R v Haringey Justices, ex parte DPP
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1995 |
| Judgment citation (vLex) | [1995] EWHC J0731-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 1995 |
[1995] EWHC J0731-3
Before: Lord Justice Stuart-smith and Mr Justice Butterfield
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
MR J CARTER-MANNING QC (instructed by CPS Special Casework Unit, Victoria, London SW1E 5BH) appeared on behalf of the Applicant.
MR E FITZGERALD QC (instructed by Haringey Petty Sessions Area, The Court House, Tottenham, N17 6RT) appeared on behalf of the Respondent
(As Approved)
Monday, 31st July 1995.
Stuart-Smith L.J.
This is an application for judicial review of a decision of the Haringey Justices sitting at Highbury Magistrates' Court on 23 November 1994 at the trial of John Ernando-Smith and Mark Smith on charges of threatening behaviour and assault on a police officer:
1.that the prosecution, contrary to their wishes, must call or tender a suspended police officer as a prosecution witness;
2.to dismiss the charges for abuse of process on the prosecution declining to call the suspended officer.
The applicant seeks an order for certiorari to quash the decision and declaratory relief. I should point out that the Justices did not direct the prosecutor to call or tender the witness; they invited them to do so and when he declined, they dismissed the case.
The charges arose out of an incident on 4 July 1994 and involved two officers on duty in uniform, P.C. Hine and P.C. Hanna. A car went past them, stopped, and the driver, Ernando-Smith, made an obscene gesture at the officers. The officers followed in their car, Ernando-Smith continued to gesture at them. The car was stopped and approached by police. Ernando-Smith aimed a blow at P.C. Hanna, then ran off and was eventually caught. As P.C. Hine was attempting to handcuff him, he lashed out.
Mark Smith, who had also been in the car, approached with a sheet of plastic wood. P.C. Hanna drew his truncheon and told him to put the sheet down, whereupon Mark Smith brought it down on P.C. Hanna, injuring a finger. P.C. Hanna says he struck out with his truncheon in self-defence. Mark Smith ran off. P.C. Hanna saw Ernando-Smith punch P.C. Hine who hit him with his truncheon to try and get the handcuffs on. They handcuffed Ernando-Smith. Meanwhile, other police officers had arrived. P.C. Hanna, assisted by another officer, pursued and arrested Mark Smith, in the course of which Mark Smith hit out at the officers. Altogether six officers came to assist.
On 22 November, the day before trial, Mr. Sininan, the CPS prosecutor, learned that P.C. Hine had been suspended for possible misconduct involving dishonesty. He considered it was possible to prove the case on the evidence of P.C. Hanna, together with the evidence of other officers who later came on the scene. It is the CPS policy not to rely on evidence of suspended officers, if this can be avoided.
On 23 November, at the court, Mr. Sininan told the defence lawyers that he was not calling P.C. Hine and that he no longer wished to rely on his evidence because he had been suspended because of an allegation that he had been involved in the theft of some money. But he would be made available to the defence if they wanted him. P.C. Hine was not actually present at court but the prosecution would consent to an adjournment if his presence was needed.
Counsel for both defendants, who were separately represented, made an application to the court seeking to require the Crown to call P.C. Hine or tender him for cross-examination. They submitted that failure to do so would result in unfairness to the defence and that it would be an abuse of the process of the court for the Crown to insist on a trial that was unfair. The Justices acceded to this submission. They invited Mr. Sininan to call or tender P.C. Hine, but he declined to do so. Accordingly, they dismissed the case on the grounds that it was an abuse of process.
Three questions arise for consideration. First, did the CPS have a discretion not to call P.C. Hine as a witness? Secondly, if so, was the discretion properly exercised; thirdly, if the answer to either of the first two questions is no, were the Justices correct to dismiss the prosecution as an abuse of process?
There is very little authority on the duty of the prosecutor to call witnesses in the Magistrates' Court. The position in the Crown Court is however now well established. In Oliva [1965] 49 CAR 298 Lord Parker CJ said at p. 309:
"the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination.
The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness's evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of a trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling that witness."
In Russell-Jones [1995] CAR 538 the principles have been conveniently and succinctly summarised by Kennedy L.J. at p. 544:
"(1) Generally speaking the prosecution must have at court all the witnesses named on the back of the indictment (nowadays those whose statements have been served as witnesses on whom the prosecution intend to rely), if the defence want those witnesses to attend. In deciding which statements to serve, the prosecution has an unfettered discretion, but must normally disclose material statements not served.
(2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered.
(3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. See per Lord Parker CJ in Oliva (supra).
………..
(4) The next principle is that the prosecution ought normally to call or offer to call the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say "incredible", then his evidence cannot help the jury assess the overall picture of the crucial events, hence, it is not unfair that he should not be called.
………
(5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal.
(6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others.
(7) A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken."
Reverting to the first principle stated by Kennedy L.J., it is clear that at the stage that the prosecution are deciding which witnesses...
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