CO/4347/2006 

Neutral Citation Number: [2007] EWHC 2127 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 15th May 2007
 
B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE DAVID CLARKE 

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Between: 
THE QUEEN ON THE APPLICATION OF HAYCOCKS 
Claimant
v 

WORCESTER CROWN COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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The Applicant appeared in person
Mr Jonathan Hall (instructed by Crown Prosecution Service) appeared on behalf of the Defendant int p
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J U D G M E N T 
1.	MR JUSTICE DAVID CLARKE:  This is a renewed application by Mr Hugh Steven Haycocks for permission to apply for judicial review of a decision of the Crown Court at Worcester on 17th February 2006, when it dismissed his appeal against conviction by the magistrates for driving with an excess of alcohol in the blood.  The alleged offence had occurred as long ago as 22nd June 2004 and Mr Haycocks had been convicted by the Justices on 21st December of that year.  
2.	There are essentially three complaints against the Crown Court.  The first is that at the outset of the hearing of the appeal when the claimant's counsel's retainer was terminated and counsel withdrew from representing him, the court refused to adjourn the hearing and revoked the representation order.  The result was that the claimant represented himself at the hearing, which was of course by way of rehearing and which lasted all day, though it seems that his solicitors did remain to assist him if necessary.  
3.	The second complaint is that the judge conducted himself during the hearing in a biased and discourteous manner so that no fair trial by way of rehearing took place.  
4.	The third is that, following the conviction, the judge refused to state a case for the opinion of this court.  
5.	It is apparent that the issue before the Crown Court, as it no doubt had been before the justices, was not whether he had been driving or indeed whether his blood alcohol level was above the prescribed limit.  The claimant's case was that he had driven home from a public house; he had parked in his drive and entered his home when the two police officers forced their way into the house, required of him a breath test, which he refused to give; arrested him despite his protests and resistance; used CS gas; effectively frogmarched him to the police car and when he was in the police car on the way to the police station administered CS gas again with no possible justification.  
6.	Based on these assertions, the case was fought on the basis that the actions of the officers were unlawful, oppressive, and in bad faith; and that all the evidence of the subsequent breath test procedure at the police station should be excluded by virtue of section 78 of the Police and Criminal Evidence Act 1984 on fairness grounds.  
7.	We have been provided with a transcript of the judgment of HHJ Mott and the justices, Judge Mott giving the decision himself at the conclusion of the hearing.  It is not necessary to read that into this judgment since Mr Haycocks is very familiar with it but we have carefully read it.  The essence of the findings of the court are: firstly, that the police had reasonable grounds to suspect that Mr Haycocks had been drinking; second, a finding that the arrest was a lawful one; third, an express rejection of the assertion that the officers acted in bad faith or behaved improperly; and fourthly, a finding that there was no further administering of CS gas in the police car.  
8.	In the light of those findings there was, as the judge found, no arguable basis for the exercise of any discretion to exclude the evidence of the subsequent breath test procedure and thus the result was that the conviction was upheld.
9.	In a lengthy skeleton argument which Mr Haycocks has helpfully submitted in advance, we are urged to hold, in addition to considering the procedural aspects of this case, that the court were wrong in law.  Reliance is placed particularly on Matto v Wolverhampton Crown Court [1987] RTR 337, a decision of this court, the facts of which Mr Haycocks submits to close examination by way of comparison with the facts of this case and seeks to demonstrate that the misconduct of the police in the present case was substantially greater than the misconduct found by the Crown Court to have occurred there.  
10.	On a renewed permission application, this is not the place for a detailed analysis of the law in this area.  The essential stumbling block to Mr Haycock's reliance on Matto is the finding in the present case that the police officers did not act in bad faith.  Now this court cannot, on the limited information that we have as to the facts of the present case, where we have of course the judgment of the court as well as the full account that Mr Haycocks has given in the lengthy statement which we have also considered, review the finding of good faith.  It is not a finding at which the court were not entitled to arrive.  
11.	The appeal having been dismissed by the Crown Court, this court does not provide a further forum for a general appeal unless the Crown court has acted in a way in which no reasonable court could have acted.  I have considered whether any of the other criticisms of the Crown Court arguably pass this test so as to justify the grant of permission.
12.	As regards the refusal to grant an adjournment, the appeal to the Crown Court did have a long history.  The first listing had been on 4th February 2005 when it was evidently not reached.  It was then listed for a two‑day hearing in March, but that hearing was ineffective for reasons that are not disclosed by the papers.  It was then listed again for 28th July but was adjourned on evidence being produced that the claimant was ill.  It was then listed for mention on 23rd September when the defence sought disclosure of material concerning the use of CS gas, and the judge on that occasion described the delays which had occurred thus far as "deeply unsatisfactory".  The hearing was subsequently fixed for 26th January 2006 but it was adjourned once again because on this occasion Mrs Haycocks was not well.  Eventually, the case came on for hearing on 17th February, 14 months after the conviction by the justices.  
13.	We have now a transcript of the exchanges between counsel and the judge at the outset of the hearing.  Counsel told the judge and the justices that he had been in conference with the appellant (as Mr Haycocks then was) and that his instruction had been terminated on the ground that the appellant did not have confidence in his interpretation of the law and the way in which he would put it to the court.  He reported to the court that the appellant wanted to have what he would describe as a "proper barrister" who would follow his instructions in the way that he would consider appropriate.  Counsel developed this a little further, arguing that the case was one of some complexity in which the appellant would need to be represented.  He made reference to the issues of expert evidence about CS gas, which went to the issue of bad faith on the part of the police officers, and counsel added that he would himself be professionally embarrassed and would have to withdraw in any event.  
14.	It is clear to me from a reading of the transcript that this impasse must have arisen because of the exchanges that had just taken place in conference.  It is to be noted that this was the same counsel who had appeared for Mr Haycocks in the magistrates' court and indeed on at least one of the earlier ineffective hearings in the Crown Court, but the loss of confidence and the breakdown of the relationship occurred only on the morning of the eventual hearing of the appeal.  
15.	The court adjourned briefly to consider the situation and returned.  The judge said this:  
"The Appellant doesn't like his Counsel's interpretation of the law, and doesn't like the way in which his Counsel proposes to run the case.  That is his privilege, but it is not going to result in this case being adjourned.  If the Appellant wishes to dispense with the services of his Counsel, then his representation order will be revoked, and we will press on with the appeal, and he will have to do it himself ‑ that is if he wishes to pursue it.  That is the position." 
The judge then confirmed with Mr Haycocks that he did indeed wish to carry on with the appeal, which then ensued.
16.	This judge, who had been the resident judge at Worcester for a number of years, was undoubtedly familiar with the provisions which would apply to any application for a change of representation under regulation 16 of the Criminal Defence Service Regulations.  This provides that the court may grant such an application where:  
"(1) Where a representation order has been granted an application may be made to the court before which the proceedings are heard to select a representative in place of a representative previously selected, and any such application shall state the grounds on which it is made.     
"(2) The court may:
 
(a) grant the application where:

(i) the representative considers himself to be under a duty to withdraw from the case in accordance with his professional rules of conduct and, in such a case, the representative shall provide details of the nature of such duty;

(ii) there is a breakdown in the relationship between the assisted person and the representative such that effective representation can no longer be provided and, in such a case, the representative shall provide details of the nature of such breakdown;

(iii) through circumstances beyond his control, the representative is no longer able to represent the assisted person; or

(iv) some other substantial compelling reason exists." 
And the regulation specifically provides that unless one of those situations exists, the court shall refuse the application.  
17.	I recognise that since in this case the claimant was seeking fresh counsel rather than a change of solicitors, the question of a formal transfer of a representation order did not arise.  But a similar approach would apply, in my judgment, to the exercise of the discretion to allow an adjournment because fresh counsel was to be briefed.  The court would have been entitled to have regard to this provision in exercising that judgment.  And the length of time since the conviction, the listing history, and the fact that this breakdown only occurred on the day were, in my judgment, material considerations.
18.	Mr Haycocks has extracted a number of Strasbourg authorities dealing with the right to legal representation but none of them touches directly, in my judgment, on the rather different facts which rose in this case only on the day of the hearing of the appeal concerning a change of counsel being sought which would inevitably have required an adjournment.  
19.	Mr Haycocks complains that the single judge approached this issue wrongly by implying that he, Mr Haycocks, was at fault in having caused the delays.  I do not read the first sentence of the single judge's comments as carrying that implication.  The fact is the case already had a long history.  It was at long last ready for hearing, the witnesses were ready and the court time had been set aside.  
20.	The single judge also commented that the issues were factual so that there was no injustice caused by the effective termination of the representation order.  Mr Haycocks complains about this too and rightly points out, in my judgment, that most criminal proceedings concern issues of fact rather than law.  But it does not follow that in the circumstances which arose in this case he had the right not only to representation at the outset but also to have an adjournment to allow a change of counsel when this breakdown occurred.  
21.	As to the issue of discourtesy, the single judge remarked that such a generalised allegation will not support a claim for judicial review.  Mr Haycocks had hoped to provide a transcript of the hearing but was not able to afford it.  The transcript that we do have does not, in my judgment, begin to make good the claim.  Undoubtedly the judge spoke in plain language, but is not in my judgment to be criticised for that. 
22.	Following the judgment the claimant, Mr Haycocks, immediately indicated an intention to appeal by case stated.  He sought a further suspension of the disqualification.  That was refused.  But the judge also said that the court were not prepared to state a case.  He indeed added that the claimant would have to go elsewhere to get an order from this court (impliedly) that the Crown Court should state a case.  It was understandable, the court having said that, that no written application for a case stated was made until this court indicated that it was procedurally necessary; and when Mr Haycocks did so the Worcester Crown Court replied in terms that the judge himself prepared.  The court's decision turned on the facts as it found them to be.  The result flowed inevitably from those conclusions and there are no bases on which to state a case.  It therefore declined to do so. 
23.	The single judge dealt with that issue in some detail.  He made reference to the frivolous rule; that is Rule 64.7(6) of the Criminal Procedure Rules 2005 which succeeded a similar provision in the old Crown Court rules.
24.	The complaint is that the judge did not expressly cite that rule nor use the word "frivolous" in the refusal of a case stated.  But the court made it clear that the issues were factual ones.  The finding that there was no bad faith or oppressive conduct was one which the Crown Court were entitled to make and that made any appeal by way of case stated a hopeless one.  In my judgment, that was a correct conclusion by the single judge and I would not seek to expand upon it.  
25.	For these reasons, whilst recognising the courtesy and moderation with which Mr Haycocks in the limited time he has been allowed has addressed the court, I do not find any ground for granting the leave which he seeks.  
26.	LADY JUSTICE HALLETT:  I agree.
27.	THE APPLICANT:  I do not know whether I need to apply for leave to appeal but if I have to I apply for leave. 
28.	MR JUSTICE DAVID CLARKE:  There is no further avenue here, Mr Haycocks.