England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		16th June 1997

LORD JUSTICE SIMON BROWN: Can a defendant be convicted of driving while disqualified notwithstanding that, subsequent to the act of driving in question, he has successfully appealed against the conviction for which he had earlier been disqualified? That is the substantive issue before the court today. I shall return later to the particular way in which it initially came before us and how we have chosen to deal with that. First, however, let me set out the very few relevant facts.

On 17th June 1996 the applicant was convicted at Highbury Corner Magistrates' Court of a number of offences, including that of using a vehicle without insurance (hereafter offences A) for which inter alia he was ordered to be disqualified for 12 months. He appealed against that conviction but did not in the meantime apply either to the Magistrates' Court or to the Crown Court for his disqualification to be suspended. The statutory provisions governing such suspension are sections 39 and 40 of the Road Traffic Offenders Act 1988.

On 18th July 1996, the applicant was, on two separate occasions, stopped by police officers when driving, on each occasion being charged with driving while disqualified and with using the vehicle when uninsured (hereafter offences B). On 25th September 1996 the applicant's appeal against his convictions for offences A was allowed. On 23rd October 1996 the applicant appeared in respect of offences B before Mr. Steven Dawson, Metropolitan Stipendiary Magistrate sitting at Thames Magistrates' Court. It was submitted on the applicant's behalf that his successful appeal against the conviction which had resulted in the disqualification had the effect of nullifying that disqualification ab initio and that accordingly he was not guilty of offences B. The Magistrate rejected that argument and, having heard evidence from the prosecution (none being called for the defence) convicted the applicant and disqualified him from driving for six months.

On 1st November 1996 the applicant applied to the Magistrate to state a case. Although three specific questions were suggested for the opinion of this court, essentially they raised just the single issue which I identified at the outset of this judgment. On 13th November 1996 the Magistrate refused to state a case, explaining fully and helpfully the reasons why he regarded the applicant's argument as unsustainable and why in the result he concluded that the application was frivolous within the meaning of section 111(5) of the Magistrates' Courts Act 1980.

Invited by the applicant's solicitors on 4th December 1996 to reconsider his decision, the Magistrate on 11th December refused, pointing out that, in any event, "the case has in effect been stated in the body of that letter" (i.e. his earlier letter of 13th November). The same day, 11th December 1996, the applicant brought judicial review proceedings seeking an order for mandamus to require the respondent Magistrate to state a case. Leave to move was granted by Keene J on 26th January 1997, and it was in that form that the matter first came before us today. As, however, I have had occasion to remark in a number of other cases, such a course, although conventional and technically correct, is in fact, in circumstances such as arise here, absurdly inconvenient. If it succeeds, all it produces is an order for a case to be stated which in reality advances the resolution of the substantive issue not one jot. Far better surely, in a case like this where the facts are not in dispute and where in any event the Magistrate has, as he observed, already in effect stated the case, that the true issue should be placed directly before this court (as so easily it can be) by way of a straightforward judicial review challenge to the legality of the conviction on 23rd October 1996 for offences B.

It seems to me that nothing whatever is gained by an arid debate on whether the point of law raised by the applicant is properly arguable or whether it is "misconceived" or "hopeless", to use the language of the Lord Chief Justice in R. v Mildenhall Magistrates' Court, Ex parte Forest Heath District Council, The Times 16th May 1997. If there is a real point to be argued, then a case should have been stated: see R. v Watson and others (1884) JP 149. If, however, the point is plainly hopeless, then Ex-parte Forest Heath District Council suggests that it may properly be regarded as frivolous. I repeat: there seems to be no point whatever in expressing any view here as to which is the correct analysis on the present facts.

With these considerations in mind, we gave leave at the outset of the hearing to amend the proceedings to include a separate judicial review challenge going directly to the conviction on 23rd October 1996 so as to raise squarely for present decision - rather than merely for the expression of a prima facie view upon - the critical issue arising. I should just note that we took this course with the agreement not merely of the applicant, but also of the Crown Prosecution Service who fortunately were represented before us.

Central to the Magistrate's reasoning for rejecting the applicant's argument is the judgment of the Court of Criminal Appeal in R. v Lynn (1971) 55 CAR 423. The passage in the court's judgment there given by Lord Widgery LCJ relevant for present purposes is at page 424:

"The first point which was taken below, but is not taken here, was that since the initial disqualification of December 3, 1969, was subsequently set aside on appeal, the act of driving on December 8, 1969, was not a breach of the law at all; in other words, it did not amount to an offence. That argument had not been pursued in this court, and rightly so, because it seems to us perfectly clear, as it seems to Mr. Singer, that that is an untenable argument. Although the disqualification was later removed, it was effective on December 8, and for the appellant to drive on December 8 was therefore clearly a breach of the law."

(Mr. Singer [now Singer J] was counsel for the appellant.)

Whether that passage is to be regarded as obiter, as the Magistrate suggested and as Miss Kirby submits, or rather as part of the ratio, albeit by concession, really matters not: either it is right or it is wrong. In contending that it is wrong, Miss Kirby (who argued the applicant's case before us as she did before the Magistrate below, and for whose skilful and ingenious submissions we are grateful), relies principally upon four authorities, two of which were concerned with the situation arising following successful appeals, two with the very different question whether the prosecution, on a second prosecution following an earlier acquittal on a related charge, can allege facts inconsistent with that earlier acquittal. Let me take them in turn.

Barron (1914) 10 Cr App R 81, as stated in the opening sentence of the short head note, decided that:

"The quashing of a conviction by this Court is tantamount to an acquittal for the purposes of the plea of autrefois acquit".

Miss Kirby seeks to rely on the following passage in the judgment of the Court of Appeal given by Lord Reading LCJ at page 87:

"Now, the appellant, having by order of this Court, on his appeal from his first conviction, had a judgment and verdict of acquittal entered, is in the same position for all purposes as if he had actually been acquitted."

In my judgment, however, that dictum cannot avail this applicant. The reference there to "for all purposes" is, it is plain from the context, a reference to all purposes concerned with the plea of autrefois acquit. As Lord Reading said in the very next sentence in his judgment

"The question, therefore, that we have to consider is whether the acquittal on the charge of sodomy involves, according to the principles that we have stated, an acquittal on the charge of gross indecency."

The other case concerned with the situation arising after a successful appeal is Hancock v Prison Commissioners [1959] 3 All ER 513. There a prisoner succeeded in an appeal against sentence to the extent that his ten year sentence was reduced to seven years. Technically the ten year sentence was quashed and a seven year sentence was substituted for it. The prisoner argued that, in the result, the prison commissioners, the body then responsible for remission, could not take into account against him his misconduct in prison prior to the success of his appeal. The argument failed. Miss Kirby contends, however, that it failed because the appeal there succeeded only as to sentence. Here, she points out, the appeal succeeded as to the actual conviction underlying the order for disqualification.

Miss Kirby recognises that it is a necessary corollary of her argument that a prisoner whose appeal against conviction ultimately succeeds could not, assuming in the meantime he had escaped, be prosecuted for the common law offence of prison escape. The passage in Winn J's judgment in Hancock on which she seeks to rely is at page 514:

"Counsel for the plaintiff has submitted to me cogently (and one recognises that it is an argument which calls for careful consideration and has considerable weight), that the word 'quash' in that order means that the ten-year sentence was thereby rendered null and void and wholly set aside as though it had never been. There would be persuasive force in that argument, and I would be disposed to accept it, had I not found in the very wording of s. 4 (3) of the Criminal Appeal Act 1907, the provision that, wherever the Court of Criminal Appeal finds itself of the opinion that a sentence passed has been too severe, it shall quash that sentence and pass such sentence as the Court thinks ought to have been passed in substitution therefor."

Winn J then explained why he was driven to the conclusion that the word 'quash' is not used meaning to 'make null or void', but rather in its less drastic meaning "so as to make that earlier sentence null and void and of no effect from that point of time onwards, but not so as to render it null and void ab initio, i.e., as from the date when it was passed".

For my part, I find it impossible to read that judgment as implying or supporting the view that a prisoner whose appeal against conviction succeeds thereupon becomes entitled to complain of his imprisonment as a tortious wrong, and secures a defence to any alleged prison offence or escape.

The second pair of authorities on which Miss Kirby seeks to rely are Sambasivam v Public Prosecutor of Malaya Federation [1950] AC 458 and G (an infant) v Coltart [1967] 1 QB 432. I can deal with them compendiously. The courts in these two cases were simply not concerned with the consequences of a successful appeal, in particular upon the status and effect of a conviction and/or sentence before it is overturned. What these cases did concern appears rather from this short passage in Salmon LJ's judgment in G at page 439:

"I think.....on general principles that it would be quite wrong to allow the prosecution in order to obtain a conviction in case B to seek to show that the defendant was guilty in case A, after the defendant has been acquitted in case A. I have no doubt that, even though the defendant is acquitted in case A, evidence called against the defendant in case A could be relevant in case B, for example, to show what his intent was in case B. But it can never be permissible in case B to rely on the guilt of the defendant in case A if he has been acquitted in case A."

It is in that context that Widgery J's judgment in the same case at page 442, also falls to be understood:

"If a person charged with a criminal offence is acquitted by a court of competent jurisdiction, it seems to me clear that the prosecution on a subsequent charge brought against that person cannot seek to prove that he was guilty of the first charge contrary to the verdict of the court on that charge, in order to obtain the benefit of any conclusion which might flow from such guilt."

To my mind, therefore, neither of those two decisions afford the least assistance to the applicant in the central issue arising here. Nor do they make good a subsidiary argument which Miss Kirby seeks to advance in reliance upon them. This is to the effect that the second trial here was parasitic upon the first and dependent not least upon the proper proof of the applicant's disqualification in the earlier proceedings. In the absence of any formal admission of such disqualification, the prosecution sought to prove that fact by producing the original certificate of conviction. That, however, submits Miss Kirby, was no longer admissible evidence given that the conviction had already been overturned by the Crown Court on appeal.

In this regard she relies in particular upon this passage from the Privy Council's opinion in Sambasivam at page 479:

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is not less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted on the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial."

That, however, was said in the very different context of an initial acquittal followed by the hearing of a related charge. It says nothing as to the consequences upon an initial conviction and sentence of a subsequent successful appeal. I would reject this subsidiary argument. Indeed to my mind it adds nothing whatever to the central argument. It depends for its validity upon first establishing that the original conviction becomes literally for all purposes null and void ab initio once there is a successful appeal. If that central argument fails, as in my judgment it does, then there can be no objection to using the original certificate of conviction to prove all that needs to be proved to support the second charge, namely that there was a valid order for disqualification in force at the time of the driving alleged to constitute the second offence.

Not only Lynn, but every consideration of good sense and justice to my mind lead compellingly to the conclusion that the applicant's argument here is misconceived and unsustainable. The prison escape corollary aside, how odd it would be if a disqualified driver, perhaps indeed one who has tried, but failed, to have his disqualification suspended pending the hearing of his appeal, could nevertheless then drive, it being unknown to him (as also to the police and no doubt his insurers too) pending the appeal, whether or not he is committing an offence. And indeed the absurdity goes further still, as Miss Kirby acknowledged at the outset of her submission. Her central argument is dependent upon the precise sequence of court appearances, a sequence which is often adventitious. Had, for example, the trial upon offences B occurred before rather than after the hearing of the appeal against conviction for offences A, Miss Kirby accepts that there could have been no argument along the lines she propounds.

The charge here is, it must be remembered, laid under section 103 (1) of the Road Traffic Act 1988. That provides that:

"A person is guilty of an offence if, while disqualified for holding or obtaining a licence, he -

...

(b) drives a motor vehicle on a road."

In my judgment the applicant was guilty of the offences charged here as offences B when, pending his appeal, he nevertheless drove whilst subject to an order of disqualification. The disqualification was at that time lawful; the driving was unlawful. In the result I would dismiss these applications.

MR. JUSTICE GARLAND: I agree, and there is nothing that I can usefully add.

---------------- Legal Aid Taxation.