R Augustine Ogunsola v Crown Court at Aylesbury
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith |
| Judgment Date | 28 April 2021 |
| Neutral Citation | [2021] EWHC 1062 (Admin) |
| Docket Number | Case No: CO/3283/2020 |
| Date | 28 April 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1062 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stuart-Smith
and
Mr Justice Holgate
Case No: CO/3283/2020
and
The Claimant represented himself
Mr James Boyd (instructed by CPS Appeals Unit) for the Interested Party
Hearing date: 21 April 2021
Approved Judgment
Introduction
This is the judgment of the Court to which we have both contributed.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. No matter relating to the original complainant in the underlying proceedings shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of those alleged offences.
On 15 April 2019 the Claimant appeared before HHJ Rochford sitting at the Aylesbury Crown Court. He was facing an indictment that alleged offences of voyeurism and trespassing with intent to commit a sexual offence on or before 11 April 2017. In the event, the Claimant pleaded guilty to a lesser charge of harassment, which is a summary-only offence. The Claimant had previously offered to plead guilty to such a charge, but that offer was not acceptable to the prosecution until very shortly before the date of trial. His plea to the new charge of harassment was accepted and he was sentenced to a community penalty. Not guilty verdicts were entered on the two counts of the indictment. It is clear from the transcript that the Judge and Counsel believed that this was a constructive, proportionate and appropriate approach to the case because, although some of the facts of the case were not disputed, the prosecution frankly accepted that it would have faced significant difficulties in proving the sexual element of the indicted charges.
On 28 July 2020 the Claimant asked the Judge to state a case for the High Court. The Judge declined to do so, whereupon the Claimant issued these proceedings. By his Claim Form the Claimant sought judicial review of the Judge's decision to refuse to state a case; however the Claim Form and Grounds made clear that the substance underlying the proceedings was the Claimant's wish to overturn his conviction for the summary offence of harassment on the basis that the Court below had lacked jurisdiction to act as it did. He named the Crown Prosecution Service as an interested party and it responded as such, although it is arguable that the Director of Public Prosecutions would have been more appropriately named. On any view, this point should not and does not affect the outcome of these proceedings.
For the reasons set out in this judgment, we conclude that the Claimant's contentions about the lack of jurisdiction in the Court below are correct and that his conviction can and should be quashed. In reaching that conclusion we have been greatly assisted by clear, concise and impeccably fair submissions from Mr James Boyd on behalf of the Interested Party, which did not seek to oppose the Claimant's wish to overturn his conviction and explained why the Interested Party adopted that position. This judgment largely adopts the logic and content of Mr Boyd's submissions. The Claimant also made his submissions clearly and concisely both in writing and orally. We are grateful to both for their contributions.
The factual background
The facts giving rise to the proceedings below may be shortly stated. The Claimant placed a recording device in the room of the complainant, with whom he was in a relationship involving at least some intimacy. It was discovered by the complainant on 12 April 2017. The Claimant asserted consistently that there had been no sexual element involved in his conduct and that he had merely wished to know whether the complainant was seeing someone else as well as him.
It is common ground and this hearing proceeds on the basis that no information was laid against the Claimant, nor was he charged with any offence until he was charged by the postal requisition procedure on 18 June 2018, which charged the two indictable offences to which we have referred. As will immediately be appreciated, it follows that the Claimant was not charged with any offence until well over a year after the events in question.
The Claimant appeared at High Wycombe Magistrates' Court on 20 July 2018 and was sent for trial at the Crown Court on the two indictable charges pursuant to s. 51 of the Crime and Disorder Act 1998. He appeared before the Crown Court at Aylesbury on 21 August 2018, facing an indictment containing the two counts on which he had been sent by the Magistrates. He pleaded not guilty to each count.
The case was listed for trial on 15 April 2019, just over two years after the events in question. Counsel then representing the Crown proposed that the Judge should constitute himself as a District Judge (Magistrates' Courts) under s. 66 of the Courts Act 2003 and that the new charge of harassment should be put to the Claimant. It was accepted that the charge could not be added to the indictment; but, relying upon R v Scunthorpe Justices ex p McPhee [1998] EWHC 228 (Admin), the prosecution submitted that the original information could be amended to allege the offence of harassment and that the Judge could deal with the new charge exercising the powers of a District Judge (Magistrates' Court). If that were done, the prosecution would not proceed with the charges on the indictment. This course of action was supported by Counsel then representing the Claimant. The new charge was then put, the Claimant pleaded guilty, and the Court proceeded to sentence him for the summary offence of harassment. Though not directly material to the present proceedings, the Judge accepted that what the Claimant had done was wholly out of character. At the conclusion of proceedings the Crown offered no evidence on the two counts on the indictment and the Judge recorded not guilty verdicts.
The first step taken by the Claimant, now acting in person as he has since, was to try to appeal his conviction to the Court of Appeal Criminal Division. By a letter dated 13 July 2020 the Registrar of Criminal Appeals correctly advised him that, as the conviction was not a conviction on indictment, the Court of Appeal did not have jurisdiction.
On 28 July 2020 the Claimant applied to the Judge below for an extension of time within which to apply for a case stated, and for the Court to state a case. He proposed three questions for the High Court, namely:
“1. Does a Magistrates' Court or a ‘District Judge’ have jurisdiction to try a defendant in circumstances where he is first charged with an indictable offence more than six months after the alleged offence and the charge is later amended to a summary only offence?”
R v Scunthorpe Justices ex parte McPhee and Gallagher [1998] EWHC 228 Versus Dougall v CPS [2018] EWHC 1367 (Admin)
2. Are there ‘Abuse of Process’ issues for Prosecution to offer a change of indictment on the day of a trial of an Indictable offence to the defence which had been previously rejected when offered to Prosecution only to change its decision on the pretext that the original indictment could not be proven beyond reasonable doubt?
3. Does the above stated scenario also serve as a contravention of the Prosecutor's code?”
The Judge clearly considered that he had the power to extend time for the Claimant's application for a case stated; but on 26 August 2020 he declined to extend it. He set out the history, including what had happened before him on 15 April 2019 and that he had “sat as a District Judge under s. 66, amended the information accordingly and had the matter under s. 2 of the Harassment Act put to the [Claimant]. … The [Claimant] pleaded guilty to the harassment offence, and was sentenced.”
The Judge gave his reasons for refusing to extend time. He considered that the Claimant had not provided an adequate explanation for the delay. The delay was identified as being in the order of 15 months (from April 2019 to July 2020) and the Claimant's explanation that he had difficulty in obtaining and paying for advice and representation was “not compelling”. The Judge referred to the fact that the Claimant is an educated and intelligent man; that the not guilty verdicts on the two counts on the indictment could not now be set aside; and that the complainant would with reason feel let down if the conviction for harassment were to be set aside. He considered that the delay was not consistent with the objective that cases be dealt with expeditiously; and he expressed the view that, even if his decision to allow the amendment to the information was wrong, the Claimant had suffered no injustice that ought to be remedied as he had supported the course of action and taken advantage of it by pleading guilty, thus avoiding trial on the more serious allegations. For these reasons he refused to extend time as requested, with the result that the application to state a case was out of time and was refused.
These proceedings were then issued promptly on 15 September 2020. As we have indicated, they are framed as a challenge to the Judge's decision to refuse to state a case; but the substantial issue that the Claimant wishes to raise is whether the Judge had jurisdiction to act as he did in permitting the new summary charge of harassment to be put and the...
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