Taxi Driver Online

Khurshield v Peterborough Magistrates' Court and another

Queen's Bench Division, Divisional Court

Openshaw and Sweeney JJ (judgment delivered extempore)

11 March 2009

Magistrates – Adjournment – Discretion of justices – Review by appellate court of exercise of discretion by justices – Refusal by magistrates to grant adjournment of hearing in order to trace witness – Whether justices had been right to exercise their discretion to refuse adjournment.

On 15 April 2007, the appellant was working as a taxi driver for a taxi firm which was being operated on that night by AK. The appellant was approached by officers in plain clothes who asked if his taxi was 'free'. He informed them that the taxi was free and they then entered and requested to be taken to their destination. The appellant had a conversation on his radio in a language that the officers did not understand, but one was able to make out a name that they had given to the appellant, which they had also used in previous undercover operations that same evening.

The officers suspected that the details of the operation had been uncovered. Soon thereafter, the appellant stopped the taxi and said that he had another fare to go to. The officers were joined by two licensing officers who subsequently interviewed the appellant under caution. On 9 July, the local authority interested party laid two informations against the appellant alleging that he had committed an offence of plying for hire without having obtained a licence and an offence of driving a vehicle without valid insurance or security in respect of third-party risks. A further information was laid alleging that the appellant failed to enter, before the commencement of his journey, particulars of the booking of the private hire vehicle invited or accepted by him.

The appellant pleaded not guilty to those offences. The interested party served six witness statements upon the appellant, one of which was a witness statement by AK. After 20 September, counsel for the interested party reviewed the case file and found that AK was not a witness who could give material evidence to support the prosecution case and, therefore, formally tended him as a witness to the appellant. From 6 November, the interested party communicated with AK, but AK refused to let the interested party pass his contact details on to the appellant. In due course, the interested party formally admitted AK's statement as an admission under s 10 of the Criminal Justice Act 1967.

On the day of the trial, the appellant made an application for an adjournment to allow time to trace the witness. The interested party submitted that AK was well known to the appellant and that his name and place of work were clearly known. The justices were advised by their legal advisor that the statement of AK would be before the court in the form of an s 10 statement so the court would be fully aware of what he had said. They were of the opinion that the adjournment should be refused and accordingly refused to accede to the application. The appellant was convicted of all charges. He appealed by way of case stated against the decision to refuse the adjournment.

The question posed for the opinion of the High Court was whether, having regard to all the circumstances of the case, the justices had been right to exercise their discretion to refuse the appellant's application to adjourn the hearing and to proceed to trial.

The appeal would be allowed.

In the instant case, the need for an adjournment was not as a result of any fault of the appellant, and the justices had to consider, carefully, whether, in refusing to grant the adjournment, the appellant would be able to properly advance his case. It was obvious that the evidence of AK had gone or was capable of going to the heart of the case and to the credibility of the other prosecution witnesses. In particular, the s 10 'admission' did not begin to permit the appellant to advance his case in the best possible light when it was not his fault that he had found himself in the position he had done. The instant case was a rare one in which it was imperative that the court interfered with the discretion of the justices. Accordingly, the answer to the question posed would be in the negative.

DPP v Picton [2006] All ER (D) 83 (May) applied.

Mike Magee (instructed by Bal Dhaliwal Solicitors, Peterborough) for the appellant.

The respondent did not appear and was not represented.

William Powell (instructed by the Metropolitan Police Directorate of Legal Services) for the interested party.
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