Other Issues
| Author | Pauline M Callow |
| Pages | 539-605 |
Adjournments
Chapter 12
Other Issues
1. Adjournments
Walden v Highbury Corner Magistrates’ Court; Stern v Highbury Corner Magistrates’ Court
[2003] EWHC 708 (Admin), unreported, 19 March 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 Browne; DPP v Teixeira (see page 293). 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: “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] “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 observed [in R v Hereford Magistrates’ Court ex parte Rowlands [1998] QB 110],
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‘applications for adjournments must be subjected to rigorous scrutiny’, and that observation applies regardless of which side is making the application.
“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’ …
“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), unreported, 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 granted 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: “… 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. … 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 Bingham LJ in [R v Aberdare Justices ex parte 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.
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Adjournments
“… 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 parte 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: “… [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 evidence they propose to adduce in sufficient time before the hearing to enable the defendant fairly to deal with it …
“[The Crown] argues that the appellant had clear prior knowledge of the issues in the case such as to enable him to prepare his case fully for trial, and that the evidence called by the Crown was sufficient to justify a conviction …
“The central complaint as regards disclosure is that the appellant had received no sufficient notification of the details of the respondent’s case that the car park was a public place so as to enable him to anticipate it and to gather evidence in rebuttal. I am unable to accept that argument. The appellant’s guilty plea was vacated in order for this very issue to be resolved, and the appellant knew full well that it was the prosecution’s submission that this was a public place for the purposes of this legislation.
“Additionally, [the] statement which was served in advance of trial, had revealed the essential elements of their case. … The additional evidence given [at the trial] was no more than … examples of how the public, to [the
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witness’s] knowledge, had utilised this car park. The appellant was fully aware that he had the option of calling witnesses if any could be found who were in a position to rebut the prosecution assertion that this was private land to which the public had access at the time in question.”
The answer to (a) was “yes”; the answer to (b) was “no”; appeal dismissed.
Williams v DPP
[2009] EWHC 2354 (Admin), unreported, 24 July 2009, QBD (DC) Amending the charge, out of time, from failing to provide breath to failing to provide urine, was permissible in that both offences arose from the same facts, but, in the absence of any compelling reason, an adjournment following the amendment was not, on the facts, in the interests of justice.
A motorist had provided insufficient breath for analysis, saying he suffered from bronchitis. He was then asked if there was any medical reason why a specimen of blood could not be taken, and he said he was afraid of needles. When...
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