R (Firth) v Epping Justices
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TOULSON |
| Judgment Date | 03 February 2011 |
| Neutral Citation | [2011] EWHC 388 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/12892/2010 |
| Date | 03 February 2011 |
[2011] EWHC 388 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Before: LORD JUSTICE TOULSON
CO/12892/2010
Mr C Grout Appeared On Behalf Of The Claimant
Mr T Little (Instructed By The Director Of Public Prosecutions) Appeared On Behalf Of The Interested Party
The Defendant Was Unrepresented
LORD JUSTICE TOULSON: On 8 August 2010 a nasty incident happened in an underground train at Epping Underground Station. A woman, whom I will call S, boarded the train, followed shortly afterwards by another woman and a man. According to S, the other woman became aggressive, complaining that S had pushed past her at the barrier at the entrance to the station. S got up from her seat and the other woman then assaulted her, pushed her through the door leading to the driver's cab on to the floor, punched her a number of times, and pulled out some of her hair. The train was stationary all this time. A fellow passenger telephoned the police. At the same time the other woman and the man left the train. The police attended and obtained descriptions of the woman and the man.
Miss Firth was arrested soon afterwards not far from the station. She is the claimant in these proceedings but is the defendant in the criminal proceedings which underlie them. On the next day she was interviewed by the police under caution but said "no comment" in answer to every question. After being interviewed, she was charged with assault by beating, contrary to section 39 of the Criminal Justice Act 1988.
She was bailed to appear at Epping Magistrates' Court on 1 September 2010. On that occasion she was represented by counsel, Miss Crocker. The prosecution was represented by a senior Crown Prosecutor, Miss Deutsch. Miss Firth pleaded not guilty to the charge and, with a view to the future management of the case, a document called a case progression form was completed.
Since 2005 there have been Criminal Procedure Rules, which are made under section 69 of the Courts' Act 2003. The rules apply to all criminal cases. Section 69 creates a body called the Criminal Procedure Rule Committee to make Criminal Procedure Rules. Section 69(4) provides:
"Any power to make or alter Criminal Procedure Rules is to be exercised with a view to securing that (a) the criminal justice system is accessible, fair and efficient and (b) the rules are both simple and simply expressed."
The current version of the Criminal Procedure Rules came into effect on 5 April 2010. The Criminal Procedure Rules reflect a new approach to the administration of criminal justice, in which both sides, rather than the prosecution alone, are required to disclose the nature of their case well before trial, for the reasons advocated by Auld LJ in Gleeson [2004] 1 Crim App R 29 page 416:
"A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."
Rule 1.1 provides:
"1) The overriding objective of this new code is that criminal cases be dealt with justly.
2) Dealing with a criminal case justly includes (a) acquitting the innocent and convicting the guilty (b) dealing with the prosecution and the defence fairly … (e) dealing with the case efficiently and expeditiously."
Rule 1.2 provides:
"1) Each participant in the conduct of each case must (a) prepare and conduct the case in accordance with the overriding objective …"
Rule 1.3 provides:
"The court must further the overriding objective in particular when (a) exercising any power given to it by legislation, including these rules …"
Rule 3.2 provides:
"1) The court must further the overriding objective by actively managing the case.
2) Active case management includes (a) the early identification of the real issues … (g) encouraging the participants to cooperate in the progression of the case.
3) The court must actively manage the case by giving any direction appropriate for the needs of the case as early as possible."
Rule 3.3 provides:
"Each party must (a) actively assist the court in fulfilling its duty under rule 3.2 without or, if necessary with, a direction."
The use of a case progression form is part of this process. It forms part of the court record. It records matters such as the date fixed for the trial, the estimated length of trial, the likely number of defence witnesses, and the names of prosecution witnesses. It also had, at the relevant time, a box headed "trial issues (what is disputed and what is agreed)." The information recorded at the hearing on 1 September in this box was:
"Assault on def by complainant. Only contact made was in self defence".
In other words, if the form was correct, the court was informed at that stage that it was Miss Firth's case that she was assaulted by S and acted in self defence.
The form also recorded that the case was to be tried in the Magistrates' Court on 15 November 2010 and was estimated to last one day. However, on 5 November 2010 the Crown Prosecution Service wrote to Miss Firth's solicitors to inform them that the prosecution had decided to increase the charge to one of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861.
The matter next came before the court on 11 November in order to take Miss Firth's plea to the new charge and to decide on the venue and mode of trial. Miss Firth pleaded not guilty and the magistrates decided that the case should go to trial at the Crown Court before a judge and jury. There would therefore have to be committal proceedings. Miss Firth's legal representative asked for a full committal hearing, because it was going to be her contention that the prosecution witness statements which had been served did not disclose a prima facie case.
The committal hearing took place on 15 November. The witness statements which the prosecution had served did not contain any identification of Miss Firth as the person who allegedly assaulted S, but, before the hearing, prosecuting counsel informed Miss Firth's counsel that he would seek to adduce the contents of the case progression form as evidence that Miss Firth had admitted to being involved in the fracas with S, albeit as a victim of an assault by S rather than the other way around. This led to an argument before the magistrates whether the case progression form was admissible in the committal proceedings for this purpose. The magistrates decided that it was, and Miss Firth's counsel made no further objection to the committal proceedings. The case was formally committed to the Crown Court for trial.
These proceedings are in the form of an application for judicial review to quash the committal on the ground that the magistrates were wrong in law to admit the case progression form as evidence in the committal proceedings. Leave to apply for judicial review was given by Burnett J.
The magistrates have taken no part in the proceedings but the application is opposed by the Director of Public Prosecutions as an interested party.
There has been served, on his behalf, a witness statement made by Miss Deutsch, who represented the prosecution at the hearing on 1 September 2010. She confirms that Miss Firth was present and was represented by counsel, Miss Crocker, and she states that the case progression form was completed by Miss Crocker. She adds:
"I know this because it is not in my handwriting and I have endorsed the file that Miss Crocker was the defendant's representative. In particular, the box that asks what the issues are and what is agreed was completed by Miss Crocker. This was repeated orally in court."
Mr Grout, who appears for Miss Firth on this application, has indicated to the court that Miss Deutsch's evidence on this matter is undisputed. It might be thought to follow that this appeal is in a sense academic. For if the application were successful, and the committal quashed on the basis that the magistrates were wrong to order Miss Firth's committal on the material available to them, the prosecution could apply to a High Court Judge for leave to prefer a voluntary bill of indictment on the basis of Miss Deutsch's statement. Mr Grout was initially inclined to agree that it would be hard to imagine that such an application would be refused. However, as he developed his argument it became plain that, if the principles for which he contends are correct, such an application ought properly to be refused, because it is his submission that the contents of the case progression form ought not to be brought into evidence against his client in any way.
The question whether the magistrates were right to admit the case progression form, either on the material which was then available to them or if they had additionally known that it had been completed by Miss Firth's own counsel, does raise a point of some interest. The Magistrates' Courts Act 1980 contains provisions about the evidence which is admissible at committal proceedings. Under sections 5 to 5E the evidence has to be in written form and to come within one of a number of categories. The prosecution rely on category 5E, headed "other documents."...
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