R v South Worcestershire Magistrates, ex parte Lilley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE POTTS |
| Judgment Date | 17 February 1995 |
| Judgment citation (vLex) | [1995] EWHC J0217-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 2190-94 |
| Date | 17 February 1995 |
[1995] EWHC J0217-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Rose and Mr Justice Potts
CO 2190-94
MR D BARNARD (Instructed by Kieran & Co Solicitors, 20 The Cross, Worcester WR1 3PZ) appeared on behalf of the Applicant.
MR J McGUINNESS (Instructed by Crown Prosecution Service, Droitwich) appeared on behalf of the Respondent.
(As Approved)
Friday, 17th February 1995.
There is before the Court, with the leave of Mr Justice Latham, an application for judicial review in relation to a decision of the South Worcestershire Magistrates who, on 25th April
1994, embarked upon a summary trial of the Defendant
in relation to the alleged dishonest receipt of a clock alarm radio between 20th January and 1st February 1994.
The Crown Prosecution Service, in the usual way, had served upon the defence a schedule of unused material comprising a number of items, one of which was said to be of a sensitive nature and ought not, therefore, to be disclosed to the defence upon the basis of public interest immunity.
On the 25th April the issue of public interest immunity was canvassed before the Justices, the Crown invoking the procedure for the Crown Court in accordance with R v Davis and Johnson (1993) 97 Crim. App R 110.
The Crown indicated that it proposed to conduct an ex parte hearing. A brown envelope was handed to the Court and the Justices retired to consider its contents. On their return to court the Justices said that they wished to admit testimony from the investigating officer in the case and to hear representations from the Crown.
At that stage the Applicant and his solicitor were excluded from the proceedings for about 20 minutes, during which, apparently, Constable Hughes, the investigating officer, gave evidence, whether sworn or unsworn, before the Justices, and the prosecuting solicitor made submissions to the Court.
At the end of that period the Applicant and his solicitor were invited to rejoin the proceedings and the Chairman of the Bench announced that the Court took the view that the sensitive material was immaterial. Thereupon the Applicant's solicitor submitted that it would no longer be desirable, in the interests of justice, for the same bench to adjudicate as a court of trial given that, at the very least, there had to be a suspicion in the mind of the Applicant that the Bench had become privy to information and had admitted testimony from the officer, the combined effect of which might well have a prejudicial effect upon the fairness of trial proceedings.
The Crown resisted that submission on the basis that the authorities on public interest immunity indicated that the court of trial should determine both the public interest immunity issue and such triable issues as thereafter followed.
The defence replied that there was apparently no authority dealing with how courts of summary jurisdiction should deal procedurally with this problem. The outcome was that the Justices acceded to the Applicant's solicitor's application that the proceedings should be suspended and adjourned generally, pending resolution by this Court of the issue.
So far as the position of the Crown Court is concerned, there is no issue as to the principles which apply and the procedure which should be followed. It is the responsibility of the court to determine whether sensitive unused material should be disclosed to the defence when questions of public interest immunity are raised. (See R v Ward (1993) 96 Crim App R pg 1) such an application made by the Prosecution is to be made ex parte to the trial judge where this is possible. Otherwise, the trial judge should be apprised at the outset of the material upon which non-disclosure submissions were upheld on the previous application. (See R v Davis and Johnson, already cited.)
The Prosecution should place before the judge only that material in relation to which immunity is claimed, which is, or may be, relevant to an issue in the case or which raises or possibly raises a new issue which holds out a real prospect of providing a lead on evidence going to such issues, ( R v Keane (1994) 1 W.L.R. 746.) What is an issue in the case has to be given a broad interpretation.
( R v Brown (1994) 1 W.L.R. 1599 at 1606H.)
If there is any doubt as to whether such material is relevant, the judge may be asked to rule on that issue.
( R v Keane) In assisting the judge to reach a decision on disclosure the defence may, and are encouraged to, give a full and specific indication of their defence, or the issues it is likely to raise, R v Keane. Any defence representations on these matters are to be made not ex parte, but in open court.
( R v Turner (1995) 1 W.L.R. at 264.)
A ruling that material should not be disclosed is not final. Issues may emerge during the trial whereby the public interest in non-disclosure is eclipsed by the need to disclose in the interest of fairness to the Defendant. So the position has to be monitored as the trial proceeds. (See R v Davis and Johnson.) So much for procedures in the Crown Court.
There is also no doubt that a judge in civil proceedings may properly decide questions of immunity and then proceed to try the case ( R v Taylor and Chief Constable of Manchester, The Times 19th January 1995). But it has to be borne in mind that judges, unlike lay Magistrates, are lawyers who have had many years of training in the art, if art it be, of excluding from their consideration irrelevant and admissible material.
Turning to the position in Magistrates' Courts, it is clear from R v Crown Prosecution Service ex parte Warby (1994) 158 JP 190 that Magistrates sitting as examining Justices have no role to play in the consideration of sensitive material. The role of an examining Justice is to ensure that a Defendant does not stand trial at the Crown Court unless there is a prima facie case against him. The decisions as to disclosure in these circumstances are, therefore, properly and solely made by the Crown Court.
On the other hand, if the admissibility of evidence in general is in issue in committal proceedings, examining Justices must rule on the matter, as they have no power to delegate that function to another, differently constituted, Bench of Justices. (See R v Ormskirk Justices ex parte Davies (1994) 158 JP 1145).
Furthermore, it is both proper and generally desirable for the same examining Justices who rule on submissions as to abuse of process, to rule also on whether there is evidence justifying committal for trial. (See R v Worcestershire Magistrates ex parte Bell (1992) 157 JP 921, at 929F).
The position of Justices conducting a summary trial is, as it seems to me, at first blush, different because they have a fact-finding role which a Crown Court Judge and examining Justices do not.
It is common ground between Mr McGuinness for the Crown and Mr Barnard for the Applicant, both of whom have made clear and helpful submissions to this Court, that, in considering how Justices conducting a summary trial should discharge their role in relation to public interest immunity, consideration of two lines of authority is necessary.
On the one hand, there are the recent decisions as to Crown Court practice, to which I have already referred. On the other, there is the long line of authorities, stretching back 50 years and a good deal further, in relation to the need for justice to be seen to be done in Magistrates' Courts.
It appears that the present case is the first in which both these lines of authority have been concurrently addressed. For the Crown, Mr McGuinness relies on R v Bromley Magistrates ex parte Smith and Wilkins, and R v Wells Street Magistrates ex parte King (unreported Divisional Court transcript dated 4th November 1994.)
He submits that that decision binds this court to hold not only that the rules as to disclosure are the same in the Magistrates' Court as in the Crown Court, but also that a like procedure should be followed in the Magistrates' Court, in that Justices who have ruled that material is inadmissible should continue with the hearing.
In that case the Court was primarily concerned, as appears from page 7C of the transcript, with whether the Prosecution's duty of disclosure in...
To continue reading
Request your trial
-
R (DPP) v Acton Youth Court
...Judge was referred to two authorities, to which reference will have to be made later: R v South Worcester Magistrates, ex parte Lilley [1995] 4 All ER 186 and R v Stipendiary Magistrate for Norfolk, ex parte Taylor (1997) 161 JP 773. Those reports were not available to the District Judge. ......
-
The Director of Public Prosecutions v McNicholls
...out that Warby concerned committal proceedings and accordingly did not apply to summary proceedings. 36 In a case of R v. South Worcestershire Magistrates Ex parte Lilley [1995] 4 All E.R. 186 the issue was whether where one bench had ruled on whether certain material was covered by public ......
-
The Queen v The Stipendiary Magistrate for Norfolk and Another
...That is essentially a matter for the judgment of the justices in each case. 21 The second of the two authorities is R v South Worcestershire Magistrates, ex parte Lilley [1995] 1 WLR 1595, [1995] 4 All ER 186. The facts of that case are summarised on pp. 1596H —1597A and 188, crucially betw......
-
Hksar v Lam Ping Kai
...public interest immunity application, the learned magistrate considered the cases of R v South Worcestershire Justices, Ex p. Lilley [1996] 1 Cr App R 420, R v Stipendiary Magistrate for Norfolk, Ex p. Taylor [1998] Crim LR 276, and R v Bromley Justices, Ex p. Smith and Wilkins [1995] 2 Cr ......
-
Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence
...and A. J.Wistrich, Inside the Judicial Mind, 86 Cornell LQ 777 (2001).60 Wistrich, Guthrie and Rachlinski, above n. 54 at 1323.61 [1996] 1 Cr App R 420, before him should be drawn between lay justices and stipendiarymagistrates. I would not, for my part, support such a distinction.62Trevor ......