WITHEY v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, David George Withey, was a United Kingdom national. He was born in 1959 and he lived in Devon. He died in early 2001. His widow, Susan Withey, continues the application on his behalf. The facts of the case, as submitted by the parties, may be summarised as follows. Further to a detailed statement given to the police on 4 August 1992 by Ms E, on 6 August 1992 the applicant was arrested on suspicion of indecent assault of two young children, one of whom was his daughter. He denied the offences to the police. He was remanded in custody for four weeks after which he was granted bail. His bail conditions forbade him to contact Ms E or her children. Ms E made a further detailed statement on 28 August 1992. On 25 November 1992 the applicant sent Ms E a Christmas card which read as follows: “To [Ms E and her son], God bless you both. May this Christmas be as happy as mine and my wife’s children. May it reflect all the harm you have done to a family that loved one another and still do. Perhaps in the end you will remember all the good that was done for you; for befriending you was the worst thing we have ever done, but thank you, for they know not what they do. I forgive you, and may God have mercy on you for all your days long. May you wake up thinking how you have destroyed a family. May your days be in torment until you say the truth. Rosie, you need God in your life. Don’t doubt, believe; remember everything is possible to those who believe. I forgive you.” The card was signed “David” and its post-script read “Have a nice Christmas”. Ms E made a witness statement dated 11 January 1993. She described how she had received the card and, after great consideration, had decided not to give evidence. The case came on for trial before the Crown Court on 15 January 1993 and the applicant pleaded not guilty. The applicant claims that Ms E did not attend as she knew her statement was untrue. Ms E made another statement dated 18 January 1993 which read as follows: “I have previously stated that I had decided that I didn’t want to give evidence against [the applicant]. The reasons for this are that before I received the Christmas card from him, I was prepared to give evidence although I was aware that it would be an unpleasant experience. When I read the Christmas card I felt sick and started to shake. I could not bear to be in the same house, and within half an hour of receiving it, I had posted it to [the Child Protection Team]. I thought he was trying to get round me; one minute he seemed to be pleasant, and then he was sounding terrible. After I sent the card off, I blocked it out of my mind as I had no idea when the court case would be. I had a visit from [a police officer] to see if I was capable of giving evidence ... I am petrified of [the applicant] and very concerned about any reprisals from him. I don’t think I could bear to be in the same room as him. It is for these reasons only that I have decided not to give evidence. Everything I have previously stated to the police regarding [the applicant’s] actions is the truth.” On 19 January 1993, when the case was re-listed for trial, counsel for the prosecution explained Ms E’s position. The trial judge, without opposition from the applicant’s counsel, ordered as follows: “David George Withey, I direct that this indictment lie on the file marked in this way: that it not be proceeded with without leave of this court or the Court of Appeal ... Let me warn you in the clearest possible terms that there is every likelihood of this court granting leave to resurrect this case if there is any repetition of the alleged events contained on that indictment. Do you understand?” The defendant replied that he did and the trial judge went on: “I direct this file, together with the latest statement of Ms E to be placed before the [prosecutor] for further consideration as to whether or not an offence is disclosed on the face of it, and whether as a consequence, you should be prosecuted therefor.” In or around April 1993 the applicant wrote to the trial judge asking him to re-open the case. By letter dated 22 April 1993 the chief clerk informed the applicant that the trial judge had decided not to re-open the case. The trial judge had written on the file: “I regret that I cannot now reconsider the matter. The defendant was fully and well represented at the time and the matter fully canvassed then. Nothing further will be achieved by resurrecting it.” In June 1995 the applicant lodged appeal papers with the Court of Appeal. On 4 June 1996 the Court of Appeal office declined to consider his application as there had been no conviction and advised him that, if he wished to have his case re-opened, he should apply to the Crown Court. On 14 November 1997 the applicant instituted proceedings against Ms E for malicious falsehood as regards her statement of August 1992. He claims that those proceedings were successful. In January 1998 the applicant wrote to the Crown Court again requesting that the matter be re-opened. On 19 January 1998 the court office responded confirming that a “not guilty” verdict had not been entered in January 1993 and that both counts had been ordered to lie on the file in the usual terms. By letter dated 8 May 1998 the applicant’s solicitors asked the Crown Prosecution Service (“the prosecution”) about its intentions concerning the charges left on the file. By letter of 22 June 1998 the prosecution confirmed: “... that there is currently no intention to proceed upon the outstanding matter. I cannot envisage any situation in which this matter would now proceed”. On 27 July 1998 the prosecution indicated to the Crown Court that, given the applicant’s recent request to have the matter re-listed, it had no objection to a formal verdict of “not guilty” being entered under section 17 of the Criminal Justice Act 1967 and, in the circumstances, asked for the matter to be re-listed for that purpose. The matter was re-listed for 5 August 1998. Each party was represented by counsel. Having summarised the facts of the case so far, the trial judge noted that the situation had been brought about by the applicant himself since he had intimidated Ms E and since his counsel had consented to the course of action taken on 19 January 1993. Given that conduct and his previous convictions, it was understandable that the prosecution did not wish to offer evidence and that the applicant was satisfied to consent to the matter remaining on the file. The trial judge went on: “I am conscious that in considering this matter, the court has a discretion whether or not to re-open it, and that such a discretion must be exercised judicially. I am satisfied that this case did not proceed, solely as a result of the acts of [the applicant]. On all the facts before me, and in the exercise of my discretion, I do not propose to give leave to [the applicant] to remove the stay on these proceedings...” On 2 November 1998 the applicant applied for leave to take judicial review proceedings for an order of certiorari to quash the decision of the Crown Court of 5 August 1998 arguing, inter alia, that the order of 19 January 1993 was wrong in law. Leave was granted in January 1999 and, following a hearing on 11 October 1999, the High Court dismissed the application because it did not have jurisdiction to consider it. The applicant claims that his three children were placed with foster parents in or around early 1998. The Crown Court may leave some or all of the counts in an indictment on the file. Counts which are left on the file are marked: “Not to be proceeded with without the leave of the court or the Court of Appeal”. There is a similar practice in the Magistrates’ Court, where the same effect is achieved by adjourning a case sine die. In R. v. Central Criminal Court ex parte Raymond [1986] 83 Cr.App.R. 94, Lord Justice Woolf stated that an order to leave the charges on the file “... starts off by having the same effect as an order for an adjournment, but an adjournment which it is accepted may never result in a trial ... [the orders] go beyond the ordinary order for an adjournment since they have the effect of not only postponing a trial but, in effect, ordering that there should be no trial without the leave of the court.” An order that charges be left on the file (“the order”) is often made where an indictment contains several counts and the plea(s) of guilty entered by the defendant to some of these counts are regarded as adequate by the prosecution. The order is made to protect the position of the prosecution in case a defendant convicted in this manner successfully appeals. The intention is that, if there is no successful appeal, the defendant should never stand trial on the counts left on the file. A successful appeal would allow the prosecution to apply to the trial court to pursue the other counts left on the file. Section 17 of the Criminal Justice Act 1967 (“1967 Act”) provides that the court may enter a verdict of not guilty without a jury being impanelled: “Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury.” In R. v. Central Criminal Court ex parte Lord Spens (The Times, 31 December 1992), the prosecution indicated that they would offer no evidence against the accused. Counsel for the accused applied to the judge to enter a verdict of not guilty according to section 17 of the 1967 Act. However, the judge instead made an order to stay the prosecution permanently by ordering that the indictment lie on the file marked “not to be proceeded with”. The case came before the High Court on judicial review and, after ruling that it had jurisdiction to consider the matter, the court found that it was not within the trial judge’s power to order that the indictment lie on the file and that the only course open to the judge was to record a verdict of not guilty either by an order under section 17 of the 1967 Act or by impanelling a jury and directing them to acquit the defendant. Lord Justice Glidewell stated that: “[...] section 17 [of the Criminal Justice Act 1967] is merely a piece of machinery which enables a judge to enter a verdict of not guilty where the prosecution offer no evidence instead of going through the process of impanelling a jury and requiring them to do so. That section gives the judge no discretion to adopt some other and different course however much he may think it right to do so.” The 1999 edition of Archbold (reference book on criminal practice and procedure, the edition concerning the relevant time) summarises the effect of that case in the following manner (at paragraph 4-191): “[An order leaving an indictment on the file] should never be made where the defendant pleads not guilty and the prosecution are disinclined to proceed, but unwilling to offer no evidence; in such circumstances, the defendant’s consent is insufficient reason for ordering a whole indictment to lie on the file. ... R. v. Central Criminal Court ex p. Spens, The Times, 31 December 1992.” It is, however, questionable whether the High Court in fact had jurisdiction in ex parte Spens to review the decision of the Crown Court to stay the prosecution permanently by ordering that the indictment lie on the file. The decision of the High Court that it had such jurisdiction was based, inter alia, on earlier decisions of the High Court in R. v. Central Criminal Court ex parte Randle and R. v. Norwich Crown Court ex parte Belsham. In the subsequent case of Re Ashton (R. v. Manchester Crown Court and others ex parte Director of Public Prosecutions) [1994] AC 9, the House of Lords approved the decision in the case of ex parte Raymond and overruled those in Randle and Belsham. It was further held that, whether or not the result in ex parte Spens could be justified on other grounds, it could not be justified on the basis of the reasoning in Randle and Belsham. The suggestion that charges should be left on the file typically comes from the prosecution. Only the consent of the trial judge is required for the order to be made but in practice the judge usually requires that the defence also agree. The order, as a decision made in the conduct of a trial on indictment, cannot be challenged on appeal to the Court of Appeal (R. v. Mackell, 74 Cr.App.R. 27 (CA)). According to R. v. Central Criminal Court ex parte Raymond approved in Re Ashton (both cited above), the order cannot be challenged on judicial review. The prosecution may apply for leave to proceed upon charges left on the file. The application is made to the Court of Appeal if the reason for re-opening the proceedings is that the counts on which the defendant was convicted have been quashed. In other cases, the application would be made to the court which made the order to leave the charges on the file. Applications to re-open proceedings and orders granting such applications are exceptional. In considering whether to grant an application to re-open proceedings, the relevant court examines whether the re-opening would be fair and whether it would constitute an abuse of process (for example, on the grounds of excessive delay between the alleged commission of the offence and the new trial or an undertaking of the prosecution to the former defendant that the matter would not be pursued). In this latter respect, the High Court has found that the prosecution of a person who had received a representation or promise that he would not be prosecuted was capable of being an abuse of process of the court notwithstanding the absence of bad faith (R. v. Croydon Justices ex parte Dean ([1993] QB 769 (DC). In R. v. Central Criminal Court ex parte Raymond (cited above), Lord Justice Woolf commented that: “... in the majority of cases where such an order is made, there will be no trial and there will certainly come a stage when either the prosecution would not seek a trial or if it did seek a trial, the court would regard it as so oppressive to have a trial that leave to proceed would inevitably be refused.”