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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Caine, R (On the Application Of) v Crown Court At Southampton [2018] EWHC 2671 (QB) (15 October 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/2671.html Cite as: [2018] EWHC 2671 (QB)

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

		Bristol Civil Justice Centre 1 Redcliff Street, Bristol, BS1 6NP
		15 October 2018

Mrs Justice Andrews:

1. This renewed application for permission to proceed with a claim for judicial review concerns a decision that was made by HH Judge Henry sitting in the Crown Court at Southampton on 18 January 2018 at a preliminary hearing in connection with a criminal appeal. Mr Caine, the Claimant in these proceedings, was appealing to the Crown Court against his conviction by Southampton Magistrates' Court on 9 May 2016 of an offence under section 5 of the Public Order Act 1986, for which he received a 12-month conditional discharge. In the appeal, Mr Caine was representing himself, as he has done throughout these proceedings for judicial review.
2. The incident that gave rise to Mr Caine's conviction took place on the business premises of a company called "New Milton Tyres" on the afternoon of 27 January 2015. Mr Caine had left his car at the tyre company for some work to be carried out. When the car was returned to him, he discovered that some items were missing. He went into the office and made an accusation of theft; an argument ensued.
3. Among the matters that the Judge had to consider on 18 January 2018 was an application made by Mr Caine for a witness summons requiring the attendance of a female member of the public who was sitting in the waiting room within sight and earshot of at least some of the exchanges between Mr Caine and the staff of the tyre company. This lady, whose identity was known only to the police, was apparently the only independent witness to the incident. The Judge refused that application.
4. Following the ruling, Mr Caine applied to the Judge to state a case for the opinion of the High Court. In a decision notified to Mr Caine on 7 February 2018, the Judge refused to do so. His reasons were as follows:

"1. I am not satisfied that the witness was likely to give material evidence (in the sense of assisting the appellant)

2. It is not in the interests of justice to force a reluctant witness to attend who was not likely to give material evidence.

This application is, therefore, frivolous."

Mr Caine did not attend the appeal hearing on 26 February 2018, and his appeal was dismissed.

5. On 5 March 2018, Mr Caine commenced these proceedings for Judicial Review. In the section of the claim form which requires the claimant to identify the decision to be judicially reviewed, Mr Caine stated:

"1. Crown Court Refusal to state a case in relation to refusing a vital defence witness summons.

2. Misinformation given to the Court by the CPS to prevent a pivotal defence witness summons being granted."

The second of these points was not so much the identification of a decision taken by the CPS, as a ground of challenge to the Judge's decision to refuse the witness summons, on the basis that he had been "misinformed" by the CPS.

6. On the face of that section of the claim form taken in isolation, Mr Caine appeared to be seeking only to challenge the refusal by the Judge to state a case. However, that appears to me to be an unduly restrictive interpretation of the claim for judicial review. In section 7 of the claim form, the remedy sought included the giving of directions to the lower court to reconsider the underlying decision "based on the fact that it has been given false information by the CPS. This has not been weighed." Among the matters expressly relied on by Mr Caine was Article 6 ECHR. Section 9 of the Claim Form, which contained Mr Caine's statement of the facts relied on, makes it clear that his real complaint is that the Judge refused his application for a witness summons.
7. In amended grounds served with the sealed claim form Mr Caine sought to amend the claim to include a request for disclosure of, among other documents, a police memo which was read out by prosecuting counsel at the hearing on 18 January. That is the document that Mr Caine contends contained false information about the evidence that the witness was likely to give, and upon which the CPS relied in response to his application for a witness summons.
8. The CPS acknowledged service and filed summary grounds of defence on 21 March 2018. It set out the text of the police memo in paragraph 18 of those grounds. That text is consistent with the transcript of the hearing, which is a record of what prosecuting counsel read out in open court.
9. In answer to the claim for judicial review of the refusal to state a case, the CPS took two points: first, that the decision not to state a case related to an interlocutory ruling, that is, a ruling other than a final determination of the merits of the appeal; and therefore the High Court would have had no jurisdiction to hear the appeal even if the Judge had agreed to the request to state a case: see R (Gillan) v DPP [2007] EWHC 380 (Admin); and secondly that in any event the decision not to state a case was unimpeachable. Both those arguments found favour with Cockerill J who considered the permission application on the papers.
10. So far as disclosure was concerned, Cockerill J observed that any application of that nature would have to be made in the proper form, i.e. by application notice; but that given the lack of jurisdiction to entertain an appeal by case stated, disclosure of the documents sought by Mr Caine would not be necessary to enable the court to deal fairly and justly with the issues. I agree with those observations; moreover, and in any event, I had already refused the application for disclosure of the police memo, as recorded in my order of 25 July 2018. Given that the full text of the police memo is in evidence, and a transcript of the hearing has now been obtained which shows that prosecuting counsel quoted it accurately to the Judge, there would be no point in ordering disclosure of the original document.
11. At the hearing of this renewed application for permission Mr Caine accepted, very fairly, in the light of the decision in R(Gillan) v DPP (above), that the jurisdiction point was a complete answer to his challenge to the Judge's refusal to state a case. However, he submitted that the High Court nevertheless had jurisdiction to grant judicial review of the substantive underlying decision refusing the witness summons, and that this was also challenged in his claim. He renewed his application for permission to pursue that challenge.
12. I note that Cockerill J went on to address the question whether there was an arguable public law ground of challenge to the decision not to issue a witness summons and decided that there was not. That was an appropriate course: it was clear from the claim form, read as a whole, that the decision not to issue the summons was the decision that Mr Caine was complaining about, and that he wished to challenge it by way of judicial review. He acted promptly, and in my judgment the fact that he initially attempted to use the wrong procedure should not be held against him. No prejudice would be caused to the defendant Court (which, as is normal in such cases, has adopted a neutral stance) or to the CPS were I to proceed on the basis that the claim form encompasses a claim for judicial review of the underlying decision. The same considerations arise as would have arisen if this Court had had jurisdiction to consider the challenge to the Judge's refusal to state a case. The only matter that concerned me at the oral renewal hearing, and which led to my decision, exceptionally, to reserve judgment after listening to Mr Caine's submissions on the merits of his application for judicial review, was whether the High Court has jurisdiction to grant judicial review of an interlocutory decision of the Crown Court made in the latter's appellate capacity.
13. Having taken time to check the position and having given Mr Caine permission to do likewise and make any further written submissions on that subject within a short time after the hearing, which he did, I am satisfied that the Court does indeed have such jurisdiction, though there have been judicial statements to the effect that it should be exercised sparingly. Section 29(3) of the Senior Courts Act 1981 puts the matter beyond doubt:

"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court."

The offence with which Mr Caine was charged was only triable summarily.

14. In R(Gillan) v DPP (above) Forbes J said at paragraph 13:

"in my view, the correct procedure for challenging the lawfulness of an interlocutory decision in criminal proceedings such as the present one is by way of an appropriate application for judicial review, although the circumstances in which that is likely to be necessary will, as it seems to me, be relatively rare and exceptional."

15. I therefore turn to consider the question whether permission should be granted to bring judicial review of the Judge's decision to refuse the witness summons. That was a case management decision and an exercise of judicial discretion – for both those reasons it is difficult for the disappointed applicant to demonstrate that it is susceptible of challenge on public law grounds. As I explained to Mr Caine, judicial review is not the same thing as an appeal on the merits. The question for the Court hearing any substantive claim for judicial review is not whether the decision that the Judge made was right or wrong, or whether this Court would have made the same decision, but whether it was a decision that was lawfully open to him. That means that the High Court can only interfere with the decision if there was an error of law; if the Judge took into account irrelevant considerations or failed to take into account relevant considerations; or if the Judge reached a decision that no reasonable Judge could have reached. The question for me on this renewed application is whether there is a sufficiently realistic prospect of Mr Caine persuading the Court to grant judicial review on one or more of those grounds to grant permission for the claim to proceed.
16. An appeal to the Crown Court from the Magistrates' Court is by way of re-hearing. Therefore, on such an appeal a witness may be called to give evidence who was not called at the original trial. The test for granting an application for a witness summons (irrespective of whether the applicant is the prosecution or the defendant) is set out in paragraph 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965. The Crown Court must be satisfied that:

a) a person is likely to be able to give evidence likely to be material evidence…for the purpose of any criminal proceedings before the Crown Court, and

b) it is in the interests of justice to issue a summons under this section to secure the attendance of that person.

The statutory test is compatible with Article 6 ECHR. It provides a means by which a defendant can obtain evidence that is likely to assist his defence or to undermine the prosecution's case against him. It will usually be in the interests of justice to require the attendance at court of a witness who is likely to give evidence that is likely to be material, in that sense, unless there are some strong countervailing factors, e.g. the witness is seriously ill, in which case there may be other means of introducing their evidence under the hearsay provisions of the Criminal Justice Act 2003.

17. The Judge correctly explained the test of materiality to Mr Caine (page 13 of the transcript). He said that the Court will only grant a witness summons if there are reasonable grounds to consider that the witness would be of assistance to the defence or would undermine the prosecution's account. That is the test he applied in his ruling (page 17 of the transcript). He also considered the interests of justice, as he was required to do. Therefore, the Judge did not make an error of law.
18. The next question is whether the Judge had regard to all matters relevant to the exercise of his discretion. In my judgment he did. It was obviously relevant for the Court to consider what evidence the witness would give if summoned to attend the trial; whether it was likely to assist the defence; and why she had not provided a statement already. In principle it would be right for the Court to take into consideration any available information that might shed light on those matters. That would include information about what the witness had previously said about what she had seen and heard, or what she could remember of the incident. A decision which disregarded such information might well be open to legitimate criticism.
19. In answer to the application for a witness summons, prosecuting counsel referred to the police memo mentioned earlier in this judgment. The memo was made on 31 July 2015, a few months after the incident, by a police officer or civilian officer who had spoken to the lady concerned. Given that date, the note cannot possibly have been brought into existence for the purposes of defeating the application for a witness summons. It is clear from the memo itself (and prosecuting counsel confirmed in terms to the Judge, at page 10 of the transcript) that the author of the memo was not the officer in the case.
20. The memo states:

"I asked [the witness] if she had indeed been present and she confirmed she was. I asked if she'd been approached to provide an account and a statement. She confirmed that she had. She told me she was feeling somewhat harassed by the police as she'd been asked more than once. She has a number of family illnesses issues going on around her at this time and it was something she could do without. She'd spoken with a solicitor and been told she was under no obligation to provide an account and she simply did not want to.

[The witness] did witness events and she was happy to say that she felt sorry for the tyre company staff who she felt were completely in the wrong (sic). She did not hear any threat from any of the staff to put Mr Caine on his arse and the only threats she heard, which she felt may have included a suggestion that he would put one of them on their arse, came from the male member of the public.

She asks that she now be left alone and not contacted regarding this any further."

21. In his ruling the Judge relied on three specific points: first, that the witness had made it absolutely clear that she would not co-operate, secondly, that there was a suggestion that she was of somewhat nervous disposition and that it would cause her anxiety and thirdly, and more importantly, that such information as there was (about what she might say if called to give evidence) did not undermine the Prosecution case and did not assist Mr Caine. Whilst Mr Caine believed that if she were put on oath she would have to support him, the Judge said that was highly speculative and was not, in his judgment, a proper basis to issue a witness summons, particularly for a woman who was reluctant to get involved.
22. The first part of the memo established, as Mr Caine accepted, that the police had tried more than once to get a statement from the witness and that she was extremely reluctant to get involved, to the extent of taking legal advice about whether she had to give a statement to the police if she did not want to. There was no reason to suppose that the police made that up, given that they were the ones who were anxious to obtain a statement from her. Mr Caine submitted to this Court that there are special measures that can be taken to put a nervous witness at their ease, such as the use of screens, and that the witness summons procedure is obviously intended to cover the situation when a witness is reluctant to appear voluntarily. Therefore, the fact that the witness was not prepared to give a statement to the police and was reluctant to give evidence would not be sufficient grounds in themselves for refusing the summons. Those points are well made, but the Judge did not refuse the application simply because the witness was reluctant to get involved. It was a factor that he took into account in evaluating what the interests of justice required, and he was entitled to do so.
23. As to the third and most important factor in the Judge's decision, Mr Caine submitted that as this lady was an independent witness, who had confirmed that she was present, the Judge was not entitled to conclude that she would not assist him. Mr Caine submitted, as he had submitted to the Judge, that the witness heard the tyre company manager, Mr Williamson, who was the main prosecution witness, threaten to "put him on his arse" twice, and that even if she could not remember hearing Mr Williams making any threats of physical violence towards Mr Caine, at the very least, she would be able to undermine the credibility of the account given by the prosecution witnesses. He asked rhetorically whether the decision would have been the same if this had been a murder case and the only independent eyewitness was expressing a similar reluctance to give a statement to the police. However, and irrespective of the gravity of the criminal charge faced by a defendant, if he cannot satisfy the statutory test, the Crown Court is entitled to refuse his application for a witness summons, and there will be no infringement of Article 6.
24. Mr Caine strongly objected to the CPS relying on the police memo. He submitted that it was hearsay and in any event, it could not be treated as reliable, as the witness could not possibly have said what she was recorded in the memo as saying to the officer. The Judge should have placed no reliance on it and the fact that he did so leaves his decision sufficiently open to challenge to cross the threshold for permission.
25. So far as the hearsay point is concerned, the memo was admissible on the application as a contemporaneous record of what the witness said to the author of the memo on 31 January 2015. Evidence of this nature is likely to be the only evidence that might shed any light on what the witness would say if called at trial in circumstances such as these, where the witness has declined to give a statement to the police, despite several approaches being made to try and obtain one. The Judge was plainly entitled to take it into consideration and to attach such weight to it as he saw fit.
26. So far as its reliability is concerned, it is true that there is an oddity in the first sentence of the second paragraph – why should the witness feel sorry for people she then described as being completely in the wrong? However, in the light of the tenor of what she said next, that could simply have been a slip of the pen. On the face of it, the witness thought that any threats she heard came from Mr Caine (the male member of the public). Mr Caine submitted that this was self-evidently nonsense because no-one, including the prosecution witnesses, had ever suggested that he had threatened to put anyone "on their arse." But that does not mean that the record is inaccurate. The witness was obviously asked whether she heard anyone use that expression and she was unsure about that, but she was indicating that so far as she could recall, any verbal aggression was emanating from Mr Caine and not from the tyre company staff.
27. In order to make good his allegation that the memo contains false statements of what the witness said, Mr Caine relied on complaints that he had previously made about the conduct of the officer in the case, at least some of which had been upheld, including complaints about that officer's failure to record or to properly investigate Mr Caine's allegation of theft from his car which he had reported to the police on the very same afternoon. Mr Caine also complained about the police's failure to investigate aspects of the account of the incident given by the tyre company staff in their witness statements, which he says are demonstrably false.
28. The Judge clearly gave due consideration to whether he could place any reliance on the memo before reaching a rational decision that he could. In his ruling (page 17 of the transcript) the Judge expressly took account of Mr Caine's criticisms, and in particular, his submission that the Court should be hesitant before accepting anything said or recorded by any police officer involved in his case, because of Mr Caine's view that, as the Judge put it, the police "had not covered themselves in glory in this case". However, as the Judge pointed out, it appeared that the police were themselves keen to use this witness. That is a matter to which he rightly attached some significance. The memo was an internal police document that presumably would have been used to report back to those with the responsibility for deciding what, if any further steps to take in the light of her adamant refusal to give a statement, including whether to ask the magistrates' court for a witness summons to compel her to give evidence for the prosecution at trial. It was not created with any intention of showing it to the defence.
29. In my judgment, the Judge was entitled to treat the memo as reliable overall, and to take its contents at face value. It was a contemporaneous record of a conversation with the witness whilst the events in question would still have been relatively fresh in her memory. There was, and is, no proper basis for inferring that the author of the memo would deliberately make a false record of what the witness had said to him. He had no reason to do so, and he is hardly likely to have made a record with contradictory statements in it if he intended to deceive. He had no reason to deceive those for whose benefit the memo was being taken. Regardless of the validity of any complaints that Mr Caine may have made about the conduct of the police in other respects, there is no reason to believe that this was something the note-taker made up.
30. Given that the author of the memo was not the officer who bore the brunt of Mr Caine's criticisms about the handling of the investigation, the only basis Mr Caine has for making the allegation that this memo contains false information is his firm belief that the witness would not have said what she is recorded as saying, because she would have supported his version of events. However, that is not a sufficient basis for any court to conclude that the author of the memo made an inaccurate record of what he was told, let alone a deliberately inaccurate record. The overall tenor of the note is that this witness was unlikely to support Mr Caine's position that Mr Williamson was the aggressor. Indeed, there was a real risk that she might, in fact, make matters worse for Mr Caine. The Judge was entitled to take the memo at face value, having properly considered the reasons given by Mr Caine for submitting that it was unreliable.
31. The Judge was entitled to reach the view, based on the information before him, that it had not been established by Mr Caine that the witness was likely to give material evidence, and therefore that the statutory test was not satisfied. He took all relevant matters into account. This decision cannot possibly be regarded as one which no reasonable Judge, properly informed, and applying the correct legal test, could have reached.
32. I would add that if Mr Caine were right, and the Judge should have disregarded the police memo completely, that would not have improved his position so far as the application was concerned. In fact, it would have made it worse, because then all that the Judge would know was that the witness was extremely reluctant to get involved. and that there was no statement from her. This meant that what she might say about the incident that she had witnessed was a matter of pure speculation. It could not be established that it was "likely" that she would give evidence to support the defence or undermine the prosecution case because, in the absence of any information that would indicate what she might say, one simply did not know what her version of events was going to be. There would be no means of telling whether it would support the prosecution or the defence or neither (she might well say, three years down the line, that she could not remember the incident, or she might be muddled in her recollection).
33. The Judge was not bound to agree with Mr Caine's characterisation of this witness as pivotal or vital to his defence in the absence of any evidence indicating that she would be likely to corroborate his version of events. Such evidence as there was, suggested the opposite. The Judge correctly pointed out that it is not enough to satisfy the statutory requirements to speculate that she might do so if forced to testify under oath or affirmation.
34. Mr Caine submitted that this was a wrong approach to the statutory discretion and set the bar too high. It would be enough to satisfy the requirements of the statute if there was a possibility that the witness might give evidence that could result in an acquittal, and that the Judge did not need to be satisfied that this was probable. In support of that submission he relied on Section 2C of the Criminal Procedure (Attendance of Witnesses) Act which sets out the means whereby a witness who has been summoned to give evidence can apply to set the summons aside. One of the grounds is where the witness satisfies the Crown Court that he or she cannot give any evidence that is likely to be material.
35. However, the circumstances in which Section 2C comes into play necessarily involve the Crown Court having previously been satisfied that the witness is likely to be able to give evidence that is likely to be material. Section 2C is directed at the first "likely" in the test, not the second. It enables the witness, in appropriate circumstances, to persuade the Court that he or she is unable to give such evidence, however likely that prospect may have seemed at the time when the summons was granted. In this case, the application failed because the witness could give evidence but such information as was available about what she might say indicated it was unlikely to help the defence. The Judge said nothing to suggest that he had applied a test of probability; on the contrary, he correctly explained to Mr Caine that the question was whether there were reasonable grounds to consider that the witness would give evidence to assist the defence or undermine the prosecution case.
36. If Mr Caine's submission were correct, it would mean that the conditions of s.2(1) of the 1965 Act would be fulfilled in the case of any independent eyewitness simply on the basis that a defendant said that he believed the witness would support his version of events. It would be fulfilled even if the witness had previously given a statement to the police that said he could not remember what happened, or a statement that, as in the present case, tended to be unhelpful. That would make the requirement that the applicant must show that the evidence that the witness is likely to be able to give is "likely to be material" completely redundant. The word that Parliament has used is "likely", not "possible". Here, the Judge has held that the witness is likely to be able to give evidence about the incident, but that there were no reasonable grounds to consider that her evidence was likely to help the defence. He was entitled to take that view.
37. For all the above reasons, there is no prospect of a successful challenge to the decision on public law grounds, and this renewed application for permission is refused.
38. In his written submissions Mr Caine has stated that in the event permission is refused he requests permission to appeal the case to the Court of Appeal "given the conundrum this case poses for Defendants in criminal proceedings to challenge the veracity of police "hearsay" used against them to deny the calling of defence witnesses during proceedings". Since the claim for judicial review is a challenge to a decision made by an inferior court in a criminal cause or matter within the meaning of section 18(1)(a) of the Senior Courts Act 1981, and I have refused Mr Caine's renewed application for permission to proceed, my decision is final and cannot be appealed.