Practice and Procedure


PUBLISHED July 29, 2003

Birmingham City Justices had erred in refusing to vacate a trial in circumstances where a witness had been the victim of a serious crime on the night before the trial date.Application for judicial review of the decision of Birmingham Justices on 26 July 2002 to refuse to grant the Crown's application to vacate the trial of an accused in respect of an offence of common assault. The basis for the application to vacate had been that the alleged victim of the assault and principal witness ('C'), a former partner of the accused, had been the victim of a serious crime on the night preceding the trial. The lay justices were informed that C had been the victim of a "very serious crime" and "a crime that could not be more serious" but were not told that C had in fact been raped by someone other than the accused. The Crown chose to tell the defence what had happened on an undertaking that the accused would not be told. The justices were told that C might not be in a position to give evidence for some months. The application was refused and as a result no evidence was offered and the charge was dismissed. On the present application, the Crown argued that the decision was in breach of natural justice, that accordingly in all the circumstances the decision was a nullity and it should therefore be quashed and the matter remitted back to a different bench.HELD: (1) Whether the decision was a nullity, in breach of natural justice or Wednesbury unreasonable, in all the circumstances it was unlawful and would be quashed (Boddington v British Transport Police (1998) 2 All ER 203. The charge in question was a consequence of domestic violence. In such cases victims were often unwilling to give evidence because of changes of mind or because of intimidation. For that reason those types of cases should not be adjourned if that could be avoided. However, in this case there had been no previous adjournment and a serious unforseeable event had arisen without any fault on either side. In those circumstances the absence of information as to the exact nature of the crime against C was of secondary importance. The justices could have ordered a short adjournment in order to gather more information. (2) The authorities indicated that it was also open to the court to quash the acquittal (R v Neath & Port Talbot Magistrates' Court, ex parte Director of Public Prosecutions (2000) 1 WLR 1376 considered) and, given that following the decision to refuse the application to vacate there had been no avenue open to the prosecution but to offer no evidence, the court would take that course. (3) However, the matter would not be remitted back to a different bench. There was a pending further charge against the accused in relation to the harassment of C and in those circumstances the decision as to whether to pursue the assault charge was left to the Crown Prosecution Service.Application allowed.

[2003] EWHC 2352 (Admin)