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
		9 June 2006

1. MR JUSTICE MITTING: On 3 November 2001 at 5.05 pm the appellant was driving a Passat motor car, registration no. S747 SEF, in North Pole Road, London W10. The manner of his driving attracted the attention of two police officers. They stopped him. They smelled alcohol on his breath and they administered a roadside breath test; it was positive. He was arrested and taken to Notting Hill Police Station. At 5.37 and 5.41 pm he provided two specimens of breath on an intoximeter ECIR device which each produced readings of 81 milligrams of alcohol per 100 millilitres of breath.
2. On 8 November 2001 the appellant pleaded guilty to an offence of driving a motor vehicle on a road after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to Section 5 (1) (a) of the Road Traffic Act 1988. On 4 December 2001 he changed his plea and the case was adjourned for trial until 14 February 2002 with a time estimate of half-a-day. The defence then applied for a further adjournment to permit expert evidence to be obtained concerning type-approval and operation of the intoximeter device. Applications were made in this and other cases for disclosure relating to those issues. They were twice rejected on 7 June 2003 and 12 August 2003. The case was re-fixed for hearing on 23 March 2004 with a time estimate of two days. Prosecution witnesses were not available on that day and the trial was again adjourned until 27 October 2004 with the same time estimate. The time estimate was inaccurate. Four days were said to be required for the hearing which was re-fixed for and heard in three days, on 29 to 31 March 2005. The appellant was convicted by District Judge Lachhar and fined £500 and ordered to pay £4,000 towards the prosecution costs.
3. Before evidence was called the district judge was asked to stay proceedings as an abuse of process. The district judge rejected the application. Her rejection gives rise to the first two questions posed in the stated case:

"(a) Was I right to reject the defence application to stay the proceedings as an abuse of process by reason of delay?

(b) Was I right to reject the defence application to stay the proceedings as abuse of process due to the non-production of the CCTV video?"

Delay

4. I deal first with delay. The district judge noted that the principal reasons for the delay were the lengthy disclosure applications made by the defence and the lack of availability of the small number of expert witnesses able to give evidence about the type-approval and operation of the intoximeter device. She asked Mr Ley what the issues in the case were; he said type-approval and that he was putting the prosecution to proof of its case. In the light of this statement, she concluded that the appellant had not been prejudiced by the delay and could have a fair trial. Mr Ley submits now that the district judge should have stayed proceedings on a different basis. The appellant's evidence about what he had drunk and the claim that he had, before breathing into the intoximeter device on one of the two tests, suffered a reflux was disbelieved by the district judge. He submits that that evidence would have been more credible if given closer in time to the date of his arrest. Likewise, the evidence of a friend as to the amount which the appellant had drunk was also disbelieved, the district judge noting that he had first been asked to give evidence about it on the day before the trial.
5. The law is not in doubt. It is appropriate to stay proceedings for delay if a fair trial is not possible or if it would be unfair to try the defendant (see Attorney General's Ref. No. 2/2001 [2004] 2 AC 72). On the submissions made to her before the start of the trial the district judge was undoubtedly right to reject the application. The case would turn on expert evidence about the intoximeter device which would not be affected by the passage of time. A fair trial was possible and it would not have been unfair to try the defendant. Even in hindsight there was no unfairness. Her rejection of the evidence of the appellant and his witness did not turn on the detail or accuracy of their recollection which might have been adversely affected by delay but on its credibility. There is nothing in this ground of appeal. The answer to the first question is therefore yes.

The loss of the CCTV footage from within Notting Hill Police Station

6. A CCTV covered the corridors outside the custody suite. The police officer who gave evidence said that he did not know if it covered the area where the breath test would have been administered. It had gone missing; the prosecution conceded that it should not have done. Mr Ley submitted that it might have shown that the appellant burped and whether the police officer who administered the tests had followed the manufacturer's recommended procedure. He relied on Lang, a case decided by the Court of Appeal (Criminal Division) on 15 April 1999, in which it was held that the loss of an audio tape of what was said by the sole police witness in a motorised pursuit of a car said to have been driven dangerously by the defendant should have led the trial judge to stay the proceedings. The court held that "it was inescapable that there exists more than a fanciful chance" that if the tape had been available there would have been material upon which the witness could have been cross-examined. The court emphasised however that it was the specific facts of the case that led to that conclusion.
7. The district judge rejected the submission, holding, as was conceded, that there was no suggestion of bad faith and that it was unclear whether the CCTV footage would have recorded relevant events. In any event, two police officers were available to be cross-examined about these matters and one of them completed a form contemporaneously recording the administration and results of the test. The district judge's conclusion is clearly right. The suggestion that the CCTV footage might have assisted the defence was, to put it politely, speculative or more bluntly far-fetched.
8. In any event, the only ground of appeal originally relied on to which the CCTV footage could have been relevant was the suggestion that a false reading may have resulted on one or other of the two tests from a reflux of breath into the mouth from the oesophagus. This ground of appeal has however, rightly, been abandoned. The CCTV issue is therefore now known to have been irrelevant. The answer to the second question is therefore: yes.
9. Much of the evidence was directed to type-approval of the intoximeter device. The district judge found that it was type-approved, and although the finding is set out as the third question in the case there is now no challenge to that finding.

The police radio issue

10. The fourth question is:

"Was I right to reject the defence application to exclude the evidence of breath test obtained on an ECIR when a police constable had his police radio on in the room whilst the breath analysis was being carried out?"

The pro forma completed by the administering police officer contained the printed notation:

"As a precaution radio sets and mobile phones should be switched off in the immediate vicinity of substantive breath testing devices."

It was accepted that a police officer had left his police radio on throughout the procedure in the room in which it was performed. Mr Ley submitted that the district judge should therefore have excluded the evidence of the test under Section 78 of the Police and Criminal Evidence Act 1984. The district judge directed herself in accordance with the observations of Lord Pearson and Lord Diplock, as she was invited to, in Carey [1970] AC 1072, 1089D and 1089E. First of all, Lord Pearson observed:

"Clearly the device is meant to be used in accordance with the maker's instructions because that is the proper way to use it. But it does not follow that a test carried out for the purpose stated in the definition and with a device of the approved type will fail to be a 'breath test' within the meaning of the Act merely because there is not perfect compliance with the instructions. The more rational view is that such a test is a 'breath test' though carried out imperfectly."

Lord Diplock observed:

" ..... nothing contained in the instructions forms any part of the statutory requirements of a valid 'breath test'. They are no more than guidance provided by the makers of the device to those who use it for carrying out breath tests."

In addition, she had what is described in the case as 'the unchallenged evidence' of Mrs Charlotte Dale, an expert in the matter, that the police radio being switched on would not affect the accuracy or reliability of the machine. She rejected the submissions.

11. Mr Ley submits that this court should go behind her express finding of fact on this issue set out in the case and reject her reliance on the evidence of Mrs Dale. This is an inadmissible argument. The stated case sets out the factual basis upon which the appeal to this court is brought and decided. On that basis the district judge was right to answer the fourth question as she did, and my answer is likewise: yes.
12. Mr Ley submitted in this court that if the circumstances in which the test was administered could have resulted in an inaccurate reading then it was not a test complying with statutory requirements. He submitted that that was so even if, on the facts found by the court, on evidence subsequently available to it, the fact-finder was satisfied so as to be sure that the test was in fact properly administered and accurate. That proposition has only to be stated to be seen for what it is, plainly untenable. If any authority were required for that view it is to be found in Watkinson v Barley [1975] RTR, a decision of this court. On the penultimate page of the report at letters B to C, the Lord Chief Justice observed:

"Suffice it to say for present purposes that Webber v Carey decides that mere proof of non-compliance with the manufacturers' instructions does not of itself invalidate the test. It must be shown, in my judgment, that the failure to comply with the manufacturers' instructions, if failure there be, is a failure which could adversely affect the driver. If it is apparent that departure from the instructions could not affect the result of the test adversely to the driver, then no further reference to a failure to comply with the instructions need be made."

That was precisely the situation here.

13. The fifth question is not pursued.

Costs

14. The sixth question is:

"Was it Wednesbury unreasonable of me to order a fine of £500 and costs of £4,000 to be paid by Mr Ivic without an exact breakdown of costs being provided?"

At first sight the order for costs appears not to be proportionate to the fine, thus offending the normal rule that costs should not, in the ordinary way, be grossly disproportionate to the fine. (See Lord Chief Justice Bingham in R v Northallerton Justices ex parte Dove [1999] EWHC Admin 499 para 194). However the normal rule does not provide a licence to defendants or their advisers to cause very substantial costs to be incurred, far beyond those required to prosecute and defend the case in the normal way, at no financial risk. It should be clearly understood that defendants who instruct, or are unwise enough to accept advice from, their lawyers to pursue hopeless technical defences to breathalyser prosecutions which inflate the costs of the case will pay those costs if their defence fails. The normal rule in such circumstances should, in my view, be that those who cause the costs to be incurred should pay them.

15. Subject to one further point, the district judge was unquestionably right to order the appellant to pay £4,000 costs even though she only imposed a fine of £500. No schedule of costs was provided to her before she made her order. It should have been. Recognising that, she gave the defendant an opportunity of deferring the assessment of costs but warned him that he would be at risk of incurring further costs if he did so. The precise form in which the warning was given was a question to Mr Ley asking whether the defence would be prepared to pay the full costs if she adjourned the matter, to which he gave the answer no. The appellant thereby elected by his counsel to accept an assessment by the district judge without a schedule. She did not exceed the margin of the discretion conferred upon her in assessing the costs by making the order that she did. The answer to the sixth question is therefore no.
16. For those reasons I would reject all of the grounds of appeal pursued in this court.
17. LORD JUSTICE MAURICE KAY: I entirely agree. I would answer the questions in the same way and for the same reasons which my Lord has identified. I wish expressly to endorse what he has said on the subject of costs.
18. MR McGUINNESS: Initially the district judge declined to state a case. The appellant therefore applied for judicial review for an order compelling her to state a case. As is normal, once leave was granted by the single judge then the judicial review application was dealt with by consent. I do not have the date but it is apparent from the consent order that was made on 5 October last year, where the application for judicial review succeeded, that the appellant's disqualification from driving, payment of the fine and payment of the costs had all been suspended when permission to move for judicial review was granted. All of those matters were suspended until the hearing of the case stated, so that is today. So it follows that as from any time which your Lordships deem appropriate the appellant's disqualification from driving is reinstated. Of course he must then pay the fine and the order for costs. The practice is sometimes varied. Sometimes a court has ordered that the disqualification is to be reinstated from a particular time, later on today or tomorrow.
19. LORD JUSTICE MAURICE KAY: The appellant is not here.
20. MR McGUINNESS: No, he is not. He will need to be informed which is why the court may wish to order that the disqualification be reinstated from a particular time to allow my learned friend's instructing solicitor an opportunity to communicate the dismissal of the appeal.
21. LORD JUSTICE MAURICE KAY: Or until service of the order upon him.
22. MR McGUINNESS: Yes.
23. MR JUSTICE MITTING: If he knows of the matter today and will want to know the outcome, so I assume there will be a way of communicating with him.
24. MR McGUINNESS: I would think so, my Lord, yes.
25. LORD JUSTICE MAURICE KAY: You have a representation order in this court, Mr Ley, I have noticed.
26. MR LEY: Yes.
27. LORD JUSTICE MAURICE KAY: That is for you, and not solicitors.
28. MR LEY: It must be, then. That would be right, my Lord, yes. One can understand why they do it, yes, that appears to be the case. These appear to be, yes.
29. LORD JUSTICE MAURICE KAY: How do you suggest the period of disqualification and orders should be implemented?
30. MR LEY: I was going to suggest hopefully they could get in touch with him today, and I was going to suggest midnight tonight, my Lord, because he could be driving around now and he does not answer his phone or something like that, or may be midnight on Saturday night. I am in your Lordships' hands.
31. LORD JUSTICE MAURICE KAY: I am minded to say midnight on Monday because that is the next working day.
32. MR McGUINNESS: The next matter is costs in this appeal. The appellant had the benefit of representation, but nevertheless the court has a discretion to award costs. The respondent would ask for summary assessment. We have provided a figure to my friend. Subject to any representations he has to make in respect of the sum, on behalf of the respondents .....
33. LORD JUSTICE MAURICE KAY: When was he provided with the schedule?
34. MR McGUINNESS: A few minutes ago while the judgment was being given. Subject to any representations my friend has, the respondent would seek an order for costs against the appellant not to be enforced without leave of the court - I am conscious of the fact that he has the benefit of a representation order - in the sum of £3,445.
35. MR JUSTICE MITTING: £3,000 plus VAT?
36. MR McGUINNESS: That is excluding VAT.
37. LORD JUSTICE MAURICE KAY: Where is the costs-awarding power?
38. MR McGUINNESS: It is Section 51 of the Supreme Court Act 1981.
39. MR JUSTICE MITTING: It is still called the Supreme Court Act.
40. LORD JUSTICE MAURICE KAY: It is to be called the Senior Courts Act when it becomes a junior court.
41. MR McGUINNESS: But not yet. It is Section 51.
42. LORD JUSTICE MAURICE KAY: This is in Archbold.
43. MR McGUINNESS: The section is the summary of powers set out at page 921 of Archbold, paragraph 6-85. I am told that the figure, when one adds VAT, is £4,047.88.
44. LORD JUSTICE MAURICE KAY: Mr Ley?
45. MR LEY: While my friend was looking up the Supreme Court Act I was looking up the practice direction in the CPR. What it says - this is practice direction PDC costs, Section 13 Summary Assessment: General Provisions - it goes on to say:

"The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought. The statement of costs should be filed and the copies of it should be served as soon as possible and in any event not less than 24 hours before the date fixed for the hearing."

46. LORD JUSTICE MAURICE KAY: Where are you heading? Do you want the matter to go for assessment?
47. MR LEY: Not if my client has to pay the costs of the assessment.
48. LORD JUSTICE MAURICE KAY: No.
49. MR LEY: I was going to come on to that in one moment, my Lord.

"The failure by a party, without reasonable excuse, to comply with the foregoing paragraphs will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment ..... "

I would submit that as my client was two days out of time - - sorry, as my client entered his case stated two days out of time, my learned friend objected to being allowed to see any alterations at any stage that may be refused. And by analogy their failure to comply with the practice direction - - I would say there should be no order as to costs. Alternatively, if your Lordships were to make an order I can say a few things about it: (1) this cannot justify two counsel this case.

50. LORD JUSTICE MAURICE KAY: That can be sorted out on assessment. If you are taking the point that you cannot deal with it - the itemisation of the bill - and you have not got a solicitor to help you deal with it, you have not got a client and therefore you are disadvantaged by the late service the alternative is assessment.
51. MR LEY: And they pay the costs of the assessment.
52. LORD JUSTICE MAURICE KAY: Sorry?
53. MR LEY: And that the Crown pay the costs of the assessment.
54. LORD JUSTICE MAURICE KAY: No, not necessarily. That will be a matter .....
55. MR LEY: Normally my client would have to pay the costs of the assessment. If this had been served 24 hours beforehand I could have spoken to him on the telephone.
56. LORD JUSTICE MAURICE KAY: If there is assessment which is time consuming and you take no points unsuccessfully why should the Crown have to pay the costs of assessment?
57. MR LEY: If they complied with the practice direction we would not have had the costs of the assessment.
58. LORD JUSTICE MAURICE KAY: Thank you. (Pause) We shall make an order for costs in favour of the respondent on the basis that it is not to be enforced without leave of the court and in such sum as is assessed unless previously agreed.
59. MR LEY: I am obliged.
60. LORD JUSTICE MAURICE KAY: Mr Ley, I cannot help noticing - and I have looked at the case of Sullivan in which you appeared - at the end of it the transcript reminds me that I expressed surprise in that case that you had still remained in possession of a representation order following certain developments. The chronology was slightly on your side then. This is another case where you got a representation order on the basis of a case stated with numerous questions posed, and half of which are abandoned, and we end up with a pretty hopeless appeal. When you abandon things along the way, do you not feel obliged to inform the Administrative Court in case it has some effect on the granting of the representation order?
61. MR LEY: I never thought of it. If I can explain why: normally on legal aid I have a solicitor and I would normally have written an opinion. Somebody would call back from the legal aid authority. I having no legal aid for a solicitor, then of course one does not think of doing these things, my Lords. In future, if that is your Lordships' view .....
62. LORD JUSTICE MAURICE KAY: You still have duties to the funding authority. You sought and obtained a representation order on one basis and as time goes by and before relevant costs are incurred you greatly reduce the case and pursue some points which I apprehend you might not have had great confidence in. It is not just a free ride. You are under a duty to inform the funding body. In this case there is the court, the judge in charge of the Administrative Court.
63. MR LEY: All I can say is two things: one, which is not really an excuse, my skeleton argument - - the court received the skeleton argument three weeks in advance. In that sense the court had notice of what I was doing. In future, I will write a note saying if there is any alteration please show this to the judge responsible for granting legal aid; I will on future occasions. So when the court gets a skeleton argument they can form their own view, opinion. That would be the safeguard. I will attach always in future a note to it saying as I am not pursuing questions 4, 5, 6, 7 please refer to the judge responsible for granting legal aid.
64. LORD JUSTICE MAURICE KAY: Or if you come to the view on mature reflection, through your skeleton argument, you can make that clear as well. These are very expensive cases; they are absorbing vast amounts of public money to nobody's benefit except the lawyers. I hope you will take your responsibilities seriously.
65. MR LEY: I will bear what your Lordship has said to me both in relation to this case and others.
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