Parashar, R (On the Application Of) v Sunderland Magistrates' Court

Judicial review may exceptionally be brought before the conclusion of criminal proceedings in the magistrates’ court. The circumstances are especially compelling where an interlocutory decision seriously compromises the defendant’s ability to present the defence and an unfair trial is inevitable. The threshold is less demanding where the challenge concerns refusal to vacate a trial date before the trial has begun. When deciding whether to vacate or adjourn, the court must consider whether the defendant can fully present the defence if the application is refused and, if not, the extent of the compromise. The public interest in prompt summary trials does not displace that requirement. Where late prosecution expert evidence creates a conflict between the experts’ availability, fairness may require a new trial date on which both experts can attend.

The claimant faced a summary prosecution for driving with excess alcohol. He had served an expert report in good time, and the prosecution initially raised no objection to it being read as hearsay. The prosecution later served a report from its own expert, who required attendance at trial, but the defence expert was unavailable on the listed date.

The magistrates’ court refused to vacate the trial date and rejected an oral hearing. The claimant sought judicial review before trial. The central issues were whether the High Court should intervene at that stage and whether the refusal to vacate the trial date unlawfully compromised the claimant’s ability to present his defence.

1. The claim for judicial review was granted. The decision to retain a trial date on which the prosecution expert could attend but the defence expert could not was clearly wrong. If the trial proceeded on that basis, the claimant’s ability to present his defence would be seriously compromised and the trial would inevitably be unfair.

2. The former approach associated with R v Rochford Justices ex p Buck (1979) 68 Cr Rep 114 was no longer a rigid rule. The modern approach, explained in CPS v Sedgemoor Justices [2007] EWHC 1803 (Admin) and DPP v Manchester and Salford Magistrates Court [2017] EWHC 1708 (Admin), is pragmatic. Interlocutory challenges should ordinarily await the end of the trial, but exceptional pre-trial intervention is available.

3. The formulation accepted from Bourne v Scarborough Magistrates’ Court [2017] EWHC 2828 (Admin) identified exceptional circumstances where: the defence would be so seriously compromised that an unfair trial was inevitable; an important point of principle likely to affect other cases arose; or another exceptional feature justified intervention. The threshold is less high where the application is made before trial.

4. In applying the guidance in CPS v Picton [2006] EWHC 1108 (Admin), the magistrates’ court had to ask whether refusing the application would prevent the defendant from fully presenting the defence and, if so, the degree of disadvantage. That assessment had not been carried out. The case was remitted for trial before justices or a different district judge. If the prosecution sought permission to rely on its late expert report and permission was granted, both experts were to be available.

This was a first-instance judicial review claim in the High Court’s Administrative Court. The claimant challenged interlocutory case-management decisions of Sunderland Magistrates’ Court before the summary trial had begun.