Law Report: 2 December 1997; Defendant must be allowed to make representations

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A Crown Court judge who had acquitted a defendant on appeal from the magistrates' court was entitled to consider an application by the prosecution for an extension of time in which to state a case for the opinion of the High Court without consulting the justices who had heard the appeal with him, but he should not determine such an application without allowing the acquitted defendant to make representations.

Director of Public Prosecutions v Coleman; Queen's Bench Divisional Court (Lord Justice Pill and Mr Justice Garland) 26 November 1997

The Divisional Court dismissed the prosecutor's appeal by way of case stated against the acquittal of Valerie Ann Coleman on appeal to Southwark Crown Court (Judge Mercer sitting with justices) from Horseferry Road Magistrates' Court of failing without reasonable excuse to provide a specimen of breath for analysis, contrary to section 7(6) of the Road Traffic Act 1988.

John McGuinness (Crown Prosecution Service) for the appellant; Nigel Ley (J.E. Armah & Co) for the respondent.

Lord Justice Pill said that the questions originally posed for the opinion of the court were, to put it generally, whether the court had been right in law to find that the prosecution had failed to follow proper procedures under the Road Traffic Act 1988 and the Police and Criminal Evidence Act 1984. It was common ground that the original questions now had to be answered in a way adverse to the respondent.

Further questions had, however, arisen because the appellant's application to the Crown Court to state a case had been made out of time. The judge had determined the applications to state a case and to extend time to state a case without consulting the justices who had sat with him on the hearing of the respondent's appeal against the decision of the magistrate's court, and had granted leave to apply for a case stated out of time ex parte, without hearing representations from the respondent.

The procedure upon an application to the Crown Court to state a case was set out in rule 26 of the Crown Court Rules 1982. Under that rule the primary responsibility for preparing the case to be stated was plainly upon the judge. The use of the expression "Crown Court" as distinct from "judge" in paragraphs 11 and 14 of the rule (dealing respectively with the questions of recognisance and extension of time) did not require the participation of the justices in those decisions, but rather reflected the possibility that a judge other than the judge who had heard the original appeal might consider the relevant applications. A judge alone could, therefore, consider an application for an extension of time.

A defendant who had been acquitted on appeal to the Crown Court should be given the opportunity to make representations, if the prosecution sought to extend the scope of its right to request the Crown Court to state a case for the opinion of the High Court by applying to extend the time in which an application could be made. A situation where he did not have that opportunity would be intolerable.

The present case illustrated the danger involved. The application for an extension of time had not contained any explanation as to why no application had been made within the time limit. The procedure followed in the present case had been significantly flawed by the failure to hear representations from the respondent and accordingly there had been no valid extension of time.

The procedure which should be followed upon a prosecution application to extend time in which to apply to the Crown Court to state a case was:

(1) the defendant should be notified of the application; (2) the terms of the application should be disclosed to him and he should be told of his right to make representations; (3) the court should consider the representations of both parties and the defendant should have the opportunity to deal with all representations made by the prosecution; (4) the application could normally be considered on the basis of written representations.

- Kate O'Hanlon, Barrister