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
		25th April 2007

1. LORD JUSTICE GAGE: This is an application for judicial review of a decision made at the Tower Bridge Magistrates' Court. The application proceeds by leave of the single judge. The decision which is challenged is a decision of District Judge Black made on 13th October 2006 to commit the claimant (as I shall call him) to the Crown Court for sentence. Before committing him for sentence the District Judge purported to make a finding of fact and it is essentially that finding of fact which is challenged by these proceedings.
2. It is necessary for me to give a brief description of the proceedings and the facts that lie behind them. On 24th August 2006 the claimant was arrested and charged with three offences. The first of those offences was possessing a false instrument contrary to section 25(5). There is some doubt as to whether it was charged under 25(5)(a) or 25(5)(c) but for the purposes of this application it is not necessary for us to resolve that difference at this stage. He was also charged with two driving offences.
3. On 25th August 2006 he appeared at the Tower Bridge Magistrates' Court and he pleaded guilty to all three offences. Sentencing was adjourned to 15th September. He was granted bail. After several more adjournments the claimant came back before the court on 6th October 2006. It is apparent that the prosecution opened the facts on the basis that it was the claimant's photograph on the driving licence which had a different name from that of the claimant. It was in fact the claimant's cousin's driving licence. On behalf of the claimant at that stage the defence advocate who appeared for him submitted that the false instrument, namely the driver's licence, is not a forged document but a genuine document which the applicant had in his possession without reasonable excuse as the licence belonged to his cousin. District Judge Somji decided that the proper thing to do was to adjourn the proceedings for the production of the licence, no doubt a sensible course to take.
4. On 13th October 2006 the licence was brought to court. On that occasion the matter was heard by District Judge Black. He purported to make a finding of fact, to which I shall come in a moment, and as a result of that he decided that he should commit the claimant to the Crown Court for sentence. Following that hearing these proceedings were instituted. The order which is sought in this court is an order quashing the order of the District Judge committing the claimant to the Crown Court for sentence. The basis for it is that the way in which the District Judge made his finding of fact was procedurally unfair and flawed. So in these proceedings it was originally submitted by Mr Fidler in his skeleton argument that the order committing the claimant to the Crown Court must be quashed.
5. As a result of submissions before us today, it is possible to simplify this matter substantially. There were two grounds upon which the judicial review proceedings were sought. The first was that as a result of the hearings in the Magistrates' Court the claimant had a legitimate expectation that he would be dealt with at that court. Once again, as a result of discussions with Mr Fidler and counsel, it is unnecessary for us to deal with that. The single judge refused permission on that ground. Without more, I simply say that in my judgment that decision by her was correct.
6. That leads me on to the second ground. It revolves around and centres on what happened before District Judge Black which caused him to commit the claimant to the Crown Court for sentence. When the District Judge was shown the driving licence, apparently he came off the bench, went up to the claimant and asked him to take off his glasses and smile. The claimant did what he was asked to do. The judge then formed the view that it was the defendant depicted in the photograph. As a result he decided that the offence was so serious that the claimant should be committed for sentence at the Crown Court.
7. When these proceedings were instituted the District Judge entered what is described as an observation. In it he states:

"The factual situation set out in the claimant's statement of facts is quite correct. It overlooks the fact that I would have committed the claimant to the Crown Court whether the driving licence in question showed the claimant or his cousin. I regarded the case as one of identity theft."

Mr Fidler in his skeleton argument submits that the assertion by the District Judge in that observation does not fit with the known facts. Why, it is set out in the skeleton argument, would he have made the identification if he had intended to commit the claimant to the Crown Court in any event? There is some force in that argument but I find it quite impossible on the information before us to say that the District Judge is mistaken about his own state of mind, and indeed today Mr Fidler does not pursue that assertion.

8. What then should be done about this? In our judgment the best course is, through this judgment, to make it clear that any finding of District Judge Black that the claimant is the man in the photograph cannot stand. The way in which that finding was made, if it was made, was, in our judgment, wrong and procedurally unfair. What ought to have happened is that if the District Judge had been proposing to make a finding of that nature he should have properly heard and considered evidence. However, that is now all water under the bridge. We see no point in directing that the matter go back to the Magistrates' Court for further consideration. It seems to us that it would be better to leave the matter in the Crown Court in accordance with the procedure set out in Gillan v Director of Public Prosecutions [2007] EWHC 380. The Crown Court can then hold a proper Newton hearing, if it considers that is the right way to deal with the matter, and make its own findings.
9. In those circumstances, for my part I would hold that this application succeeds to the extent that the finding by the District Judge that the claimant was the man depicted in the photograph on his cousin's driving licence cannot stand, but in the exercise of this court's undoubted discretion I would refuse to quash the order committing him to the Crown Court for sentence. That will remain. As I have said in my judgment, the right way of proceeding is for the Crown Court to make any necessary findings of fact.
10. MRS JUSTICE RAFFERTY: I agree.
11. LORD JUSTICE GAGE: Very well. That is the order we shall make, namely that the matter stay within the Crown Court but, by the judgment, the finding of fact cannot stand. That is all you want, is it not?
12. MR FIDLER: Yes. I ask for a funding order and a representation certificate. It is not on the court file. I have it with me.
13. LORD JUSTICE GAGE: What have you put into the court file?
14. MR FIDLER: I do not think it has been sent. I have it with me.
15. LORD JUSTICE GAGE: Right, you may have your costs providing you supply the court, which you can, with the document.
16. MR FIDLER: Yes, my Lord.
17. LORD JUSTICE GAGE: Thank you, Mr Fidler. Thank you very much, Miss Currie.