R Simon Williamson v City of Westminster Magistrates' Court Crown Prosecution Service (Interested Parties) Rhys Mardon
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Burnett |
| Judgment Date | 29 May 2012 |
| Neutral Citation | [2012] EWHC 1444 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6685/2011 |
| Date | 29 May 2012 |
[2012] EWHC 1444 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Gross
The Hon Mr Justice Burnett
Case No: CO/6685/2011
and
and
Flora Page (instructed by Old Bailey Solicitors) for the Claimant
Ben Lloyd (instructed by CPS) for the Defendant
Hearing date: 3 May 2012
This is the judgment of the court prepared by Burnett J.
On 3 November 2010 the claimant pleaded guilty before District Judge Snow at the City of Westminster Magistrates' Court to charges of assault and being drunk and disorderly. The charges arose out of events which had occurred on a London Underground train between Tottenham Court Road and Goodge Street stations on 1 July 2010. He was fined, ordered to pay compensation and made subject to a curfew. On 19 April 2011 the claimant issued an application in the same court pursuant to section 142(2) of the Magistrates' Courts Act 1980 ["the 1980 Act"] seeking an order that it was in the interests of justice that his case be remitted for a fresh hearing. On 1 July 2011 the same Judge rejected that application. He concluded that he had power to remit the matter in the circumstances of this case but declined to do so for a number of reasons which he articulated. By this claim, the claimant seeks to quash the decision of 1 July 2011 and obtain a mandatory order requiring the Magistrates' Court to reopen his convictions under section 142(2) of the 1980 Act.
The argument advanced before the Judge, and repeated before us, was that the claimant received incompetent advice from his solicitor. In particular it is said that the solicitor lied about the strength of the case against him by suggesting that the prosecution had statements from two passengers on the train which supported the complainant's account, when there were no such witnesses, and also wrongly said that he was unable to view the CCTV footage provided by the prosecution because it would not play on any of his equipment. The claimant had been keen to view the CCTV. His case is that he would not have pleaded guilty but for the misrepresentation about the existence of witnesses or if he had seen the CCTV, which in his estimation exonerates him. The solicitor did not provide a statement for the purposes of the hearing before the Judge and, beyond a bare denial of the allegations, there is no response before this court.
The Issues
Two principal questions fall to be considered in this claim for judicial review. First, was the Judge correct to conclude that the circumstances of this case were such that section 142(2) of the 1980 Act could operate to enable it to be remitted for a rehearing? Secondly, if he was correct in that conclusion, was his decision refusing to direct a rehearing vitiated by a public law failing?
Permission to apply for judicial review was granted on grounds which may be summarised as follows:
i) The way in which the Judge conducted the hearing meant that the claimant was not meaningfully heard. It is said that he did not get a fair hearing.
ii) The refusal of the application was irrational and perverse.
iii) This case concerns a grave injustice because a solicitor lied to his client in circumstances where the CCTV demonstrates that the alleged crime could not have been committed in the way alleged, so that, on the face of it, an innocent man stands convicted of a crime he did not commit.
Miss Page, who appeared for the claimant, clarified that the complaint that the Judge failed to give the claimant a fair hearing was, on analysis, a reasons challenge. The claimant had placed a lengthy statement before the District Judge which merited only the barest of mentions in his ruling. It is said that the Judge did not engage with the evidence placed before him or with the arguments. They were not dealt with in the ruling.
We confess some unease at the way in which the third of the grounds has been formulated. This court is not in a position to make findings that the claimant was lied to by his solicitor, or that the CCTV demonstrates that the crime was not committed in the way alleged, or that on the face of it an innocent man stands convicted of a crime he did not commit. The CCTV was not played to the Judge, but has been provided to us. The parties invited us to view the CCTV. We expressed doubts as to whether that course was appropriate in a judicial review application which would ordinarily consider the legality of the underlying decision on the basis of the material that was placed before the decision maker. We nonetheless did so de bene esse. In his statement made on 18 June 2010, which was before the Judge, the claimant analysed the witness statement of Melvyn Wright (the complainant) and compared it with his understanding of the CCTV. He stated that in a number of respects 'the CCTV shows this did not happen' and in others that the CCTV contradicts what Mr Wright said. In a statement made for these proceedings the claimant asserts that the CCTV 'showed that Mr Wright was lying in almost every detail'. We have no quarrel with a proposition that the CCTV footage would have generated a line of cross examination going to the substance and detail of what occurred. We do not accept that it demonstrates that Mr Wright's account was untruthful, nor that its essence was wrong. The assault was not captured by either camera but that does not mean it could not have occurred. There is much in the footage which suggests from the demeanour and remonstrations of other passengers on the train that they believed that the claimant had done something he should not have done.
The Facts
On 1 July 2010 the claimant, who is a literary agent, attended a party at the Royal Festival Hall. He drank a fair amount of white wine but ate lightly. He travelled home on the Northern Line. The incident occurred shortly before the train arrived at Goodge Street station. Melvyn Wright, a man in his 70s, alleged that he was assaulted by the claimant. The circumstances in outline were these. Mr Wright had boarded the northbound train at Tottenham Court Road. He said that the claimant had his feet extended in front of him in a way that caused a lady to trip. When he remonstrated with the claimant, he was hit in the face causing slight injury. The police were called to Goodge Street station where the claimant was arrested. He immediately denied the suggestion that he had assaulted Mr Wright. He was taken to the police station and interviewed. He used the services of the duty solicitor, Mr Mardon who was then employed by EBR Attridge. The claimant insisted that he had no memory of the alleged assault and that anything of that nature would be entirely out of character. The claimant was a man of good character before these convictions. He explained in some detail about the strain he was under as a result of his mother's very serious illness at that time. She died shortly afterwards during the course of the proceedings in the Magistrates' Court.
The claimant retained the services of Mr Mardon to represent him in the Magistrates' Court proceedings. The first court appearance was set for 30 July 2010 but was adjourned because of the claimant's need to be at his mother's bedside. The e-mail traffic between the claimant and Mr Mardon, which he summarised and from which he quoted in his statement before the Judge, shows that by 27 July he had decided to plead guilty. In an e-mail to Mr Mardon on 23 July he provided what he described as 'ammunition for possible challenges to the aggravating factors' including:
"Was the woman passenger in danger? It seems in nearly tripping over my allegedly sprawled legs, that doesn't indicate threat or danger per se, nor any bad intention on my part.—Was Mr Wright therefore too quick to step in, when it was probably not necessary?—If, as he claims, he smelled alcohol on my breath, was it wise to persist in challenging me. It would perhaps have been prudent to back off—particularly if he were an angina sufferer."
A little later in the same e-mail he added:
"Obviously, it is against the spirit of my remorse over the incident to try to imply that Mr Wright is exaggerating, etc, but it would be useful to cast some doubt over the various aggravating factors which complicates the basic assault charge."
On 27 July, in anticipation of the hearing then due to take place on 30 July, he asked Mr Mardon whether he had been able to see the CCTV footage. He added:
"I'm only pleading guilty on the basis that the police charge indicates that the CCTV footage is damning, although I can recall none of it, so can't deny it. It's still making me feel a little uneasy, as I can't get to see the footage showing what is meant to have happened".
It was known from the outset that CCTV footage existed. That was obvious given its ubiquity in tube trains and it was shown to Mr Mardon at the police station. It appears to have been an assumption on the part of the claimant that he was charged because the CCTV footage was damning. That footage was viewed by PC McEvoy a few hours after the events in question. The short police report dated 27 July, served in accordance with usual practice at the hearing on 30 July, summarised the content of the CCTV in these terms:
"CCTV from inside the carriage has been downloaded and viewed by PC McEvoy 1968, it shows a disturbance on a train carriage that involves Wright who can be seen looking distressed....
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