R (DPP) v Acton Youth Court
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 22 May 2001 |
| Neutral Citation | [2001] EWHC 402 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 May 2001 |
| Docket Number | CO/4755/2001 |
[2001] EWHC 402 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
The Lord Chief Justice Of England And Wales
(The Lord Woolf of Barnes) and
Mr Justice Bell
CO/4755/2001
MR JOHN McGUINESS QC (instructed by Crown Prosecution Service, Ealing and Hounslow Branch, Harrow HA1 1YH) appeared on behalf of THE APPELLANT
MR STUART TRIMMER (instructed by Messrs Farrell, Matthews & Weir, Shepherds Bush) appeared on behalf of THE INTERESTED PARTY
MR H KEITH appeared as AMICUS CURIAE
Tuesday 22 May 2001
This is an application for judicial review by the Director of Public Prosecutions ("DPP") of a decision of a District Judge (Magistrates' Court) sitting at Acton Youth Court on 29 September 2000 to disqualify himself from hearing a substantive trial. The District Judge made that decision having heard an ex parte public interest immunity ("PII") application. He ruled in favour of non-disclosure of the material which was subject to the application. The Director of Public Prosecutions seeks to challenge a further decision of the District Judge, namely his decision to recuse himself and to remit the trial under section 47 of the Crime and Disorder Act 1998 from the Youth Court, where it had proceeded hitherto, to the magistrates' court. However, having regard to developments which have taken place since the hearing that second collateral point is of little or no significance.
The court has had the advantage of hearing arguments from Mr McGuiness QC on behalf of the DPP, Mr Trimmer on behalf of the defendant, and the assistance of an amicus, Mr Keith. We are grateful to the Attorney General for instructing Mr Keith. Indeed we are indebted to all counsel for the assistance which they have given to the court.
The case is of some importance as it involves issues as to the fairness of trial procedures before magistrates' courts where PII applications are made. It involves reconciling the need for justice not only to be done but to be seen to be done, and the need for ex parte applications to be made in order that issues relating to PII can be resolved.
The facts of the case can be stated shortly. The case arises out of a young man aged 17 appearing before the Youth Court, having been charged with being in possession of class B drugs with the intention to supply others. The defendant entered a plea of not guilty. His main contention was that he had no intention to supply the drugs which were found in his possession.
The evidence which was intended to be called on behalf of the prosecution was limited. It related to the execution of a search warrant, the discovery of the drugs, the arrest of the defendant by the officers who conducted the search, and an interview with the defendant when it was said that he made apparent admissions relating to his intention to supply the drugs to other persons.
The defence contest the admissibility of the admissions. For that purpose they propose to rely upon psychological evidence as to the defendant's intellectual ability.
The reasons for the District Judge coming to the conclusion that he should disqualify himself from hearing the matter are set out before us. The District Judge said that, having heard the evidence of a Detective Inspector (who was not a witness in the case), he decided that the material would not be of any assistance to the defence, given the facts of the case about to be tried, which would hinge on the ability of the prosecution to prove the intention of the accused to supply other drugs found in his possession. Possession was not in dispute.
The District Judge was referred to two authorities, to which reference will have to be made later: R v South Worcester Magistrates, ex parte Lilley [1995] 4 All ER 186 and R v Stipendiary Magistrate for Norfolk, ex parte Taylor (1997) 161 JP 773. Those reports were not available to the District Judge. He records the fact that it was urged by the defence that the case was on all fours with ex parte Lilley, but that that decision had been altered by the subsequent case of ex parte Taylor. He went on to say:
"I sought guidance from a document issued by the JSB for district judges and found myself on the eve of the implementation of HRA forced to adopt either a course which might appear to deny the defendant trial by an impartial tribunal or one which would cause practical problems for the court.
The ECHR has not addressed non-disclosure on public interest grounds in summary cases – the procedure it has approved relates to trial on indictment where the judges of fact are distinct from the judge ruling on such applications, unlike in magistrates' courts.
It is clear from the Norfolk case that except in exceptional cases the same tribunal should deal with both the preliminary application and the trial itself – indeed it poses substantial difficulties in complying with the duty constantly to review the issue to do otherwise. The court in the Norfolk case did not distinguish between a lay and a professional tribunal, stating that either would be able to disregard what was inadmissible. However, that case was decided three years ago and in the present climate I felt it difficult to hold that a tribunal which appears to receive information in the absence of the accused without telling the accused what that information is and then proceeds to try the facts of the case, simply telling the accused that the information is irrelevant, can truly be said to appear impartial, particularly when the period of absence was substantial.
I therefore came to the conclusion, highly inconvenient though it was, that I should not continue to hear the case. The defendant was now nearly eighteen and a half and I remitted the case under section 47 CDA 1998 to the Magistrates' Court to be tried."
On behalf of the Director, Mr McGuiness submits that when the words of the District Judge are examined as a whole, it is apparent that, but for the imminent implementation of the Human Rights Act, the District Judge would not have taken the course that he did. That is a submission which I shall have to consider later.
There is now a statutory framework for applications in relation to documents where the Crown is relying on PII. That legislation is contained in the Criminal Procedure and Investigations Act 1996 and the Magistrates' Courts (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997, which were made under that Act. We have been taken through the procedural rules by Mr McGuinness and we have their contents in mind. However, it is not necessary for the purposes of this judgment to do more than summarise their effect. They are not directly applicable to the issues which are involved; they are part of the statutory framework. The same can be said of the early provisions of the 1996 Act.
The Act in sections 3 and 4 deals with primary disclosure by the prosecution. Section 7 deals with secondary disclosure of the prosecutor. Section 8 deals with applications by an accused for disclosure. Section 9 deals with the continuing duty of the prosecutor to disclose. Subsection (2) of section 9 provides:
"The prosecutor must keep under review the question whether at any given time there is prosecution material which —
(a) in his opinion might undermine the case for the prosecution against the accused; and
(b) has not been disclosed to the accused;
and if there is such material at any time the prosecutor must disclose it to the accused as soon as is reasonably practicable."
Sections 3(6), 7(5), 8(5) and 9(8) each provide that material must not be disclosed under the relevant section to the extent that the court, on an application by the prosecutor, concludes that it is not in the public interest to disclose it and orders accordingly. Sections 14 and 15 are directly relevant to the present application. Section 14 deals with the position in the magistrates' court, and section 15 deals with the situation in the Crown Court. Section 14 provides so far as relevant:
"….
(2) At any time —
(a) after a court makes an order under section 3(6), 7(5), 8( 5) or 9(8), and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned,
the accused may apply to the court for a review of the question whether it is still not in the public interest to disclose material affected by its order.
(3) In such a case the court must review that question, and if it concludes that it is in the public interest to disclose material to any extent —
(a) it shall so order, and
(b) it shall take such steps as are reasonable to inform the prosecutor of its order."
Section 15(2) provides:
"This section applies at all times —
(a) after a court makes an order under section 3(6), 7(5), 8( 5) or 9(8), and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned.
(3) The court must keep under review the question whether at any given time it is still not in the public interest to disclose material affected by its order.
(4) The court must keep the question mentioned in subsection (3) under review without the need for an application, but the accused may apply to the court for a review of that question.
(5) If the court at any time concludes that it is in the public interest to disclose material to any extent —
(a) it shall so order, and
(b) it shall take such steps as are reasonable to inform the prosecutor of its order."
Rules 2 to 7 make provisions in respect of the public interest immunity applications and hearings contemplated by sections 3(6), 7(5), 8(5)...
To continue reading
Request your trial
-
Kieran Owen Butler and the Police Ombudsman for Northern Ireland for Judicial review
... ... [2003] NIQB 64 Ref: GILJ3666 Judgment: approved by the Court for handing down Delivered: 16/9/03 (subject to editorial corrections) ... and of a decision by the Director of Public Prosecutions (“the DPP”) the second named respondent. The original relief sought was, with the ... for such a proposition in R (Director Public Prosecutions) v Acton Youth Court (2001) 1 WLR 828 and Foucher v France 25 EHRR 234. He urged ... ...
-
In the matter of an application by Stephen James McClean of Judiciary Review and in the matter of a Decision of the Sentence Review Commissioners
...biased by having seen the damaging information. He followed the decision of the English Divisional Court in R (DPP) v Acton Youth Court [2001] 1 WLR 1828 and the decision of Carswell LCJ (as he then was) in Re Adair [2003] NIQB 16. Accordingly he was satisfied that no breach of Article 6(1)......
-
Transco Plc v HM Advocate
...WLR 37; [2002] 1 All ER 465 Public Utilities Commission of the District of Colombia v Pollak (1952) 343 US 451 R v Acton Youth CourtWLR [2001] 1 WLR 1828; [2001] EWHL Admin 402 R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2)ELRWLRUNK [2000] 1 AC 119; [1999] 2......
-
McClean's Application
...in attempting to do so, they must inevitably have been biased by having seen the damaging information. In R (DPP) v Acton Youth Court [2001] 1 WLR 1828 a divisional court, comprised of Lord Woolf CJ and Bell J considered an application by the DPP for judicial review from a decision of a dis......