Nkromah v Willesden Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Collins |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWHC 4455 (Admin) |
| Docket Number | CO/14445/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2013 |
[2013] EWHC 4455 (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 Collins
CO/14445/2013
Mr M Oliver (solicitor advocate instructed by JD Spicer Zeb Solicitors) appeared on behalf of the Appellant
Mr B Lloyd (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
This is a case about the scope and exercise of the power of magistrates' courts pursuant to section 142(2) of the Magistrates' Court Act 1980 (the "1980 Act"). That provision provides:
"where a person is convicted by a Magistrates' Court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct."
In the present case, the claimant Moses Nkromah applied in the afternoon of 11 September 2013 to the defendant, the Willesden Magistrates' Court, for a direction that his conviction in his absence that morning of an offence contrary to section 4 of the Public Order Act 1986 be heard again. The magistrates' court refused his application and committed him for sentence. In these proceedings he seeks a judicial review of that decision. Section 3 of his claim form states that the decision challenged is the decision by the magistrates' court that there had not been a mistake and section 142(2) of the 1980 Act was not engaged.
The court had before it affidavits sworn on 6 December 2013 in identical terms by the chairman of the bench that day, Shirley Scott, and Martin Timms, the magistrate who sat with her, dealing with Mr Nkromah's case and an affidavit also sworn on 6 December by Claire Richardson who was the legal adviser to the justices on the afternoon of 11 September when they considered the claimant's application. It also has the affidavit dated 3 December 2013 of Sarah Davies, a solicitor advocate at JD Spicer Zeb, the claimant's solicitors. Before outlining the material facts, I add this. After refusing Mr Nkromah's application, the magistrates committed him for sentence to the Wood Green Crown Court. On 18 September he was sentenced to 8 weeks' imprisonment for the index offence and two suspended sentences were activated. Subsequently an application to set aside the sentence because there was no power to activate one of the suspended sentences was made and succeeded. The remitted sentencing hearing at Wood Green Crown Court has been adjourned pending the outcome of these proceedings.
I return to the material facts. On 5 July 2013, the claimant pleaded not guilty to two charges: that contrary to section 4 of the Public Order Act, he had, on 13 June, used threatening, abusive or insulting words or behaviour with intent to cause Lisa Joseph to believe that unlawful violence would be used against her; and that contrary to section 39 of the Criminal Justice Act 1988, he assaulted Maxine Cummings by beating her on 19 June. The Public Order Act offence was listed for trial on the morning of 11 September; the assault was listed for trial on 18~September. They were both listed at the Willesden Magistrates' Court, and Mr Nkromah was bailed.
On the afternoon of 10 September, the day before the first of these trials, Mr Nkromah contacted his solicitors to inform them that he was unwell and would be unable to attend court. He provided a medical certificate signed by Dr Sapna Patel, a salaried doctor at his GP practice on a pro former which stated that he was "unfit for work" and would be until 17 September. He was advised by a trainee solicitor that his medical certificate might not be sufficient because medical certificates should specifically say that the person was unfit to attend court, rather than unfit to work. See Sarah Davis's affidavit, paragraphs 2 and 5. A copy of the certificate with a covering letter stating that an application to adjourn the trial would be made was faxed to the court and the CPS on 10 September. The certificate did not in fact comply with the Crown Prosecution Service guidance on issuing medical certificates in other respects. Apart from stating that a court may find a certificate unsatisfactory where it states that a defendant is unfit to work rather than to attend court, it also states that, as a minimum standard, a certificate should inter alia set out the exact nature of the ailments and, where it is not self evident, why the ailment prevents the individual from attending court and an indication as to when the individual is likely to be able to attend, or when the certificate expires.
At the hearing on 11 September, as I have stated, the magistrates refused the application to adjourn on the basis of the medical certificate. The material part of paragraph 2 of their affidavit states:
"Mr Nkromah did not attend and his Advocate submitted a medical certificate on his behalf contending that he was unfit for work due to his experiencing chest pain. We established that Mr Nkromah did not in fact work and therefore the only practical purpose of the medical certificate was to persuade the Court that he was unfit to attend Court."
After her application was refused, Ms Davies who, on that occasion acted as Mr Nkromah's solicitor advocate, withdrew. The magistrates' affidavits do not state why the decision was taken to proceed in Mr Nkromah's absence, only that:
"We heard evidence in the defendant's absence and convicted him of the offence and issued a warrant no bail under section 7 Bail Act 1976."
See paragraph~3. There is no evidence from the person who sat as legal adviser to the magistrates in the morning. As the challenge and the grounds were confined to the application for an order under section 142(2) of the 1980 Act, this is understandable. In her affidavit, Ms Richardson, who sat as the legal adviser in the afternoon stated:
"3. The Justices advised me, in open court, of the decision they had made in the morning and the fact that they had explored at length the fact that the … medical certificate had stated [Mr Nkromah] was unfit to work. They explained that they had concluded that since Mr Nkromah had not actually been in employment for a significant period then the only practical purpose of the earlier medical certificate was to persuade the Court that he was unfit to attend Court."
Shortly after 2pm that day, Mr Nkromah's solicitors who had been in touch with Mr Nkromah, who was apparently at the GP's surgery, received a faxed letter from Dr Sapna Patel stating:
"This is a letter to confirm [Mr Nkromah] is not fit to attend court on 11/09/2013. He is experiencing chest pains which are under investigation. He has been advised not to work also."
As a result of this, Ms Davies returned to the magistrates' court and made the application for the conviction in Mr Nkromah's absence to be set aside, the application pursuant to section 142(2). The magistrates' affidavits stated:
"7. We noted that the two documents were from the same doctor but had different signatures.
8. We expressed the view that this information was no different from what we had before us that morning.
9. We asked Ms Davies if there was any further information or relevant authorities that she wished to place before us. She indicated that there was not.
10. We received advice from our legal adviser about the application of Section 142 Magistrates' Court Act 1980 and Zykin v CPS [2009] 1469 (Admin).
11. We confirmed that we have the power to reopen the conviction if it is in the interests of justice to do so in order to rectify a mistake.
12. We found that in the absence of any new information concerning Mr Nkromah's absence that there were no judicial grounds to consider that we had made a mistake in our earlier decision.
13. We therefore refused the application."
I observe that paragraph 7 is a curious paragraph. There is no evidence to suggest that one of the documents was not genuine. The certificate is signed but the letter is initialled. And that probably accounts for the difference. Ms Richardson's affidavit states that she:
" … advised them on recent case law that had confirmed the power gave them a broad discretion to re-open proceedings in the interests of justice ( R v Croydon Youth Court 1997 2 Cr App R 411, Zykin v Crown Prosecution Service [2009] EWHC 1469 Admin), but only to rectify a mistake or something akin to a mistake, R v Holme [2004] EWHC 3131 Admin) …"
She also referred to the statement of Laws LJ in R (M) Manorgale Ltd and Thames Magistrates [2013] EWHC 535 (Admin) at 8 that:
"The proposition that the section 142 jurisdiction only runs where the Magistrates have made a mistake, presumably of fact or law, is a plain error. The jurisdiction is broader, as the statute expressly indicates. The question is whether it is in the interests of justice to make an order under either section 142( 1) or (2)."
She stated that Laws LJ did not refer to the cases to which she had referred, and that his "remarks about the broad discretion were obiter and in any event the conviction was not reopened."
She also referred to Killick v West London Magistrates' Court [2012] EWHC 3864 (Admin). She stated that that case:
"could be properly distinguished since the medical evidence submitted was considerable and gave full grounds regarding the inability of the defendant to attend Court and properly participate in the proceedings."
Ms Richardson's affidavit also stated at paragraph 7 that the magistrates repeated in court that they had taken...
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