R Lucy Poskitt v Reading Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 25 April 2018 |
| Neutral Citation | [2018] EWHC 984 (Admin) |
| Date | 25 April 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/964/2018 |
[2018] EWHC 984 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
CO/964/2018
Mr R Wheeler (instructed by Hennessy and Hammudi) appeared on behalf of the Claimant.
Mr S Heptonstall (instructed by CPS Appeals and Review Unit) appeared on behalf of the Defendant.
The claimant, Ms Poskitt, with permission, challenges the decision of District Judge Toms, sitting at Reading Magistrates' Court, made on 2 February 2018 overturning a decision made at the same court on the previous day allowing an application by the claimant to adduce bad character evidence of her co-defendant, Ms Harrad.
The claimant and her co-defendant were charged under s.4 of the Public Order Act 1986, following a physical altercation between them in the playground of Robert Sandilands Primary School on 7 July 2017. They both entered a plea of not guilty and raised the issue of self defence.
On 29 November 2017, Ms Forbes, who appeared for the prosecution, disclosed to Mr Grant, a solicitor at Hennessy and Hammudi Solicitors, who represented Ms Poskitt, a PNC print out for Ms Harrad. There were three entries on the print out, two of which he considered relevant to the case, namely a caution for battery on 13 February 2011 and a further caution for battery on 17 July 2015. Mr Grant asked Ms Forbes to make enquires in relation to the details of those cautions. It appears that the details could not be supplied that day. In those circumstances, he applied for the trial to be adjourned.
District Judge Moffitt enquired as to why Mr Grant could not make an application to adduce non-defendant bad character on the cautions alone. He explained that the test for the admission into evidence of non-defendant bad character was that the cautions must be of substantive probative value, and that an application made to adduce non-defendant bad character on the basis of the cautions alone would not satisfy this test.
The application to adjourn the trial was refused. Mr Grant then made an application to adduce the two cautions on Ms Harrad's PNC record of 13 February 2011 and 17 July 2015. The judge refused the application on the basis that they were not of substantive probative value. Owing to insufficient court time to complete the case that day, the case was adjourned until 1 February 2018.
On 18 January the CPS provided details of the two cautions to Ms Poskitt's solicitors. On 22 January they served a notice to introduce evidence of Ms Harrad's bad character based on the facts of those two cautions for assault in relation to incidents on 13 February 2011 and 16 July 2015.
On 1 February Ms Thomson, who works for Hennessy and Hammudi as an employed barrister, appeared for Ms Poskitt and made a bad character and hearsay application. This was Ms Thomson's first involvement with the case. The bad character application was based on the two cautions. The hearsay application related to an incident report concerning a previous incident at the school concerning Ms Harrad. The application was heard by lay justices assisted by a legal advisor. The CPS was represented by an in house lawyer and Ms Harrad was represented by her solicitor, Mr Davis.
The prosecution did not object to the admission of the cautions, but questioned the probative value of the school incident report. Mr Davis adopted the Crown's objections in relation to the school report and objected to the admission of the cautions. No reference was made to the previous adjudication as to bad character.
The bench decided that both cautions should be admitted as bad character, but found that it was not in the interests of justice to admit the school report as hearsay evidence.
The following day, 2 February, Mr Grant again appeared for Ms Poskitt. Mr Grant in his witness statement dated 28 February 2018 recounts what happened at court that day. In that statement, Mr Grant refers, as he now acknowledges incorrectly, to the previous day as 2 February when in fact it was 1 February. The relevant part of the statement with the necessary date amended reads:
“Prior to the trial commencing Mr Peters of Counsel for Beverley Harrad had persuaded the Magistrates to retire and had requested to speak to the District Judge about the decision to introduce a non-defendant bad character application on the 1st February 2018.
Mr Peters confirmed to myself, Counsel for the prosecutor and the legal advisor that the legal doctrine of res judicata applied in these circumstances. Mr Peters explained that the decision that District Judge Moffitt made on the 27th November 2017 was a binding decision, namely a refusal to admit non-defendant bad character, and could not be revisited by the court.
The legal advisor had spoken to District Judge Toms in her Chambers without any other parties to the proceedings being present, and informed myself that she was informed by District Judge Toms that the decision to admit non-defendant bad character the previous day had been made in error.
I explained to the legal advisor that I was concerned what information the District Judge had been given. Mr Peters had not made any application before the court, that a decision to nullify the decision made yesterday was potentially unlawful, and should not have been made without the parties to the proceedings being present.
I was then informed by the legal advisor that District Judge Toms would be attending court. I conveyed my concerns to District Judge Toms in oral submissions, explaining that the decision that was made on the 1st February 2018 to admit non-defendant bad character, was not the same application that was made on the 27th November 2017. The Application on the 1st February 2018 based on disclosure by the prosecution of the details of the cautions.
District Judge Toms applied Section 142 of the Magistrates Court Act 1980 (the slip rule), and explained that the decision on the 1st February 2018 had been made in error and was a mistake and overturned that decision. District Judge Toms requested that the trial should now proceed without the non-defendant bad character evidence being admissible, at which point she retired.
The trial bench came into court where I made an application to adjourn the case to consider the merits of a judicial review of the decision by District Judge Toms to overturn the decision to admit non-defendant bad character on the 1st February 2018. The application to adjourn the trial was successful and the case was adjourned to the 2nd March 2018 for a case management hearing.”
The judicial review claim form was filed on 6 March. On 18 April I granted permission to apply for judicial review and a stay of the trial pending determination of these proceedings. I ordered that the claim be listed for hearing today, a new date for the trial having been fixed for next Monday, 30 April.
There are two grounds of challenge. First, that District Judge Toms had no power under s.142 of the 1980 Act to quash or reverse the second decision of 1 February.
Second, even if she did have power to reverse that decision, to do so was an error of law and unreasonable as there had been a material change of circumstances since the first decision made on 29 November.
Mr Wheeler, who appears for the claimant, submits that the district judge erred and acted ultra vires when she purported to use s.142 to quash the decision made the previous day. The language of s.142 makes clear that the provision concerns an “offender”, namely a person convicted of an offence rather than one merely charged with an offence.
Mr Heptonstall, for the CPS, in his helpful submissions, accepts that there is no dispute that the...
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