Other issues
| Pages | 579-676 |
| Author | Pauline M. Callow |
Chapter 11
Other Issues
1. ADJOURNMENTS
Walden v Highbury Corner Magistrates’ Court; Stern v Highbury
Corner Magistrates’ Court
[2003] EWHC 708 (Admin), [2003] All ER(D) 285 (Mar), 19 M arch 2003, QBD
(Admin)
Where adjournments were granted without rigorous scrutiny of the applications,
and in the absence of representations from the prosecutor or the justices on the
appeal, the orders granting the adjournments were quashed.
In Walden, a motorist had been charged with being in charge of a motor vehicle
with excess alcohol on 10 November 2001, contrary to s 5(1)(b), Road Traffic
Act 1988. In Stern, a motorist had been charged with driving with excess alcohol
on 22 April 2001, contrary to s 5(1)(a), Road Traffic Act 1988. Both had pleaded
not guilty and their cases had been adjourned to await the decision in DPP v
Brown; DPP v Teixeira (see page 297). Trial dates were then fixed for
3 September 2002 and 26 September 2002, respectively. On both trial dates, no
prosecution witnesses were present, having not been warned. The prosecution
sought adjournments. The justices asked for an outline of the facts of the
allegations; they did not ask why the witnesses had not been warned. In Stern, the
defendant had become seriously ill. The magistrates granted the adjournments, in
Walden, citing the seriousness of the charge, and in Stern without giving reasons.
The defendants appealed.
HELD: “9. The position today is this: in a word, no one is any the wiser. No
evidence has been filed on behalf of the defendant court. An acknowledgment of
service was lodged by the defendant court in each case, but no submissions were
made. There has been no response either from the Crown Prosecution Service,
who again had been served in each case as an interested party … Neither the
justices, nor the Crown Prosecution Service, are represented at today’s hearing.
…
“[After reviewing the authorities] 16. … The justices have an obligation formally
to examine the circumstances leading to an application, the reasons for it, and the
consequences, both to the prosecution and to the defence. As Bingham LJ
580 11. Other Issues
‘applications for adjournments must be subjected to rigorous scrutiny’, and that
observation applies regardless of which side is making the application.
“17. The single inquiry made in each of these cases was for an outline of the
prosecution’s case. The prosecution was not, for example, sent away to
investigate the … non-attendance of witnesses. Finally, the court gave no reasons
in the case of Mr Stern for its conclusion; and in the case of Mr Walden, gave
limited reasons which did not reveal that any regard had been had for any other
considerations save for the two identified. Furthermore, these reasons were given
in the absence of any ‘rigorous scrutiny’ …
“18. With some hesitation … I have come to the conclusion, in the absence of any
representations made on behalf either of the justices or the Crown Prosecution
Service, that it is in each of these cases appropriate for the court to interfere. In
my judgment, each of these applications for an adjournment should have
been refused, with the inevitable consequence that each case would have been
dismissed. The order granting the adjournment will accordingly be quashed, as
will the decision to refuse to dismiss each of these cases.”
Appeals allowed.
Essen v DPP
[2005] EWHC 1077 (Admin), 12 May 2005, QBD (DC)
Where magistrates allowed the prosecution’s application to adjourn, and the case
stated gave no reasons for that decision, it was overturned.
A motorist had been charged with, inter alia, driving, on 4 July 2001, while unfit
through drink or drugs, contrary to s 4(1), Road Traffic Act 1988. There had been
a number of pre-trial hearings and a trial date of 30 December 2002 was set. The
defence then sought to vacate that date on the grounds that it was inconvenient
for defence witnesses; the magistrates refused the application. On 30 December,
the prosecution sought an adjournment because no prosecution witnesses had
attended. The defendant opposed the application, but the magistrates gran ted it;
the case stated gave no reasons for this decision. There were then various
applications concerning the admissibility of evidence. The trial eventually opened
on 17 April 2003 but did not conclude until 7 April 2004, when the defendant was
convicted. She appealed.
QUESTION(S) FOR THE COURT: Whether, having refused the defence
application to adjourn the original trial date of 30 December 2002, it was
Wednesbury unreasonable to have on the day then granted the same application
when made by the prosecution and opposed by the defence.
HELD: “28. … the court has the benefit of the case stated, but … this does not
give the reasons for granting the prosecution’s application for an adjournment on
that day.
“30. … we have no information before us upon which we can be satisfied that the
Justices did take into account relevant considerations and exclude irrelevant
considerations. It is possible that what weighed them was the factor referred to by
Adjournments 581
Bingham LJ in [R v Aberdare Justices ex p DPP (1990) 155 JP 324]. That is the
interest of the prosecution that a serious charge properly preferred by the
defendant should be the subject of proper adjudication and that the result of
refusing an adjournment would … be the collapse of the prosecution. If this was
the case and if they had articulated this, … it is very unlikely that this court would
interfere with their decision.
“31. … it is not possible to say anything other than that this was a decision which
could have gone either way. In those circumstances, since no reasons were given,
given that applications for adjournments must be subjected to rigorous scrutiny
[Lord Bingham CJ in R v Hereford Magistrates’ Court ex p Rowlands [1998] QB
110] … with some reluctance, I am constrained to the conclusion that this court
is unable to uphold the decision. I would set aside the decision of the Justices
granting the adjournment and allow the appeal.”
Filmer v DPP
[2006] EWHC 3450 (Admin), [2007] RTR 28, 1 November 2006, QBD (DC)
On the facts of this case, the defence had been given sufficient notice of the issues
to be tried and was not entitled to an adjournment to seek further evidence.
A motorist had been charged with driving, on the parking area of commercial
premises, with excess alcohol, contrary to s 5(1)(a), Road Traffic Act 1988. He at
first pleaded guilty, but was then allowed to vacate his plea to enable him to argue
that the parking area was not a public place.
The magistrates heard evidence from a police officer that the car park had an
entrance and exit without barriers, and was, outside normal trading hours, used as
a pedestrian shortcut, a turning circle, and for parking. At the close of the
prosecution case, the defendant submitted there was no case to answer. When that
submission was rejected, he sought an adjournment to gather more evidence about
the parking area, claiming “prosecution by ambush”. In fact, the advance
disclosure had included a statement from the witness that, “the forecourt itself is
an open area of tarmac which is accessible to vehicles at two points but which has
a brick wall partially across the front”. The magistrates refused the application to
adjourn and convicted the motorist. He appealed.
QUESTION(S) FOR THE COURT: Whether: (a) refusing the adjournment was a
proper exercise of discretion; (b) it was Wednesbury unreasonable to accept the
police evidence that the area in question was a public place.
HELD: “19. … [The appellant cited] two generally accepted propositions which
relate to the fundamental preconditions of a fair trial. First, the requirement that
criminal proceedings should not proceed by way of ambush … and second, the
concomitant requirement that the prosecution must normally serve written
versions of the evidenc e they propose to adduce in sufficient time before the
hearing to enable the defendant fairly to deal with it …
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