R v Bedwellty Justices, ex parte Williams

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

My Lords.

For the reasons given in the speech to be delivered by my noble and learned friend Lord Cooke of Thorndon, which I have read in draft and with which I agree, I would allow this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon and for the reasons he gives I too would allow this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon and for the reasons he gives I too would allow this appeal.

For the reasons given in the speech by my noble and learned friend Lord Cooke of Thorndon, I too would allow this appeal.

This appeal concerns judicial review of committals by examining justices. The particular issue is whether a committal for trial by jury in the Crown Court can and should be quashed on judicial review if there was no admissible evidence before the justices of the defendant's guilt, but after the committal the prosecution has served witness statements complying with section 9 of the Criminal Justice Act 1967 demonstrating an intention to tender or call further evidence at the trial; and at least some of that further evidence would undoubtedly be admissible and tend to prove his guilt. It is appropriate to consider whether the decision of your Lordships' House in the Northern Ireland appeal, Neill v. North Antrim Magistrates' Court [1992] 1 W.L.R. 1220, is to be applied in England and Wales, and if so whether any modification of what was there said is called for in this jurisdiction.

On 9 July 1993 the present appellant was tried summarily, together with Rhiannon Theresa Cadwallader, at the Blackwood Magistrates' Court in the County of Gwent, on a charge that on 25 March 1993 they assaulted a Mrs Powell and caused her actual bodily harm. The appellant gave evidence claiming that she had acted in self-defence. Supporting evidence was called for the defendants from two young men, David John Pease and David John Jones, that in the company of a third, Brian John Jones, they had witnessed the incident. They testified that Mrs Powell had attacked the appellant and that Miss Cadwallader had played no part in the violence. The justices found the appellant and Miss Cadwallader not guilty.

Subsequently five persons — the appellant. Miss Cadwallader, the two brothers Jones, and Pease — were all charged with what has been shortly described as conspiracy to pervert the course of justice. Particulars of the charge were that between 24 March and 10 July 1993, with intent to pervert the course of justice, they did a series of acts which had that tendency, in that they agreed to provide false details to police officers and agreed to lie on oath in a court of law. Upon this charge all five appeared before the justices at Blackwood on 18 February 1994. No witnesses were called, but the prosecution produced written material including extracts from transcripts of tape-recorded police interviews conducted in December 1993, under caution, with each of the five. In these interviews the other four defendants admitted the conspiracy, acknowledging that the young men had not even been present at the incident, and at least three of them implicated the appellant to a greater or less extent. For her part, the appellant denied participating in any conspiracy, maintaining that the evidence of the men had been called in good faith.

The justices appear to have treated all the written material as statements admissible against the appellant under sections 6 and 102 of the Magistrates' Courts Act 1980. No submissions were made for the other four defendants. They were committed for trial and have since pleaded guilty and been sentenced. The solicitor representing the appellant, however, submitted to the justices that the papers did not reveal a sufficient case to commit her. The Crown was represented by a senior Crown prosecutor in the Crown Prosecution Service, who contended otherwise. The justices preferred his argument and committed the appellant. In an affidavit sworn in the judicial review proceedings in August 1994 the prosecutor concedes that his reliance on the interview records of the co-defendants was erroneous, yet continues to maintain that there was other evidence upon which the justices could properly find a prima facie case against the appellant.

But before your Lordships counsel for the Crown Prosecution Service admitted that there was before the justices no admissible evidence of guilt against the appellant. The appeal to the House proceeded on that basis. Very similarly, in the Divisional Court it was conceded in the judicial review proceedings that there was insufficient evidence to justify the appellant's committal. Perhaps it should be added that the mistake of the prosecution in the argument put to the examining justices was not quite as elementary as the foregoing account might suggest. Some reliance was placed at that stage on the doctrine that acts and declarations of co-conspirators in pursuance of the conspiracy may in some circumstances be admissible against an accused. Rightly, your Lordships have not been troubled with this.

In April and May 1994 witness statements from each of the other four defendants were served by the Crown on the appellant's solicitors. It is not in dispute that these include evidence pointing to her guilt, but they were not before the justices, and of course the makers of the statements were not cross-examined before the justices, nor would there be any opportunity to cross-examine them before her trial on indictment.

Leave having been granted to apply for judicial review, the application was heard by Butler-Sloss L.J. and McCullough J. in the Divisional Court on 5 December 1994. At the request of the Lord Justice (as the nomenclature then was), the Judge gave the first judgment. In his judgment, McCullough J. posed two questions:

"There being no evidence upon which [the appellant] could properly have been committed for trial, does this court have jurisdiction to quash the committal, and, if so, should this court exercise its discretion in her favour and quash?"

He answered by holding that this is a matter upon which there is a long line of established authority from which it is plain that, whether or not the court has such jurisdiction, it does not in practice exercise it in such circumstances. He cited Reg. v. Wells Street Stipendiary Magistrate, Ex parte Seillon [1978] 1 W.L.R. 1002; Reg. v. Ipswich Justices, Ex parte Edwards (1979) 143 J.P. 699; Reg. v. Oxford Justices, Ex parte Berry[1988] Q.B. 507; and Reg. v. Nottingham City Justices, Ex parte McLaughlin (unreported, Mann L.J. and Brooke J., 20 February 1992).

As to the contention that the authority of those decisions has been diminished by the decision in Neill v. North Antrim Magistrates' Court, McCullough J. noted that in another case the Divisional Court had been invited not to follow the earlier line of decisions in the light of what was said in Neill, but that the invitation had been rejected. His reference was to the unreported judgments of Watkins L.J. and Rougier J. in Reg. v. Nottingham Justices, Ex parte Cunningham (7 April 1993). As did the members of the Court in the latter case, he considered that it was not open to the Divisional Court to depart from its established line of authority, but he added that the present case might provide the opportunity for the matter to be taken further. Butler-Sloss L.J. gave a brief concurring judgment to the same effect.

The application was accordingly dismissed. The Divisional Court certified, however, in accordance with section 1(2) of the Administration of Justice Act 1960, that a point of law of general public importance is involved, namely:

"1. Whether it is open to a Divisional Court of the Queen's Bench Division by order of certiorari to quash a committal for trial under section 6(1) of the Magistrates' Courts Act 1980 where there was (a) misreception of inadmissible hearsay evidence by the magistrates and (b) no other evidence capable of being deemed sufficient to put the accused on trial by jury.

2. If so, on what principles should the discretion to order certiorari be exercised?"

While expressing the opinion that this is a matter in which it would be proper to go before your Lordships, Butler-Sloss L.J. indicated that by established practice the question of leave to appeal should be left to your Lordships. On 24 July 1995 leave was granted by the Appellate Committee of the House.

My Lords, in Neill [1992] 1 W.L.R. 1220, at 1231, Lord Mustill, whose opinion had the concurrence of the other four members of the House, noted as to the admissibility of evidence that there are "some very robust statements," in cases there collected, to the general effect that examining justices stand in the position of the now defunct grand jury, which never had to pay attention to such matters, and that accordingly the admissibility of evidence is for the trial judge and not the justices. As pointed out by Lord Mustill, it is clear that these statements no longer reflect the law in either England and Wales or Northern Ireland.Section 102(1) of the Magistrates' Courts Act 1980 stipulates that in committal proceedings written statements satisfying certain conditions are admissible to the like extent as oral evidence to the like effect by the same person. The implication is plain that, if necessary,...