R v Liverpool City Justices and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,MR JUSTICE ROUGIER |
| Judgment Date | 23 July 1998 |
| Judgment citation (vLex) | [1998] EWHC J0723-6 |
| Docket Number | CO/371/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 July 1998 |
[1998] EWHC J0723-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Brooke
and
Mr Justice Rougier
CO/371/98
MR M SCHOLES (instructed by James Muriau and Company, Bootle, Liverpool L20 7AP) appeared on behalf of the Applicant.
MR C CORNWALL (instructed by the Crown Prosecution Service, Merseyside Lancashire Area L3 1HN) appeared on behalf of the Second Respondent.
(as approved)
This is an application by the Defendant for judicial review of the refusal of justices sitting at Liverpool, on 29th October 1997, to refuse to stay criminal proceedings against him which arose out of an information laid against him, on 5th August 1997, that on 25th February 1997, when he was 16 years old, he had indecently assaulted a nine year old girl who I will call "S". The Applicant seeks an order staying the criminal proceedings and also an order requiring the Crown Prosecution Service to discontinue the proceedings against him. He makes allegations, to which I will refer, against the Crown Prosecution Service in support of his application for the second order.
There were two justices sitting in the Youth Court that day: a lay justice and an acting Stipendiary Magistrate, Mr Robinson. Mr Robinson has sworn an affidavit in which he explains what happened. The Applicant's solicitor had made a submission that the Justices should stay the proceedings on the grounds of abuse of process. He set out the chronology of the matter and the ages of the parties to the complaint. He said that his client had been interviewed by a police officer on the day after the alleged offence, during which he had denied the allegation. His client was of low intelligence. He maintained that his client's father had had a conversation after the interview with a police officer that he took to be an indication or promise that they would hear no more about the matter.
The prosecuting solicitor said that while she conceded that the father might have assumed that a prosecution against his son was unlikely in the particular circumstances, it was denied that any promise had been held out that there would be no prosecution, and that since no notice had been given to her that this was likely to be said, the case would have to be adjourned to enable the police officer to attend court. The parties sensibly resolved this difficulty by the defence resiling from any contention that a promise of no prosecution had been made in return for the Crown accepting that the Defendant's father, in the particular circumstances, had reasonable grounds for believing that a prosecution against his son was not likely.
The Defendant's solicitor said that his client's two younger sisters were present when the alleged offence took place and they were therefore in a position to witness what was said or done by the Defendant towards the alleged victim, but their father, because of his belief, did not feel it appropriate or necessary to speak to them. The lapse of time that had occurred from 25th February 1997 to the time when the father became aware of the proceedings having been instituted against his son had resulted in it being impossible, given the age of the two younger sisters, for them to recollect the details of the events. Had they been approached a reasonable time after the alleged offence and asked to recollect what took place, it was conceivable that their evidence would exculpate their brother. In these circumstances it was argued that as a result of the significant and unexplained delay from the alleged offence to the institution of the proceedings, the Defendant had been prejudiced to the extent that a fair trial would be impossible and the Court should therefore exercise its discretion in his favour by granting the application to stay the proceedings.
In reply, the prosecutor said that the delay was not inordinate given that the Defendant was a youth. This necessitated that formal referral procedures, to determine whether or not criminal proceedings should be instituted, had to be instigated in the case, and by their very nature the processes involved often resulted in a delay of several months from the alleged offence to the institution of criminal proceedings. As such, the delay in this case was in no way exceptional. The prosecutor submitted in relation to the likely prejudice which might be occasioned to the Defendant, that the evidence of the prosecution witnesses could be given at the trial, when naturally the Defendant could give evidence himself and call any relevant witnesses. Although the allegation was serious, the issues were relatively straightforward, and in those circumstances the Defendant's application should be rejected.
Mr Robinson's affidavit then explains the way he and his colleagues approached the matter. He said that they based their decision on the agreement between the parties that the police had made no promises, but that the Applicant's father had reasonable grounds for believing that the prosecution against his son would not take place. His affidavit continues:
"We identified the only remaining factual issue between the parties, namely whether or not the delay between the alleged offence and the institution of proceedings was inordinate and concluded that in the circumstances, particularly bearing in mind the defendant's apparently low intelligence substantiated by his demeanour in court before us, that the Crown could not be justifiably criticised for carefully considering all the options before embarking upon a criminal prosecution.
In the particular circumstances, therefore, we found that the delay was unfortunate but necessary and, therefore, not inordinate.
We then turned our attention to the issue of whether or not a fair trial would be likely to be prejudiced by the absence of contemporaneous statements from two potential witnesses partially as a result of the defendant's father's belief that no criminal proceedings would be likely to ensue.
We reminded ourselves that the limited discretion that we had to stay the proceedings should be exercised cautiously and that only if the circumstances were regarded as exceptional should we find in favour of the Applicant. Furthermore, the onus was on the Applicant to satisfy us that there was a need to do so.
…
We then considered the possibility that the applicant's sisters might have recalled the facts likely to have implicated the applicant or have failed to recall facts of any consequence.
We naturally considered the public interest in ensuring that those who are charged with serious offences are brought to trial and weighed the Applicant's interests against the public interest. Given that the applicant was charged with a serious sexual offence, we felt the public interest should prevail.
We then considered all the circumstances of the case and concluded that they were not out of the ordinary and as such were exceptional.
We, naturally, considered the likely course of any trial of the applicant and were of the opinion that it would essentially be a question of considering the word of the alleged victim against the word of the applicant.
We were comforted in the knowledge that in any such trial, the defendant would be able to pray in aid the difficulties in preparing his defence that the instant delay had caused and in so far as that raised a reasonable doubt in the minds of our colleagues at the trial, the defendant would in the ordinary way be entitled to the benefit of that doubt and, therefore, be acquitted.
We were of the firm opinion that the applicant had not discharged the burden of proof so as to satisfy us on the balance of probabilities that the difficulties referred to above resulted from the delay in instituting the proceedings would so adversely affect the fairness of his trial that the proceedings should be stayed as an abuse of process.
We returned to court and ruled accordingly, rejecting the submission made on behalf of the applicant."
Mr Robinson goes on to make clear that a number of the grounds being relied on by the Applicant in this Court were not advanced before the justices. These grounds read:
"The sole evidence against the Defendant is that of the Complainant aged now 11 years. At the time the Crown Prosecution Service decided, contrary to the police advice to commence proceedings, the Crown made no investigations into the Complainant's background and in particular failed to discover she made previously unsubstantiated allegations of indecency against her brother.
Given the absence of any corroborative evidence and the Complainant's history the Crown ought to have concluded there was no reasonable prospect of a conviction.
In deciding to commence proceedings the Crown Prosecution Service as an act of policy declined to have investigated the Complainant's background and such behaviour as a policy is irrational and unlawful.
When the Crown were made aware of the Complainant's history it ought to have discontinued the Prosecution and the decision not to was, in the light of all the material, not open to a reasonable prosecution.
The Crown Prosecution Service in deciding to continue with prosecution has failed to take account of (a) the effect on the trial of the Complainant's history, (b) the potential injury to the 11 year old Complainant of being cross-examined about the previous Complaint and (c) the realistic likelihood of conviction given the weight of the evidence."
Mr Robinson adds that the justices did not see an undated psychological report written about the Applicant by the...
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