England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cukic, R (on the application of) v Inner London Justices [1995] EWHC Admin 3 (1st September, 1995)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1995/3.html
Cite as: [1995] EWHC Admin 3

[New search] [Help]

QUEEN v. INNER LONDON JUSTICES Ex parte ALEXANDER CUKIC [1995] EWHC Admin 3 (1st September, 1995)

IN THE HIGH COURT OF JUSTICE CO/0009/95

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

DIVISIONAL COURT

Royal Courts of Justice

The Strand

London

Monday 18 May 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

and

MR JUSTICE CRESSWELL

THE QUEEN

- v -

INNER LONDON JUSTICES

Ex parte ALEXANDER CUKIC

_______________

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 071-421 4040

(Official Shorthand Writers to the Court)

_______________

MR NIGEL LEY (instructed by Messrs Lewis Nedas & Co, London NW1 OJH)

appeared on behalf of THE APPLICANT

MR JOHN McGUINNESS (instructed by The Crown Prosecution Service,

Special Casework Unit) appeared on behalf of THE RESPONDENT

_______________

J U D G M E N T

(As Approved by the Court )

_______________

Monday 18 May 1998

THE LORD CHIEF JUSTICE: I will ask Mr Justice Cresswell to give the first judgment.

1. MR JUSTICE CRESSWELL: This is an application for judicial review made pursuant to leave granted on 14 March 1995. The applicant seeks an order of mandamus to compel the respondents to state a case for the opinion of this court.

2. On 29 September 1992 the applicant was convicted at Wells Street Magistrates' Court of failing on 3 May 1992 to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988. The applicant was sentenced on 4 February 1993. On 16 February the applicant requested the respondents to state a case for the opinion of this court, asking three questions. The first and second points have since been abandoned. The remaining question was in these terms:

"Was the court entitled to hold on the evidence that the wording of the form setting out the defendant's rights, and given to the defendant by the police, did not mislead him into believing that he was entitled to speak to a solicitor before he provided a sample of breath?"

3. The magistrate refused to state a case on the grounds that the application was frivolous within the meaning of section 111(5) of the Magistrates' Courts Act 1980.

4. According to the first affidavit of the applicant, he was lawfully required to provide a specimen for analysis. Before that request was made, he was handed by the custody officer a Metropolitan Police Form No 3053. He says:

"That document misled me into thinking that I was entitled to speak to a solicitor before providing a breath sample.... I submit that the natural meaning of it is that you are entitled to consult a solicitor before answering any questions, which to me included a request to provide a breath sample."

5. Form 3053 was so far as relevant in these terms:

"If you are asked questions about a suspected offence, you do not have to say anything unless you wish to do so, but what you say may be given in evidence.

YOU HAVE THE RIGHT TO:

1. SPEAK TO AN INDEPENDENT SOLICITOR FREE OF CHARGE

2. HAVE SOMEONE TOLD THAT YOU HAVE BEEN ARRESTED

3. CONSULT THE CODES OF PRACTICE COVERING POLICE POWERS AND PROCEDURES.

YOU MAY DO ANY OF THESE THINGS NOW, BUT IF YOU DO NOT, YOU MAY STILL DO SO ANY TIME WHILST DETAINED AT THE POLICE STATION."

6. Free Legal Advice

7. You can speak to a solicitor at the police station at any time, day or night. It will cost you nothing.

8. Access to legal advice can only be delayed in certain exceptional circumstances (see Annex B of Code of Practice C).

....

9. If there is a delay, ask the police to contact the solicitor again. Normally, the police must not question you until you have spoken to the solicitor. However, there are certain circumstances in which the police may question you without a solicitor being present (see paragraph 6.6 of Code of Practice C)...."

10. At the foot of the form under the heading 'The right to consult the Codes of Practice' is the following:

"The Codes of Practice will be made available to you on request. These Codes govern police procedures. The right to consult the Codes of Practice does not entitle you to delay unreasonably any necessary investigative and administrative action, neither does it allow procedures under the Road Traffic Act 1988 requiring the provision of breath, blood or urine specimens to be delayed."

11. Mr Christopher Pratt, a Metropolitan Stipendiary Magistrate, stated in an affidavit in response:

"The Applicant's assertion that I ruled that nobody would be mislead by form No 3035 is entirely incorrect. I found as a fact on the evidence that the Applicant was not misled by the form.

.... I found as a fact on the evidence that the Applicant had read most of the entire form, even if not word for word. I found as a fact on the evidence that his reading was selective to best suit his defence to the charge. I found as a fact on the evidence that the Applicant was not misled by the form.

.... In view of my findings of fact, there was no need to exercise my discretion to exclude evidence under Section 78.

....

I found as a fact on the evidence that the Applicant was warned on two occasions that failure to provide a specimen of breath for analysis would render him liable to prosecution. I further found as a fact on the evidence that the police officer administering the breath test procedure specifically drew the attention of the Applicant to the paragraph in Book 116 dealing with the consequences of failing to provide a specimen.

I also found as a fact on the evidence that the Applicant's refusal to provide a specimen until he had seen a Solicitor, amounted to a failure to provide a specimen.

....

For these reasons I considered that no point of law arose on which I should State a Case and accordingly I certified the application as frivolous."

12. Mr Ley for the applicant submits that if the defendant believed that he was entitled to speak to a solicitor before providing a specimen, that could amount to a reasonable excuse. Magistrates can only refuse to state a case if the application is frivolous. Rejection of a person's testimony does not mean that the opposite of what he is saying is true. The meaning of a written document is a question of law. It is arguable that, as a matter of law, the interpretation contended for by the applicant is correct.

13. Mr McGuinness for the Director of Public Prosecutions in his skeleton argument submitted as follows:

"The Stipendiary Magistrate .... specifically found as a fact that the Applicant was not misled by the Form and had read most of it. .... the Stipendiary Magistrate found as a fact that .... the Applicant's reading 'was selective to best suit his defence to the charge.'

14. The assertion by the Applicant in his second Affidavit that the Stipendiary Magistrate, having disbelieved the Applicant's evidence on oath, was not entitled to find as a fact that he was misled is erroneous. It is apparent that one of the issues before the Magistrate was: whether or not the Applicant was misled by Form 3053 into believing he had a right to consult a solicitor? Clearly, the Magistrate had to be satisfied by the Prosecution that the Applicant had not been so misled. Both parties gave evidence on this particular issue, and it would have been a necessary part of his decision making process for the Magistrate to have considered whether or not the Prosecution had satisfied him beyond reasonable doubt that the Applicant had not been misled. Having heard the evidence of the police officer and of the Applicant, the Magistrate was perfectly entitled to make a finding of fact."

15. I turn to consider section 7 of the Road Traffic Act 1988. That section provides so far as relevant:

"(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.

(7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."

In DPP v Billington (1988) 87 Cr App R 68, Lloyd LJ (as he then was) said at page 82:

"Whether circumstances are capable of amounting to a reasonable excuse .... is a question of law: Whether they do amount to a reasonable excuse in any particular case is a question of fact.... The fact that a defendant wishes to see or consult with a solicitor before providing a specimen is incapable in law of amounting to a reasonable excuse."

16. At page 84 Lloyd LJ said:

"All that the (Police and Criminal Evidence) Act requires is that the defendant be permitted to consult a solicitor and soon as practicable. There is nothing in the Act which requires the police, whether expressly or by implication, to delay the taking of a specimen under section 8 of the Road Traffic Act in the meantime."

In Hudson v DPP (1991) 156 JPR 168, [1992] RTR 92, the appellant had contended before the Crown Court that the wording of the North Yorkshire Police and Criminal Evidence Act Form 4B (January 1986) and a Law Society form created in the mind of the appellant, and would have created in the mind of any reasonable person in the same circumstances as the appellant, a belief that he was entitled to consult a solicitor before any further steps were taken by the police and that the existence of that belief was the sole reason for the appellant's failure to provide two specimens of breath as requested by the custody officer. This contention was rejected by the Crown Court on the basis that the respondents were right in their contention that section 78 of the 1984 Act had no application to breath test procedures. Hodgson J said at page 175:

"I am not able to say that there were no circumstances in this case which ruled out any exercise of discretion under section 78 by the court.... It seems to me that the only course open to this court is to remit the case to the Crown Court for reconsideration.... It seems to me that it would, in this police force and others who use an identical or similar form to the Form 300, be helpful if there were included in the form an indication to a suspect that, whilst he had a right to have someone informed of his arrest and a right to consult with a solicitor, neither of those matters would be allowed in any way to interfere with the breathalyser procedures, nor would they give the suspect any right in law to delay the breathalyser procedure once it was put in motion."

17. In the present case there is an express finding of fact by the magistrate that the applicant was not misled by the form entitled 'Notice to detained person'. The magistrate, having heard evidence from the police and from the applicant, was plainly entitled to come to that conclusion of fact. It cannot be said that there was no evidence to support his finding of fact. The application to state a case is frivolous. There is no prospect of a case stated succeeding. An order to compel the respondents to state a case would serve no useful purpose. In the light of the findings of the magistrate there is no basis for the contention which Mr Ley seeks to advance. I would dismiss this application and remove the suspension on disqualification imposed when leave was granted.

THE LORD CHIEF JUSTICE: I agree.

18. MR McGUINNESS: My Lord, the Director would ask for costs. If the applicant is legally aided I would ask for my costs on the usual terms, that is not to be enforced without the leave of the court. Otherwise I simply apply for my costs.

19. THE LORD CHIEF JUSTICE: What do you say, Mr Ley?

20. MR LEY: My Lord, he is legally aided. I would ask that the usual order be made, that the applicant pay the respondents' costs, such costs not to be enforced without the leave of the court, and that there be legal aid taxation of the applicant's costs.

21. THE LORD CHIEF JUSTICE: Yes, very well. We make that order.

__________________________________