants on the other hand so far as fault for the delay is concerned. The Crown Court did state a case for this appeal, showing that there are proper issues to be considered on this appeal. Finally it is apparent that the delay has not caused any further difficulties in dealing with the appeal. In these very particular circumstances in my judgment it is appropriate to extend time for filing the notice of appeal.
The questions
The two questions for the High Court set out in the case stated are:
(1) Was the Court wrong in law when it reached its determination on proportionality (of interference with the appellants' ECHR rights) when there was no evidence adduced by the Crown relating to proportionality, despite the burden of proof resting on the Crown, and no other evidence adduced upon which the Court could properly reach a finding that the restriction was proportionate?
(2) Was the Court wrong in its analysis of regulation 3(h) by failing to interpret ‘reasonable excuse’ in a manner compatible with the Human Rights Act 1989 (and instead focussing on the prima facie restriction created by regulation 3(h))?
At the hearing all parties accepted that the wording of the first question, which had been suggested to the court by the parties, was not as succinct as it could have been. It was also common ground that the answer to the second question was dependent on the answer to the first question. This was because if there was not an impermissible interference with the appellants' rights, there would not have been a reasonable excuse within the meaning of the 1997 Regulations. On the other hand if there had been an impermissible interference with the appellants' rights under articles 9, 10 and 11 of the ECHR, the appellants would have been able to rely on those rights as a reasonable excuse for accessing the stone circle.
Relevant factual background
It is established law that a court hearing an appeal by way of case stated is restricted to the facts set out in the stated case. In this case the Court stated a case having produced a written judgment. The findings of fact are set out in the case stated which incorporated findings of fact made in paragraphs 15 to 21 of the judgment. The relevant facts set out in the case stated and the incorporated written judgment of the Crown Court are set out below.
Stonehenge is a site of global significance and is designated as a World Heritage site. Its preservation for future generations is essential. Stonehenge was given, by a deed of gift dated 26 October 1918 by Mary and Cecil Chubb to the Commissioners of Works for the benefit of the nation, pursuant to the Ancient Monuments Consolidation and Amendment Act 1913.
Entry to Stonehenge is ticketed and timed in general admission hours, but entry to the stone circle is prohibited. There is also available pre-booked access to Stonehenge and the stone circle for up to 30 people for one hour outside general admission hours, but the visitors are not allowed to touch the stones. Entry is free to Stonehenge and the stone circle on the days of the summer and winter solstice and the spring and autumn equinox (although there is a parking charge for those arriving by car). These are known as managed open access (“MOA”) days. About 9,500 people attended the summer solstice in 2018.
Material facts were that the stone circle was surrounded by a rope barrier and a no entry sign. On 4 February 2018 a number of protestors gathered to protest against what they perceived to be English Heritage's mismanagement of Stonehenge and the requirement to pay for entry. The police distributed letters and the police explained to some of the protestors “points” that the protestors might breach if they took part in the protest. Ms Halcrow stated that she was there to worship at her temple. A group of protestors walked...
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HSK v Crown Prosecution Service
...failures to comply with time limits set out in the rules for appeals by way of case stated, see Halcrow v Crown Prosecution Service [2021] EWHC 483 (Admin); [2021] 2 Cr App R 1. There was reference in the submissions to Greece v O'Connor [2022] UKSC 4; [2022] 1 WLR 903 in which the Supr......