Thursday, March 23, 2017

DSEI trial - Crown granted permission to proceed

Last October the Crown was granted permission for a judicial review of Judge Hamilton’s refusal to allow an appeal (by way of case stated) into our acquittal on charges of obstructing the highway.  You can see details of the case day 1, day 2, day 3, day 4 and day 5 and the appeal at here with the judges response here

The Crown “forgot” to pay their court fees and therefore the action was struck out.  However, the Crown has now asked that the rules be waived and that the case be allowed to proceed despite this failure.  This morning’s action was to allow the court to determine whether or not the Crown should be allowed to proceed.

262 pages have been served on the court, most of which (I have deleted some personal information and medical records) can be found here.

There were oral hearings this morning which concentrated on four areas
  • The seriousness of the Crown’s omission
  • The delay to justice
  • The finality of proceedings
  • The impact on the “interested parties” (ie the defendants).

It was conceded by the Crown that the failure to pay on time was a serious omission, but they then claimed that it was not paramount and that it was more important that justice be done than that the Crown be held to account for their failures.

The Crown claimed that the three month delay was immaterial as it had not caused any disruption such as needing to move hearings that had already been scheduled, and that there would be no additional costs resulting from the delay.

They then claimed that the issues are of significant public importance, as in the Barkshire case the issues of imminence, proportionality and democratic deficit were not addressed, and the judges said these issues “would have to be considered some other time” and this case offers opportunity to do so.

Finally, they also claimed that our acquittal was a miscarriage of justice that needed to be put right.

Our representatives argued that there is a strong argument for finality, and on four occasions we believed that the case had ended – on acquittal, when the judge refused to state case, when he refused to do so at the second time of asking and when the Crown failed to pay their fees and the case was closed by the court.

They also pointed out the affect that the case is having on the mental health of some of the interested parties.

They also argued that the more robust use of sanctions (ie not allowing the case to proceed) for failure to follow the rules is important and has been laid out in the guidelines.

Finally, it was argued that whilst the prosecution evidence was agreed the defence evidence was oral and would therefore be affected by fading memories which would have a disproportionate effect on the defence.

The verdict

Whilst the burden falls on the claimant to demonstrate why the sanction should be overturned the judge stated that this error “falls towards the bottom of seriousness as it was not done to gain procedural advantage”.
  • The judge then basically re-iterated the Crown’s case that:
  • The Email didn’t include demand for fee, but the that the email made clear that the email was not complete,
  • There is at least an explanation for the breach
  • There has been nonconsequential loss as a result of the breach
  • The case does raise questions of law
  • Remitting the case would not disadvantage defendants (through fading memories) as the evidence concerned the status of highway and no of vehicles
  • The amount of time lost as a result of current failure is not major
  • There are important legal issues to consider
  • The time taken by dpp was not unreasonable in the circumstances
  • Finality important however correct application of law important
  • We would only have “hoped” that the case was over from 20 November when the case was struck

The judge thus entirely sided with the Crown, perhaps not surprising given David Lloyd Jones previous record defending the Paras in the Bloody Sunday Enquiry.

He also refused to impose the condition of not remitting the case, suggested by the claimant