CO/4329/2006 
Neutral Citation Number: [2006] EWHC 2319 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 20 June 2006
 
B E F O R E:

LORD JUSTICE MAURICE KAY 

MR JUSTICE MITTING 

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PARKER
(CLAIMANT)

-v- 

BRADFORD CROWN COURT
(DEFENDANT) 
DIRECTOR OF PUBLIC PROSECUTIONS
(INTERESTED PARTY)

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MR NIGEL LEY (instructed by Blackwells) appeared on behalf of the CLAIMANT
MR CHRIS SMITH (instructed by Jessica Hetherington) appeared on behalf of the INTERESTED PARTY
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  This is an application for permission to apply for judicial review.  The application has been adjourned into open court by Langstaff J.  The background to the case is that the claimant, Mr Parker, presently stands convicted of offences under section 5 and section 170(4) of the Road Traffic Act 1988.  The former provides for the offence of driving with excess alcohol; the latter provides for the offence of failure to stop after a road traffic accident.
2.	The claimant was convicted in the Magistrates' Court.  He appealed to Bradford Crown Court, where his appeal was dismissed on 28 February 2006.  An application was then made to HHJ Benson, who had presided at Bradford Crown Court, to state a case for consideration by this court.  The learned judge has refused to state a case, the refusal being communicated and reasoned in a letter dated 22 March 2006 and in a further note from the judge dated 13 June 2006.  The application, therefore, is for permission to apply for judicial review to challenge that refusal to state a case.  
3.	The application falls into two parts.  So far as the offence of driving with excess alcohol is concerned, it is of a kind which is not uncommon in this court.  Towards the end of the hearing in the Crown Court, Mr Ley was making his closing submission to the court, when he submitted that the breathalyser procedure was irretrievably flawed because the prosecution had not proved compliance with section 7(7) of the Act.  Section 7(7) provides: 
"A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution." 
4.	Although this is a case in which a specimen was in fact provided, and the charge was one of driving with excess alcohol rather than unreasonably refusing to provide a specimen, there is a degree of common ground at the Bar to the effect that section 7(7) is a mandatory requirement, that common ground being based on what was said by Lord Hutton in the case of Jackson [1998] 3 All ER 769 at page 785B-F.  The reason why the judge refused to state a case on this point is that he concluded that the application for him to do so was made frivolously.  The letter of 22 March, written on his behalf by a member of the court staff, says this: 
"The question of non-compliance with section 7(7) ... was raised for the first time at the very end of the closing submissions made on behalf of the appellant.  It was and still is the view of the court that such an issue should have been raised during the course of the evidence itself when the respondent would have had a full opportunity to address the matter."  
5.	In his comments of 13 June, the judge has added: 
"The point about the lack of notice was taken at the very end of closing submissions.  There was no opportunity for the Crown to deal with it effectively.  It seemed to us that this was a deliberate ambush tactic, and to give it any regard would be to condone an abuse of process of the court.  The tactic was characteristic of the manner in which the case was conducted throughout." 
6.	We of course accept what has been said about the mandatory nature of the requirement in section 7(7).  However, in our judgment, it is a mandatory requirement which must be proved when it has properly been put in issue.  We are satisfied, on the material we have, that it was not properly put in issue in this case.  A police officer had given evidence.  He was not the officer primarily involved in the administration of the procedure, that officer having retired at the time and attempts to contact him on the morning of the appeal having borne no fruit.  However, the officer who did give evidence, PC Cummins, testified as to the carrying out of the procedure when he was close by.  It was not put to him that there was any shortcoming in relation to section 7(7).  The pro forma had been completed.  We are told that there is an appropriate entry in relation to the section 7(7) point.  Indeed, it would be very surprising if there were not.  
7.	According to the note of counsel for the prosecution who appeared at the trial, the claimant gave evidence and said that he could not recollect whether a warning under section 7(7) had been given.  
8.	Mr Ley seeks to rely on R v Aylesbury Crown Court ex parte Lait [1998] EWHC Admin 319, as, it seems from our researches, he often does.  But that is not the sole authority on this issue.  Moreover, it was concerned with the specific matter of satisfaction of the requirements of section 69.  In Dhaliwal v Wolverhampton Magistrates' Court [2005] EWHC 1284 Admin, Brooke LJ said at paragraph 16: 
"... the solicitor remained silent until after the prosecution had closed its case, it appears to me that this case has nothing at all in common with the decision of this court in R v Aylesbury Crown Court, ex parte Lait [1998] EWHC (Admin) 319, where the prosecution was bound to adduce the evidence on which it relied before it closed its case, pursuant to the requirements of section 69 of the Police and Criminal Evidence Act."
9.	Further assistance is to be obtained from the case of R v Stephen Andrew Cook ex parte Director of Public Prosecutions 19 December 2000, where Schiemann LJ said: 
"... if at the close of the prosecution case the defence is of the view that the evidence called on behalf of the prosecution does not disclose a prima facie case, then the defence should, in general, make that submission at the end of the prosecution case ... But what seems to me quite indefensible is the submission by Mr Ley that the defence can, by reserving the submission until after the close of the defence case, put itself in a stronger position than it would have been had it made the submission earlier on. That seems to me to encourage a totally wrong approach to the administration of justice."
10.	Concluding as I do that this matter of the section 7(7) notice had not properly been put in issue at the appropriate stage by the defence in the hearing in the Crown Court (and had not been put in issue at any stage at the hearing in the Magistrates' Court), I take the view that it is not properly arguable, having regard to the way matters were conducted, that it had become a mandatory but unproven matter in the sense referred to in the case of Jackson.  In my judgment, the claimant does not have an arguable case in relation to his demand for a case stated so far as it relates to the conviction for driving with excess alcohol and I would refuse permission on that basis.  
11.	The issues raised in relation to the conviction for failure to stop after an accident are very different.  The point which was expressly sought to be taken before the judge in the Crown Court was to the effect that originally section 170 and its predecessors were confined to failure to stop after a road traffic accident in the literal sense of such an accident having occurred on a road.  The amended version of section 170 refers to "a road or other public place".  The addition of "other public place" was inserted by way of amendment by the Motor Vehicles (Compulsory Insurance) Regulations 2000.  In other words, a provision of primary legislation had been sought to be amended by a provision of secondary legislation.  The reason for that is that it was considered to fall within the statutory power to amend primary legislation in that way arising under the European Communities Act 1972.  There is a series of directives obliging member states to adopt and adapt legislation in this area, the most recent of which had been the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the member states relating to insurance against civil liability in respect of the use of motor vehicles.  The specific provision in that directive considered to provide the authority to amend domestic primary legislation by secondary legislation was Article 5(1), which was in these terms: 
"Member States shall adopt the necessary measures to ensure that the parties involved in a road traffic accident are able to ascertain promptly the identity of the insurance undertaking covering the liability arising out of the use of any motor vehicle involved in the accident."
12.	We have been referred to the decision of the House of Lords in Cutter v Eagle Star Insurance Company [1998] All ER 417.  It seems to me that it is arguable, on the basis of that authority and its interpretation of the directives, that the amendment to section 170 to extend its application to other public places went beyond what was required by the directive in such a way as not to give access to the fast-track amendment procedure enabled by the European Communities Act 1972.  The matter is not totally clear, but, in my judgment, there is a sufficient basis for the argument to merit further consideration by this court at a full hearing.
13.	Accordingly, I could grant permission to apply for judicial review of the decision to refuse to state a case, limited to that issue (the section 170 issue) and excluding the argument by reference to section 7(7) of the Road Traffic Act, about which it seems to me the judge was perfectly right when he refused to state a case.  
14.	Very often when permission is granted in this court in relation to an application for review of a decision to refuse to state a case, the very granting of permission results in the case being stated, the lower court taking the view that perhaps in order to save time and cost, or perhaps simply being content to accept the provisional view of this court, that that is the appropriate course.  I do not believe it would be the appropriate course in this case.  This is an important appeal, impacting on the validity of the amendment of an Act of Parliament, brought about by a perceived requirement of EU law.  Accordingly, I would discourage the Bradford Crown Court from simply now acknowledging defeat and stating a case.  It is preferable that the matter be fully considered in this court.  
15.	Moreover, when I say "fully considered", it seems to me that the substantive hearing, at which of course the claimant and Bradford Crown Court may be represented, would also be enhanced if a government department with appropriate responsibility were permitted to intervene.  It is after all they who know why the matter was done in this way and why they thought that it was appropriate to deal with it in this way.  I would therefore direct that the papers be referred to the Treasury Solicitor for consideration of permitting joinder by intervention on behalf of the appropriate Secretary of State, whom I suspect to be the Secretary of State for Transport.  That is how I would propose the matter should be dealt with. 
16.	MR JUSTICE MITTING:  I agree for the reasons given.
17.	LORD JUSTICE MAURICE KAY:  So we hope no shortcuts in this case.
18.	MR LEY:  No, my Lord, and I did take this point at half-time as well.
19.	LORD JUSTICE MAURICE KAY:  Yes, in the Crown Court, but not in the Magistrates' Court.
20.	MR LEY:  I did not appear in the Magistrates' Court, my Lord.
21.	LORD JUSTICE MAURICE KAY:  No.  It makes it even odder -- not odder because one knows the reasons why you proceeded in this way -- that when you were making a submission on that, you did not make the submission about the other matter.
22.	MR LEY:  I got a very cold reception from the judge on this.  He took the view that it was not a matter for the Crown Court.
23.	LORD JUSTICE MAURICE KAY:  We know that and he was wrong about that, but, if we may say so, we do not approve of the way you have conducted the matter in relation to the other aspect of the case, but there you are.  You have hit the buffers there.
24.	MR LEY:  As your Lordship pleases. 
25.	MR SMITH:  I am very grateful, my Lords.  Do your Lordships feel that the Director of Public Prosecutions as an interested party ought to attend the adjourned hearing of the case? 
26.	LORD JUSTICE MAURICE KAY:  You are instructed on behalf of the court, are you not? 
27.	MR SMITH:  No.
28.	LORD JUSTICE MAURICE KAY:  You are from the Director? 
29.	MR SMITH:  Exactly, as an interested party.
30.	LORD JUSTICE MAURICE KAY:  As an interested party.  It is a matter for him.  He remains an interested party.  I would have thought that the sensible course is for you to liaise with the court, who probably will not be represented, and the Treasury Solicitor to see what point is being taken and how they want to run it.
31.	MR SMITH:  Exactly so.  I am very grateful.
32.	LORD JUSTICE MAURICE KAY:  I imagine they will wish to argue that they did things correctly.
33.	MR SMITH:  Exactly.  One would anticipate so.  
34.	LORD JUSTICE MAURICE KAY:  We shall see.  Thank you all very much.