Case No: CO/4636/2009 

Neutral Citation Number: [2009] EWHC 3540 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Wednesday, 9th December 2009

Before:

PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR ANTHONY MAY)
AND
MR. JUSTICE LANGSTAFF
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Between:

	B	
Claimant	
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CARLISLE CROWN COURT	

Defendant	
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(DAR Transcript of 
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THE LITIGANT APPEARED IN PERSON AND WAS NOT REPRESENTED
Miss Pritchard appeared on behalf of the Crown Prosecution Service.
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Judgment
Mr Justice Langstaff:

1.	This is an application for judicial review on appeal proceedings at the Carlisle Crown Court.  The application puts in issue, first, the extent of the jurisdiction of the High Court by judicial review in respect of such proceedings and if a challenge by this route is permissible, whether on the particular facts of this case we should allow the application with the consequence that the appeal proceedings are quashed.  

2.	The application arises out of events which first occurred in April 2008.  The claimant, who will be known simply as B, she being born in 1993 and who was fourteen at the time of events in April 2008, was involved in a fracas, which resulted in an injury to three girls of a similar age.  Putting the facts very shortly, it appears that there had been two groups of girls who consisted of the complainants on one side, a girl called K on the other, and at least one other.  It was alleged by the Crown that that other was the defendant and it was alleged by the defendant that the girl was called Miss S.  The appellant said her involvement was as an unwilling participant.  She had been caught up, as she claimed, and thrown into one of the victims.  

3.	At trial, the appellant was convicted upon three charges of assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Person Act.  They were serious charges.  They involved suggestions, accepted by the Magistrates, that she had been engaged in head-butting, in stamping, in the ripping of hair, and kicking.  There were five witnesses called for the prosecution including the complainants, who were all teenage girls; and there were four defence witnesses, including the appellant, also all teenage girls.  

4.	The appellant appealed following that conviction, which was on 31 October 2008, to the Crown Court at Carlisle.  There the appeal was heard over two days, 19 and 20 February 2009, by HHJ Batty QC, together with two magistrates.  The same witnesses gave evidence.  The court dismissed the appeal.  In the judgment of the court given by HHJ Batty QC the court was impressed with the prosecution witnesses and considered that each of them had given evidence without exaggeration.  There were minor discrepancies between their accounts, but these were no more than was to be expected.  The court declared itself “deeply unimpressed” with the defence witnesses and concluded that Miss B and her witnesses were not telling the truth as to her involvement.  As to her witnesses, the court concluded that they were giving evidence simply to assist Miss B.  It considered their evidence to be deeply flawed and rejected it in those aspects in which it undermined the prosecution case.  

5.	In the course of the evidence of the defence witnesses, given on second day of the appeal so we understand, whilst each of two witnesses were giving their evidence for Miss B, the trial judge intervened to ask them whether they had any, and if so what, previous convictions.  Of the three witnesses called by Miss B (apart from herself), one, K, had already pleaded guilty to these same offences.  So far as she was concerned, plainly her conviction was in evidence and admissible.  But as to the other two, of whom these questions were asked, they were not defendants; they had been subject to no proceedings.  
6.	Section 100 of the Criminal Justice Act 2003 provides in subsection (1): 

“In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if --
(a) it is important explanatory evidence, 
(b) it has substantial probative value in relation to a matter which --
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.”

7.	I shall return to the other provisions of Section 100; but note that Section 111 of the same Act provides for the making of rules of court, such as are necessary or expedient for the purposes of the Act; and by subsection (2) requires the prosecution to serve on the defendant a notice if the prosecution proposes to adduce evidence of a defendant’s bad character. It is to be noted that under those rules, if the prosecution propose as part of its case to put in evidence the bad character of the non defendant, an application has to be made in advance.  

8.	We are told that the intervention by HHJ Batty QC was a surprise to Miss Pritchard, who has appeared before us and who prosecuted the appeal before him and the Magistrates.  No questions of this sort had been asked at the Magistrates’ Court.  No application had been made by the prosecution to adduce such evidence.  No such question had been asked of any of the girls of similar age who had been called to give evidence on behalf of the prosecution.  There was no objection by the defence counsel who represented Miss B, but it was it is not difficult to understand that, by the time the question had been asked and answered, it might have been too late for any effective interjection; and inevitably he faced the difficulty that it was the court itself that had asked the question, and it was the court who ultimately would have to rule on whether the prosecution had established guilt.  

9.	When the decision came to be made -- again summarising the facts very broadly -- a central issue in the case was which of the two groups of girls was to be believed.  The extracts I have quoted from the judgment of the court demonstrate its conclusion.  It was a conclusion based expressly on the credibility of the rival groups.  Miss B, who may well have been encouraged by her mother, applied by her mother as litigation friend for a judicial review, alleging that the proceedings before the Crown Court had been flawed.  In that application, in which the appellant was initially professionally represented and which thereafter was pursued by her mother in person on behalf of her daughter, she drew attention to a number of matters which she considered gave rise to procedural irregularity. 

10.	This court gave permission to appeal on one ground only. That related to the admission in evidence of the bad character of non-defendants.  Without an application having been made (as the rules required), without the prosecution having requested it, and in a manner which might have seemed to be unbalanced as between the witnesses called for the defence and the prosecution, the former were asked for their antecedents, but the latter were not. Yet this was in a case in which it was potentially material, since the decision was one reached on grounds of credibility.  

11.	I then have to turn then to the first of the issues which I identified at the outset of this judgment.   It has to be noted that in the R (P) v Liverpool City Magistrates’ Court [2006] 170JP 453, Collins J. stated that the normal route for an appeal against the decision of Justices, where it has been alleged that there has been an error of law, is by way of case stated.  He also noted that judicial review may be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the Justices, although where it is alleged there has been a misdirection or an error of law case stated is the appropriate remedy.  

12.	This, of course, is not an application which concerns the Magistrates’ Court; it concerns the Crown Court exercising its appellate jurisdiction in respect of a decision by the Magistrates.  There are few authorities which deal with the scope of the court’s  powers upon judicial review of a decision of a Crown Court on appeal against conviction or sentence from the Magistrates’ Court.  Of those, it is worth drawing attention to the R v Harrow Crown court, ex parte Dave [1994] 1 All ER 315.  In that case the applicant applied for judicial review of a dismissal of her appeal against a conviction for assault occasioning actual bodily harm in the Crown Court.  At the hearing of the appeal, evidence had been given for the first time by the complainant’s husband.  He had a recent conviction for dishonesty, which was not in that case disclosed to the defence in advance of the appeal.  The Crown Court had dismissed the appeal and stated that the court: 
 “…had ample opportunity to hear and assess the witnesses.  Our unanimous conclusion is that the appeal must be dismissed.”

13.	The application for judicial review was allowed by the divisional court on the basis that the existence of the complainant’s husband’s previous convictions should have been disclosed to the defence at the Crown Court hearing.  Had the court have known of his recent conviction for dishonesty, it may well have taken a different view of his credibility, which in turn would have been likely seriously to affect the credibility of the complainant.  There was a second point, which is not material for present purpose, which relates to the giving of reasons by the court.  It is worth noting, however, that that too was a matter of alleged procedural impropriety, albeit that the procedure there related to the giving of reasons as opposed to the conduct of the appeal itself.   But it is plain that the divisional court there accepted as appropriate a challenge to a procedure which had operated unfairly against an appellant in a material respect, and in consequence of that failing in that case, the court felt obliged to quash the conviction.  

14.	Again, in the case of Chester (Alan Ronald) v Gloucester Crown Court CO/368397, Lord Bingham C.J. and Thomas J. considered an application for judicial review arising out of appeal proceedings before the Crown Court.  That was a case in which what was in issue was the quality and sufficiency of the evidence before the court for establishing a conviction.  

15.	What Lord Bingham CJ. said was this, which is of material assistance in the present case:

“It would not be a fatal objection to the application for judicial review that the matters would be more appropriately pursued by way of case stated, but the unsatisfactory procedural situation is exacerbated by the fact that we have absolutely nothing whatever from the Crown Court to indicate the basis upon which it reached its decision or even to indicate that it proposes to play no part in resisting this application, although we understand that notice has been given to it of the pending application and that informal indications have been given that it seeks to play no part. 
It is very highly desirable, when a magistrates' court or a Crown Court is the subject of an application for judicial review, that it should make its position clear, if only by a letter indicating that it does not propose to resist the application. In this case however we do have a note from the case worker who was in court representing the Crown Prosecution Service, which appears to substantiate Mr Chester's version of events.”

16.	It is plain from the observations of the Lord Chief Justice in that case, first, that judicial review is not necessarily inappropriate, though, second, that appeal by  case stated would normally be the preferable way of proceeding, particularly where matters of evidence are concerned; and, third, that the procedural advantages of the case-stated procedure are such as to make it undoubtedly more appropriate in most cases where an applicant has been dissatisfied by the result of an appeal from the Magistrates’ court to the Crown court.

17.	I conclude upon the basis of these authorities that this court does have power to consider an application brought by way of judicial review in circumstances such as those I have described, but I have concluded that it is necessary for this court to exercise any power which it possesses sparingly.  It should not become the position that applications for judicial review are regarded as an alternative to a proper route of appeal which would ordinarily be by case stated, in particular if a question as to a matter of law or matter of evidence, or sufficiency of evidence, arose.  It would be a sad day if appellants generally felt that they could appeal indirectly, by judicial review, a decision of the Crown Court, which, after all, is provided as the route of appeal from the Magistrates’ Court and has no onward appeal to the Court of Appeal.  It must therefore be in exceptional circumstances, in general terms, that judicial review is appropriate at all; and indeed it will usually be the case that applications which ought to be brought (if at all) by case stated, and are brought by way of judicial review, may find that permission is refused at the permission stage..  

18.	However, I accept that it is not possible to lay down any prescriptive rule for every case.  The jurisdiction, though exercised sparingly, must be approached on a case-by-case basis.  In those cases where there is said to be a material irregularity in the procedure adopted in the court hearing the appeal, judicial review may well be an appropriate route.  It is my view that that route is appropriate in this case.  

19.	Accordingly, I turn to the second question, which is whether there was here a material irregularity.  HHJ Batty Q.C. has helpfully sent a note to the court about the circumstances of the case.  He has not in that note suggested that he did not ask the questions which Miss B said he did, and which Miss Pritchard has confirmed that he did, but notes that the answers to those questions were not reflected in what the Crown Court said by way of judgment. It may be that he was there suggesting that the answers played no material part in the reasoning in which the conclusions of the court were expressed.

20.	I turn back to the Criminal Justice Act 2003.  Section 100(1) would not permit evidence of the witnesses’ previous convictions (if any) to be given unless the evidence, as the judge sought to elicit from the two non-defendant witnesses who had not been convicted of an offence arising out of the circumstances in April 2008, fell within one of the three categories in subsection (1).  What is important explanatory evidence is defined by subsection (2).  By definition it is such evidence for the purposes of subsection (1)(a): 

“..if (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and 
(b) its value for understanding the case as a whole is substantial. “ 

21.	It is plain that the evidence asked of the two girls here could not qualify as important explanatory evidence in the circumstances I have recounted.  Nor did subsection (1)(c) apply.  As to (1)(b), the evidence would be admissible if, and only if, it had substantial probative value in relation to a matter which was in issue in the proceedings and of substantial importance in the context of the case as a whole.  Here it needs to be noted that it might have been open to the prosecution to make an application had they thought it right to do so, relying on the case of R v Yaxley-Lennon reported as one of the group of cases reported under the name  R v Weir [2005] Crim 2866.  In that case, again if putting it in summary, the court accepted that Section 100 might be used to admit evidence which is not limited to that evidence going directly to the issue of guilt or innocence.  The undermining of the witnesses’ credibility would be a legitimate objective for adducing such evidence (see paragraph 73).  To decide otherwise would mean that there was lacuna in the legislation created by the 2003 Act which created a potential for unfairness.

22.	However, no such application was here made.  The judge was the judge of a process which, though on appeal before him and the lay Magistrates as fact-finders, remained accusatorial in procedure.  In 1969, Lord Parker, then Lord Chief Justice, stated a principle in the case R v Hamilton subsequently adopted by the Court of Appeal in the case of R v Hulusi 58 CA R 378 at page 382, which was considered and adopted by the Privy Council in the case of Michelle v The Queen [2009] UKPC 41.  

23.	What Lord Parker CJ said was: 

 “Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate. . . . Whether his interventions in any case give ground for quashing a conviction is not only a matter of degree, but depends to what the interventions are directed and what their effect may be. Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified.”

-- And he went on to consider other interventions which were not. 

24.	In my view, even if the convictions of the witnesses might have been admissible upon application after consideration, this begs the question by what procedure a court, which has the duty to find the facts, should approach such an application, bearing in mind it might reject it.  It does not appear to be open to the court to seek to adduce such evidence of its own motion in the absence of an application by the Crown and without due notice to the defendant.  To do as the judge did in this case was in effect to give the appearance of usurping the role of the prosecution, there having been no application, and there having been some doubt as to whether the evidence would, if there had been such an application in fact, have been admitted, though in the result it might have been. The evidence was thus nadmissible.  The consequence was that the judge, having entered the arena on the second day of the appeal and asked of the defence witnesses questions which he must have anticipated would be of relevance, but of a kind which he had not addressed to the witnesses of the prosecution, was to the give the appearance of a lack of even-handedness as between the witnesses called for the defence and called for the Crown.  

25.	The procedure was one which, whatever the intention that lay behind it, was to admit as admissible evidence which was not, and to do so in a manner which, as we have indicated and as a matter of fact, was not one adopted when it came to the prosecution evidence.  We then ask: was this an irregularity?  And Miss Pritchard, when she appeared at the hearing of the application for permission, said that in her view there had an irregularity in the process.  She adopts a neutral position upon this appeal.  We note that the issue of credibility was one of importance ultimately to the court.  The court emphasised that in reaching the decision it did it had applied the same fair-minded standards to each of the witnesses called, but it determined the issues it did on the basis of credibility.  That is a judgment of the court in which it may well be that the convictions of the witnesses called by M played some part.  They were not referred to; they may not have been significant, but we do not know what weight was given to them, and we are left with the view that there was here an irregularity which was material to the proceedings which were on foot before the Crown Court. For those reasons I think that this is such an irregularity as requires us in exercising the jurisdiction which, in answer to the first question I consider that we have, to bring up and quash the appeal proceedings before the Crown Court.
26.	  That has these consequences.  The magistrates’ order remains unaffected, once the Crown Court decision is quashed. The learned judge in the Crown court however concluded that the offences disclosed by the evidence justified a sentence which was more severe than that imposed by the Justices.  He extended the curfew to which the appellant was subject.  He increased the length of the Supervision Order from six months to twelve.  Both those orders have been satisfied prior to this hearing.  Nothing now can be done about them.

27.	However, he also ordered an increase in the sum of compensation payable to the victims of the three assaults in sums of £200 to each of two girls and £100 to the third, making a total of £500 whereas the magistrates had ordered £300; and the Crown Court made an order for costs of the appeal of £440, making a total of £940 payable.  We are told that that sum has not been paid pending the outcome of these proceedings.  The consequence of the proceedings is that the appeal proceedings being quashed; the Magistrates’ Court conviction remains as a conviction to which M is subject.  It may be -- and it is a matter entirely for the applicant -- that they would wish to maintain her appeal against that decision, it having been lodged in time though by reason of my judgment, with which I understand the President to agree, the appeal remains on foot but not disposed of.

28.	It remains only to say that it is with very considerable regret that this application has to be allowed, because the consequence may well be that an appeal is heard some several months after the incident to which it initially related and at a time when events will have moved on in the lives of those who are parties to it.  That regret does not, of course,  in any way affect the decision to which, in my view, this court must come, which is to allow the application and to quash the appeal hearing.  

Sir Anthony May:  

29.	I agree that the claim for judicial review should succeed for the reasons which Langstaff J has given.  I agree in particular with what he has said about the bringing of judicial review proceedings to challenge a decision in the Crown Court on appeal from the Magistrates.  There is no room to appeal from such a decision other than by case stated, and attempts to challenge such a decision by judicial review are normally inappropriate and should be firmly discouraged.  However, there may be rare occasions when a claim for judicial review is not inappropriate, as may be seen for instance from the R v Harrow Crown court, ex parte Dave, where Pill J, as he then was, said that:
 “Since any failure to disclose a prosecution witnesses previous conviction (which was the ground relied on in that case) went to the fairness of the hearing at the Crown Court, judicial review was an appropriate avenue in which to seek relief.”  

30.	Likewise in Chester (Alan Ronald) v Gloucester Crown Court, unreported July 1998, the Lord Chief Justice said that: 

“It would not be a fatal objection to the application for judicial review that the matters would be more appropriately pursued by way of case stated, but the unsatisfactory procedural situation is exacerbated by the fact that we have absolutely nothing whatever from the Crown Court to indicate the basis upon which it reached its decision”

But in the present case we do have comments from the judge in the Crown Court.  Today’s claim for judicial review is not, in my view, on its special facts to be regarded as procedurally out of order, but it should be regarded as exceptional.  

31.	As to the substance of the claim, I agree that it should succeed for the reasons given and that the Crown court’s decision on appeal should be quashed.  This leaves perhaps the unsatisfactory position that the original Magistrates’ Court conviction of the claimant stands, but that it is amenable to a rehearing of the appeal before a differently constituted court if that is what the claimant and her mother want.  There will therefore be an order that the claim succeeds, the decision of the Carlisle Crown Court on the appeal is quashed, and we will order a rehearing of the appeal before the differently constituted court if that is required. 

Order:  Application granted; lower court judgment quashed

PJD

32.	SIR ANTHONY MAY: Mrs B, we think we ought to require you to notify the Crown Court before Christmas as to whether the appeal is to be reheard or not. You will obviously want to think about that.  I am not encouraging you one way or the other to do this, but I think we ought to do that.  Accordingly, we will make a direction that you notify the Crown Court and the prosecution in writing by 18 December whether a rehearing for the appeal is sought, and, if so, to ask for directions from the Crown Court as to that rehearing.

33.	MRS B:  No, I have got it, thank you.
34.	SIR ANTHONY MAY: I have said 18th December because I think is a Friday.
35.	MRS B:  It is, yes.
36.	SIR ANTHONY MAY:  If we gave you longer we would be in Christmas week.  Is that okay?
37.	MRS B:  That’s fine.
38.	SIR ANTHONY MAY: Mrs Pritchard, is there anything you want to say about the directions?
39.	MISS PRITCHARD:  No, I do not have any comments on the directions.  They seem entirely appropriate and certainly something I would have asked for myself.
40.	SIR ANTHONY MAY:  Yes. Mrs B, if you were represented, your lawyer would be standing up and saying please may you have an order for the costs and representation -- what is the position, have you had any expenses to get here?
41.	MRS B:  Just the train-fare and the expenses of the court hearings and solicitors costs, that kind of thing. 
42.	SIR ANTHONY MAY:  Were there any costs which you have incurred in respect of these proceedings, solicitors costs?
43.	MRS B:  Yes, the initial consultation with the solicitor which was £414.
44.	SIR ANTHONY MAY:  £414.
45.	MRS B:  Yes, and then I paid the court fees on top -- is it £180 I think for this hearing and £50 in Chester, if I remember rightly?
46.	SIR ANTHONY MAY:  So that is £647 in total?
47.	MRS B: Yes.
48.	SIR ANTHONY MAY:  Was there a Costs Order in the Crown Court?
49.	MRS B:  Yes, there was a Costs Order of £440 that was on top of what had already been ordered at the Magistrates’ Court.
50.	SIR ANTHONY MAY:  Right, and that has not been paid?
51.	MRS B:  No.
52.	SIR ANTHONY MAY: Okay, well we do not need to do anything about that because we have quashed that anyway.  You will have had some costs in the Crown court first time round?
53.	MRS B:  Yes.  
54.	SIR ANTHONY MAY:  We are not going to tot them up today.
55.	MRS B:  Yes, but was that actually covered by legal aid.
56.	SIR ANTHONY MAY:  Legal aid.
57.	MRS BENSON: Yes, legal aid, that was actually covered.  It was just the costs of travelling down and travelling up, which I am not bothered about.
58.	SIR ANTHONY MAY:  No contribution for legal aid?
59.	MRS B: Yes.
(Silent consultation)
60.	SIR ANTHONY MAY:  Are you able to help?  We are not going to order the prosecution to pay the costs because it is the prosecution’s responsibility, but some public payment of costs ought to be ordered -- what is the appropriate route?
61.	MISS PRITCHARD: Normally in this situation it would be central funds, but I do not know whether it should in fact be directly against Carlisle Crown Court.  I am afraid this is outside my previous experience. 
62.	SIR ANTHONY MAY: One would not order (inaudible).
63.	MISS PRITCHARD:  Well, yes.
64.	SIR ANTHONY MAY:  Right.
65.	MISS PRITCHARD:  It may perhaps be the appropriate order should perhaps be central funds.
66.	SIR ANTHONY MAY:  Yes.  
67.	MISS PRITCHARD: Yes.
68.	SIR ANTHONY MAY:  Are you happy with that?  In that case we will order that you are paid, or essentially your daughter is paid, £647 costs out of central funds.
69.	MRS B:  Thank you very much.