England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		23 October 2003

1. LORD JUSTICE KENNEDY: This is an application for judicial review of a decision of District Judge Marshall made on 12 June 2003 at the Richmond Magistrates' Court when, at the conclusion of the prosecution case, she refused an application made on behalf of the defendant that the proceedings be stayed on the basis that the prosecution had not made adequate disclosure of material which, it was said, could be relevant in relation to the reliability of an intoximeter EC/1R Evidential Breath Testing Instrument, serial no. 03603.

In General No Relief During Hearing, Jurisdiction

2. Normally this court will not entertain an application for a quashing order in relation to a decision made in a magistrate's court where the proceedings in that court are not complete. In R v Rochford Justices ex p Buck (1978) 68 Cr.App.R 114 it was said that there is no jurisdiction to do so, and a distinction was drawn between an order to direct a magistrate to hear and determine a matter, which can be obtained if he refuses to do so, and an order, as Cockburn CJ put it in Carden (1879) 5 QBD 1 at 5, "to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject". Such control, it was said, could only be exercised when the case was at an end. In Buck the prosecution had sought to introduce certain evidence which the justices ruled inadmissible. The matter was then adjourned to enable the prosecution to test the ruling in the Divisional Court. When giving judgment in this court Lord Widgery CJ said that the decision to adjourn was wrong. The prosecution were asking this court to do what Cockburn CJ had said could not be done, that is to say to exercise a measure of control over the way the magistrates try the case. At page 118 he said:

"The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings.

Accordingly, I would be prepared to dispose of this matter on the first argued point, namely, that there was no jurisdiction in this Court to interfere with the justices' decision, that not having been reached by termination of the proceedings below."

Should proceed if jurisdiction

3. In the present case I am completely satisfied that if there is jurisdiction this matter ought to proceed not only because counsel on both sides are here ready to address us in relation to the substantive issues but also because the question of discovery does urgently need to be addressed by this court. In order to make good that point, to which both sides have referred, I will refer, briefly, to the history of this case.
4. The claimant was arrested on Saturday 9 March 2002 when his vehicle was stopped and he failed a roadside breath test. He was taken to Twickenham Police Station where he provided two more samples of breath, which were taken on the intoximeter machine to which I have referred at the start of this judgment. The readings were positive, so he was charged with an offence contrary to Section 5 (1) (a) of the Road Traffic Act 1988.
5. On 13 March 2002 he appeared in Richmond Magistrates' Court and pleaded not guilty. The machine at the police station was of a type which had been approved by the Secretary of State, but those acting for the claimant were anxious to explore its reliability, and they could only do so if they could get access to certain records.
6. The disclosure obligations of the prosecution are set out in the Criminal Proceedings and Investigations Act 1996 and in the Attorney General's Guidelines. In this case the prosecutor's primary disclosure did not deal with the history of the machine, and there is no obvious reason why it should have done so. Matters then followed a somewhat surprising course. One might expect that within 14 days of primary disclosure the claimant would have opted to serve a defence case statement in terms which would have triggered secondary disclosure under the Act. But that is not what occurred. No such statement was served until 20 January 2003, and meanwhile on 24 May 2002 District Judge Wassall directed the prosecution to disclose certain information in relation to the history of the machine. A similar order was made in relation to a number of other cases in which it may be that defence statements had been served in terms which would enable those defendants to apply for orders pursuant to Section 8 of the 1996 Act.
7. After 24 May 2002 some more information was disclosed by the prosecution, but one underlying problem was that the machine had been made and serviced by Intoximeters, an independent company, who had records of their own.
8. At a pre-trial review on 16 September 2002 another district judge - District Judge Clarke - gave further directions in relation to disclosure in this and other cases, after which some more information was provided, and a defence expert examined the machine. Only thereafter was the defence case statement served.
9. In the early months of this year some more material was disclosed, and then on 14 April 2003 before District Judge Marshall the trial began. On 15 April there was a further application under Section 8 of the 1996 Act which yielded a letter from Intoximeters which said they had nothing which would undermine the prosecution or assist the defence. Submissions were then made as to abuse of process and as to whether the prosecution evidence as to the results of the tests at the police station should be excluded pursuant to Section 78 of the Police and Criminal Evidence Act 1984. It was in relation to the first of those submissions that District Judge Marshall ruled in favour of the Crown on 12 June 2003. She held that she was not bound by the previous orders for disclosure which had to be reviewed in the light of subsequent events, and expressed her conclusion as to disclosure as follows:

"In summary then, my answer to the first matter for consideration, is that the Crown have not complied fully with their duties under the statutory scheme for disclosure in that they have not enquired of the Home Office as to the existence of relevant material and have not sought from Intoximeter[s] copies of the engineers' reports which Intoximeters appear willing to disclose. With regard to the information Intoximeters are not willing to disclose, I am of the view that the prosecutor has complied with his duty to consider whether this material would be disclosable if in the hands of the prosecution. He has taken advice that it would not be. He has gone further than that and considered whether he should apply for a witness summons and come to the conclusion that this would not be appropriate. I do not criticise the decisions he has made."

Having found that the prosecution had not fully complied with their duties as to disclosure, the district judge turned to consider the fair trial provisions and whether, as result of the prosecution failure, she should stay the proceedings. She was not persuaded that a fair trial was impossible and concluded:

"The defence have also asked me to consider at this stage exclusion of material under s.78 PACE. This is not an appropriate time for me to make any such decisions which I will consider when weighing all of the evidence following closing submission."

10. The district judge then by letter, on the same day, invited the parties to test her decision in this court because the issue of disclosure has arisen in several cases and there is as yet no judicial guidance from a higher court.
11. So these proceedings were commenced and on 11 July 2003, when the proceedings in the Magistrates' Court were due to resume, permission was granted to seek judicial review and the proceedings in the lower court were ordered to be stayed. Directions were also given to ensure expedition of the hearing in this court.

Are we bound by Buck?

12. Clearly there is a disclosure problem which this court ought to have the opportunity to address, and the district judge envisaged that we could do so at this stage in this case, but was she right? Mrs Hollis QC for the Crown Prosecution Service submits that since Buck was decided the law has developed, and both she and Mr Carter-Manning for the claimant have helpfully drawn our attention to a number of authorities which it is convenient to examine in chronological order.
13. In R v Gateshead Justices ex p Smith (1985) JP 681 summonses alleging motoring offences were served very late, and after hearing evidence about delay the justices dismissed the defence application to stay the proceedings but gave no reasons. The matter was then adjourned and came to this court, which did not decline to deal with it on the basis that it had no jurisdiction. The report does not suggest that Buck was cited but there is to my mind a considerable difference between reviewing a decision whether or not to proceed, and the sort of review which we are being invited to undertake in this case. The former is in essence the direction to hear and determine the matter to which Cockburn CJ referred in Carden.
14. Mr Carter-Manning drew our attention to R v Chief Constable of Merseyside ex p Merrill [1989] 1 WLR 1077 where the Civil Division of the Court of Appeal considered police disciplinary hearings, and the need to give separate consideration to a preliminary objection based on Regulation 7 of the Police (Discipline) Regulations 1985. The Chief Constable had given such consideration, and the applicant had then sought judicial review before the hearing went any further. At page 1088 Lord Donaldson MR said:

"There can be cases in which the evidence is so substantial that it would be sensible to give separate consideration to a preliminary objection based upon regulation 7, but these must be very rare and I do not think that this was such a case. It must be even rarer to have a situation in which judicial review should even be considered before a Chief Constable has reached a final decision on the complaint, if indeed one can be imagined. Normally the time for judicial review would not arise, if at all, before the appeal tribunal had given its decision."

Mr Carter-Manning points out that although it is said that judicial review should be very rare the possibility was not ruled out. I agree, but the court was not dealing with a hearing in a magistrate's court, and there is again no reference to the decision in Buck.

15. Mrs Hollis referred us to R v Telford Justices ex p Badhan (1991) Cr.App.R 171. In that case in committal proceedings on a charge of rape the justices refused an application to stay on the grounds of delay, and then adjourned to enable their ruling to be tested in this court. Lord Justice Mann, giving the judgment of the court, said at page 172:

"Whatever may be the power of examining justices, there can be no doubt that this court, in the exercise of its supervisory jurisdiction, has power to prohibit the commencement of committal proceedings."

Later:

"Equally, it is not open to doubt the power of this court to prohibit the commencement or continuance of the summary trial of an information on the ground of abuse of process."

I agree, but that, of course, is only an example of the jurisdiction which, in Buck, Lord Widgery CJ recognised to exist. Later Lord Justice Mann dealt with why the matter was best dealt with by this court rather than the Crown Court, but that is not a matter with which we need be concerned.

16. That brings me to R v Horseferry Road Magistrates' Court ex p Bennett [1994] 1 AC 42 where Lord Griffiths indicated at page 64 letter D that if in extradition proceedings a serious question arises as to deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court which -

"I regard as the proper forum in which such a decision should be taken."

That case, Mrs Hollis submits, marked a change in the law, but in my judgment it is not obviously at variance with the principle enunciated and applied in Buck. It is one thing for this court to direct a magistrate to proceed or not to proceed. It is quite another for it to examine what, during a trial, has happened, that is to say the way in which the magistrate has in fact proceeded.

17. As I put it to Mrs Hollis during the course of her submissions, it seems to me that despite the developments in the law - including, so far as the Crown Court is concerned, the Supreme Court Act 1981 - we are bound to follow Buck unless we can be persuaded that it has been overruled because on the facts of the present case it cannot be distinguished. It has not been suggested to us that any statutory provision bears upon it. I, for my part, am not persuaded that it has been overruled, and I note that in the current edition of Blackstone's Criminal Practice 2003 and in the current edition of Stone's Justices Manual it is still referred to as good law. It does not feature in the current edition of Archbold Criminal Pleading Evidence and Practice, but that textbook is largely concerned with Crown Court practice.

Conclusion

18. Moreover even today it seems to me that there are powerful reasons for accepting the guidance offered by Buck. It is of the utmost importance that the course of a criminal trial in the Magistrates' Court should not be punctuated by applications for an adjournment to test a ruling in this court, especially when in reality if the case proceeds the ruling may turn out to be of little or no importance. In the present case the district judge has yet to rule in relation to s.78. If her ruling were to favour the claimant the prosecution would fail. That may or may not be a realistic possibility, but I am satisfied that even when, as here, there is an important substantive point which arises during a trial this court should not and indeed cannot intervene. The proper course is to proceed to the end of the trial in the lower court and then to test the matter, almost certainly by way of case stated.
19. In an attempt to deal with the difficulty which the authority creates, it was suggested to us finally by Mrs Hollis that it might be possible to seek in this court a declaration rather than a quashing order. In my judgment, if there is no room for an application for a quashing order there cannot be room for a declaration either. Certainly it would be inappropriate for this court to make one.
20. I would therefore dismiss this appeal and, subject to what Mr Carter-Manning may wish to say to us, I would discharge the stay which was granted when permission was given to move for judicial review.
21. MR JUSTICE ROYCE: I agree with my Lord's reasoning and conclusion. I add nothing further.
22. MR CARTER-MANNING: Mr Lords, I say nothing beyond the practicalities of it. Of course your Lordships must discharge the stay. All I am concerned about is that a day be found, ideally as soon as convenient, but convenient to the experts and that is always the warning note one has on these occasions.
23. LORD JUSTICE KENNEDY: If it assists I am certainly prepared to say the matter should be proceeded with in the Magistrates' Court as soon as possible, so that if appropriate it can be tested in an appropriate way in this court on a later occasion.
24. MR CARTER-MANNING: Your Lordships may see it again.
25. MRS HOLLIS: I have nothing to add save this, directed to the request as far as expedition is concerned, I can tell the court that a day has been fixed for a mid-trial review on 6 November. The district judge has been contacted, and has said that she can hear and accommodate the case as quickly as possible.
26. LORD JUSTICE KENNEDY: Do you know how long the remainder of the proceedings might take?
27. MRS HOLLIS: I believe it will depend partly or mostly on the defence in relation to the experts that may be called. We have the position so far as Intoximeters are concerned to resolve.
28. MR CARTER-MANNING: It is a depressing response, but three days is what I am being told.
29. LORD JUSTICE KENNEDY: If that could be conveyed to the Magistrates' Court as soon as possible they can begin to look at diaries .....
30. MRS HOLLIS: It has been. The judge's clerk is in court at the moment.
31. LORD JUSTICE KENNEDY: Thank you both for your assistance.
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