Roberts, R (On the Application Of) v Crown Prosecution Service (CPS)

A request to state a case may be refused as frivolous only where the proposed challenge is futile, misconceived, hopeless or academic. A properly arguable challenge should ordinarily proceed, but the Administrative Court may grant judicial review directly where returning the matter for a case stated would serve no practical purpose.

For hearsay under Criminal Justice Act 2003, absence abroad satisfies the statutory gateway only where it is not reasonably practicable to secure attendance either in person or by video link. Practicality may include cost, delay, logistics and time-zone difficulties. Apparent bias is assessed by the fair-minded and informed observer, who considers the context and substance of judicial comments rather than judicial assurances alone.

The claimant had been convicted of burglary and appealed to Leicester Crown Court. The Crown Court admitted the complainant’s statement as hearsay under section 116(2)(c) of the Criminal Justice Act 2003, because the complainant was in Australia, and dismissed the appeal.

The claimant sought judicial review of the Crown Court’s refusal to state a case on two issues: whether the hearsay gateway was satisfied, particularly in relation to a video link, and whether the court should have recused itself because of comments about the defence case. Permission had initially been refused on the hearsay issue but granted on the recusal issue. The central questions were whether the challenges were properly arguable and, if so, whether the Crown Court had erred in law.

1. Permission and procedure. The hearsay challenge was properly arguable. “Frivolous” in this context means futile, misconceived, hopeless or academic, and does not mean merely that the lower court considers its decision correct. Although the usual remedy would be a mandatory order requiring the Crown Court to state a case, direct judicial review was appropriate because the facts were agreed, the ruling was transcribed, reasons had been given, the claimant had been in custody, and remittal would cause unnecessary delay. Permission was therefore granted on the hearsay ground.
2. Hearsay gateway. The relevant question under section 116(2)(c) of the Criminal Justice Act 2003 was whether it was reasonably practicable to secure the complainant’s attendance in person or by video link. The Crown Court was entitled to consider the substantial time-zone difficulties, likely cost, delay and practical problems of arranging a link with a witness in Australia who could not be contacted directly. It was therefore entitled to conclude that the gateway was satisfied, although the prosecution’s application was thin and further investigation might have been preferable. The decision concerned only the gateway question, not the later stages governing admission or the use of the evidence.
3. Recusal. The fair-minded and informed observer would recognise that the judge had initially been sceptical of an unexplained bare-consent defence. The comments were made while probing the issues and, once the defence explained that the equipment was said to have been transferred as part payment for a transaction, the judge expressed no further scepticism. The court was therefore right to refuse recusal. Judicial assurances that the judge has an open mind are not, by themselves, decisive, but the comments read in context did not establish apparent bias.
4. The recusal challenge was properly arguable, so the Crown Court should not have refused to state a case on that issue. Nevertheless, there was no benefit in remitting the matter. The claim was dismissed on both the hearsay and apparent-bias grounds.

The judgment itself records no earlier appellate decision in the same litigation. The claimant sought judicial review of Leicester Crown Court’s refusal to state a case.