R CROWN PROSECUTION SERVICE v PORTSMOUTH CROWN COURT

JurisdictionEngland & Wales
JudgeLORD JUSTICE SCOTT BAKER,MR JUSTICE PITCHFORD
Judgment Date01 May 2003
Neutral Citation[2003] EWHC 1079 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date01 May 2003
Docket NumberCO/323/2003

[2003] EWHC 1079 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Scott Baker

CO/323/2003

Mr Justice Pitchford
The Queen On The Application Of Crown Prosecution Service
(Claimant)
and
Portsmouth Crown Court
(Defendant)

MR J LOFTHOUSE appeared on behalf of the CLAIMANT

The DEFENDANT did not appear and was not represented

Thursday, 1st May 2003

LORD JUSTICE SCOTT BAKER
1

The Crown Prosecution Service seeks judicial review of the decision of Judge Ian Hughes QC, sitting in the Portsmouth Crown Court on 20th December last with two Justices, when he allowed the appeal of Richard Proud because the Crown Prosecution Service were not present in court to resist it.

2

Mr Proud had appeared in the Portsmouth Magistrates' Court on 16th August of last year and had been convicted of common assault and threatening behaviour. Sentence was adjourned until 27th September, when he was given a community punishment of 150 hours and ordered to pay £175 compensation for assaulting Lewis King. For threatening behaviour, he was ordered to pay £75 compensation to Kirsty Jefferey and he was also ordered to pay £100 towards the costs of the prosecution. Following conviction and sentence, he appealed to the Crown Court against both.

3

The case was first listed in the Portsmouth Crown Court on 15th November 2002, but Mr Proud had not given full instructions to his solicitors and so the appeal could not proceed at 10.30. It was put back until 12.50 and then adjourned until 20th December last, partly due to lack of court time and partly because he needed to give further instructions to his solicitors and counsel. The victims, Mr King and Miss Jefferey, were both at court, along with their three month old child, and it was no doubt irritating and inconvenient for them to have to return on 20th December.

4

On 20th December, Mr Proud's appeal was listed at 10.30, but behind a confiscation application in a case called Etherington, also listed at 10.30. The case of Etherington, when originally fixed, had a three hour time estimate and this was not apparently altered. However, in the event, there were discussions on the morning of the hearing and the case settled.

5

It seems likely that the court office must have envisaged there was some prospect of the case going short. Otherwise, there would have been a "not before" marking on Mr Proud's appeal.

6

What happened on the morning of 20th December was this: counsel for the respondent to Mr Proud's appeal (that is the Crown Prosecution Service) was briefed in a case in another court in the same building, also listed at 10.30. It too was second in the list and counsel expected it would take some 10 or 15 minutes.

7

The Crown Prosecution Service statement of facts on this judicial review —and we emphasise we have not had any evidence from the counsel concerned —runs as follows. Counsel attended court 4 at 10 am to inform the usher and the clerk that she was also prosecuting a sentence case in His Honour Judge Selwood's court. She explained that the sentence should take no longer than 10 to 15 minutes. She specifically requested that this information be communicated to the judge and it is believed that this was done. (Indeed, it clearly was done.)

8

She waited in court 4 until 10.35 and was then called into Judge Selwood's court. She left court 1 at 11.09 and attended court 4 at 11. 11 or 11.12 and was informed by the clerk that the appeal had been allowed because she was not there to prosecute the case. A message was passed to the judge to ascertain if he would see counsel, but the judge refused to come back into court or to see her in his chambers.

9

Counsel was informed by counsel for the appellant and the clerk of the court that the judge had called the case on at 4 minutes past 11, according to the court logger, and 7 minutes past 11, according to the clerk of the court. His Honour Judge Hughes asked the appellant's counsel if they had an application to make and counsel asked that the appeal be allowed. The previous case had concluded at 10.52, at which time His Honour Judge Hughes rose.

10

It is plain from the statement of facts in support of the judicial review application, and this is confirmed by a note from the judge that was lodged at the same time as the acknowledgement of service, that counsel did not ask the judge for any indulgence as to time whilst she completed her case in the other court. She simply asked the usher to tell the judge that she was prosecuting a sentence case in Judge Selwood's court. The judge was given no information when she might be available. No prior arrangements had been made with the Listing Office.

11

The judge says this in his note:

"It is regrettably a regular occurrence at Portsmouth Combined Court Centre for counsel to accept briefs which clash and consequently for courts, witnesses and others to be kept waiting for counsel to complete another case in another court. This can have an adverse effect on other cases waiting to be heard. I am aware that this is regarded as a serious issue which needs to be addressed on this circuit".

12

The judge did not sit until 10.45 am because there were negotiations underway to settle the first case listed, namely Etherington. The case of Etherington was completed at about 10 minutes to 11. The judge rose, told the court clerk that the appeal of Proud would be called at 11 am and he duly returned to court at approximately 5 past 11. The following then took place, and I refer to the transcript.

13

The clerk of the court said:

"I understand prosecution counsel is in court 1, your Honour, and defence counsel is just collecting documents from the robing room".

14

The judge said:

"This was listed at 10.30 and it is now 7 minutes past 11".

15

At that point, counsel for the appellant arrived. The judge said:

"Yes, the case was listed at 10.30, was it not?"

16

Counsel replied:

"Your Honour, yes, I have been here. I left my papers to write on in the robing room and so I went to get it".

17

The judge said:

"So you had to rush there and get them".

18

Counsel for the appellant said:

"I did. I have been doing a case in another court and I had left the actual —in the robing room".

19

The judge then asked the usher formally to call the appeal of Richard Proud, which the usher did, and the judge then said:

"Yes, now Miss Clarke you defend", to which she replied "yes, I do".

20

The judge said:

"Yes. There is nobody here to prosecute the appeal. The case was listed at 10.30 and it is now 10 past 11 and so do you have an application to make?"

21

She said:

"I would ask for it to be dismissed".

22

Judge Hughes:

"Yes —what, the appeal to be dismissed?

23

Miss Clarke:

"I am sorry, the other way round. I would ask for the appeal to be allowed".

24

Judge Hughes then said:

"Yes, well, as there is no appearance [at that point, the Bench conferred]. Yes, there is no appearance by the prosecution. The appeal will be allowed with costs".

25

Within about five minutes, counsel for the respondent had completed her case in court 1, but the appeal had of course by then been allowed. She asked to see the judge, but the magistrates had by the time she made this request already left and there was no prospect of reinstating the case.

26

I have described these events in some detail because they provide the most unfortunate backcloth to the decision of which judicial review is sought. Mr Lofthouse, who has appeared for the Crown Prosecution Service before us, has advanced this application on the basis that counsel was not at fault at all. The impression that he gave was that counsel had a right to accept briefs in two different courts at the same time and take a risk that she might be required to be on her feet at the same time in both courts and that the court should accommodate her difficulties. There had, as he put it, to be some give and take.

27

The submission of Mr Lofthouse suggests that a climate has arisen, at any rate in the Portsmouth Crown Court, whereby counsel can take a risk of being listed in two different courts at the same time without first obtaining the consent of the judge and expect the court to be sympathetic to the extent of adjourning to await counsels' availability or convenience. If there are those who take this view, they must be disabused of it.

28

The Code of Conduct for the Bar of England and Wales provides at paragraph 701(a) that a barrister:

"… must in all his professional activities be courteous and act promptly conscientiously and diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court's time and to ensure that professional engagements are fulfilled".

29

At 701(e):

"A barrister must inform his client forthwith and subject to paragraph 610 return the instructions to the client or to another barrister acceptable to the client …"

Then (ii):

"… if there is an appreciable risk that he may not be able to undertake a brief or fulfil any other professional engagement which he has accepted".

30

I have some sympathy with counsel in the present case, but the fact that the case of Etherington had a three hour time estimate at one time seems to me to be neither here nor there. The fact is that her case was not given a "not before" marking, nor apparently did she or her clerk ever ask for one. She plainly knew she was in potential difficulty once she arrived at court because she asked for a message to be passed to the judge. Because the judge did not sit at 10.30 because of the then current...

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1 cases
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    • Queen's Bench Division (Northern Ireland)
    • 12 January 2007
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