Director of Public Prosecutions, R (on the application of) v North & East Hertfordshire Justices & Anor

When deciding whether to adjourn a criminal trial, magistrates must balance the interests of the defendant, the prosecution and the public interest in the prosecution of offences. Delay and inconvenience are relevant, but the prosecution should not be shut out as punishment for administrative inefficiency or a witness’s unintentional failure to attend. Where a crucial, willing witness cannot attend through no fault of the prosecution or witness, an adjournment will generally be required unless countervailing circumstances properly justify refusal. A refusal is irrational where the magistrates fail to address the interests of justice and reach a conclusion which no properly directed bench could reach.

The Director of Public Prosecutions sought judicial review of the North and East Hertfordshire Justices’ refusal on 9 February 2007 to adjourn the trial of Matthew Simpole. The prosecution’s essential civilian witness could not attend because adverse weather had closed her child’s school and alternative childcare was unavailable. The defence opposed an adjournment, relying on the history of the case, earlier delay, private defence costs and the availability of another trial.

The justices refused the adjournment, refused a further adjournment pending judicial review, and dismissed the information when the prosecution could not proceed. The central issue was whether the refusal was irrational in the Wednesbury sense.

1. The claim succeeded. The refusal of the adjournment and the consequential dismissal of the information were quashed. The justices were required to relist the case and hear and determine it.
2. Sections 10(1) and 15 of the Magistrates' Court Act 1980 confer discretionary powers to adjourn a trial and to dismiss an information where the prosecutor does not appear. The exercise of those powers remains subject to rational decision-making.
3. The decisive question when an adjournment is sought is the interests of justice to all concerned. The court must balance the defendant’s legitimate interest in a prompt trial against the prosecution’s interests and the public interest in prosecuting and convicting offenders.
4. The prosecution should not be shut out as a punishment for CPS inefficiency, and still less for the supposed default of a witness. Authorities including Crown v Hendon Justices ex parte DPP (1993) 96 Cr App R 227, DPP v Shuttleworth (2002) EWHC 621 and The Queen on the application of Costello v N E Magistrates [2006] EWHC 3145 supported that approach.
5. Here, the prosecution and the witness were not materially at fault. The witness was willing and co-operative, and the prosecution had kept the court informed. The defendant’s case required the witness’s evidence, while the previous delay was not attributable to prosecutorial default. The justices treated the case history and childcare issue as decisive without properly weighing the circumstances of the day. Their conclusion was irrational and perverse.

• North & East Hertfordshire Justices: refused an adjournment, refused a further adjournment pending judicial review, and dismissed the information on 9 February 2007.
• High Court (Administrative Court): quashed the decisions and ordered the justices to relist and determine the case.