Verma, R (on the application of) v Stratford Magistrates Court

Admission of a witness statement under Criminal Justice Act 1967, section 9, will not ordinarily be unfair where the defence has delayed requesting the witness and reliable contemporaneous photographs are available. The court may consider the lateness of the request, the effect of delay on the witness’s appearance and memory, and the evidence already available. Section 78 of the Police and Criminal Evidence Act 1984 provides the relevant safeguard against unfairness. An abuse-of-process argument adds no further protection where the complaint is properly addressed by section 78.

The claimant sought judicial review of his conviction by Stratford Magistrates Court for selling intoxicating liquor to a person under 18, contrary to section 169A of the Licensing Act 1964. He relied on the statutory defence that he believed the purchaser was at least 18 and that nobody could reasonably have suspected from her appearance that she was under 18.

The prosecution relied on the purchaser’s statement under section 9 of the Criminal Justice Act 1967. The claimant did not request her attendance until shortly before trial, approximately 14 months after the alleged sale. The magistrates refused both an application to stay the proceedings as an abuse of process and an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude the statement.

1. The claim was dismissed. The magistrates were entitled to admit the purchaser’s statement under section 9 of the Criminal Justice Act 1967. Its statutory requirements had been met, and no timely objection had been made.
2. The substance of the complaint concerned fairness under section 78 of the Police and Criminal Evidence Act 1984, rather than abuse of process. Section 78 provided the relevant protection. There was no need to invoke abuse of process as an additional safeguard.
3. The magistrates were entitled to take account of the claimant’s late request for the purchaser’s attendance. The request was made only shortly before trial, after earlier hearings in which no request had been made. Where a young witness’s appearance is material, the defence should make the request promptly and ensure that the case proceeds quickly enough for a meaningful assessment to remain possible.
4. After approximately 14 months, comparison between the purchaser’s appearance at trial and her appearance at the time of the alleged sale was impracticable. The contemporaneous photographs gave the magistrates reliable evidence of her appearance at the relevant time. Her written statement, together with the photographs, did not unfairly deprive the claimant of the opportunity to advance his statutory defence.
5. The court observed that different considerations might apply where the request was made at or near the commencement of proceedings, even outside the seven-day period in section 9(2)(d). Prosecutors and defendants should progress cases involving child witnesses sufficiently swiftly to preserve a sensible opportunity for the defence to be run.

Stratford Magistrates Court: convicted the claimant and conditionally discharged him for 12 months. The court admitted the purchaser’s statement under section 9 of the Criminal Justice Act 1967 and refused applications based on abuse of process and section 78 of the Police and Criminal Evidence Act 1984.

High Court (Administrative Court): dismissed the judicial review claim.