R Director of Public Prosecutions v Nottingham Crown Court
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson,Mr Justice Flaux |
| Judgment Date | 11 May 2016 |
| Neutral Citation | [2016] EWHC 1736 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 May 2016 |
| Docket Number | CO/6473/2015 |
[2016] EWHC 1736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Brian Leveson
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Flaux
CO/6473/2015
Mr P Lodato (instructed by Crown Prosecution Service) appeared on behalf of the Claimant
Mr D Ewings (instructed by Staroe Partnership) appeared on behalf of the Interested Party
The Defendant did not appear and was not represented.
This is an application for judicial review of a decision of His Honour Judge Hamilton and magistrates sitting at Nottingham, whereby an appeal brought by McClaren Munns against his conviction in the Nottingham Youth Court was allowed without evidence having been called. A restraining order was made that he do not contact any of the three female complainants in the case, none of whom it is suggested he knew or was ever likely to meet in the future.
It is now submitted on behalf of the Crown Prosecution Service (CPS) that the judge effectively stopped the appeal from proceeding and that he had no right to do so, other than at the conclusion of hearing whatever evidence the Crown wished to bring or, more significantly, without the Crown having both determined to offer no evidence and, indeed, offering no evidence. On behalf of Mr Munns, it is submitted that tacitly, or by inference from silence, the Crown had indeed offered no evidence.
It is common ground that there is no jurisdiction to prevent the Crown from offering evidence, thereafter dismissing the information and then imposing a post-acquittal restraining order. Such an order is only possible having heard evidence or in circumstances when the prosecution has offered no evidence: see DPP v Christou [2015] EWHC 4157 (Admin) and the cases therein cited, such as R v Dorking Justices, ex parte Harrington [1984] A.C. 743 and R v Watford Justices, ex parte DPP [1990] RTR 374. The issue between the parties is what is the true effect of what transpired before the judge.
Before dealing with the merits, I must first deal with a preliminary point as to timing. In the summary grounds for contesting the claim, it is argued that it has not been brought sufficiently promptly. The decision that the claimant be acquitted was dated 19 November 2015. Although recorded in the case file, it took the police until 6 December to bring the case to the attention of the CPS, who then sought a transcript. Having seen the transcript on 5 January, the matter was referred to the Appeal Unit and this appeal was mounted on 22 January. It is argued that this delay was undue in a case involving an 18-year old of prior good character, who had served all but two weeks of the custodial part of the sentence upon him and who was facing retrial on allegations of a sexual nature.
Just over two months, including the Christmas break, had passed and we see force in the argument that insufficient expedition was afforded to the case. Having said that, however, it is to be borne in mind that the proper resolution of the case from the perspective of the three victims — who had already attended court on a number of occasions prior to this date — also has to be borne in mind when the question of delay and fairness between the state and the interested party are considered.
When dealing with the application for leave to apply for judicial review, the single judge ordered a further transcript and referred to the question of delay, but considered himself persuaded that it was appropriate to grant permission, having regard to all the circumstances. I agree. I would not refuse this application for judicial review on that ground alone.
I turn to the merits. What happened was that an appeal was brought against convictions for one offence of indecent exposure and two of indecent assault. These convictions had followed a first appearance on 7 May 2015, trial on 29 June 2015 and sentence on 17 July 2015. The appeal had first been listed for hearing on 1 October when it was adjourned for lack of court time: all parties and witnesses had been present.
On 5 October it was adjourned again, as a prosecution witness had suffered an epileptic seizure the very morning of the court hearing. In any event, the court could not provide an appropriate security. As a result, the interested party was granted bail, having served nearly all of the sentence originally imposed.
On 19 November, one witness complainant failed to attend, as did the interested party's father and girlfriend who were giving evidence for the prosecution on what might be described as subsidiary issues. The Crown were, however, prepared to proceed. It was then learned that the bench inadvertently had seen a summary which contained prejudicial material, and leading counsel for the respondent objected to the case proceeding before that constitution. It had been listed for two days and it was agreed that it would most likely be disposed of in one day and another judge was sought for the following day.
Judge Hammond was then persuaded by counsel that the alternative judge was likely to have seen the same material on a preceding occasion. I do not develop the nature of that material in this judgment, although for my part I have doubts that a professional tribunal would, in any sense, have been prejudiced in its continued hearing of the case.
In the event, no judge was available for the following day and Mr Michael Wolkind Q.C. was then contending that only a judge who had never had any involvement in the case at all could determine the appeal. The prospect of a judge from a different court centre, either at Derby or Leicester, or the use of a recorder from another court does not appear to have been considered.
There was then a discussion before the judge as to what should happen. Mr Wolkind, for the interested party, was understandably keen to resolve the matter. He told the judge that he was aware of the interests of the victims, but that his client contested culpability "vociferously". He said that he and counsel for the Crown had begun "useful...
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