R (Chianka) v Southwark Crown Court

The High Court uphold a decision to hear an appeal with one lay magistrate to avoid ‘unreasonable delay’

The claimant was convicted of using racially aggravated, threatening or abusive words or behaviour, contrary to s5(1) of the Public Order Act 1986 and s31 (1) (c ) of the Crime and Disorder Act 1988 by City of Westminster Magistrates’ Court. He appealed against his conviction to Southwark Crown Court and his appeal hearing was due to be heard on the 22^nd October 2010. The claimant was unrepresented and he wished for the respondent (the Crown) to call police prosecution witnesses who had not been warned to attend and who were subsequently unavailable. The Court agreed to adjourn the hearing to another date.

On the second appeal hearing the claimant was again unrepresented and again wished to challenge prosecution witnesses who had not been warned to attend.  The Court again agreed to abort the hearing to a future date.

On the 25^th February 2011, his appeal was listed for a third time. He was now legally represented. His counsel indicated in open court that the required prosecution witnesses were present and the appeal was ready to proceed.  One of the two lay justices sitting then indicated that she had been a member of the court which had originally convicted the claimant. She withdrew and a discussion took place on how the matter should proceed.

The Judge’s attention was drawn to s74(1) of the Senior Courts Act 1981 which requires “an appeal to be heard by a Judge sitting with a minimum of two lay Justices”. He was further told of the exception to this contained in rule 63.10 (c) of the Criminal Procedure Rules 2011 [editors note: the official transcript of this case states the Judge was referred to CPR 2012, not 2011, but for obvious reasons this must be incorrect] which states, “that an appeal may be heard by a judge sitting with a single lay justice if the judge considers that the start of the appeal hearing will otherwise be delayed unreasonably”.

Enquiries were made as to when the appeal could be next heard and the Judge was informed that the next available date was the 6^th May 2011. The Respondent submitted that due to the history of the case to further adjourn the case would cause ‘unreasonable delay’ and it should proceed with only one justice. The Judge agreed and heard the appeal and subsequently concluded with the lay justice that the appeal should be dismissed. The claimant then sought to judicially review the Crown Court Judge’s decision to sit with only one lay justice.

The High Court held that the Crown Court Judge’s approach could not be faulted as he had made appropriate enquiries as to when the adjourned hearing could take place, took into account the procedural history of the case, the age of the conviction (the claimant was convicted on the 18^th May 2010 and if adjourned the new appeal date would be in May 2011), and the two abortive hearings and the cost to the public purse.  Furthermore the High Court agreed with the Crown Court Judge, despite the above considerations the sole question under the law to consider is whether there is “an unreasonable delay in the start of the appeal” and a delay of 12 months from conviction to hear the appeal is not reasonable.  Therefore it was entirely appropriate for the appeal to proceed with only lay justice.