Smith (Robert) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,MR JUSTICE OUSELEY |
| Judgment Date | 24 November 2010 |
| Neutral Citation | [2010] EWHC 3593 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5604/2010 |
| Date | 24 November 2010 |
[2010] EWHC 3593 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at: Cardiff Civil Justice Centre
2 Park Street Cardiff CF10 1ET
Before: THE HONOURABLE MR JUSTICE OUSELEY
Case No: CO/5604/2010
Mr James Tucker (instructed by Jonathan Brierley Solicitors) appeared on behalf of the Claimant
Mr Martyn Kelly (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
(As Approved)
Mr Justice Ouseley:
This is an application for judicial review to quash the decision of the Crown Prosecution Service on 16 March 2010 to proceed with the prosecution of the claimant. It is also an application for a mandatory order that the CPS proceed against the claimant in accordance with an agreement which he says was reached with it on 24 February 2010 in relation to the prosecution against him. He was charged in November 2009 with an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997. He pleaded not guilty. When the matter came on before District Judge Charles on 8 December 2009 for directions and was adjourned to a trial in March 2010, the District Judge inquired as to whether the matter might be resolved by the claimant submitting to a restraining order without a conviction. This was then debated in correspondence between the CPS and the solicitor for the claimant.
The correspondence concluded with a letter of 15 February 2010 in which the CPS said that the matter could not be dealt with in the way suggested by the District Judge. This was because it took the view that the legislation did not permit a restraining order to be made following the offering of no evidence by the prosecution, but required an acquittal following a trial.
The complainant in the criminal proceedings was the claimant's wife. They had been married 30 years, had three grown up children and were in the throes of divorce proceedings begun in June 2009. There were disputes associated, not surprisingly, with such proceedings including disputes in relation to the matrimonial home.
On 24 February 2010 before District Judge Williams, Mr Brierley, the solicitor for the claimant, appeared along with Ms James for the prosecution. The claimant was not present. It is a common practice for claimants not to be present for this sort of hearing because their attendance is not necessary; it adds to costs and inconvenience for them to attend. The purpose of the hearing was to canvass the position before the judge in open court as to whether a restraining order following the offering of no evidence could be pursued.
Mr Brierley, according to the judge's helpful note, confirmed that his client was willing to be made the subject of a restraining order on an acquittal following the offering of no evidence by the CPS.
Because of the debate in correspondence over the power to make such a restraining order, the judge records that Mr Brierley had asked for his opinion on that issue. The judge offered the opinion, without submissions or argument, that a restraining order could be made in those circumstances. The prosecutor was willing to adopt that course, namely to accept the offer of a restraining order upon an acquittal after the offering of no evidence.
The precise terms of the proposed restraining order were not resolved, but there was no doubt about the key provision in relation to contact between the claimant and his wife and it was not suggested that the modest drafting exercise would lead to the breakdown of the understanding between prosecution and defence.
The District Judge says this in paragraph 6 of his note:
"No further progress could be made without the applicant being present, and I listed the case for the applicant to attend on 26 February 2010. I anticipated that the parties would reach agreement if possible on the terms of the restraining order at that next hearing and that the case would be disposed of."
The prosecutor, Ms James, then spoke to a more senior prosecutor at the CPS on the telephone, who indicated that the restraining order did seem a possibility and that on 26 February the prosecution could consider any possible terms for such an order. I should make it clear that that telephone conversation appears to have taken place before the matter was formally adjourned.
On 26 February, however, a different prosecutor appeared. The hearing on the 26th was also before a different District Judge. There is no clear evidence as to what was said by the prosecutor on that occasion, beyond that she did not accept the envisaged disposal by way of a restraining order. The CPS say no more than it was decided by a different Crown prosecutor that the CPS would not on that date offer no evidence or agree the terms of a restraining order.
The matter came before the magistrates' court next on 16 March 2010. This time it was before District Judge Williams again. The prosecutor declined to proceed by way of a restraining order and produced her reasons, which, according to a note later produced dated 31 March 2010, recorded her concerns as being, firstly, that the court on 24 February had not been a domestic violence court and that there had been :
"no discussion with either the IP [the complainant] or supporting agencies in accordance with CPS policy and practice. The IP was classified as 'high risk'"
The second reason given was that the prosecutor was concerned that the arrangement was not legally possible where the Crown formally offered no evidence on a summary offence. The proceedings on the 16th were adjourned in order for the question of abuse of process to be considered.
The CPS produced the document dated 12 March 2010. This document was before District Judge Williams on 16 March 2010.
The document of 12 March 2010 explained in more detail the approach of the CPS. Having set out briefly the reason for the change, the document then set out the extracts from the Code for Crown Prosecutors which deal with the situation under the heading "Restarting a Prosecution". Paragraph 1:
"People should be able to rely on decisions taken by the prosecution service. Normally, if the prosecution service tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are special reasons why the prosecution service will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will re-start the prosecution, particularly if the case is serious.
2. These reasons include:
(a) rare cases where a new look at the original decision shows that it was wrong and should not be allowed to stand."
That is the paragraph upon which the CPS relied. The more elaborate reasoning in the document covered two reasons for the decision. First, why an acquittal after the offering of no evidence did not permit a restraining order to be made: it required a trial according to the reasoning proffered in that document. The second reason was that the decision to proceed in the way envisaged was "wrong on fact". This was because there had been no discussion with the complainant or the support agencies and it was a breach of the victim's code to take such a decision:
"…without considering the position of the victim even though the views of the victim may be subsequently outweighed by other considerations. In this case there was no attempt to obtain any views at all."
The prosecutor then continued that she thought the case was serious, the events should be reflected in a charge under the Protection from Harassment Act and there was a public interest in pursuing such an offence.
That has led to these judicial review proceedings. The decision in Nembhard v The Director of Public Prosecutions [2009] EWHC 194 (Admin) shows that where, as here, it is contended that the trial should not take place because it would be unfair to try the defendant, the issue of abuse of process has to be dealt with by the High Court. It would be otherwise where the issue is whether the defendant can have a fair trial, but the issue here is whether it is fair to try the defendant.
Mr Tucker, on behalf of the claimant, submits that it would be an affront to justice to try the claimant. The factual position, he submits, was that in reality an agreement was struck on 24 February 2010 between the prosecutor and the defendant in the face of the court to the effect that a restraining order would be accepted in return for the CPS offering no evidence. A compromise was arrived at. The doubts over jurisdiction were not entered as a continuing reservation to be reviewed in the light of what District Judge Williams opined. There was no reference to the decision being contingent upon a further consideration at a different level or upon consultation with other agencies or the complainant.
Had the claimant known that an adjournment for the purposes of his attendance might put that agreement (with which he was fully in accord) at risk, his solicitors would have done everything to obtain his attendance on 24 February. As I said, Mr Tucker emphasises that his absence involved no fault on his part but reflected the common practice of defendants at that stage in magistrates' courts proceedings. The precise terms of the restraint order, he said, would have presented no difficulty and would have mirrored the terms upon which the claimant has been on bail pending the resolution of these proceedings.
He submits that the first reason given for not proceeding in...
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