R Director of Public Prosecutions v Birmingham Magistrates' Court

JurisdictionEngland & Wales
JudgeMr Justice Sweeney,Lord Justice Treacy
Judgment Date07 December 2017
Neutral Citation[2017] EWHC 3444 (Admin)
Date07 December 2017
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/1535/2017

[2017] EWHC 3444 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Before:

Lord Justice Treacy

Mr Justice Sweeney

CO/1535/2017

Between:
The Queen on the Application of Director of Public Prosecutions
Claimant
and
Birmingham Magistrates' Court
Defendant

and

Narinder Nandhri
Interested Party

Mr J Boyd (instructed by the CPS Appeals and Review Unit) appeared on behalf of the Claimant.

The Defendant did not attend and was not represented.

Mr Justice Sweeney
1

This is a case to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. No matter may be published in relation to the Complainant which might, during her lifetime, identify her as such. We have anonymised our judgment accordingly.

2

By permission of Garnham J the Claimant, the Director of Public Prosecutions, seeks the judicial review of two decisions made by District Judge (Magistrates' Courts) Dickens in the Birmingham Magistrates' Court. The first, on 17 January 2017, was to refuse an application made by the Prosecution in the case of the Interested Party to adjourn the trial hearing on a charge of sexual assault. The second, on 23 February 2017, was to refuse to state a case for the opinion of this Court in relation to the refusal to adjourn.

3

Neither the Defendant nor the Interested Party has taken part in this hearing. The principal relief sought by the Claimant is an order quashing the first decision, and the dismissal which followed when the prosecution offered no evidence, together with a direction that the case be remitted and heard by a differently constituted Court. In the alternative, the Court is invited to order the judge to state a case.

4

The background is, in short, as follows: On 25 August 2016, the complainant (to whom we shall refer as “A”) attended a job centre with her two young children. It is alleged that she and the Interested Party sat next to each other in the waiting area, and that he put his hand under her bottom on four occasions — on each of which she moved away from him. A sent her fiancé a text informing him of what had occurred. He attended the job centre, the police were called and the Interested Party was arrested. He denied touching A.

5

On 21 October 2016, the Interested Party was charged with an offence of sexual assault. His first court appearance was on 18 November 2016, when he pleaded not guilty and the case was fixed for trial on 17 January 2017. A and her fiancé were promptly notified that their attendance was required on the trial date, and two days after being warned they confirmed their willingness to so attend.

6

At 8.31 a.m. on the day of trial, that is a minute after the Witness Care Team telephone line had opened, A's fiancé telephoned and said that five members of A's family had been killed overnight in an accident in the Yemen, and that consequently neither of them would be attending court, but that they would both attend on any adjourned trial date.

7

The Prosecutor eventually discovered what had happened and, later that morning, made an application to adjourn the trial. The Prosecutor furnished the judge with the following information: (1) A had the previous night lost five members of her family in a car accident in Yemen, and was consequently not in a fit state to attend court. (2) Her fiancé was also not coming to court as he was supporting her. (3) The information had been provided by A's fiancé at around 8.30 a.m., which was when the telephone line to the Witness Care Team had opened. (4) The case concerned an allegation that a stranger had sexually assaulted the complainant, the seriousness of which was stressed. (5) A had been supportive of the prosecution throughout the duration of the proceedings, and there was nothing to suggest that she would fail to attend for any reason other than the one given to the Witness Care Team and, as the circumstances were tragic and unforeseen, A and her fiancé could not be considered at fault for their non-attendance and nor, indeed, should the prosecution be considered to be at fault either.

8

The Prosecutor noted that the judge asked how the five were related to A, but that no definitive answer could be given. The Interested Party's solicitor opposed the application, asserting that there were no confirmed facts, that it was not known who the deceased were in relation to A, and that the Interested Party had been distressed by the case and wanted it to be concluded at the earliest possible opportunity. As indicated above, the judge refused the application for an adjournment.

9

The prosecutor noted that, when doing so, the judge had said that only limited information was available; that there was to confirmation that an accident had taken place; that the exceptional remedy of an adjournment required cogent evidence of which there was none; and that whilst the decision might seem hard-hearted, if A or her fiancé had actually attended that court that morning with the information, and had then stated that they were unable to continue, the decision would have been different.

10

On 3 March 2017, the judge provided written reasons for her refusal of the application to adjourn, the relevant paragraphs of which were as follows:

“(10) On the face of it this was a tragic event which may have provided a good reason to adjourn the trial. However, the CPS had not provided a sufficient evidential basis for the application because: (a) the CPS had not confirmed the details directly with the complainant herself either on the phone, by electronic media or by her attending court. (b) The information provided was vague. For example, the nature of the family connection was not identified. The nature of the family connection was unimportant. However, the vagueness of the information was a relevant consideration. (11) Had the Crown made an application for more time to confirm the factual basis for the application, it would have been allowed. However, no such application was made. (12) The case of the CPS v Picton [2006] EWHC 1108 (Admin) establishes that (a) the court has a wide discretion in matters of case management; (b) applications for adjournments should be rigorously scrutinised.”

11

On 28 March 2017, the Court filed an Acknowledgement of Service in these proceedings which, in paras. 2 to 5, provided further details as to the judge's reasons as follows:

“(2) I was given no information as to the identities of the deceased or their relationship to the complainant. The nature of the family relationship was not relevant to the degree of the complainant's distress, but was relative to the cogency and reliability of the information provided.

(3) Given the immediacy of the incident and its location, I did not expect any documentary evidence to be provided, nor was any requested. However, the court was entitled to consider the cogency of the available information and the fact that no attempts had been made to...

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