Magistrate's Court Appeal - application to overturn decision of Magistrate not to adjourn trial dates pending an application for an order requiring the Magistrate to state a case.

[2014]JRC006

Royal Court

(Samedi)

8 January 2014

Kanetech Limited

-v-

The Attorney General

Application to overturn decision of Magistrate not to adjourn trial dates pending an application for an order requiring the Magistrate to state a case.

Advocate J. W. R. Bell for the Representor.

M. T. Jowitt, Esq., Crown Advocate.

JUDGMENT

THE BAILIFF:

1.        This is an urgent application brought before me at very short notice.  Kanetech Limited is facing charges under Article 33 of the Planning and Building (Jersey) Law 2002. 

2.        A trial is due to commence tomorrow in the Magistrate’s Court.  However the case has a long history.  The charges were originally presented as long ago as 18^th June, 2012; however they were brought against Mr Kane, the principal of the company instead of against the company and the charges were amended into the company’s name in October 2012.  After that, a point of law arose regarding the application of Article 33 and accordingly the Magistrate made a ruling on that and then there was an appeal by way of case stated against her preliminary ruling.  Judgment on that was granted on 21^st June, 2013, and the Royal Court decided the point of law in favour of the prosecution.  This meant that prima facie therefore the matter returned to the Magistrate’s Court for the trial to proceed. 

3.        However, as Advocate Bell has pointed out in his representation, the Deputy Bailiff made certain observations at paragraphs 13-16 and then 34 and 35 of his judgment which indicated that there might be grounds for an application to stay on the grounds of abuse of process, this being related, apparently, to an issue that the appellant was licensed to carry out the sort of work in question by the Minister and indeed had been asked by the Minister to carry out this very work.  I may not have fully understood the position because I am only going from what is said in the judgment, it being the case that, except for the representation, we have really no papers before us in this case at the moment because of its urgency. 

4.        Following that hint from the Deputy Bailiff, the Attorney General apparently revisited whether the prosecution should continue, but decided that it should and proceedings were resumed in the Magistrate’s Court on 19^th July, 2013.  There was then an amendment of the charges, which was granted by the Magistrate over the objections of the defendant, which was then not legally represented and appeared by Mr Kane as director.  On 1^st October the defendant, again legally unrepresented, made its application to stay the proceedings as an abuse of process.  I do not have details of the grounds of that application, but the representation sets out various comments by the Magistrate which suggest that she considered this to be a final decision.  That application to stay the proceedings as an abuse of process was rejected by the Magistrate. 

5.        Very shortly afterwards Advocate Bell’s firm was instructed on legal aid to represent the defendant.  Advocate Bell tells me, and I accept, that he indicated at one or more hearings not long after that that he was considering applying for a case stated on the Magistrate’s decision to refuse a stay on the grounds of abuse of process; but he did not in fact bring any such application until 2^nd December.  On that occasion the Magistrate refused to state a case on the grounds that she considered it to be “frivolous”.  Advocate Bell indicated on that occasion that he proposed to apply to the Royal Court under Article 21(5) of the Magistrate’s Court (Miscellaneous Provisions)(Jersey) Law 1949 which provides:-

“Where the Magistrate refuses to state a case, the Royal Court may, on the application of the person who applied for the case to be stated, make an order requiring the Magistrate to state a case and it shall be the duty of the Magistrate to comply with the order.”

6.        Advocate Bell wanted to see the transcript of the application for a stay because, of course, he had not been present when the application was made.  This was not received until 20^th December.  On 23^rd December Advocate Bell indicated to the Magistrate that he wished to apply to adjourn the trial which had been fixed for 9^th and 10^th January, 2014.  The grounds on which he wished to adjourn the trial were that he wanted to pursue the application to the Royal Court for a direction that the Magistrate state a case.  The Crown Advocate dealing with the matter was not present at that hearing and it was agreed that the application for an adjournment of the trial pending the application to the Royal Court would be heard on 7^th January.  This is what occurred and yesterday the Magistrate refused to adjourn the trial pending any application the defendant might bring before the Royal Court for a direction that the Magistrate state a case; so the trial is due to proceed tomorrow morning. 

7.        It is in those circumstances that this afternoon, Advocate Bell, on behalf of the defendant, has presented an urgent representation seeking an order that the decision of the Magistrate to refuse to adjourn the trial be overturned pending the application to this Court to direct her to state a case on the abuse of process point.  The representation also constitutes the application to this Court asking for the direction to state a case.  What Advocate Bell says is that the 1949 Law envisages an ability to have a case stated on an interim point where appropriate, and that the Court should allow him the opportunity of arguing before it that the Magistrate should be directed to state a case so that thereafter the Royal Court can consider whether she was correct to refuse a stay or whether the case should have been stayed.  He points, as a particular factor in this case, to the fact that the Deputy Bailiff, in the earlier decision to which I have referred, considered that there were good arguments in favour of a stay. 

8.        Advocate Jowitt on the other hand, on behalf of the Attorney General, points out first that the application to the Magistrate to state a case was out of time.  She made her ruling refusing a stay as an abuse of process on 1^st October.  Article 21(2) of the 1949 Law requires that an application to the Magistrate to state a case must be brought “within 8 days after the decision of the Magistrate’s Court was given.”  That means that the application should have been brought, at the latest, by 9^th October.  It was not in fact brought until 2^nd December, although I accept, as Advocate Bell says, that he gave an indication that he was thinking of doing so, but needed the transcript.  Nevertheless Advocate Jowitt says that the application was way out of time. 

9.        The second point that Advocate Jowitt makes is that this case has been going on for an extraordinarily long time.  Part of the delay has clearly been the fault of the prosecution and part of the delay has been caused by the previous appeal to the Royal Court by way of case stated.  Nevertheless proceedings that started in June 2012 have not yet come to trial. 

10.      Thirdly, Advocate Jowitt makes the point that no substantial prejudice will be caused if the trial continues.  This is a trial date which has been fixed for quite a while and it is open to the defendant to reiterate the abuse point and ask for a stay, because the Magistrate has said on several occasions that she is willing to hear any further submissions on the point; she does not consider herself ‘functus’ despite what she said at the hearing on 1^st October. 

11.      Furthermore, Advocate Jowitt points out that, in the event of an acquittal that will be the end of the matter.  In the event of a conviction the defendant has a right of appeal and will be able to raise on appeal all the points concerning a stay which he would raise on a case stated.  In other words the Royal Court on an appeal will be able to say that the matter should have been stayed and therefore quash the conviction in exactly the same way that it would deal with the matter on an appeal by way of case stated at this stage.

12.      It is quite clear that in some cases an interim decision of a Magistrate can be appealed by way of case stated.  But it is not essential that this occurs.  If one takes an ordinary trial before this Court or before the Crown Court in England, then unless there has been a preparatory hearing( which is a special measure in serious cases), an application to a judge to stay the proceedings as an abuse of process is not capable of appeal prior to trial.  The remedy lies in appealing against any subsequent conviction on the grounds that there should never have been a trial because the judge should have granted the application for a stay.  So there is nothing inherently unfair or unjust in a defendant only being able to challenge an interlocutory ruling refusing a stay by way of appeal after a conviction. 

13.      In my judgment, whether to adjourn a case and allow time to pass for an application by way of case stated is fact specific and must depend upon the circumstances of each case.  If it is made fairly early on and there is plenty of time to deal with the matter then it may be appropriate to allow an application to be heard by way of case stated in respect of a decision to refuse a stay.  But that is not the case here.  I am hearing this the afternoon before the trial is due to start in a case which has already been subject of considerable delay.  In my judgment strong grounds are required to adjourn it at the last moment.  

14.      If I thought that the defendant would suffer any material prejudice then I might, nevertheless, grant the relief sought, but I do not consider that to be the case.  The company can, if it so chooses, renew and make all the arguments in favour of a stay on the ground of abuse of process before the Magistrate tomorrow.  If successful that will be the end of the matter.  I appreciate that the defendant is sceptical that that will be successful because the Magistrate has already made a decision; but that was of course made in a case when there was no legal representation, Mr Kane made the arguments himself.  If, nevertheless, the application is unsuccessful then the trial will proceed.  That, as I understand it, should be completed within the 2 days.  If, at the end of that, there is an acquittal, then that too is the end of the matter and the defendant will no doubt be entitled to its costs.  If, as against that, there is a conviction but the defendant maintains its view that there should never have been a trial because it was an abuse of process, then, as I have indicated, as is the case in trials before the Royal Court, and the Crown Court, it can appeal and include amongst its grounds of appeal the fact that the proceedings should have been stayed.  It will then be able to bring every single argument that it would bring if proceeding by way of case stated. 

15.      I consider that is likely to lead to a far more prompt outcome.  The decision will presumably be known within the next few days and it will then simply be a question of appealing against conviction.  No doubt an appeal can be heard in the next few months, and that will be a final decision once and for all, either allowing the appeal or dismissing it. 

16.      Conversely if I now adjourn this trial the first matter to proceed with is whether this Court will direct the Magistrate to state a case.  That is the application which has only been brought to this Court today and no doubt it will be several weeks before that can be heard.  If it is allowed then the Magistrate has to state a case, which will no doubt take a few weeks, and then the matter comes back before the Royal Court to consider the case stated.  That will again require a further hearing which will no doubt be a while off because of the state of the Court’s diary.  If, at the end of that, the proceedings are stayed, well then that will be fine; but if they are not, then the matter would have to be returned to the Magistrate’s Court for trial.  So one is unlikely in those circumstances to get a decision out of the Magistrate’s Court until after one would otherwise have received a decision of this Court on an appeal following conviction. 

17.      All in all I consider that, holding a fair balance between the interests of bringing a prosecution to a timely close, and ensuring there is no prejudice to the defendant, I think the balance comes down in favour of allowing the matter to continue.  I therefore decline to make any order overturning the Magistrate’s decision to refuse the adjournment. 

Authorities

Planning and Building (Jersey) Law 2002.

Magistrate’s Court (Miscellaneous Provisions)(Jersey) Law 1949.