Parashar v Sunderland Magistrates Court [2019] EWHC 514 (Admin)
Summary
Parashar v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin) concerned an application for judicial review of a district judge’s refusal to vacate a trial date, which the Divisional Court (Lord Justice Bean and Mrs Justice Simler) granted, quashing the decision.
Mr Parashar was charged with driving with excess alcohol following an incident on 12 February 2018 in which he drove into a Tesco car park allegedly under the influence. A roadside breath test produced a reading of 102µg per 100ml. At the police station, two specimens of breath gave a lower reading of 116µg, more than three times the legal limit. He pleaded not guilty at the first magistrates’ court hearing on 28 February 2018 and directions were given for trial on 14 June 2018.
On 30 May 2018 the defence served an expert report by Dr John Mundy. The covering letter stated it would be tendered in evidence unless the prosecution wished the witness to attend, and required any such objection within seven days. No response was received. On 5 June 2018 the prosecution served eight witness statements, some long overdue. The case came before District Judge Purcell on 14 June. The prosecution had failed to serve all evidence and the original breath test results had been destroyed. The judge adjourned, giving directions for service of breath test logs by 5 July and listing a submission that prosecution amounted to abuse of process for 10 August with trial, if that failed, on 8 October 2018. No suggestion was made at this stage that a prosecution expert would be instructed.
The prosecution eventually served legible copies of the breath test printouts on 9 August 2018, the day before the abuse argument was due to be heard. The same day the officer in the case informed the Crown Prosecution Service he had forwarded papers to an expert to address Dr Mundy’s report. On 10 August the abuse argument did not proceed. The parties gave differing accounts of what transpired, but it appeared that District Judge Elsey, who heard the matter that day, indicated that the defence expert could be dealt with as hearsay and need not attend trial. A trial date was then fixed purposely for a date incompatible with Dr Mundy’s availability. Lord Justice Bean observed that there had been a lack of clear thinking about how the expert evidence was to be treated. If Dr Mundy’s report was truly unchallenged there was no need for him to attend, but if the prosecution were to instruct their own expert and agreement could not be reached, fixing a date on which Dr Mundy could not attend would be wrong.
On 12 September 2018 the court emailed the parties indicating the case was to be listed for legal argument on 8 October with trial vacated and re-listed for 9 November. The defence solicitor emailed on 19 September stating the new date did not accord with availability of counsel and the defence expert and put forward alternative dates. On 26 September District Judge Elsey ruled that the dates had been fixed for some time, the offence did not require counsel, and he was willing to admit the expert evidence as hearsay, so the trial would remain in the list. On 5 October 2018 the court emailed to confirm legal argument on 8 October and trial on 9 November, but later the same day a further email stated that case management had reviewed the matter and the legal argument would be removed from the list. Lord Justice Bean observed this was not a satisfactory way to conduct court business.
On 11 October 2018 the prosecution served an expert report from Mr Geraint Roberts. The defence responded that it was not agreed and he would be required to attend trial. By letter of 17 October the defence solicitors wrote to the court pointing out that the prosecution had indicated on 10 August that Dr Mundy’s report was unchallenged, that the trial date had been fixed incompatible with his availability on that basis, and that Mr Roberts’s report had been served some four and a half months after Dr Mundy’s. They submitted it was wrong in principle to agree a report was unchallenged then seek to contradict it, and that the prosecution had not complied with the Criminal Procedure Rules. The defence renewed their application to vacate the trial, arguing that if Mr Roberts was permitted to give evidence Dr Mundy needed to be present to assist with cross-examination and to give evidence in rebuttal. They relied on CPS v Picton [2006] EWHC 1108 (Admin), in which Jack J held that magistrates must decide whether refusal of an adjournment would compromise the accused’s ability fully to present his defence. They requested an oral hearing if the application was refused.
Despite this letter the court responded that District Judge Elsey had directed that the application was based on a misapprehension, that the defence expert was admitted as hearsay not on the basis the contents were agreed, and that the weight to be attributed would be decided after hearing all evidence. The judge stated he was conscious counsel would not have the expert in attendance but did not anticipate any disadvantage given the routine nature of the argument. The request for an oral hearing was refused. Lord Justice Bean held this decision was unsustainable. If the trial had proceeded, the court would have had to decide between two experts, one present and one absent, and it was unclear how the issues between them could be determined. It would have been particularly unfair to adhere to the date which suited the prosecution expert whose report had been served late but not the defence expert whose report had been served in good time. The issue of late service and the consequence that the prosecution required permission to adduce Mr Roberts’s evidence was simply ignored. The refusal to list the application for oral hearing was also unfortunate; had such a hearing taken place the decision might have been different.
On 26 October 2018 the defence lodged papers seeking judicial review in the High Court and also served them on the Crown Prosecution Service. The claim was issued on 29 October 2018 and sought permission for judicial review, urgent consideration and a stay of the prosecution. The matter was considered on the papers by Julian Knowles J on 1 November 2018. He granted permission and a stay, observing that the reasons given by the district judge were arguably flawed because he failed to consider the applicable principles in Picton, that his statement that the matter did not require counsel was difficult to understand, that the defence would be arguably prejudiced because the judge had said he might attach less weight to hearsay evidence, that they had been put in that position by the prosecution’s failure to comply with case management orders and late service of expert evidence, and that the judge was arguably wrong not to have entertained an oral application. Lord Justice Bean observed that the judge ought with respect to have given the Crown Prosecution Service twenty-four hours to show cause before granting a stay without notice, though he did not consider any arguments advanced in this court would or should have led to a different decision.
Mr Boyd for the Crown Prosecution Service relied on what he called the Buck rule, a reference to R v Rochford Justices ex p Buck (1979) 68 Cr App R 114, in which Lord Widgery CJ held there was an obligation on the court to keep out of the way until the magistrate had finished his determination. Lord Justice Bean held the Buck rule was no longer a rule. More useful guidance was obtained from the judgment of Hughes LJ in CPS v Sedgemoor Justices [2007] EWHC 1803 (Admin), in which it was stated that in general terms the court will not entertain an interlocutory challenge to proceedings in the magistrates’ court, but might do so where there was powerful reason. Various authorities were considered including Balogun v Director of Public Prosecutions [2010] 1 WLR 1915 and DPP v Manchester and Salford Magistrates Court [2017] EWHC 1708 (Admin). In Bourne v Scarborough Magistrates’ Court [2017] EWHC 2828 (Admin) Holroyde LJ had recorded it was common ground that an application for judicial review might in principle be appropriate to challenge a magistrates’ court decision on adjournment, though only in exceptional circumstances. The court asked Mr Boyd to suggest what those circumstances might be. His answer, agreed by Mr Benson for the claimant, was first where the defendant’s ability to present his defence was so seriously compromised that an unfair trial was inevitable, second where an important point of principle likely to affect other cases was raised, and third where the case had some other exceptional feature justifying intervention. Lord Justice Bean agreed with this formulation, with the proviso that it would only be in rare cases that the court would consider an interlocutory challenge once the trial was under way. However, the decision under scrutiny was accurately described not as a refusal to grant an adjournment but as a refusal to vacate a trial date in advance, and the threshold of exceptionality was less high in such a case.
Mr Boyd submitted the application was premature and that the defence should have waited until 9 November, at which the prosecution would have had to seek permission to call Mr Roberts despite late service. If the judge had excluded his evidence the trial could have proceeded with Dr Mundy’s report admitted under section 9 of the Criminal Justice Act 1967. Lord Justice Bean entirely disagreed. This would have been inefficient and potentially costly. Unlike many reported cases concerning driving with excess alcohol where the defence had played games with the system, here the defence were not at fault. The prosecution had caused the difficulty by instructing an expert very late and after raising no objection to the defence expert’s report being admitted under section 9. They could and should have supported the application for a trial on a date on which both experts could attend or indicated they would not pursue the application to adduce Mr Roberts’s evidence. The decision to fix a trial date at which the prosecution expert could attend and the defence expert, whose report had been served in good time, could not was clearly wrong. If the trial had proceeded the defendant’s ability to present his defence would have been seriously compromised and the trial would inevitably have been unfair. This was therefore an exceptional case in which the court should intervene at the pre-trial stage.
Lord Justice Bean granted judicial review. He directed that the case should proceed to trial in the magistrates’ court before justices or before a district judge other than District Judge Elsey. If the prosecution sought permission to rely on Mr Roberts’s report they were to apply in writing within seven days with the defence having seven days to respond before a decision on the papers by a district judge other than District Judge Elsey. If permission was granted the trial must be on a date when both experts could attend. If permission was refused the trial could be fixed for the next suitable date with Dr Mundy’s statement admitted under section 9. Mrs Justice Simler agreed, emphasising that challenges to discretionary refusals or grants of adjournment applications were difficult to mount and should only be commenced if circumstances were exceptional. The threshold for exceptionality was likely to be less high where the application was made pre-trial. The district judge had failed to exercise his discretion in accordance with the guidance in Picton. To insist on a trial date on which the prosecution expert was available but the defence expert was not was wrong and would have led to an unfair trial. There was a high public interest in summary trials taking place quickly and on the day set for trial, but fairness and justice required consideration of whether refusal would prevent the defendant fully presenting his defence and the degree to which his defence would be compromised. That had not been done.
In short, the Divisional Court granted judicial review of a district judge’s refusal to vacate a trial date, holding that insisting on a date on which the prosecution expert instructed late was available but the defence expert served in good time was not created an exceptional case justifying pre-trial intervention, as the defendant’s ability to present his defence would have been seriously compromised rendering the trial inevitably unfair.
Mr Parashar was charged with driving with excess alcohol following an incident on 12 February 2018 in which he drove into a Tesco car park allegedly under the influence. A roadside breath test produced a reading of 102µg per 100ml. At the police station, two specimens of breath gave a lower reading of 116µg, more than three times the legal limit. He pleaded not guilty at the first magistrates’ court hearing on 28 February 2018 and directions were given for trial on 14 June 2018.
On 30 May 2018 the defence served an expert report by Dr John Mundy. The covering letter stated it would be tendered in evidence unless the prosecution wished the witness to attend, and required any such objection within seven days. No response was received. On 5 June 2018 the prosecution served eight witness statements, some long overdue. The case came before District Judge Purcell on 14 June. The prosecution had failed to serve all evidence and the original breath test results had been destroyed. The judge adjourned, giving directions for service of breath test logs by 5 July and listing a submission that prosecution amounted to abuse of process for 10 August with trial, if that failed, on 8 October 2018. No suggestion was made at this stage that a prosecution expert would be instructed.
The prosecution eventually served legible copies of the breath test printouts on 9 August 2018, the day before the abuse argument was due to be heard. The same day the officer in the case informed the Crown Prosecution Service he had forwarded papers to an expert to address Dr Mundy’s report. On 10 August the abuse argument did not proceed. The parties gave differing accounts of what transpired, but it appeared that District Judge Elsey, who heard the matter that day, indicated that the defence expert could be dealt with as hearsay and need not attend trial. A trial date was then fixed purposely for a date incompatible with Dr Mundy’s availability. Lord Justice Bean observed that there had been a lack of clear thinking about how the expert evidence was to be treated. If Dr Mundy’s report was truly unchallenged there was no need for him to attend, but if the prosecution were to instruct their own expert and agreement could not be reached, fixing a date on which Dr Mundy could not attend would be wrong.
On 12 September 2018 the court emailed the parties indicating the case was to be listed for legal argument on 8 October with trial vacated and re-listed for 9 November. The defence solicitor emailed on 19 September stating the new date did not accord with availability of counsel and the defence expert and put forward alternative dates. On 26 September District Judge Elsey ruled that the dates had been fixed for some time, the offence did not require counsel, and he was willing to admit the expert evidence as hearsay, so the trial would remain in the list. On 5 October 2018 the court emailed to confirm legal argument on 8 October and trial on 9 November, but later the same day a further email stated that case management had reviewed the matter and the legal argument would be removed from the list. Lord Justice Bean observed this was not a satisfactory way to conduct court business.
On 11 October 2018 the prosecution served an expert report from Mr Geraint Roberts. The defence responded that it was not agreed and he would be required to attend trial. By letter of 17 October the defence solicitors wrote to the court pointing out that the prosecution had indicated on 10 August that Dr Mundy’s report was unchallenged, that the trial date had been fixed incompatible with his availability on that basis, and that Mr Roberts’s report had been served some four and a half months after Dr Mundy’s. They submitted it was wrong in principle to agree a report was unchallenged then seek to contradict it, and that the prosecution had not complied with the Criminal Procedure Rules. The defence renewed their application to vacate the trial, arguing that if Mr Roberts was permitted to give evidence Dr Mundy needed to be present to assist with cross-examination and to give evidence in rebuttal. They relied on CPS v Picton [2006] EWHC 1108 (Admin), in which Jack J held that magistrates must decide whether refusal of an adjournment would compromise the accused’s ability fully to present his defence. They requested an oral hearing if the application was refused.
Despite this letter the court responded that District Judge Elsey had directed that the application was based on a misapprehension, that the defence expert was admitted as hearsay not on the basis the contents were agreed, and that the weight to be attributed would be decided after hearing all evidence. The judge stated he was conscious counsel would not have the expert in attendance but did not anticipate any disadvantage given the routine nature of the argument. The request for an oral hearing was refused. Lord Justice Bean held this decision was unsustainable. If the trial had proceeded, the court would have had to decide between two experts, one present and one absent, and it was unclear how the issues between them could be determined. It would have been particularly unfair to adhere to the date which suited the prosecution expert whose report had been served late but not the defence expert whose report had been served in good time. The issue of late service and the consequence that the prosecution required permission to adduce Mr Roberts’s evidence was simply ignored. The refusal to list the application for oral hearing was also unfortunate; had such a hearing taken place the decision might have been different.
On 26 October 2018 the defence lodged papers seeking judicial review in the High Court and also served them on the Crown Prosecution Service. The claim was issued on 29 October 2018 and sought permission for judicial review, urgent consideration and a stay of the prosecution. The matter was considered on the papers by Julian Knowles J on 1 November 2018. He granted permission and a stay, observing that the reasons given by the district judge were arguably flawed because he failed to consider the applicable principles in Picton, that his statement that the matter did not require counsel was difficult to understand, that the defence would be arguably prejudiced because the judge had said he might attach less weight to hearsay evidence, that they had been put in that position by the prosecution’s failure to comply with case management orders and late service of expert evidence, and that the judge was arguably wrong not to have entertained an oral application. Lord Justice Bean observed that the judge ought with respect to have given the Crown Prosecution Service twenty-four hours to show cause before granting a stay without notice, though he did not consider any arguments advanced in this court would or should have led to a different decision.
Mr Boyd for the Crown Prosecution Service relied on what he called the Buck rule, a reference to R v Rochford Justices ex p Buck (1979) 68 Cr App R 114, in which Lord Widgery CJ held there was an obligation on the court to keep out of the way until the magistrate had finished his determination. Lord Justice Bean held the Buck rule was no longer a rule. More useful guidance was obtained from the judgment of Hughes LJ in CPS v Sedgemoor Justices [2007] EWHC 1803 (Admin), in which it was stated that in general terms the court will not entertain an interlocutory challenge to proceedings in the magistrates’ court, but might do so where there was powerful reason. Various authorities were considered including Balogun v Director of Public Prosecutions [2010] 1 WLR 1915 and DPP v Manchester and Salford Magistrates Court [2017] EWHC 1708 (Admin). In Bourne v Scarborough Magistrates’ Court [2017] EWHC 2828 (Admin) Holroyde LJ had recorded it was common ground that an application for judicial review might in principle be appropriate to challenge a magistrates’ court decision on adjournment, though only in exceptional circumstances. The court asked Mr Boyd to suggest what those circumstances might be. His answer, agreed by Mr Benson for the claimant, was first where the defendant’s ability to present his defence was so seriously compromised that an unfair trial was inevitable, second where an important point of principle likely to affect other cases was raised, and third where the case had some other exceptional feature justifying intervention. Lord Justice Bean agreed with this formulation, with the proviso that it would only be in rare cases that the court would consider an interlocutory challenge once the trial was under way. However, the decision under scrutiny was accurately described not as a refusal to grant an adjournment but as a refusal to vacate a trial date in advance, and the threshold of exceptionality was less high in such a case.
Mr Boyd submitted the application was premature and that the defence should have waited until 9 November, at which the prosecution would have had to seek permission to call Mr Roberts despite late service. If the judge had excluded his evidence the trial could have proceeded with Dr Mundy’s report admitted under section 9 of the Criminal Justice Act 1967. Lord Justice Bean entirely disagreed. This would have been inefficient and potentially costly. Unlike many reported cases concerning driving with excess alcohol where the defence had played games with the system, here the defence were not at fault. The prosecution had caused the difficulty by instructing an expert very late and after raising no objection to the defence expert’s report being admitted under section 9. They could and should have supported the application for a trial on a date on which both experts could attend or indicated they would not pursue the application to adduce Mr Roberts’s evidence. The decision to fix a trial date at which the prosecution expert could attend and the defence expert, whose report had been served in good time, could not was clearly wrong. If the trial had proceeded the defendant’s ability to present his defence would have been seriously compromised and the trial would inevitably have been unfair. This was therefore an exceptional case in which the court should intervene at the pre-trial stage.
Lord Justice Bean granted judicial review. He directed that the case should proceed to trial in the magistrates’ court before justices or before a district judge other than District Judge Elsey. If the prosecution sought permission to rely on Mr Roberts’s report they were to apply in writing within seven days with the defence having seven days to respond before a decision on the papers by a district judge other than District Judge Elsey. If permission was granted the trial must be on a date when both experts could attend. If permission was refused the trial could be fixed for the next suitable date with Dr Mundy’s statement admitted under section 9. Mrs Justice Simler agreed, emphasising that challenges to discretionary refusals or grants of adjournment applications were difficult to mount and should only be commenced if circumstances were exceptional. The threshold for exceptionality was likely to be less high where the application was made pre-trial. The district judge had failed to exercise his discretion in accordance with the guidance in Picton. To insist on a trial date on which the prosecution expert was available but the defence expert was not was wrong and would have led to an unfair trial. There was a high public interest in summary trials taking place quickly and on the day set for trial, but fairness and justice required consideration of whether refusal would prevent the defendant fully presenting his defence and the degree to which his defence would be compromised. That had not been done.
In short, the Divisional Court granted judicial review of a district judge’s refusal to vacate a trial date, holding that insisting on a date on which the prosecution expert instructed late was available but the defence expert served in good time was not created an exceptional case justifying pre-trial intervention, as the defendant’s ability to present his defence would have been seriously compromised rendering the trial inevitably unfair.