Bourne v Scarborough Magistrates' Court

A nominated justices’ legal adviser may adjourn a criminal trial under Criminal Procedure Rules rule 3.5(2)(f), including after a contested application. The power must be exercised consistently with legislation and the principles governing adjournments. The decision-maker must have sufficient information about the reason for the adjournment, the likely duration and its effect on expedition, witnesses and the parties. Where the parties have not made full submissions, a contentious application should ordinarily be heard orally or determined after an express opportunity for further written representations. A direction made without a hearing may be challenged under rule 3.6.

The claimant was facing proceedings before the Scarborough Magistrates’ Court. A legal adviser vacated a fixed trial date after the prosecution reported that a key witness was unavailable because of pre-booked annual leave. The claimant opposed the adjournment and requested an oral hearing.

The legal adviser refused to list the requested hearing, treating the earlier decision as having been made at a hearing. The claimant sought judicial review of both decisions. The central issues were whether the legal adviser had power to decide the contested adjournment application, whether that power had been lawfully exercised, and whether the claimant was entitled to apply for variation under Criminal Procedure Rules rule 3.6.

1. Power to adjourn. The legal adviser had power to decide the contested application. Section 10(1) of the Magistrates’ Courts Act 1980 permits a single justice to adjourn a trial. The Justices’ Clerks Rules 2005 did not confer a general power to decide the contested application, but Criminal Procedure Rules rule 3.5(2)(f), read with the nomination of the legal adviser as case manager, empowered him to adjourn a hearing, including a trial. The rule was not ultra vires.
2. Failure to exercise the power lawfully. The decision to vacate the trial date could not stand. Applying the principles summarised in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin), the legal adviser lacked sufficient information about when the witness had been warned, when his unavailability became known, and the seriousness of the prosecution’s default. He also had no information about the likely length of the adjournment or its consequences. Those matters were material to expedition, witness recollection and the parties’ ability to prepare.
3. Opportunity for submissions. Rule 3.5(2)(e) permitted a direction without a hearing in principle. In the circumstances, however, the parties’ correspondence could not fairly be treated as their complete submissions when the claimant had expressly requested an opportunity to make full submissions. The legal adviser should either have listed an oral hearing or expressly invited fuller written representations.
4. Variation application. The initial direction was made without a hearing, so rule 3.6(1)(a) applied. The claimant had complied with rule 3.6(2). Although rule 3.6 did not automatically entitle him to a hearing, it was not open to the legal adviser to refuse the application on the basis that the matter had already been heard, particularly when the claimant had not made full submissions.
5. Relief. Both decisions were quashed. The court declined to determine that refusal of the adjournment was inevitable on a lawful reconsideration. The matter was remitted with a direction that the case be listed for trial as soon as possible and within 10 weeks.

The judgment describes an application for judicial review of decisions made in criminal proceedings before the Scarborough Magistrates’ Court. Permission was granted by Sweeney J on 31 March 2017, and the proceedings were stayed pending determination. The Divisional Court quashed both challenged decisions and remitted the matter for trial.