R (TH) v Wood Green Crown Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,Mr Justice Wilkie |
| Judgment Date | 31 October 2006 |
| Neutral Citation | [2006] EWHC 2683 (Admin) |
| Date | 31 October 2006 |
| Docket Number | Case No: CO/3964/2006 |
| Court | Queen's Bench Division (Administrative Court) |
[2006] EWHC 2683 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Auld
Mr Justice Wilkie
Case No: CO/3964/2006
Stephen Field (instructed by Needham Poulier & Partners) for the Claimant
Tim Ward (instructed by Treasury Solicitor) for the Secretary of State
Simon Wild (instructed by Crown Prosecution Service) for the Crown Prosecution Service
Hearing dates: 9 October 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
• Introduction
This is the judgment of the Court. This claim was launched on 11 May 2006 as a claim for judicial review of the decision of HH Judge Ansell on 10 May 2006 to remand the claimant into custody purportedly pursuant to section 4(3) of the Criminal Procedure (Attendance of Witnesses) Act 1965 ( the 1965 Act). The relief sought was five fold namely: 1. a declaration that the detention of the claimant was unlawful; 2. an order quashing the decision to remand the claimant into custody; 3. the discharge of the witness summons said to be the authority for his detention; 4. an order for the immediate and final release of the claimant from custody; and, in the alternative, 5. an interim order for the release of the claimant on bail pending the outcome of those proceedings.
On 11 May 2006 Mr Justice Crane considered the matter urgently on the papers. He ordered that the application for bail should be listed urgently on 12 May. He observed that the parties should be prepared to deal with section 29(3) of the Supreme Court Act 1981 ( the 1981 Act). The issue whether a Crown Court decision may not be subject to judicial review by virtue of the provisions of Section 29(3) of the 1981 Act 1981 has repeatedly proved to be troublesome. This issue is currently the subject of work being conducted by the Law Commission. In the meantime, however, this Court has to do what it can to achieve justice in the face of what, at times, appears to be a thicket of technical procedural obstacles.
• The facts
The underlying facts of this claim are not in dispute. The claimant is a 17 year old youth who appeared before the Crown Court as a prosecution witness in a multi handed trial alleging violent disorder and serious assault against ten defendants. The charges arose from an incident in which the claimant had allegedly been threatened and chased by the defendants. He had jumped into his car and driven away from the defendants in such a manner as to collide with a young girl causing her serious injuries. He was charged in relation to those injuries and pleaded guilty to offences resulting in a sentence of 12 months detention in a young offenders institute. He provided the police with a number of witness statements naming nine out of the ten defendants and the Crown took the view that his evidence would assist their prosecution of them. The claimant expressed reluctance to attend their trial. Accordingly, a witness summons was applied for by the Crown and was granted by the trial judge on 24 April 2006. Pursuant to that witness summons the claimant was arrested and brought to the court but was granted bail to attend court to give evidence on 3 May 2006. He failed to do so and was re-arrested. Upon his reappearance at the court he was remanded into custody pursuant to section 4(3) of the 1965 Act. He was called to give evidence on Friday 5 May 2006. His replies to questions from the Crown led them to apply to the court to be allowed to treat him as hostile which application was granted. His previous written statements and his previous interview were put to him in cross-examination and became part of the evidence pursuant to section 119 of the Criminal Justice Act 2003. The claimant was giving evidence during 5, 8, 9 and 10 May. During that period he was repeatedly remanded in custody overnight and over the weekend. The claimant's evidence was to the effect that he was frightened and had been threatened by the defendants. He felt pressurised by the police to give evidence and he answered all questions to the effect that he could not remember the incident or the participants. When the opportunity came to cross-examine him four of the defendants, through their counsel, did not ask him any questions at all. At the conclusion of that process, after the opportunity had been given to the Crown to re-examine the claimant, the judge remanded him in custody pursuant to section 4(3) of the 1965 Act.
From the transcript of the court proceedings it appears that between 4.01 and 4.29pm on 10 May there was a discussion between the judge and prosecution counsel and counsel, Ms Vallejo, appointed to act for TH for the purposes of potential contempt of court proceedings and in connection with his remand in custody. The judge said at the commencement of that discussion:
"I made an order last night that he will remain in custody on the basis that he remains a potential witness in the case, liable to be recalled, more particularly so in view of the stance he took and the way he gave his evidence."
In the course of that discussion there was an exchange between the judge and Mr Wild for the Crown. In the course of that exchange the judge said as follows:
"The point that has some weight, I suppose, is that I am stretching a point to say, "we are still receiving his evidence". That is really the core of the application."
And a little later on:
"Judge—Yes. The point is have we not effectively received his evidence as unhelpful as it is?
Mr Wild – There is a real possibility that he will be required to give evidence. Prosecutions often get summonses against people. It is executed, and then we think, "Oh heavens we don't need him after all because!" It does not make the granting of the warrant unlawful in the first case."
The judge ruled as follows:
"I am not prepared to vary my decision, save to the extent that I will appoint a time, two weeks to-morrow, for him to attend court again to give evidence so that the court is seen to appoint a day. In my view I retain the view that there is a real risk that either side may recall him to put further matters to him. This risk arises purely out of his own mouth, and his failure to co-operate in giving evidence, and the nature of his answers. He only really has himself to blame, I am afraid. I appreciate there are background reasons, but the reason for his remand in custody is because of the totally unsatisfactory nature of the evidence that he has given thus far."
On 12 May 2006, following an oral hearing which included argument on the question of the Court's jurisdiction by reason of section 29(3), Mr Justice Holman granted permission to seek judicial review and granted bail. An issue arose whether the terms of the order made by Mr Justice Holman meant that the order of the Crown Court which required the claimant's attendance on 25 May had ceased to have any effect. Accordingly, on 21 May 2006, an application pursuant to part 23 of the CPR was issued seeking an order that the claimant had no obligation to attend Wood Green Crown Court on 25 May 2006. There was discussion between the claimant's counsel and counsel for the prosecution in which it appears that by the end of 22 May counsel for the prosecution was satisfied that there would be no application to have the claimant recalled as a witness in the light of what had occurred during the various defendants' cases. Accordingly, on 22 May 2006 the original witness summons of 24 April 2006 was set aside by the trial judge. The claimant therefore withdrew his part 23 application.
• Jurisdiction
The Secretary of State for Constitutional Affairs has been joined as a second interested party. He has raised afresh the question of jurisdiction of this court to entertain a claim for judicial review. He relies on the provisions of section 29(3) of the 1981 Act. That sub-section reads as follows:
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to a trial on indictment, the High Court shall have all such jurisdiction to make order of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."
It is said by the Secretary of State that the decision of the judge in this case was a matter relating to a trial on indictment. Accordingly, by virtue of section 29(3) no claim for judicial review can be made. He points out, and it is not in dispute, that this includes where the claim for judicial review seeks a declaration ( R v Chelmsford Crown Court ex parte Chief Constable of Essex 1994 1WLR 359).
The Secretary of State says that, as a matter of ordinary language, the order in question plainly relates to a trial on indictment. It was made in the course of such a trial, during the hearing of the evidence. The purpose of section 4(3) of the 1965 Act is to ensure a witness will be present in order to give evidence, if required, in the course of such a trial. The Secretary of State relies on a number of pointers towards this conclusion in passages from speeches in a number of decision of the House of Lords dealing with this statutory provision. The first is in Re Smalley 1985 AC 622 at p.642 in the speech of Lord Bridge of Harwich in which he said:
" It is not difficult to discern a sensible legislative purpose in excluding appeal or judicial review of any decision affecting the conduct of a trial on indictment, whether given in the course of the trial or by way of pre-trial directions…"
And at p.643:
"I...
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