PROCEDURAL DEFAULTS IN JUDICIAL REVIEW PROCEEDINGS: ADJOURNMENTS OF TRIALS AND APPARENT BIAS

I first looked at the judgment in Saunders v Bristol Magistrates Court [2022] EWHC 2544 (Admin) because my attention was drawn towards the sub-heading “Procedural Defaults”.   There were defaults.  However this facts of this matter are important in themselves.

THE CASE

The claimant sought judicial review of a decision of the Bristol Magistrates Court.  The court had allowed the prosecution application for an adjournment of a trial, on the grounds that they had forgotten to warn a witness.

PROCEDURAL DEFAULTS IN THE JUDICIAL REVIEW PROCEEDINGS

Dealing firstly with the procedural defaults in the Judicial Review proceedings.  There were defaults on both sides.

Procedural defaults

1. 1. In many judicial review claims, a defendant or interested party who has resisted permission decides after permission has been granted not to continue to contest the claim or to contest it on limited grounds only. The grant of permission may cause the defendant or interested party to re-evaluate the merits of the claim. Alternatively, matters may have moved on such that there is no longer any point in contesting the claim. The Administrative Court Judicial Review Guide (“the Guide”) provides at para. 15.3.5.3 of the 2022 edition (reproducing para. 15.3.6 of the 2021 edition) as follows:

“The duty of cooperation with the Court means that defendants and their representatives have an ongoing duty to consider whether their defence remains viable, particularly after the grant of permission.”

1. 1. This is one reason why the requirement that a defendant or interested party serve Detailed Grounds is so important: it provides an early indication of whether the claim is still contested following the grant of permission and, if so, on what grounds.

1. 1. In this case, Steyn J permitted the defendant and interested party to indicate that their Summary Grounds would stand as Detailed Grounds. This reflected CPR 54A PD, para. 9.1(1), which makes clear that a party should take this step only if all relevant matters have already been addressed in the Summary Grounds. The Guide provides further that, before taking such a step, the party should consider whether the material in the Summary Grounds is sufficient to discharge the duty of candour and cooperation with the court: see para. 10.1.4.3 of the 2022 edition.

1. 1. In this case, the CPS did not file Detailed Grounds. Its Summary Grounds were exiguous, equivocal and unclear. They did not explain on what basis it was now said that the case could have proceeded without evidence from Dr Mars when, in the application for an adjournment, the contrary had been submitted. They appeared to accept that there was a failure to give adequate reasons without saying so in terms and did accept that Miss Elmes’ comment had been inappropriate. At the same time, however, they invited the court to reject the submission that the justices did not exercise their discretion appropriately, without explaining why. The result was that neither the Court nor Ms Saunders had a clear indication whether the claim was still being defended or, if so, on what grounds. This was a serious procedural failure.

1. 1. :Matters were made worse because the CPS did not file a skeleton argument on time or at all. A party who wishes to be heard at a hearing but has not filed a skeleton in accordance with applicable directions must apply for relief from sanctions R (National Council for Civil Liberties) v Secretary of State for the Home Department [2018] EWHC 975 (Admin) (Singh LJ). No such application was made. Counsel did not explain the absence of skeleton argument at any time before the start of the hearing.

1. 1. The procedural failures were not restricted to the CPS. Although Ms Saunders’ representatives lodged a hearing bundle, it was not in the format stipulated in the Guide: see para. 21.4 of the 2022 edition (reproducing Annex 7 to the 2021 edition). The requirement for an index or table of contents to be hyperlinked to the pages or documents it refers to, is of particular importance. That was not complied with, which meant that the electronic bundle was very difficult to navigate.

1. Given this catalogue of procedural failures, it would have been open to me to adjourn the hearing and require the failures to be remedied in the interim. I considered adopting that course, but given the relatively narrow compass of the issues, I decided to proceed to determine the claim. In future, parties may expect defaults of this kind to result in adjournments and consideration may be given to costs or other sanctions (including wasted costs orders).

THE UNDERLYING ACTION: THE DECISION IN THE MAGISTRATES’ COURT

However the underlying action also raises matters of concern.   The magistrates retired after hearing the application for an adjournment.

1. 1. The Legal Advisor (Emma Reilly) referred the justices to Crim PR 1.2 and Crim PD 24 and noted that the justices should consider whether an adjournment was in the interests of justice. The justices then retired. After about five minutes, Ms Reilly went into their room. The justices emerged a little later to indicate that the application for an adjournment would be granted. The presiding justice (Mr Rainsworth-Evans) said this:

“It is clear that the prosecution (in its widest aspect) have not made sure of the available dates of the witness and have not ensured that the witness was warned the Doctor being essential to their case. Notwithstanding this we feel it is in the interests of justice to vacate tomorrow’s trial. We will allow the application.”

1. 1. Pressed by Mr Linehan to expand on these reasons, Mr Rainsworth-Evans added: “The failure on the admin side should not affect the interests of justice.” He declined to give any further reasons, whether by reference to the case law to which he had been referred or at all, despite being invited to do so by Mr Linehan and despite being informed that he could properly do so by Ms Reilly.

1. 1. After the hearing, Ms Reilly approached Mr Linehan to tell him what had happened when she went into the justices’ room. I take her account from the witness statement she has made for these proceedings:

“As I entered the retiring room the presiding justice, Mr Rainsworth-Evans was in the process of drafting the reasons for the decision. I asked what the view of the bench was, and Mr Rainsworth-Evans commented to the effect that ‘you won’t be surprised that we are granting the application’. I asked the justices to explain to me the reasons for the decision. Miss Elmes replied to the effect that it can’t be due to admin errors that justice isn’t done. I questioned whether it could be properly described as an ‘admin error’ when the situation is that the prosecution has failed to warn a crucial witness.

I asked the Justices to check their thinking by assessing whether they would have granted an application if the application had been made by the defence for the same reasons. Miss Elmes responded that it would depend who the witness was, in this case it is a crucial witness who is missing, this is why they have decided to vacate the trial as the defendant ‘can’t get away with it because there has been an admin error’. I challenged Miss Elmes’ statement. I stated that her thinking that was not correct, the defendant was not “getting away with it” a not guilty plea had been entered so it had not been established that she was responsible for any wrongdoing. I stated the case raised a genuine issue around the appropriateness of the Doctor’s decision regarding taking of a blood sample and that it may well be found that the Doctor acted inappropriately in the circumstances of that decision.

I further reminded the bench that the expectation that trials proceed as listed on the first occasion is for the benefit of both sides. The defendant was just as entitled as any other witness for a trial to proceed in the expected way and not be subject to the worry of a case hanging over them for longer than necessary. That they should consider that vacating the trial may leave the case outstanding for a further period of months.

Miss Elmes stated she may have misrepresented herself and not been clear in expressing her views.

I explained it was part of my role to challenge the thinking of the Justices but at this point I was interrupted by the Presiding Justice, Mr Rainsworth-Evans who said that they had reached their decision. Mr Rainsworth-Evans read the reasons he had drafted. I pointed out that the reasons referred to inconvenient dates when it had been made clear in court that the failing of the CPS was not warning the witness and not reference to inconvenient dates. Mr Rainsworth-Evans amended the reasons to reflect that.”

1. 1. Ms Reilly went on to explain what happened after the hearing:

“I was conscious that the decision was likely to prompt an application to state a case or for judicial review. With that in mind the advocates remained in court. There was a post hearing discussion with the advocates and an agreed note of hearing was set out to be circulated by Mr Linehan to aid in recollections in drafting or responding to any representations. I don’t believe that this has actually be circulated at the time of drafting this statement, however I also completed a briefing note for my own use and to assist my Legal Team Manager, who was away at the time, but I knew would need to be informed of this matter. I have referred to those notes in the making of this statement. My notes are available if required at any point.

Following this I considered that Mr Linehan should be made aware of the comments made in the retiring room. I raised the need for a further conversation and Ms Gethin indicated that she did not want to be included in that discussion so myself and Mr Linehan withdrew to another room.

I initially discussed the practicalities of any application with Mr Linehan as I knew I was away for significant parts of October on leave. Mr Linehan indicated that he would endeavour to expedite any application. I did raise concerns about the observation of Miss Elmes, particularly, in the retiring room and advised Mr Linehan that I would be taking the matter up with the Bristol Legal Team Manager, Angela Shean, on her return from holiday, which I did.”

THE COURT’S RESPONSE TO PRE-ACTION CORRESPONDENCE

The court’s response, is in itself, telling.

1. 1. A pre-action letter was sent on 11 October 2021. In its response, the defendant, Bristol Magistrates’ Court, set out a full explanation of what had happened on 30 September 2021, from Ms Reilly. The answer to the complaint that the decision was irrational and reached in bad faith was as follows:

“We accept that one of the Justices expressed an inappropriate consideration about the potential for the defendant to ‘get away with it due to an admin error’ this was challenged by the Legal Advisor, but was not openly challenged by the other member of the bench leading there to be a concern that the view expressed was shared or condoned by the other Justice sitting. In the absence of other clear reasons indicating how the bench had reached the decision they did it is difficult to exclude the possibility that the decision of the bench was reached by taking into account irrelevant matters. The terminology used by the Justice, although it was later stated that she had not expressed herself correctly, inevitably suggests a prejudging of the matter and an inclination to conviction when the Justice had no basis upon which to reach that conclusion.”

1. 1. The answer to the complaint that the decision showed “clear bias” was as follows:

“As noted above the Justice did latterly seek to distance herself from the comment, once challenged. However, the fact that an experienced Legal Adviser of 20+ years experience felt it necessary to draw it to the attention of the defence as her perception (the Legal Adviser’s) was that at least in part the decision had been reached on an incorrect application of the caselaw etc and the comment, not challenged by an experienced colleague magistrate, had to lead to a perception of bias towards the CPS. This must lead to a risk that the decision was improperly reached. The absence of any clear reasons to provide an explanation that could override that perception mean that it is impossible to assess the real reasoning behind the decision.

THE DECISION ON THE JUDICIAL REVIEW APPLICATION

The claimant’s application was successful.

1. 1. In my judgment, this case raises two questions which it is important to keep separate: first, whether the decision of the justices on 30 September 2021 to adjourn was vitiated by a public law error; second, if so, what the remedy should be.

1. 1. As to the first question, both Crim PD 24C.1 and the authorities make clear that applications to adjourn summary trials require “rigorous scrutiny” and decisions on such applications must be cogently reasoned. In this case, what the presiding justice said expressed a conclusion: that an adjournment was justified in the interests of justice. This showed that he had applied the right overarching test, but did not explain why it was in the interests of justice to adjourn the trial. Describing the prosecution’s failure to serve Dr Mars’ statement or warn him to attend the trial as an “admin error” did not help. Overall, what the presiding justice said did not demonstrate that he had taken account of the factors identified as relevant in the Practice Direction and authorities. The “reasons” were therefore inadequate, as Mr Grieves-Smith candidly accepted.

1. 1. As to Miss Elmes’ comment, I accept that lay justices cannot be expected to express themselves with perfect precision at all times, especially when deliberating in private. On its own, the comment could possibly be understood as a short and infelicitous way of saying that the seriousness of the offence charged told in favour of an adjournment. However, this case involves a combination of features: the lack of adequate reasons for the adjournment decision; Miss Elmes’ comment while the justices were deliberating in private; and the reaction of the very experienced Legal Advisor. Taking these three features into account, a fair-minded and informed observer not present when the comment was made would in my view place considerable weight on the reaction of someone who was, particularly someone with Ms Reilly’s training and experience. She regarded it as sufficiently concerning to raise it with Mr Linehan. That fact tips this case over the line so that the test for apparent bias is met.

1. 1. It follows that, in my judgment, the decision to adjourn was vitiated by two public law errors: failure to give adequate reasons and apparent bias.

1. 1. The question of remedy is more difficult. Having found that the challenged decision was unlawful, it should no doubt be quashed. But what else should happen? I begin by considering whether it would have been open to the justices to grant the adjournment on the material before them. The authorities do not support the proposition that a prosecution application to adjourn will never succeed if it results from a cause for which the prosecution is culpable. Much will depend on the facts, but Crim PD 24C.1 makes clear that failures to comply with procedural directions will be especially significant and Visvaratnam makes clear that the gravity of the breach will be important. The upshot is that successful applications to adjourn will in general require a clear and adequate explanation of the reasons for the default. Miah shows that the seriousness of the offence (in that case a triable either way offence, which on the facts exposed third parties to the risk of contamination) may also be significant.

1. 1. In my judgment, the facts of Visvaratnam are very similar to those in the present case. The offence charged was materially similar. There, as here, there had been no previous adjournment. In this case, the prosecution failed to comply with the direction to serve the custody doctor’s evidence, failed to warn him to attend and advanced no explanation whatsoever for these failures, despite their own positive submission that, without his evidence, they could not prove their case. If the decision to adjourn in Visvaratnam was “wrong” (in the sense that it was not open to the justices), the same must be true of the decision here.

1. 1. It follows that, on my findings, the justices should have refused the application to adjourn. Mr Grieves-Smith accepted by the end of the hearing that, if I reached this view, the proper remedy was a direction to acquit. In my judgment, he was right to concede that point. Even assuming that I have jurisdiction to do so, it would not be fair to direct that the trial proceed without the evidence of Dr Mars, given that the prosecution founded their adjournment application on the express contention that they could not prove their case without that evidence.

Conclusion

1. For these reasons, I shall quash the justices’ decision of 30 September 2021 to adjourn the case and remit the case to the justices with a direction to acquit Ms Saunders.