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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gaisiance, R (on the application of) v Crown Prosecution Service [2015] EWHC 3106 (Admin) (14 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3106.html Cite as: [2015] EWHC 3106 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 October 2015

1. LORD JUSTICE DAVIS: The claimant in this case, Mr Gaisiance, was convicted after a trial at the Westminster Magistrates' Court on 23 January 2015 of a charge of assault by beating. The assault was said to have taken place in the Passport Office in London SW1, being, as alleged, an assault on a passport officer on 16 July 2014. Having been convicted by the magistrates, the claimant sought to appeal to the Crown Court, as was his right.
2. The appeal was initially listed for hearing in the Southwark Crown Court on 6 March 2015. The parties, along with the prosecution witnesses, attended but the appeal did not proceed on that day. This is because the claimant said that he wished to deploy CCTV material relating to the incident but he said that he had not received it from the prosecution. The prosecution position was that the CCTV disk had previously been sent to the claimant. In the result, the Crown Court adjourned the appeal hearing on that day and a copy, or further copy, of the CCTV was sent to the claimant; and in due course he acknowledged receipt of it by letter received by the Crown Court on 27 March 2015. In that letter the claimant also said that he wished to use the CCTV in evidence at the appeal.
3. The adjourned appeal hearing was set down for 28 May 2015 at the Southwark Crown Court and the claimant was notified in writing of that, the appeal hearing time being specified as 10.30 am. As it happened, on that day the case was initially called on a little before then but the claimant was not there. At 10.53 am the claimant still was not at court. At the court's request, the court clerk then sent an email and also a phone message to the claimant querying his whereabouts. No response to either was received. In such circumstances, the Crown Court (His Honour Judge Tomlinson, sitting with two justices) was then invited by the prosecution to dismiss the appeal without more ado. The court declined to take that course. It decided to go ahead with the appeal and to hear the evidence that the prosecution was adducing. It also had regard to such representations as the claimant had previously made in writing. The witnesses whom the prosecution proposed to call were present and were examined before the court. It seems that the prosecution did not have the CCTV disk with them at that hearing but a police officer was asked by the court about it and his evidence was to the effect that the contents of the CCTV disk were such that it did not assist at all. The hearing had concluded before midday and the appellant was convicted, he still in the interim not having attended.
4. The appeal having been disposed of, the claimant turned up at the court some time later: it appears at around or shortly after midday. He then learned about the outcome of the appeal. He composed a letter on that day, sent to the Crown Court in writing and by email, giving his explanation of what had happened. What he said in that document was this:

i. "I am the appellant in the above case and I understand that my application for appeal was heard in my absent, which was subsequently dismissed. I went to the North of England where I attended a number of interviews with Law School for purpose of trying to secure a further training contract. I thought I would arrived in the morning before eleven o'clock to make it to the court but I didn't make it due to the delays on the ways.

ii. I know I have no good reasons to convince the court but I sincerely apologised for my failure to attend the court and I will accept any reasonable liability that may be imposed as a result of this failure.

iii. However, I will not accept the original conviction to stand as it is because it was totally based on fabrication and lies on the part of the CPS and their witnesses. For that reason I am asking this Honourable Court to re-open my case so that I have proper opportunity to make my case.

iv. Regards."

5. This application by the claimant for the appeal to be reopened was dealt with in writing by Judge Tomlinson and communicated to the claimant in a letter dated 3 June 2015. That letter was sent under the signature of the court clerk. The letter was detailed. It explained the background as to how it was that the case had been heard on the morning of Thursday 28 May. This, amongst other things, was said:

i. "The Court was aware that the appeal had been previously listed for a hearing on 6 March. The matter did not proceed on 6 March as the court was persuaded, out of an abundance of caution, to adjourn the case in order that CCTV evidence on which the Prosecution never intended to rely could be disclosed to you. Though the Prosecution maintained that it had already been disclosed, the Court allowed for the possibility that you had never received it. It was noted that the CCTV was in due course provided to you by the officer in the case and that you wrote to the court asking that it be played at the hearing of 28 May.

ii. You have of course acknowledged that you failed to appear for your appeal hearing on 28 May. You have not suggested that you tried to alert the court to any difficulties that you were experiencing in making the hearing. HH Judge Tomlinson and the justices waited until 11.00 AM ... "

6. The letter then went on to make further points, including the point that prosecution witnesses had attended on an appeal for a second occasion now. It further noted the attempts made to reach the claimant by phone and email. The letter proceeded to summarise the course of the appeal as it had taken before Judge Tomlinson and the justices and gave the essence of the ruling of the judge, he having heard the evidence. The letter concluded in this way:

i. "The Court is not prepared to re-open this case. Court time is a valuable resource and there would be a significant human cost if a court routinely adjourned a hearing in the absence of a defendant or appellant where no explanation for his absence was available at the material time. Quite simply other cases would be delayed if we agreed to list your case a third time. The court owes a duty to all innocent court users to process cases in which they have an interest efficiently and expeditiously. This is not limited to victims of crime, but includes defendants awaiting trial to whom custody time limits apply if they have been refused bail."

7. The claimant was, and remains, very aggrieved at this outcome. He sought by claim form issued on 15 June 2015 judicial review of the decision to hear the appeal in his absence. Permission was refused by the single judge on the papers but granted after an oral hearing on 28 July 2015. In addition, the court on that occasion gave the claimant leave to amend his grounds to challenge in addition the decision of the Crown Court to refuse to reopen the appeal. The court, however, refused permission to challenge the previous decision of the Magistrates' Court. By its order of that date, the court included, amongst other things, this direction at paragraph 3:

i. "The claimant within 21 days of the date of this order is to file and serve a witness statement together with any further documentary evidence, to include the letter dated 28 May 2015, detailing the steps which he took on 28 May 2015 to notify Southwark Crown Court of his difficulty in attending."

8. The claimant has since put in a witness statement dated 12 August 2015. Unfortunately this did not in fact exhibit, at least in the copy before this court, the letter of 28 May 2015, although the claimant has provided copies to the court this morning. Much of the witness statement gives the claimant's account of events of the incident of the alleged assault occurring in July 2014. As to his reasons for not attending the Crown Court promptly on 28 May 2015, the claimant say this in the course of his witness statement:

i. "6. The decision was reached in my absence despite that I maintained contact with the court earlier that day of hearing explained that I was running late for the court hearing due to traffic while returning from North of England which was circumstances beyond my control and requested for the matter to be stand down later in the day but my message was either not communicated to the court or was ignored ... "

9. Then he goes on to complain:

i. "8. From the court's decision, it resumed sitting at 10.53 shortly after sending an email to me at 10.53 a~m and calling me on my mobile phone which they claim is not through perhaps due to network problem on the highway. Invariably, the court stand down the matter at 11.00 am which is for only 7 minutes, which was unreasonably small in view of the fact that I notified the court that I was returning from the North of England and I was already arrived in Central London ... "

10. So amongst other things, the claimant is aggrieved that the Crown Court waited just 7 minutes after its message of 10.53 am before proceeding to hear the appeal. It has to be said that that witness statement is not at all specific as to just what attempts the claimant had made to contact the court. This morning we have asked the claimant for more detail of this. He had said that he had been returning from the north of England. However, he now says to us, and there is some documentation to support that, that in fact he had been staying in Birmingham for the preceding days, albeit he says he was travelling to the north of England from there with a view to finding a legal training contract. This morning, although it is not said in the witness statement, the claimant has said to us that he left the hotel in Birmingham at 6.00 am on the morning of 28 May and that he caught a bus at around 6.30 am; and, although he was not entirely specific, he said that he thought the bus arrived some considerable time later at around 11.00 am, saying that it had been scheduled to arrive, according to him, at "9.00 or 10.00 am", according to my note of what he told us this morning. We asked the claimant why he had not, given the potential importance of his appeal, come down to London the night before, he being resident in London. It was difficult entirely to understand his answer but essentially it was to the effect that he thought he would have time to get to London from Birmingham having made the arrangements which he had made.
11. In addition, this morning, as I understood him, the claimant said that he did not seek to telephone the Crown Court whilst he was on the bus but he did seek to phone the Crown Court and the CPS once he had arrived at Victoria Bus Station and told them that he would be late. There is, however, no record of that, we gather, at the Crown Court; and certainly no such message appears to have been passed to the judge. It may also be noted that in his letter of 28 May 2015, the claimant makes no reference to this attempted contact. Indeed, what he says is: "I thought that I would arrived in the morning before 11.00 am to make it to the court ..." this notwithstanding that he had been notified that the appeal was listed to start at 10.30 am. Further, in that letter the claimant has frankly stated that he knew that he had "no good reasons to convince the court".
12. A further matter at which the claimant is apparently aggrieved is that the CCTV was not played to the Crown Court. He attaches particular importance to this, given that in a letter from the Passport Office to the claimant's MP, Harriet Harman, dated 28 November 2014, the Passport Office had referred to the police arresting and charging the claimant "after reviewing our CCTV footage".
13. Overall, the claimant complains that the decision to proceed to hear the appeal in his absence and the refusal thereafter to reopen the appeal was a denial of his right to a fair hearing. He also clearly thinks that the prosecution refusal to play the CCTV was, at it were, an act of skullduggery on its part, designed to suppress evidence adverse to the prosecution case. He further queries why more witnesses present at the scene of the alleged assault were not called to give evidence at court: in particular the security guards. He emphasises overall the difficulties that he faced and he says that justice has not been done and has not been seen to the done.
14. We first have to consider whether the Crown Court was entitled to proceed in the absence of the appellant on 28 May 2015 by 10.30 am. This was a matter for the court's discretion. In our view, it was entitled to proceed as it did. There plainly was a case to answer notwithstanding what Mr Gaisiance, the claimant, has sought to say to us this morning. In fact, strictly the Crown Court was not obliged to hear evidence that morning but in the event, and on one view very fairly to the appellant, it did so. Further, it had sought to contact the appellant but there had been no response to the email or the telephone message left. The court was plainly not aware of any messages said to have been left by the claimant with the court or Crown Prosecution Service earlier that morning, as he now claims. (I repeat that the claimant had not sought to make such points in his contemporaneous letter of 28 May 2015).
15. I have to say that the claimant has not really given any satisfactory explanation for his failure to be at court at the right time. It was his responsibility to be there. He has given no real explanation in his witness statement in any detail and even his explanations this morning leave it unexplained as to why he left matters so late and why he did not attempt to contact the court earlier: for example whilst he was still on the bus, assuming that he did come on the bus as he says. If he had elected to go to the north of England before the appeal hearing, it was his responsibility to arrange matters so that he had ample time to be at court on the morning of 28 May 2015 before 10.30 am and not leave things to chance. As I have said, his witness statement is very vague and unspecific on this particular matter, although again I should record he has supplemented that this morning by various explanations.
16. It is of some concern, to me at least, that the claimant does not seem sufficiently to have acknowledged his responsibilities in this regard. Moreover, as the court had pointed out, this was the second appeal date. The witnesses had attended for a second time, indeed a third time if one allows for the Magistrates' Court hearing. To have adjourned the case, moreover, to another hearing date would have been to prejudice other court users waiting to have their own cases promptly heard. In my view, overall there is no proper basis for challenging the Crown Court's decision in its discretion to proceed as it did and to hear the appeal in the claimant's absence.
17. The claimant protests that the Crown Court should have reviewed the CCTV evidence, especially when he had himself previously made it clear in his letter of 27 March that he wanted it in evidence. But it seems that the Crown had not brought the CCTV disk to court. That could not have been a trick because the Crown would naturally have assumed the claimant would be there at court himself with the CCTV disk and would himself have played it in evidence. It was perhaps somewhat unorthodox for the Crown Court, as it explained in its letter of 3 June, to ask the police officer for his description of the CCTV, which description the police officer gave to the Crown Court. That explanation given by the police officer was that, in effect, it was of no assistance. This court has, at the request of the claimant, itself viewed the CCTV disk. It has done so very carefully. Having done so, I would take the clear view that indeed it lends no assistance. Clearly one can see some altercation going on in the background; but more than that one cannot see and indeed the view is obstructed by onlookers. The answer of the police officer given in evidence was plainly justified.
18. Furthermore, the position of the Crown about the CCTV had been explained in the Magistrates' Court, as the claimant frankly acknowledged, in one of the documents as provided to him. That document, headed "Director's Guidance Streamlined Process", includes this paragraph:

i. "4. CCTV has been provided from the venue. It is of little evidential value. It records in time lapse format and seems to take a frame every 2-3 seconds.

ii. On the camera the defendant can be seen in the background. It is not a clear shot and he can only barely be made out. He is talking to members of staff. More staff gather round and people can be seen to look over at them, there is clearly alarm caused by the situation. An assault can not be made out, the picture is not clear enough."

19. That accords entirely with the CCTV as I have viewed it myself. So that was the position of the Crown as known to the claimant some months earlier. Before us today the claimant has suggested that there must be yet other CCTV evidence available, he saying there were more cameras. But, as he acknowledged before us, when he received the disk on 27 March 2015 he never thereafter made any request for any further CCTV disk; and this court has no basis for thinking that there is any other such disk available.
20. As to the subsequent decision of the Crown Court to refuse to reopen the appeal, the reasons given by the judge in the decision letter of 3 June 2015 are, in my view, compelling. It may be noted that the judge was responding to the claimant's letter of 28 May 2015 which had given no explanation such as he has since produced as to why he was late and no explanation of any efforts by him to contact the court. He simply claimed in that letter that he thought he would arrive in the morning before 11.00 am and also accepted that he had no good reasons to convince the court. Further, it clearly was relevant that this was a second appeal hearing, with the witnesses all available on that date.
21. In my view, the claimant cannot after the event rely on the further details he has given in order to justify his challenge to the refusal to reopen the appeal hearing. In my view, on the material available to it, the Crown Court was entitled to refuse to reopen the hearing as it did. I would add that that letter of 3 June also gave full reasons as to why the Crown Court had found the case proved. The claimant, of course, strongly disputes that. But that reasoning was plainly open to the Crown Court on the evidence that it had heard and in the absence of any evidence from the claimant, he having failed to attend at the due time. Moreover, the Crown Court had had regard to the written materials which the claimant had previously put in.
22. One complaint that the claimant still seeks to maintain is that he had never made any admission in interview or elsewhere as to pushing the alleged victim of the assault. But that is not so. Thus, for example, in the agreed facts proffered in the Magistrates' Court it had been expressly recorded, amongst other things, as follows:

i. "5. The following summary of interview is hereby

ii. agreed:

1. ...

2. He denies saying 'Who the fuck are you?' He denies saying 'you're a fucking arse licker and do what white people say.' The black man then came very close to him, close enough to kiss him. So he pushed him away. He didn't know what he was going to do, he pushed him away in self-defence."

23. I do not propose for myself to say more. The claimant has advanced very elaborate grounds in writing and has addressed us at length, and I desire to add very courteously, this morning. As will be gathered, he strongly disputes his guilt. But he was convicted after a trial in the Magistrates' Court where he gave evidence and then he was convicted on appeal where he failed to attend without adequate explanation or justification. He has to take the consequences. I would therefore for my part dismiss this claim on all grounds.
24. MR JUSTICE OUSELEY: I agree.
25. LORD JUSTICE DAVIS: Thank you very much, Mr Gaisiance.
26. THE CLAIMANT: My Lord, before you rise. Is there any further appeal from here?
27. LORD JUSTICE DAVIS: Are you applying for permission to appeal?
28. THE CLAIMANT: I'm asking if there should be one.
29. LORD JUSTICE DAVIS: I do not think you can because this comes before this court on a criminal matter. You will have to consider it. It is not for this court to advise you but I rather think if you wish to take this matter further, you might have to persuade the Supreme Court to take an interest in this matter and you will need a certificate from us of a point of law arising, which I am afraid this court will not give because there is no point of law arising, I am afraid. Obviously you are doing legal training yourself, Mr Gaisiance, but I suggest you take independent legal advice and if you can find some remedy in the European Courts or elsewhere, that is for you to decide whether to pursue them. But so far as we are concerned, this has to be the end of the matter.