England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		18th June 2004

1. MR JUSTICE MITTING: This is an appeal by way of case stated from the decision of Alnwick Magistrates' Court staying an information for careless driving. The information was laid following a tragic accident on 20th February 2003. In a nutshell, on that day the respondent, Mr Taylor, was driving a bus on a slip road onto the A1 at a junction which included a right angle left-hand turn for those on the A1. As he approached the junction, a car, driven by Mr Gilbert, who unhappily was killed in the accident, and containing a passenger who was likewise killed, approached the junction indicating to turn left. In fact, it was not the intention of the deceased driver to turn left, but to carry straight on at the speed at which he was travelling, which, in the opinion of an accident reconstruction expert, was a little under 30 miles per hour. In short, this was one of those unhappy tragic accidents on which it seems, on any objective view, both drivers were at fault.
2. Consideration was given to prosecuting the bus driver for careless driving. As is always the case in fatal accidents, the accident itself was carefully investigated by, amongst others, an accident reconstruction expert. He concluded, although strictly it was not a matter for him, that the bus driver was clearly at fault, as was the deceased driver. In his view, the bus driver was clearly at fault because he had misread the signal of the deceased driver, in circumstances where he must have been travelling at about, or at least, 29 miles per hour. On any fair understanding of the evidence available to the Crown, there was a perfectly clear case of careless driving against the bus driver. Nevertheless the Magistrates were told, and I am told, although not on the basis of any evidence or witness statement, that three Crown prosecutors decided for themselves that there was insufficient evidence of careless driving to justify prosecuting the bus driver. The decision was made by a case worker, reviewed by a senior case worker, and finally reviewed by the Chief Crown Prosecutor.
3. Representations then followed on the part of the family of the deceased driver. Those representations led to a change of mind. It was decided that there was sufficient evidence of careless driving on the part of the bus driver to justify prosecution.
4. The test which the Crown Prosecution Service had to apply was twofold. First: was there sufficient evidence to satisfy an evidential test, that is to say whether or not it was more likely than not that the evidence would result in conviction; secondly, a public interest test: was it in the public interest to prosecute? Amongst other factors which the Crown Prosecutor was entitled to take into account, under paragraph 6.5(c) of the Code, was whether or not the offence was committed as a result of a genuine mistake or misunderstanding, as plainly this was.
5. As presented to the Magistrates, the Crown's case was that a very obvious mistake had been made by the three Crown Prosecution lawyers who reviewed the file, and made, and approved, the decision not to prosecute. Paragraph 10.2(a) of the CPS code contains the following as one of the reasons for changing a decision about whether or not to prosecute:

"Rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand."

6. The bus driver was notified on 12th June 2003 that he would not be prosecuted. The letter notifying him said:

"After careful consideration of all the available evidence the Crown Prosecution Service have decided that no further action will be taken in this matter."

7. Following representations by the family, and further review, a decision to initiate prosecution was notified on 18th July 2003. It was not suggested that there was any severe prejudice suffered by the bus driver as a result of being under a misapprehension about whether or not he would be prosecuted for those five weeks.
8. When the information came to be laid, Mr Taylor and his representatives submitted that the summons should be stayed because the change of mind amounted to a vexatious prosecution, or an abuse of process -- rather over-elaborate terms for an unfair use of the Crown Prosecution Service's powers. It was accepted before the justices, and is accepted in front of me by Mr Moran, that unless the Crown could satisfy the justices, and can satisfy me, that the original decision was exclusively evidentially based and was clearly wrong, that it would not be right to allow that original decision to be revoked. Consequently, it would be either vexatious or an abuse to continue to prosecute.
9. The magistrates had in mind, as does Mr Moran, the case of Bloomfield 1 Cr App R 135, decided on June 25 1996, in which the court observed that the assurance of the Crown about whether or not a prosecution would ensue should ordinarily be relied upon, and that, even though there was no prejudice, it could be abusive to proceed following an unqualified assurance that there would be no prosecution.
10. I readily accept that, if the sole mainspring of the decision not to prosecute was an application of the evidential test, the decision was clearly wrong. As I have already observed, there was plain evidence here of careless driving on the part of the bus driver; but I cannot accept, without evidence, that the decision was made only on that ground. It seems to me that one or all three of the prosecutors who made or confirmed the original decision must have had in mind public interest grounds. It would have been a perfectly rational decision to decide that no good would come of prosecuting the bus driver, for a variety of reasons. First, that the accident occurred as a result of a mistake or misunderstanding by him; secondly, that he was by no means the only one causatively at fault; and, thirdly, that, in those circumstances, it was far from unlikely that a bench of magistrates would take a very lenient view of the driving, even upon a conviction, and impose either a small or a nominal penalty.
11. In those circumstances, I can readily understand a decision of a prosecutor that no good purpose would be served by bringing the prosecution. That was the view of the magistrates who, perfectly sensibly in paragraph 28, reached the decision that this was an accident for which blame lay on both drivers, but that any penalty for the bus driver's culpability would be likely to be mitigated. They noted, in paragraph 27, a conclusion which I expressed at the start of argument in this case, namely that:

"We did not receive any convincing explanation as to why the Crown had failed to take into account the accident investigator's conclusions in the first place."

12. I find it, as they did, utterly inconceivable that those who took the decision did not read the file, including the accident investigators' report, and, had they done so, they could not but have reached the conclusions which I have stated. The magistrates reminded themselves about the principles to be applied, including that expounded in the case of Bloomfield, and concluded in paragraph 29 that Mr Taylor was entitled to expect that the initial decision by the Crown was one on which he could rely. In my view, the magistrates were entitled to come to that conclusion. They were entitled to stay the proceedings as, in the old-fashioned language, vexatious or abusive; in modern language as unfair, and I see no good reason for disturbing their decision. Consequently, this appeal is dismissed.
13. Are there any applications?
14. MISS PUNJANI: No, my Lord.
15. MR JUSTICE MITTING: Thank you both. Thank you, Mr Moran, for your help. I can readily understand that the original decision was a disappointment to the family, as the decision of the magistrates was, and as no doubt, mine is, but I am sure they will realise that nothing whatever can be done to put right the mishaps of a moment on the part of two drivers.