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
		10th November 1997

MR JUSTICE GARLAND: In this case the Applicant seeks an Order of certiorari to quash a decision of the Ealing Justices, on 3rd July 1996, refusing to set aside his conviction in his absence on 29th May. The Applicant also originally sought an Order of mandamus directing that the case be retried by a differently constituted bench, but that is not pursued because the material part of the sentence, which was a 12 month disqualification, has now taken effect and, in fact, the disqualification expired in July 1997. The Respondents are not represented and are not present in Court.

The history of the matter, taken quite briefly, is that on 23rd January 1996 the Applicant was charged with failing to provide a specimen of breath contrary to section 7(6) of the Road Traffic Act 1988. It is his contention that he was suffering, at the time, from breathing difficulties and that they were so severe that the police later took him to hospital, and those breathing difficulties arguably amounted to a "reasonable excuse" under the subsection.

He attended Court on 28th February in connection with the charge. He was unrepresented. Again on 3rd March he attended Court unrepresented, pleaded not guilty and was bailed unconditionally. On 20th March the case came up for a pre-trial review hearing and on that occasion he was represented by the duty solicitor and a date was fixed for trial on 29th May.

On that day the Applicant's contention is that during the early hours of the morning he was taken ill with a stomach complaint and later attended his general practitioner. At 11 o'clock in the morning his wife telephoned the Court to say that he was not well and could not attend. It is said that she was told that the case would be adjourned provided that the Court was supplied with a medical certificate. In fact, none was supplied then; it came very much later.

However when the Applicant's wife telephoned, the trial had begun. In paragraph 5 of his affidavit the Applicant states as follows:

"I am informed that the trial had already started and that the Justices were informed of my illness before the close of the prosecution's evidence. However, the Justices did not adjourn the hearing but continued to hear the rest of the prosecution's evidence. I was found guilty in my absence."

On 13th June he instructed solicitors with a view to making an application to have the conviction set aside. On 2nd July the Applicant's general practitioner, Dr Kawal Mohan, signed a certificate, which is in the form of what is commonly called a sick note, certifying that the Applicant had attended the surgery on 29th May suffering from diarrhoea. On the following day, that is 3rd July, this time represented by counsel, the Applicant made his application pursuant to section 142(2) of the Magistrates' Courts Act 1980, to have the conviction set aside in the interests of justice. The medical certificate was submitted to the Justices.

Counsel put propositions of law before them referring to R v Richmond ex parte Haines [1991] Crim LR 848 and R v Camberwell Green Magistrates' Court ex parte Ibrahim [1984] 148 JP 400. The prosecution apparently made no representations, but the Justices dismissed the application without giving reasons and proceeded to sentence. The Applicant was, as has already been said, disqualified for 12 months. He was fined £150 and ordered to pay £90 by way of costs. As has already been remarked, the disqualification has, of course, run its time.

On 26th September an application was made for judicial review of the decision of 3rd July. On 21st February this year Owen J made an Order that the application be renewed on notice, and that the proposed Respondents be asked to give an explanation. On 12th April an affidavit was sworn by the Chairman of the Court and he deposed that eight months had passed since the hearing, but that he had read the Court file and the Applicant's affidavit, of which he accepted the accuracy of the part dealing with the hearing, that is the events which took place on 3rd July. He continued at paragraph 4:

"We did not exercise our discretion to re-open the case pursuant to the provisions of section 142 of the Magistrates' Courts Act 1980 because we considered that the application should have been deployed much sooner after the conviction had been recorded on the 25th May 1996, at which time the applicant had the assistance of solicitors.

Delay meant that the case was over five months old when it was listed before us on the 3rd July 1996. We therefore proceeded to pass sentence.

I do not believe that we were under any duty to give reasons for our decision."

The relevant legislation is Section 11(1) of the Magistrates' Courts Act which provides that:

"Subject to the provisions of this Act, where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not, the court may proceed in his absence."

Then section 142:

"Where a person is found guilty by a magistrate's court... and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may,... so direct."

It has been pointed out to us today by counsel for the Applicant that originally there was a time limit of 28 days for making that application. By amendment that time limit has been removed and there is no time prescribed for making such an application.

As to jurisdiction, we simply remark that the case of R v Hereford Magistrates' Court, ex parte Rowlands and Others [1997] 2 WLR 854, a decision of this Court given by the Lord Chief Justice after very full consideration of all the authorities, makes it abundantly clear that there is power to judicially review proceedings of this type in the Magistrates' Court, notwithstanding that there is also an alternative route of appeal to the Crown Court. If reference to the judgment is necessary the passage at page 866A to E encapsulates the reasons why that should be so.

The application on 3rd July, of course, stemmed from the decision to proceed in the Applicant's absence on 29th May, pursuant to section 11(1), to which reference has just been made. The matter is put now to this Court in two ways: first, that the decision of 3rd July 1996 is Wednesbury unreasonable, that no reasonable Justice, properly directing himself on all the evidence, and the relevant judicial principles of fairness, could have made such a decision; secondly, on the basis that the decision was procedurally unfair because the Respondent failed to give any, or any proper, consideration to matters which should have been considered other than delay: for example, that the Applicant had a perfectly genuine reason for not attending which was verified by the medical certificate, albeit procured the day before the hearing on 3rd July; he had never previously failed to attend; he was unrepresented save on the one occasion when he was represented by the duty solicitor; he had pleaded not guilty and had an arguable defence; his wife had, in fact, telephoned the Court on 25th May to say that he could not attend because he was unwell.

The Respondent, it is argued, based its decision on an irrelevant consideration: delay in making the application. We consider that is a relevant consideration, albeit the application was made 35 days after the conviction, the previous time limit having been 28 days, and that the decision is procedurally unfair because it denies the Applicant his right to have a fair trial in the Magistrates' Court, and that is not something that could be put right by an appeal to the Crown Court.

We take the view that the Respondent failed to exercise the very wide discretion given by section 142 judicially because a number of matters, which have been very briefly outlined, apparently were not considered and only one matter, albeit a relevant matter, was. In those circumstances we take the view that the decision of 3rd July was fatally flawed and should be quashed. However, we do wish to add (and to add with emphasis) that the repeal of the old 28 day time limit should not be taken as a licence to delay applications of this sort indefinitely, perhaps until papers have been lost or memories have faded, and an adherence to the appeal time limit as a guideline would be a very salutary thing. Delay in matters of this sort is always harmful, memories fade, records may be lost and the essence of doing justice is that it should be done expeditiously.

However, that said, it must follow that we quash the conviction. We set aside the fine and the Order for costs, but the disqualification, as has already been said, has run its course and we need say no more about that.

LORD JUSTICE PILL: I agree. Those seeking to have a conviction in the Magistrates' Court to set aside must be expected to act promptly. Delay is a factor which the Magistrates are entitled to take into account when considering such an application, especially when combined, as in this case, with delay in obtaining the appropriate medical evidence. The Justices have a discretion to refuse the application and it is a discretion with which this Court will not readily interfere. The Justices must, however, consider all the relevant circumstances and my Lord, Garland J, has indicated what circumstances were relevant in this case.

The Justices were not entitled, as appears from the affidavit of their Chairman, to simply to say: "that the application should have been [made] much sooner..." and to reject it on that ground. It would not be appropriate in this case, having regard to the lapse of time to which Garland J has referred, to order a rehearing of the case and agree with the order with which my Lord has proposed.

MISS MISZKIEL: My Lord, I am grateful. The Applicant is legally aided in this case, therefore could I have legal aid taxation for costs?

LORD JUSTICE PILL: Legal aid taxation is granted. The Justices have not appeared so there is no scope for an Order against them.