Asif Khan, R (on the application of) v The Crown Court at Manchester

Judicial review of a refusal to adjourn a criminal appeal because the defendant lacked legal representation is concerned with whether the hearing was fair. An adjournment is a case-management decision attracting a generous margin of judgment. The Administrative Court intervenes only in rare cases and where clear grounds are shown.

The court must consider whether the defendant could present the case effectively, the reason for the lack of representation, the likely consequences and length of any adjournment, the procedural history, the public interest in expedition, and the competing interests of justice. A defendant’s responsibility for becoming unrepresented is relevant but not determinative. A hearing may remain fair where the defendant understands the evidence, receives procedural assistance, and has a proper opportunity to question witnesses and make submissions.

The claimant sought permission to judicially review the Crown Court at Manchester’s refusal to adjourn his appeal against conviction for obstructing a police officer. He had dismissed his solicitors shortly before the hearing and was unable to secure replacement representation.

The Crown Court proceeded after considering his explanation, the available evidence, court resources, the attendance of police witnesses, and the assistance which could be provided to him. It dismissed the appeal after hearing evidence and submissions. Permission for judicial review was refused on paper, and the claimant renewed the application.

The central issue was whether the refusal to adjourn resulted in an unfair hearing. The claimant also sought to argue that the underlying search had not been lawfully authorised under Police and Criminal Evidence Act 1984, but that issue was outside the scope of the application.

1. Application dismissed. The renewed application for permission to bring judicial review proceedings was not arguable. The Crown Court had considered the relevant factors, applied the correct approach, and reached a conclusion reasonably open to it.
2. Whether to adjourn is a matter of discretion and case management. Judicial review asks whether the decision was fair, not whether the Administrative Court would have exercised the discretion differently. Only rare cases justify intervention: Lehram Capital and Crown Prosecution Service v Picton were applied.
3. The Crown Court was entitled to find that the claimant could present his appeal fairly without representation. He was familiar with the facts and evidence, the principal evidence was body-camera footage, he was able to review and address that footage, and he cross-examined the available police witnesses at length.
4. The prosecution was not required to call all three police officers. The Crown Court was entitled to proceed on the evidence of those who attended and were available for cross-examination. It was also entitled to rely on the court and prosecution assisting the claimant with procedure, particularly where no assistance had been sought and refused.
5. The court was entitled to consider the claimant’s hearing difficulties and to conclude that he could participate effectively. It was also entitled to weigh the serious delay, wasted court time, witness re-attendance and criminal justice backlog which an adjournment would cause.
6. The claimant’s last-minute withdrawal of instructions, following a lengthy period of dissatisfaction with his solicitors, was properly treated as a factor against adjournment. The reception staff’s reported statement that he should attend and explain matters to the judge did not reasonably amount to an adjournment or justify an expectation that the hearing would not proceed.
7. The court expressed no view on a possible challenge under section 28 of the Senior Courts Act 1981 concerning the legality of the search. The claim before it challenged only the refusal to adjourn. It noted the applicable time limit under the Criminal Procedure Rules and the claimant’s possible right to seek permission to appeal under CPR 52.8(1).

1. High Court (Administrative Court): Permission was refused on paper by His Honour Judge Stephen Davies on 21 February 2023. Mr Khan renewed the application. Mr Justice Foxton dismissed it on 31 October 2024.