CO/4560/2002
Neutral Citation Number: [2003] EWHC 353 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 12th February 2003
 
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE HENRIQUES 
 
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ROBERT JOHNSON
(CLAIMANT)

‑v‑ 

STRATFORD MAGISTRATES' COURT
(DEFENDANT) 
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MR N LEY appeared on behalf of the CLAIMANT
MR T SPENCER appeared on behalf of the DEFENDANT
 Wednesday, 12th February 2003
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J U D G M E N T

1.	LORD JUSTICE ROSE:  There is before the court an application for judicial review, with permission granted by Sullivan J.  He did not have before him the detailed history of this litigation, with which this court has been provided by the District Judge whose decision is challenged.
2.	The District Judge in question, Sonia Sims, sits at the Stratford Magistrates' Court in London, and, on 30th September 2002, she refused to accede to an application on behalf of the defence that proceedings be stayed, on the ground of non‑disclosure by the Crown, and she refused to vacate the trial date fixed f
or the proceedings.
3.	The claimant, the defendant before the District Judge, was charged with speeding, an offence said to have been committed as long ago as 7th July 1999.  The proceedings were started, by way of information and summons, on 8th December 1999.
4.	The submission which is made by Mr Ley, on behalf of the claimant, is that the District Judge was wrong in so construing section 1 of the Criminal Procedure and Investigations Act 1996 as to conclude that it did not apply to proceedings instituted by way of summons.  Furthermore, Mr Ley submits that there were documents which ought to have been disclosed by the prosecution, and in relation to which an order for disclosure had previously been made in this case in the same Magistrates' Court.  He submits that the material sought was in the possession of the prosecuting authority, and that, despite the history of this litigation, to which in a moment I shall come, the District Judge was wrong to refuse a stay, or to vacate the trial date.  
5.	To the substance of those submissions, and those made by Mr Spencer, on behalf of the DPP in response, I shall return later.
6.	At this stage, it is convenient to trace the history of this litigation as it is set out in the witness statement, dated 4th December 2002, by the District Judge.  
7.	The summons, to which I have already referred, was first listed for hearing on 31st January 2000.  A not guilty plea was indicated, the trial was fixed for 20th March 2000 and the defendant notified accordingly.  On that date, the defence sought vacation of the trial, in order to seek expert evidence.  Photographic evidence, supportive of the alleged offence, had been served on the defence on 2nd March 2000, and it was with regard to that that expert evidence was, at that time, apparently contemplated on behalf of the defence.
8.	On 10th April 2000, at a pretrial review, directions were given for service of defence expert evidence on the Crown.  On 12th June 2000, when the matter came before the court, the defence confirmed that they would not be calling expert evidence.  The trial was fixed for 18th July. 
9.	On 18th July, the trial date was vacated.  13th September was fixed for a review of the outcome of a decision before the Birmingham Crown Court in relation to the impact of the Human Rights Act on section 172 of the Road Traffic Act 1988, the trial date having been vacated in order for that decision to be considered.
10.	On 13th September, the Birmingham Crown Court had not made its decision, so the matter was further adjourned until 13th December.  Still no decision had been reached, so a further date was fixed for 2nd February 2001.  The court file records that a preliminary issue would be raised on that date as to the validity of the summons.
11.	On 2nd February, it was said that there might have been the laying of information by two separate parties, giving rise to impropriety in relation to the summons and that needed investigation.  A further date was fixed for legal argument.
12.	On 16th March 2001, Deputy District Judge Vickers heard an argument from the defence that the proceedings should be stayed, because there appeared to be one information laid by two separate parties.  The application failed.  The District Judge ordered amendment of the summons.  No trial date was fixed so that the defence could consider their position and decide whether to challenge the Deputy District Judge's decision, by way of judicial review.  
13.	On 6th April and 27th April, the proceedings were again adjourned to permit a judicial review application to be made.  On 16th July, 13th September, 19th September and 5th December 2001, and 30th January 2002, the matter again came before the court for review, as the application for judicial review still remained outstanding.
14.	On 25th February 2002, again before the court, it was confirmed that the High Court had, on 2nd February, dismissed the application for judicial review.  The defence sought a fixture for half a day, in order that an application could be made to stay the proceedings for two reasons: first, a challenge to the legality of the section 172 notice, served under the Road Traffic Act 1988; and, secondly, unfair and prejudicial delay.
15.	On 22nd March 2002, the date fixed for legal argument was vacated because there were difficulties in relation to supplying the prosecution skeleton argument.  So 19th April was fixed for the legal argument to take place.  It did.  District Judge Sims heard the application.  She dismissed both grounds of complaint.
16.	At the conclusion of that hearing, a further pretrial review date was fixed for 8th May, with a date fixed for trial on 18th June.  It was agreed that District Judge Sims would preside, because she had heard nothing which would disqualify her.  
17.	At this time ‑‑ and it is to be noted that this is 19th April 2002, almost two years after the offence was alleged to have been committed ‑‑ the defence indicated that they might wish to challenge the reliability of the speed camera evidence.  The District Judge indicated that, if so, there would presumably be a need to consider instructing an expert to challenge the reliability of the evidence.
18.	On 8th May, the matter again came before the court.  On that occasion, both parties confirmed that they were ready for trial, and the defence specifically confirmed that no expert evidence was to be adduced.  
19.	On 14th June, again before the court, the question of the reliability of the speed camera was raised, and so that date, which had been fixed for trial, was vacated.  The court ordered that the defence should receive certain information, which they had sought from the prosecution, which is conveniently identified in a letter from the claimant's solicitor, dated 17th June 2002.  
20.	Four items were requested: i) a list of unused material; ii) the calibration certificate for the Gatsometer (that being the device which purported to identify the excessive speed); iii) a copy of the Home Office Approval, with conditions for use; and iv) the ACPO guidelines for the operation of the Gatsometer.
21.	That order having been made, the trial was fixed to take place over a period of two hours on 16th July.  However, on 10th July, the matter was listed again, at the request of the defence, who complained that they had not received primary disclosure from the prosecution, and, therefore, were not in a position to serve a defence case statement.  
22.	The prosecution said that the police had not provided any further documentation, and all documents in their possession had been disclosed, including the photographic evidence and details in relation to the calibration.  
23.	The defence said that they wanted a specific calibration certificate, and the evidence already provided did not satisfy their requirements.
24.	As to the Home Office Approval and the ACPO guidelines, the prosecution said that those materials were not in their possession.  The trial date of 16th July was vacated to enable the defence to serve a defence case statement, and a fresh date was fixed for trial on 30th September.  
25.	On 26th September, at the application of the defence, the matter came before Deputy District Judge Snow, on an application to vacate the trial date of 30th September.  That was made on the basis of lack of disclosure, in relation to the documentation to which I have already referred.  
26.	The Deputy District Judge enquired as to the basis of the application and formed the view that the Criminal Procedure and Investigations Act 1996 did not apply because the proceedings had been started by summons and were outwith the reference to "charged" in section 1 of the 1996 Act.
27.	The Deputy District Judge said that the application should be pursued before the trial court, in view of the age and history of the case and the proximity of the trial.
28.	On 30th September, District Judge Sims presided, anticipating, no doubt, to hear a trial.  There were, however, applications made, as I indicated at the outset of this judgment, for the proceedings to be stayed, for the trial date to be vacated, and for the trial not to be again listed until disclosure had been made.  
29.	There was a suggestion made, on behalf of the defence, that the date of 30th September was actually only fixed for mention.  But, as the District Judge points out, that was clearly incorrect, as was pointed out to counsel.  
30.	There was, in consequence, throughout 30th September, a series of adjournments, to enable counsel to obtain full instructions in the event that his application for stay and vacation failed and to procure, if necessary, the attendance of the defendant.  
31.	Submissions were made by counsel for the defendant that there had been a failure to disclose the relevant material, in accordance with the Criminal Procedure and Investigations Act, and that, absent such documentation, the defendant could not have a fair trial.  
32.	The prosecution conceded that a standard letter under section 3 of the Act had been forwarded to the defence, which did not contain a schedule of unused material, or a schedule indicating that there was no unused material.  As to the correctness of that concession, there might be some doubt, bearing in mind the terms of the letter of 3rd July 2002, which is before this court, which is addressed by the Crown Prosecution Service to the defendant solicitors and says that there is no unused material and all papers have previously been disclosed.
33.	The letter pointed out that the calibration certificate, the Home Office Approval and the ACPO guidelines were not on the prosecution file, and the suggestion was made that that material might be obtained direct from those more likely to have it in their possession.
34.	The District Judge, having heard the submissions on which the application for a stay and vacation were based, concluded that, as these proceedings were commenced by way of summons, they were not within the words of section 1A of the 1996 Act, which applied to "a person who is charged with a summary offence".
35.	The District Judge gave reasons as to why she had reached that conclusion.  She said that proceedings are normally begun by charge or summons.  A summons is dealt with under section 1 of the Magistrates' Courts Act 1980 and the relevant Magistrates' Court Rules, and a person falls to be charged following consideration of sufficient evidence by a custody officer, under the Police and Criminal Evidence Act 1984, and the Code of Practice made under it.  
36.	The District Judge concluded that, in consequence, the two processes for bringing the person before the courts were either by way of charge, or by way of summons.  In the light of that interpretation, she did not consider that disclosure should be ordered under the Act.  She went on to consider the applicability of the Human Rights Act and the questions of proportionality and the authority of R v Stratford Justices ex parte Imbert [1999] 2 Cr App R 276, in relation to disclosure.  
37.	She accepted that, by virtue of Article 6, all material evidence for or against a defendant should be disclosed before trial, in order for a defendant to obtain a fair trial.  She decided that the proportionality of ordering disclosure had to be assessed by balancing it with the effect of non‑disclosure.  She reached the conclusion that the additional documentation sought by the defence, and the proportionality between the defence request for disclosure and the effect upon the defendant if disclosure did not take place, would not result in any impediment to the fairness of the trial, if that material was not disclosed.
38.	She said this:
"I noted that the photographs of the allegation had been served (since March 2000) and the calibration details were noted on them, a statement confirming the certification in respect of the calibration had also [been] served following the not guilty plea".
39.	She concluded that the prosecution had complied, where possible, with their disclosure obligations.
40.	She also considered whether there was any obligation to disclose material not in their possession, in particular the Home Office Approvals and the ACPO guidelines, and she concluded that there was no duty to provide such disclosure, in relation to a speeding offence, as that would seriously hamper the application and administration of prosecutions in cases of that kind and would be totally disproportionate to any adverse effect upon a defendant.
41.	She pointed out that, although an issue as to the accuracy of the speed camera had been raised on 19th April 2002, thereafter, as I have already indicated, the defence had confirmed, at subsequent hearings, that they were not going to call expert evidence and that they were ready for trial.  The District Judge said this: 
"It was my view the trial should take place without any further delay".
42.	In fact, because the defendant did not appear during the course of the day, and because there were other cases in the District Judge's list, it was agreed that a fresh date would be given for trial.  The defence indicated that they would seek to have that matter adjourned, pending an application for judicial review.
43.	So, although the trial date was fixed for 4th October, that date was vacated, once the single judge had given permission for judicial review.
44.	In support of his submission that the disclosure provisions of the 1996 Act apply in this case, Mr Ley referred to section 1(2)(e) of the Act, in relation to the issuing of a voluntary bill, and he referred to the case of Salubi [2002] EWHC 919 Admin, Divisional Court transcript from 10th May 2002, and to Cairns [2002] EWCA Cr 2838 Court of Appeal Criminal Division transcript, 22nd November 2002. 
45.	He submitted that the same disclosure obligation arises in relation to summary offences as in relation to indictable offences, at common law and under Article 6, as well as, he submits, under section 1 of the 1996 Act.  He submits, in relation to the statute, that it cannot be determinative of an obligation to disclose whether the person was charged at a police station or summoned. 
46.	He also referred to the Code of Practice, issued under the 1996 Act, paragraph 2.1 of which identifies charging as including prosecution by way of summons.  
47.	Mr Ley submitted, in reliance on R v Bolton Justices ex parte Scally [1991] 1QB 537, and, in particular, a passage in the judgment of Farquharson J in an earlier case, cited in the judgement of Watkins LJ, that the Crown Prosecution Service and the police, for the purposes of disclosure, are one.
48.	That proposition is not gainsaid by Mr Spencer, on behalf of the Director.
49.	The ACPO guidelines, submitted Mr Ley, would be in the hands of the Metropolitan Police, who investigated this offence.
50.	Once the order had been made by the Justices for disclosure, it should have been complied with.  There had been adequate time, of the order of four months, to comply with that order and, therefore, a stay should have been ordered and the trial date vacated by the District Judge in the exercise of her discretion.  It was Wednesbury unreasonable of her to refuse to accede to the defence request.
51.	On behalf of the Director, Mr Spencer submitted that the question of statutory construction was a sterile one because, as he conceded, the common law obligation, particularly in the light of the provisions of Article 6 of the European Convention, is that the prosecution must disclose material which may assist the defence.
52.	However, so far as the material sought in the present case is concerned, the calibration certificate had been served, as appears from the District Judge's statement.  There was no schedule of unused material, as was made plain by the letter from the Crown Prosecution Service, dated 3rd July, to which I have referred, and, so far as the Home Office Approval as to the conditions of use of the device were concerned, the Home Office is not part of the prosecution authority and should, if appropriate, be subjected to an order for third party disclosure.
53.	Likewise, so far as ACPO is concerned, that is a body which is not, of itself, part of the prosecution process.  Therefore, again, a third party disclosure request would be necessary, in order to obtain the guidelines issued by that body.
54.	So far as the test of disclosure is concerned, submits Mr Spencer, material must be relevant, and, in the present case, there is no basis provided by the defence for enquiring as to the material in relation to certification of the Gatso equipment.
55.	The duty to disclose would only arise if there were a basis for indicating that there was something in the certification which might undermine the prosecution case.  Mr Spencer conceded, for the purpose of this case, that the District Judge may well have been wrong in her construction of the statute.  But, for the reason already given, that was immaterial because of the common law obligation.  
56.	He also conceded that, in the present case, proportionality would not have been a relevant question in relation to whether or not disclosure should be ordered.  But, he submitted, even if the District Judge was in error in those two respects, her decision should be upheld because the disclosure here sought was no more than a fishing expedition, or a delaying tactic.  In the context of the history of this case, which I have earlier set out, her decision to refuse a stay and to vacate the trial was not only unimpeachable, but was inevitable and proper in the circumstances of this case.
57.	Mr Ley, in his response, said that all cross‑examination is a fishing expedition.  That, it may be, depends on the nature of the cross‑examination and who is conducting it.  He stressed that there was ample opportunity for the prosecution to comply with the order for disclosure, which had been made in July by the Magistrates' Court.
58.	In my judgment, it is unnecessary to adjudicate for the purposes of this case on the precise ambit of the word "charged" in section 1 of the 1996 Act.  Mr Spencer has very properly conceded that, in any event, the common law obligation of disclosure would be more than sufficient, in an appropriate case, for disclosure to be made in relation even to an alleged offence of speeding proceedings in relation to which were instituted by summons.
59.	There are, however, as it seems to me, a number of insuperable objections to the submissions made by Mr Ley.  For my part, so far as the minutiae of the disclosure sought is concerned, I am wholly unpersuaded that Home Office Approval of conditions of use, or ACPO guidelines, can properly be said to be in the possession of the prosecution for the purposes of disclosure.  
60.	As to the calibration certificate, as is apparent from what the District Judge said in the passage to which I have referred, it had been served.  If it had not, so far as the circumstances of the present case are concerned, the obligation to disclose had been adequately complied with by the service of the photographs, with the calibration upon them and the other material, to which the District Judge referred, in the context of the repeated defence disclaimer that there was any intention of calling any expert evidence. 
61.	Quite apart from those considerations, however, it seems to me that it is inconceivable that the District Judge could, or should, have acceded to this application further to stay these proceedings, or vacate the trial date.  
62.	I have earlier set out the history of this litigation.  There are eight particular features of it, to which I draw attention.  
63.	First, the refusal to stay was made more than three years after the date of the alleged speeding offence.  Secondly, much, although not all, of that period had been occupied by attempts on behalf of the claimant, mostly of a spurious nature, to delay the trial.  Thirdly, the photographic evidence on which the prosecution relied, with the calibration details noted on them, had been served on the defence as long ago as 2nd March 2000.  
64.	Fourthly, following an adjournment on 20th March, expressly for the purpose of enabling the defence to seek expert evidence, on 12th June 2000 the defence confirmed that they would not be calling expert evidence.  
65.	Fifthly, it was not until 19th April 2002 that the defence indicated that they might wish to challenge the reliability of the speed camera evidence.  Sixthly, on 8th May 2002, the defence confirmed that they were ready for trial, and no expert evidence was to be called.
66.	Seventhly, on 14th June 2002, the issue of the reliability of the speed camera was again raised by the defence, and the court ordered the prosecution to provide the information to which I have referred; but, eighthly, on 3rd July, the Crown Prosecution Service wrote to the claimant's solicitors, in the terms which I have already rehearsed.
67.	In these circumstances, even on the assumption that, which, for the reasons I have given, I do not accept, there was any obligation on the prosecution to make further disclosure, there was, as it seems to me, no proper basis on which a stay could have been ordered.  There was no ground for delaying the trial further.  There was no reason to believe that, even if there were an obligation to make further disclosure, the failure to do so would have an adverse effect upon the fairness of the trial.  
68.	Accordingly, I would dismiss this application.
69.	MR JUSTICE HENRIQUES:  I agree.
70.	MR SPENCER:  My Lord, thank you.  I would make an application for costs in this matter.
71.	LORD JUSTICE ROSE:  I suppose the claimant is publicly funded, is he?
72.	MR LEY:  No, my Lord.
73.	LORD JUSTICE ROSE:  He is not? 
74.	MR LEY:  No, my Lord. 
75.	LORD JUSTICE ROSE:  Can you resist an application for costs?
76.	MR LEY:  Yes, my Lord, because, as it happened, your Lordship did not decide the point, but it did raise a point, which was bound to occur if, sooner or later, of the effects of defendants who are summoned, and what are their rights under the Act.  
77.	If it was not decided in this case, clearly, other cases were going to come out from the Magistrates' Court, which would have to be decided at some stage, my Lord. 
78.	So it raised a point of law, which, I submit, was worthy of consideration.  
79.	This, of course, unlike civil cases, the court has a much greater discretion over costs in criminal cases, and I would ask that costs lie where they fall, my Lord. 
80.	LORD JUSTICE ROSE:  You would ask for your costs? 
81.	MR LEY:  No, no.  The costs lie where they fall.  Each side pay their own costs.  
82.	If your Lordship were thinking of granting my client costs out of central funds, I would not object, but I am merely asking that each side pay their own costs, my Lord.
83.	LORD JUSTICE ROSE:  Thank you.
84.	The claimant will pay the respondent's costs of, and incidental to, this application.  Thank you.