Swash v Director Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GOLDRING,MR JUSTICE SWEENEY |
| Judgment Date | 04 March 2009 |
| Neutral Citation | [2009] EWHC 803 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 March 2009 |
| Docket Number | CO/10973/2008 |
[2009] EWHC 803 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2A 2LL
Before: Lord Justice Goldring
Mr Justice Sweeney
CO/10973/2008
Mr J Fielding (instructed by Sanders Witherspoon) appeared on behalf of the Claimant
Mr RG Livingston (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
(As approved)
Introduction
1. The issue in this case can shortly be summarised: whether the magistrates were right to refuse an application by the defence to adjourn the case. As will become apparent, this case reveals a complete failure by the prosecution in respect of its disclosure obligations.
The Facts
2. The appellant was charged with common assault by battery. The allegation was that he had assaulted his former wife. It was alleged that on 29 May 2008, Susan Swash had had an argument with the appellant concerning domestic matters, namely the mortgage and who could use the bathroom first. As the situation had become more heated, she and the daughter Katie, had shut themselves in the bathroom, later on seeking to walk past the appellant. The appellant had pushed her into the shower room wall. Katie then intervened causing injuries to the appellant. The appellant thereafter was said to have made threats against both women.
3. The appellant was arrested, as was Katie, on suspicion of assaulting the appellant. The appellant had sustained visible injuries. He provided the police with a full interview in which he accepted having had an argument instigated by his former wife, and said she and thereafter Katie had assaulted him. He locked himself in the bathroom. He had later left to talk to his girlfriend on the telephone before re-entering the property to collect some personal effects. He revealed in that interview that there had been a history of domestic difficulty between him and his former wife involving allegations of violence.
4. The prosecution did not rely on Katie's evidence. Its sole witness to the incident was the former wife. The sole issue in the case was her credibility.
The timetable
5. The incident was on 29 May 2008. The appellant was charged on 30 May 2008. On 11 June 2008, he appeared before the Chelmsford Magistrates’ Court. He was legally represented. We have been told today by Mr Fielding, on behalf of the appellant, that that hearing would have been conducted by a justices’ clerk. He had had served on him at that stage the charge sheet, a summary of the case, a document indicating that he had no previous convictions, and the witness statements of his wife and three police officers, who no doubt either attended the scene or were present at the interviews.
6. The interviews themselves were not disclosed on that date. The justices’ clerk made some enquiries. They do not appear to have been very specific, or tailored to the issues in the case. The credibility of the former wife, as the sole issue in the case, does not appear to have been discussed, or at least discussed in any real detail. It is questionable whether the court, or either party, had regard to the Criminal Procedure Rules of 2005, the overriding objective, as set out in paragraph 1.1, the application of those rules to the magistrates, as provided for in rule 3.1, and the importance of active case management as required by rule 3.2 involving the obligation of each of the parties actively to assist in that management by reason of rule 3.3.
7. Among other things the Justices clerk ordered that the parties should file a certificate of readiness: “If appropriate at least 21 days prior to trial.” It seems no such certificate was filed. The appellant's solicitor merely wrote to the court, as I understand it, indicating that there were some problems.
8. The prosecution was obliged to comply with its initial duty of disclosure within 35 days “to the extent it has not done so”; that is to say by 16 July 2008. It only did so on 19 July 2008. It had disclosed the interviews as primary disclosure on 22 July 2000. In the letter of 19 July it stated there was no additional material to disclose.
9. The defence statement was then filed. It was, as material, in these terms:
“2. The defence are in some difficulty with the trial date imminent it is difficult to see as lawyers how the Crown see the such late service of the primary disclosure is acceptable given the plethora of issues in this case.
…
5. Susan SWASH has suffered previously from mental health problems and depression, which the defendant believes caused her to stop work for a time. The defendant has suffered unpredictable behaviour and violence at the hands of Susan SWASH in the past.”
The defence statement set out the details of its case:
“15. The defendant categorically denies committing any kind of assault, if such did occur, the same was occasioned by the complainant's unlawful actions and by the defendant simply seeking to move from one room to another, unmolested.
16. The defendant would aver that there have been previous incidents when the family had contact with the police. This is in relation to their son Jack, who has been arrested on at least 2 occasions, and taken to the police station in relation to assaults upon the defendant.
17. The defendant also avers that approximately 18 months ago Susan Swash called the police as she felt she would do the defendant harm. There was (sic) enquired into the police firearms officer, John Hopes. The officer satisfied himself that the defendant was not at fault. The Crown should take this indication as notice of the defendant's intention to make an application to adduce bad character of the witness. This will be on the basis it forms important explanatory evidence and is of substantial probative value to a matter in issue and that issue is one of substantial importance in this case.
18. The defendant takes issue with any suggestion that he assaulted Susan SWASH.”
The defence statement drew the Crown's attention to its continuing duty to review all the material in its possession. It specifically requested:
“Details of any previous complaints made by the complainant to the police or any other party about anyone, particularly where the same have not been substantiated.”
It sought details from the firearms officer concerning the previous incident, previous complaints in relation to Jack Swash, medical evidence that might support the allegations made, and various other details, including details of the resolution of the police arrest of Katie Swash. It sought details of the charging advice provided by the CPS (plainly not discloseable) and psychiatric assessments.
10. Following that defence statement the case was imminently due to be heard. As to the application to adjourn, the Justices put it in this way in their Case:
“It is accepted that the prosecution are at fault in not complying with their obligation under the CPIA 1996 until the 19th July 2008 when a letter was sent to the appellant's solicitors notifying them that there was no additional prosecution material to disclose. The defence, however, had all the evidence at the first date of the hearing on the 11th June 2008.”
11. They refer to the contentions made by the appellant's advocate to the effect that the defence had to draft its defence statement in less time than the statute formally permitted, that the Crown...
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