Following an extensive review of the authorities, the Lord Chief Justice concluded (at p. 125):
The following paragraph is also of some importance:
In these latter passages two major themes are readily detected. The first is that the jurisdiction of the High Court in cases of this nature is of a supervisory character. The second is that the grant of relief in judicial review proceedings is discretionary.
[14] In considering Mr. Fahy's submission, I have also reflected on Section 21 of the Judicature (NI) Act 1978, which provides:
I have given some consideration to the question of whether recourse to this power could have the practical effect of securing the acquittal of a Defendant in summary proceedings. It is appropriate to observe that the court did not have the benefit of argument on this discrete issue. In the MacDermott Report (Cmnd. 4292), which gave birth to the Judicature (NI) Act 1978, there is no substantive reference to the subject matter of what was later enshrined in Section 21.
[15 ] It seems likely that the stimulus for Section 21 of the 1978 Act was, at least, twofold. Firstly, it had the valuable effect of increasing the powers of the High Court, which were previously restricted to the prerogative remedies. It formed part of the modernisination and simplification mechanisms which the Act introduced. Furthermore, it is the court's recollection that following the introduction of the Prosecution of Offences (Northern Ireland) Order 1972 (a historic piece of legislation, being the first Order in Council made for Northern Ireland at the beginning of almost thirty years of direct Westminster government), the newly established Office of the Director of Public Prosecutions for Northern Ireland made representations supporting the incorporation in the anticipated new Judicature Act of a provision such as Section 21. Representations of this kind also formed the background to the inclusion of what became Section 25. The argument was that in certain cases involving judicial review of Magistrates Courts' decisions, it would be more appropriate for the High Court to remit with directions than to quash by Certiorari. The second identifiable factor quite clearly in the background was a recommendation in an earlier report of the English Law Commission, the rationale whereof was that, in certain cases, a power of this nature would be appropriate as it would obviate the need for recommencement of the underlying process or proceedings [see "Remedies in Administrative Law", Law Com. No. 73, Cmnd. 6407, paragraph 53].
[ 16] As observed in Lewis ( op. cit., paragraph 6-019) a remittal order, in appropriate circumstances, may have the practical benefit of avoiding a fresh application to the decision making authority concerned. I would observe that such an order also places emphasis on the need for reconsideration and a fresh decision and the desirability of reasonable expedition. Furthermore, a remittal order serves to focus attention on the guidance and education to be derived from the judgment of the High Court. Such an order may also be a suitable remedy in a case where the only defect in the impugned decision is a failure to provide adequate reasons.
[ 17] In some future case, the opportunity may arise for more detailed examination of the question of whether the second and third powers enshrined in Section 21 viz. to reverse or vary the impugned decision could properly be exercised in a challenge such as the present – and, if so, to what effect. I would add only that the exercise of these two powers is extremely rare in this jurisdiction. Moreover, the first of the Section 21 powers viz. the power of remittal with directions is, conventionally, sparingly exercised in this jurisdiction. The few examples provided in Anthony ( op. cit., paragraph 8.16) are both well scattered in time and remote from the present context.
[ 18] Some further contribution to this interesting subject is provided by the reflection that, in recent years, superior courts have debated the question of whether any court is empowered to declare an accused person innocent. The essential characteristics of the remedy of a declaration in public law are examined in extenso in The Declaratory Judgment (Zamir and Woolf, 3 rd Edition). I can find nothing in this valuable treatise in support of the proposition that, in a challenge of the present genre, the High Court is empowered to effectively declare the innocence of a Defendant charged with a summary criminal offence. As emphasized by the authors at the outset [paragraph 1.02]:
I am reinforced in my view that the High Court has no power to do so by the statement of Lord Steyn in R (Mullen) –v- Secretary of State for the Home Department [2005] 1 AC 1 :
And see further per Lord Bingham, at paragraph [9]:
There is no suggestion in these passages that there is any power invested in the High Court, in an application for judicial review (or, indeed, any court ), to declare an accused person innocent. In essence, the House of Lords did not seriously challenge one of the principal reservations of the Court of Appeal, namely their conclusion that, as a matter of law, a declaration of innocence, in the context of a criminal prosecution, is unknown to United Kingdom law.
[ 19 ] Furthermore, I consider that some assistance is derived by reflecting on the jurisdiction of a criminal court, exercised in exceptional cases only, to stay an accused person's trial on the ground of abuse of process. Such an order does not equate with either an acquittal or a finding of innocence. This reflection, in tandem with the well established principles considered above, suggests strongly to me that this court has no power to declare that the Applicants should be acquitted or to declare them innocent. Insofar as such power does exist, I am in no doubt that there is no warrant for its exercise in the present case. Furthermore, insofar as the Applicants could secure their acquittal from this court by an Order of Mandamus or an order pursuant to Section 21 of the Judicature Act, which will require detailed argument in some appropriate future case, I would decline to grant such relief in the present context.
[ 20] In making the aforementioned conclusions, I bear in mind that this is an application for leave to apply for judicial review. It is trite that the threshold for the grant of leave is of limited elevation – for example, in the words of Kerr J in Re Morrow and Campbell's Application [2001] NI 261, it poses a " modest hurdle ". In a well known passage, Lord Diplock stated that leave should be granted where " … on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case ": Regina –v- IRC, ex parte National Federation of Self Employed and Small Businesses [1982] AC 617 , at p. 644A. Conversely, it has been stated that leave should be refused where the case appears to be " manifestly untenable ": see Matalulu –v- Director of Public Prosecutions [2003] 4 LRC 712 (a fairly recent authority of the Privy Council). The application of the leave threshold will inevitably depend on the context of the particular case: " In law, context is everything ", as Lord Steyn famously stated in Regina –v- Secretary of State for the Home Department, ex parte Daly [2001] 2 WLR 1622 , paragraph [28].
[ 21] As appears from the analysis above, I am of the opinion that even if ultimately successful, the first form of relief sought by the Applicants – an Order of Certiorari quashing the impugned decision – could not, realistically, provide them with any practical and effective remedy, for the reasons given. My second conclusion is that the further relief sought by the Applicants – a declaration that they are to be acquitted of the charges preferred against them – is not, as a matter of law, available. In the alternative, I would decline to grant this remedy in any event. On the present state of the law, it is doubtful whether the High Court in judicial review proceedings would ever grant this remedy – whether in the form of a declaration, an Order of Mandamus or an order pursuant to Section 21 of the Judicature (NI) Act 1978. Thus I conclude that the threshold for the grant of leave to apply for judicial review has not been overcome.
IV ADJOURNMENT OF SUMMARY TRIALS: THE CORRECT APPROACH
[ 22 ] In deference to the submissions of both counsel and in light of the suggestion, canvassed in argument, of a live debate on the question of whether, in daily practice, District Judges are directing themselves correctly in acceding to prosecution applications for the adjournment of summary trials, I would add the following.
[ 23] The power to adjourn a summary prosecution is a statutory one, enshrined in Article 161(1) of the Magistrates Courts (Northern Ireland) Order 1981 in the following terms:
Prior to the advent of the Human Rights Act 1998 and Article 6 ECHR, the most comprehensive guidance on the exercise of this statutory power was probably to be found in Ex Parte Rowlands (supra). Per Lord Bingham CJ, at p. 127E:
[My emphasis].
In the following paragraph, one finds a strong emphasis on fairness (at p. 127H):
The delicate exercise of balancing expedition and fairness and the challenge which this presents to the court of trial emerge clearly in the next passage (at p. 128B):
I would observe that the sentiments clearly identifiable in these passages apply equally to applications for adjournments made by both the prosecutor and the Defendant.
[24 ] Article 161 must now be viewed through the prism of Sections 3 and 6 of the Human Rights Act 1998 and Article 6 ECHR. In short, every Magistrates Court is a public authority and it is unlawful for any public authority to act in a manner incompatible with any of the protected Convention rights. The specific Convention right in play in the context of the adjournment of summary proceedings is that aspect of Article 6 ECHR which protects every Defendant's right to be tried within a reasonable time. Both the Privy Council and the House of Lords have given clear guidance on the correct approach to be adopted in cases where an asserted infringement of this discrete right is canvassed. Firstly, in the majority decision of the Privy Council in Dyer –v- Watson [2004] 1 AC 379 , Lord Bingham stated:
Lord Bingham further observed that the threshold of proving a breach of the reasonable time requirement enshrined in Article 6 is an elevated one: see paragraph [52]. The enquiry to be conducted by the court will focus predominantly on the complexity of the case, the conduct of the Defendant and the manner in which the case has been handled by the relevant administrative and/or judicial authorities.
[ 25] Still more extensive guidance was provided by the House of Lords in Attorney General's Reference No. 2 of 2001 , which was primarily concerned with the reasonable time guarantee. Lord Bingham's opinion formulates the following guiding principles:
[My emphasis].
The clear association between the principles which govern an application to stay a prosecution on the ground of abuse of process and those in play in deciding whether to exercise the discretionary power of adjournment is clear from these passages. In the next succeeding paragraph, Lord Bingham addressed expressly the extended abuse of process doctrine declared by the House in Bennett :
Accordingly, through the prism of Article 6, the principles to be applied in both types of case (viz. "mere" delay and executive manipulation) are the same.
[ 26] In Northern Ireland, the Divisional Court availed of the opportunity to provide guidance in two successive cases in which the Director of Public Prosecutions applied for judicial review of decisions of the Magistrates Court refusing an application by the prosecution for adjournment of a summary trial. In the first of these decisions, Re DPP's Application (No. 1) [2007] NIJB 271, the Lord Chief Justice stated:
The Court then noted the decision of the English Divisional Court in R –v- Enfield Magistrates Court, ex parte DPP [Volume 153 JP, p. 415] whereby a decision of the Justices to refuse a prosecutor's application for an adjournment was successfully challenged.
The court then quoted with approval the statement of Mann LJ in R v Hendon Justices ex parte DPP [1967] 1 QB 167 at 174C, where he said:
Acceding to the Director's application for judicial review, the Divisional Court provided the following general guidance:
Properly analysed, it appears to me that the ratio decidendi of this decision is a finding that the Magistrates Court failed in its duty of inquiry. In short, where seised of an application by a prosecutor to adjourn, it is the duty of the court to conduct a proper inquiry, with a view to making a fully informed decision. A failure to properly discharge this duty is likely to give rise to the well established public law misdemeanour of failing to take into account all material facts and considerations.
[ 27 ] Soon thereafter, this subject was revisited by the Divisional Court in Re DPP's Application (No. 2) [2007] NIQB 10 where, firstly, the court endorsed the approach espoused by the English Divisional Court in Crown Prosecution Service –v- Picton [2006] EWHC 1108 (Admin) :
The Lord Chief Justice, having cited this passage, continued:
The outcome was an Order of Certiorari quashing the decision to refuse the adjournment and the allied decision to dismiss the charge, coupled with an order that ". .. the matter proceed to trial in the normal way ... with all due expedition ": see paragraph [28]. As appears from paragraphs [16] and [28] of the judgment of the Lord Chief Justice, the decision under challenge in those proceedings was, properly analysed, a decision to dismiss the charge, consequential upon (or in the context of) a rejection of the prosecutor's application for an adjournment of the hearing.
[ 28 ] Giving effect to the doctrine of precedent, whereby the Divisional Court is bound by its earlier decisions, both of the decisions in Re DPP, are binding on this court. Furthermore, this court is bound by Attorney General's Reference No. 2 of 2001 and treats Ex Parte Rowlands as a decision of compelling and persuasive authority, giving effect to what Lowry LCJ stated in Re McKiernan's Application [1985] NI 385, at p. 389C:
[My emphasis].
I have considered whether the present challenge raises any new question of principle. In my judgment, it does not. I am of the opinion that the authorities rehearsed in the foregoing paragraphs provide comprehensive guidance on the correct approach to be adopted by a Magistrates Court seised of an application by either party to adjourn a summary trial.
[29 ] The exercise in which this court has engaged will, hopefully be of some utility, since, in my opinion, it is essential that practitioners and courts alike evaluate the decision in Ex Parte Rowlands, the two Divisional Court decisions in Re DPP and those of the Privy Council and House of Lords in Dyer –v- Watson and Attorney General's Reference No. 2 of 2001 as a unified, complementary whole. This exercise also serves to highlight the interlocking nature of the principles which govern applications to stay a prosecution as an abuse of process on the ground of delay and applications to adjourn a prosecution. There is a strikingly close association between the governing principles in each of these contexts.
[ 30 ] The overarching general principle which emerges is that it is in the public interest that every person charged with a criminal offence should normally be tried: a prosecution should usually result in an adjudication of guilt or innocence and should not ordinarily be concluded in any other way. This, in my view, is properly characterised a strong general rule. General principles of this nature are the bedrock of both the common law and the jurisprudence of the European Court of Human Rights. As they are general principles, as opposed to immutable rules, they are not universally applicable in every case. However, the effect of the jurisprudence in this sphere suggests to me that the general principle in play can properly be displaced only in exceptional cases. What qualifies as a truly exceptional case will be a matter for the district judge concerned, subject to the supervisory jurisdiction of the High Court. In my view, the jurisprudence of the House of Lords, the Privy Council and the Northern Ireland Divisional Court, all of which is binding on District Judges (and this court), exhorts a careful, conservative approach to any course of action which would result in the dismissal of a summary charge without any adjudication on the merits thereof. This, in my opinion, represents the current state of the law.
A Criminal Cause or Matter
[ 31 ] Both parties, sensibly and co-operatively, consented to the hearing of this application by a single judge, whatever the court's determination of whether this constitutes a criminal cause or matter. The mechanism for thus consenting is enshrined in Order 53, Rule 2(6) of the Rules of the Court of Judicature. The tests to be applied are contained in a recent majority decision of the Divisional Court, Re JR 27's Application [2010] NIQB 12 , paragraph [20] and following. The court cannot avoid determining this issue, having regard to the differing rights of appeal which ensue: see paragraph [19] of Re JR 27 . Applying the governing principles to the present context, it is clear that as a direct consequence of the impugned decision the Applicants are the subject of continued prosecution and, hence, are exposed to penal consequences. The conclusion that this is a criminal cause or matter seems to me to follow inexorably.
Postscript
[ 32 ] On the basis of the evidence before the court, it seems to me unlikely that the District Judge committed any error of law in making the impugned decision. That said, it is self-evidently of supreme importance that the trial of the Applicants proceed without further interruption.