R (Visvaratnam) v Brent Magistrate Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ELIAS,MR JUSTICE OPENSHAW |
| Judgment Date | 28 October 2009 |
| Neutral Citation | [2009] EWHC 3017 (Admin) |
| Docket Number | CO/8508/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 2009 |
[2009] EWHC 3017 (Admin)
Lord Justice Elias
Mr Justice Openshaw
CO/8508/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr A Hook (instructed by Tank Jowett Solicitors) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
(As approved)
I will ask Openshaw J to give the judgment.
This is an application by Aravinthan Visvaratnam, the claimant, for judicial review to challenge a decision of the Brent Magistrates' Court made on 6 June 2008 to adjourn his trial upon a charge of driving whilst unfit through drugs, on the application of the prosecution.
The facts, insofar as they are before us, are set out in the grounds, and we shall recite them shortly. We should, however, record that, late yesterday evening, the court received a witness statement from the Chairman of the Bench sitting on the day. In that witness statement the Chairman sets out his recollection of events, which differs entirely from the version put forward in the grounds in support of this application. The rules of this court plainly provide that statements in response to these applications must be served in proper form in time, and also, if the prosecution as an interested party wish to intervene, they also should do so in time in the proper form. It is not, in my judgment, in the least bit satisfactory for witness statements to appear the evening before the case is scheduled to be heard. We, therefore, have taken the view that we should not pay attention or have any regard to the witness statement served so late, and we propose to hear and determine the case in accordance with the grounds of the application.
The facts on which we hear and determine the case, therefore, are as follows. On the day long set for this trial, namely 6 June 2008, the prosecution intended to rely upon the evidence of a doctor who had examined the claimant upon his arrest. He was to give evidence as to the claimant's condition and fitness to drive. It is self-evident – indeed, it was conceded – that the evidence of the doctor was fundamental to the case for the prosecution. Without his evidence, there was no case against the claimant at all. For reasons which were then entirely unexplained, the doctor had not been warned to attend the trial. We draw inevitable inference that his non-attendance was due to the fault either of the police or the CPS, or a combination of both. In fact, their fault went rather further than that, because it seems that the doctor's evidence had not even been disclosed to, let alone served upon, the defence until they attended at court on the day of the trial.
The other vital witness was a forensic scientist, who had analysed the blood sample taken from the claimant at the time of his arrest, which suggested that the claimant had cannabis in his bloodstream at the time of his arrest, and the inference that was sought to be drawn was that he had cannabis in his bloodstream at the time that he had been driving. This forensic scientist had been warned to attend, but "well before the trial date", as it was put, he had already told the prosecution that he was unable to attend court on the day set for trial. Once the prosecution had been told that the witness was unavailable, they should immediately have made an application to adjourn the trial – an order which probably could have been made administratively without a further hearing. In fact, on the version upon which we must decide this case, the prosecution did nothing.
On the day fixed for trial, the claimant attended, represented by counsel. No witnesses attended for the prosecution, as we have already explained. The prosecution therefore applied to adjourn the case. As we have said, on the version on which we must proceed, no explanation was provided for not having served the evidence of the doctor, nor for having been ready at court to give evidence, and no explanation was given for not previously having sought an adjournment once it had become clear that the forensic scientist would not attend. Nevertheless, the prosecution argued that the allegations were serious, and that justice required that the case should be heard on its merits. Therefore, an adjournment was necessary in the interests of justice.
Mr Hook, appearing on behalf of the claimant, opposed the application. Since he had no warning of the situation, he did not have the authorities with him, but he did his best by drawing attention to the summary of the relevant cases as set out in the textbooks which were available to him. In essence, he submitted that the court should balance the prejudice to both sides. He argued that the fault lay entirely with the prosecution, and it was unreasonable to grant an adjournment. The magistrates, however, granted the adjournment. They did not give detailed reasons. On the version upon which we must proceed, they merely said that disputed criminal allegations should be disposed of by way of a trial, and they therefore ordered the adjournment. Mr Hook submits that the decision to adjourn the case was unfair and unreasonable.
In reviewing their decision to adjourn, I start with the statutory power, which is in section 10(1) of the Magistrates' Courts Act 1980, which reads as follows:
"A magistrates' court may at any time, whether before or after beginning to try an information, adjourn the trial …"
This power is not unrestricted, as a number of reported cases show. I start my short review of the authorities with the case of R v Chaaban [2003] EWCA Crim 1012, and the judgment of Judge LJ (as he then was). This is the case which first laid down the critical importance of robust case management. I read from paragraph 36 of that judgment:
"Virtually any adjournment produces inconvenience for someone. What used to be described as an adjournment culture, if it ever existed, is a thing of the past. Adjournments...
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