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 WC2A 2LL
		3 October 2007

1. MR JUSTICE AIKENS: This is a claim for the judicial review of the decision of Stafford Magistrates' Court made on 28 September 2006. The decision was to adjourn a trial of one charge against the claimant. The charge was that he had driven his Lexus car in excess of a temporary 30 mph speed limit on the A500 trunk road on 13 October 2005. Permission to bring a claim was granted by Toulson LJ (as he now is). The adjourned hearing before the magistrates, which had been listed for November 2006, was stayed by order of Sullivan J dated 26 October 2006, pending determination of this claim by this court.

2. The claimant seeks an order quashing the decision of the magistrates to adjourn the trial part heard. That decision was made at a very late stage in the trial, when both the prosecution and defence had closed their cases and defence counsel was making his closing submissions to the magistrates. In order to understand the grounds of the application, it is necessary to set out the facts relating to the charge and the course of the proceedings before the magistrates.

3. Originally Mr Lawson, the claimant, faced two charges. The first charge was that he had failed to give information as to the identity of the driver of the car of which he was the owner and which was said to be speeding at the relevant time. However, Mr Lawson had replied to the Statutory Notice to give information and the prosecution offered no evidence in respect of that charge.

4. The second charge, as I have already mentioned, related to speeding on the A500 trunk road. The terms of the information laid were that:

   "The claimant drove a motor vehicle, namely a Lexus car, on a road exceeding 30 mph, contrary to the A500 trunk road (Temporary Restriction and Prohibition of Traffic) No 2 Order 2000 (Amendment) Order 2004, contrary to Section 84 and Section 89 (1) of the Road Traffic Regulations Act 1984 ("RTRA 1984") and Schedule 2 of the Road Traffic Offenders' Act 1988."

5. It appears that it was always Mr Lawson's intention to plead not guilty to these two charges. Prior to the trial date of 28 September 2006, there had been four interlocutory hearings before the Stafford Magistrates. We were told by Mr Corre today that Mr Lawson had not been represented at any of those hearings. At the first, on 16 May 2006, the trial date was fixed. At that hearing it was indicated, (by Mr Lawson, I presume), that a witness, Clive Spragett, who was and is a road safety technician, would be required to give oral evidence at the trial.

6. On 27 June 2006 there was a further hearing at which the prosecution successfully sought an application to vacate the then trial date. The trial was further adjourned at another hearing on 20 July 2006. Then, on 27 July 2006, the trial date of 28 September 2006 was fixed.

7. At none of those hearings was there any detailed discussion between the prosecution, Mr Lawson and the Bench about what might be the contentious points at the trial. Beyond Mr Lawson obviously indicating that the plea was one of "not guilty", no further details of the defence case were given to the prosecution. Nor, it seems, did the prosecution actively try to ascertain the nature of the defence case. Further, as I understand the facts, the magistrates themselves did not at any stage attempt to identify the "real issues" between the prosecution and the defence.

8. Mr Corre has also said today that the nature of the defence case was not raised in correspondence before the trial. He has also accepted today that he - as counsel for Mr Lawson - did not indicate at the start of the trial what particular issues would be raised by the defence.

9. At the trial itself, it was agreed that the defendant was the driver of the Lexus vehicle, registration number P271 YPA, on the A500 trunk road at approximately 15.08 on 13 October 2005, which was the relevant date and time. It was also agreed that the A500 trunk road was, at the time, subject to a temporary 30 mph restriction by virtue of the Statutory Instrument (SI 2004 No 1399) to which I have already referred. Lastly it was agreed that the vehicle was recorded as travelling at 42 mph by an approved device, namely the LT120-2-TSD/M Speedscope Speed Measuring Device.

10. In the course of the prosecution evidence, a video recording was shown to the magistrates showing the vehicle travelling along the relevant stretch of road.

11. The prosecution called Mr Spragett, who was operating the speed measuring device on 13 October 2005. In evidence he said that he was stationed on the A500 between Trent Vale and City Road, Stoke, facing towards Trent Vale. He told the magistrates that he was operating the device at the time when he formed the opinion that the Lexus car was travelling in excess of 30 mph. Therefore he aimed the device at the vehicle and the device recorded a speed of 42 mph.

12. Mr Spragett also told the magistrates that before leaving the depot he had "fired" the device at a board situated 25 metres from the firing position. He said he also did a further test at the depot, by finding a static object, then "firing" the laser beam used by the speed measuring device at that object. In that way the speed measuring device would indicate the distance between it and the object chosen.

13. In cross-examination, Mr Spragett accepted that he was not responsible for measuring the distance between the point at which he fired the speed measuring device and the board at which he had fired the device. He was also asked about signage on the relevant part of the A500. Mr Spragett told the magistrates that he was not an expert in respect of the measurement, illumination and colour of the temporary 30 mph speed restriction signs. He accepted that his knowledge of the signs was no greater than that of any other member of the public so he could not assist with their design. In re-examination he stated that details concerning signage were not part of his job.

14. As part of the prosecution case, the court was given (although it was not read out) a calibration certificate and a certificate of conformity in respect of the approved speed measuring device. The magistrates were also given the two Statutory Instruments relating to the speed limit order. These had previously been served on the defence. That concluded the prosecution case.

15. The defendant then gave evidence. His evidence was that he was indeed driving the Lexus car at the relevant time. He considered it to be at an appropriate speed and most probably within the speed limit. The defence then closed its case.

16. Counsel Mr Lawson then began his closing speech. At that stage, for the first time, counsel for Mr Lawson identified the contentious issues to be raised by the defence. The first related to the signage; the second related to the test conducted by Mr Spragett at the depot when he fired the speed measuring device at a board said to be 25 metres distant from Mr Spragett's position.

17. With regard to the first point, counsel for Mr Lawson made a submission to the magistrates that the prosecution had to satisfy the court, to the criminal standard, that the road signs indicating the temporary 30 mph limit complied with the Traffic Signs Regulations and General Directions 2002 (SI 2002 No 3113). The submission was that only if the prosecution did so could the magistrates be satisfied that the temporary 30 mph speed limit was properly in force at the time that Mr Lawson was said to have been driving his Lexus car at a speed exceeding 30 mph. That was because Article 5 of the Relevant Speed Restriction Order provided that the 30 mph speed limit -

    "shall only apply during such times and to such extent as shall from time to time be indicated by traffic signs."

    Those signs therefore had to comply with the Traffic Signs Regulations.

18. When counsel for Mr Lawson made his submissions, the clerk to the court interrupted and asked whether the issue of signage had been put in evidence. Counsel reminded the clerk of the cross-examination and re-examination of Mr Spragett, to which I have referred above.

19. Counsel for Mr Lawson then continued his closing speech, but the clerk of the court interrupted once more. The clerk said that the Bench wished to be satisfied that the issue of signage had been raised in evidence. The Bench then retired. While the magistrates were in retirement, prosecuting counsel told the clerk to the court that he agreed that the issue of signage had been raised in the cross-examination of Mr Spragett and also in re-examination. The justices then returned to court and were notified that both counsel agreed that the issue of signage had been put in evidence.

20. Counsel for Mr Lawson continued with his closing address. He made submissions on the issue of the measured distance. At this stage, for the first time, counsel for Mr Lawson gave to prosecuting counsel and to the clerk to the court a copy of a decision of the Scottish High Court of Justiciary in Hogg v MacNeill [2001] SLT 873. In that case there was an issue on whether the distance between two marked points on a road was half a mile, (as asserted by the prosecution), for the purposes of measuring the speed of a car on that road.

21. The magistrates then retired again. When they returned, the chairman stated:

    "Although it was not made clear until the final speech, we accept that the point about signage was raised tentatively in cross-examination. We have no alternative than to abort this trial."

    Counsel for Mr Lawson then asked the magistrates to explain the court's power by which it was intended to "abort" the trial. The Bench retired again. When they returned to court the chairman said that because counsel for Mr Lawson was unhappy with the use of the word "abort", the trial would be "adjourned". The clerk of the court stated that this was in accordance with the authority of Hughes v Director of Public Prosecutions [2003] EWHC Admin 2470. The clerk to the court then asked counsel for the prosecution if he was applying for the case "to go part heard". Counsel for the prosecution stated that he was making that application. The Chairman of the Bench then said:

    "We agree to go part heard on this."

    Counsel for Mr Lawson then observed that the case of Hughes v Director of Public Prosecutions related to the power of the prosecution to re-open a case on the day of trial and was not concerned with a decision of the court to adjourn a case part heard. However the case was adjourned.

22. Those are the relevant facts of what occurred prior to and during the trial of this matter. I also note that in the Response to the claimant's Statement of Facts and Grounds relied upon, that has been submitted by the prosecution (as an interested party), it is observed that prosecuting counsel had intended to raise objections to the two points argued by counsel for Mr Lawson, if the matter had continued and prosecuting counsel had got to the stage of making a closing submission. Prosecuting counsel intended to complain that the issues that were then being raised by counsel for Mr Lawson for the first time in a closing speech had not been previously indicated to the prosecution.

23. The claimant puts forward four grounds on which he seeks an order to quash the decision to adjourn the trial part heard. First, it is submitted that the magistrates abandoned their impartiality and acted irrationally in entering the arena by inviting the prosecution to apply for the trial to be adjourned part heard. Secondly, it is submitted that a reasonable bystander would conclude that the magistrates were prepared to go to great lengths in order to convict the claimant. Mr Corre applied to amend his third ground. As reformulated, it is submitted that although the magistrates are entitled in certain circumstances to hear evidence after the case for the parties had been closed, they did not arise in this case. Therefore the magistrates acted unlawfully in adjourning the case to enable that to be done. The fourth and last ground is that the interests of justice were not served by the magistrates encouraging an adjournment. That would only cause the claimant to incur additional legal expenses in being represented at the adjourned hearing. Amongst those would be considerable travel expenses for the claimant.

24. Mr Corre effectively argued the first two grounds together and I will consider them together. Broadly the submission is that the magistrates were actually biased against Mr Lawson; or that, on an objective appraisal of the facts, the circumstances gave rise to a legitimate fear that the magistrates might not have been impartial.

25. In the case of In Re Medicaments and Related Classes of Goods No 2 [2001] 1 WLR 700, the Court of Appeal (Civil Division), having made a comprehensive review of the English, Commonwealth and Strasbourg case law, laid down the principles that should be followed by courts in cases where it is alleged that the judge is not impartial or might not be impartial. At paragraph 61 of his judgment, Lord Phillips of Worth Matravers MR stated:

    "(1) If a judge is shown to have been influenced by actual bias, his decision must be set aside.

    (2) Where actual bias has not been established the partial impartiality of the judge is to be presumed.

    (3) The court has then to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside.

    (4) The material facts are not limited to those which are apparent to the applicant. There are those which are ascertained upon investigation by the court.

    (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice."

26. At paragraph 85 of the same judgment, Lord Phillips further stated:

    "The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

27. In the subsequent House of Lords case of Porter v McGill [2002] 2 AC 357, Lord Hope of Craighead expressly approved the test as set out by Lord Phillips, although he said that the phrase "or a real danger" should be removed from the formulation, as it no longer served a useful purpose.

28. The magistrates were, of course, acting as judges. The magistrates have not been represented at this hearing. Nor is there any evidence from them. I have carefully considered all the circumstances which have a bearing on the suggestion that the magistrates were biased, or that the circumstances in which the adjournment came to be granted were such that they would lead a fair-minded and informed observer to conclude that there was a real possibility that the magistrates had become biased towards Mr Lawson. I have concluded that there can be no question of any bias or possible bias in this case.

29. The circumstances which have a bearing on the suggestion that the magistrates were or might have been biased consist of two aspects. First, the history of the case both before and during the trial itself; secondly, the jurisdiction of the magistrates to grant an adjournment and to consider whether or not the prosecution should be permitted to re-open its case after such an adjournment.

30. As to the first of those aspects, I have already noted that the defence had at no stage prior to the closing speech of counsel for Mr Lawson identified the two issues which had apparently assumed crucial importance by the stage of the closing address of counsel for Mr Lawson. In R (On the Application of the Director of Public Prosecutions) v Chorley Justices: Andrew Forrest [2006] EWHC 1795 (Admin) , Thomas LJ emphasised the fundamental change in the way which criminal cases should be conducted following the introduction of the Criminal Procedure Rules in April 2005. Rule 1.2 imposes upon the participants in a criminal case the duty to prepare and conduct a case in accordance with the "overriding objective". That objective is to deal with criminal cases justly so as to convict the guilty and acquit the innocent. Rule 2.3 imposes upon a court a duty to further the "overriding objective" by actively managing the case.

31. At paragraph 26 of his judgment, Thomas LJ underlined the need for an early identification of the real issues of the case. That had not happened in the matter with which Thomas LJ was concerned. It did not happen in this case either. At the first hearing the parties and the court should have attempted to identify what matters were in issue. The defendant, either by himself or through counsel, if counsel had been present, should have been asked what was in issue. Once it is known what is in issue, it is easy to identify which witnesses are needed.

32. In my view, in a pre-trial hearing before magistrates, a defendant or his lawyer should be specifically asked what issues are being taken by the defendants. As Thomas LJ said in Chorley Justices, it is the experience of most judges that when such a question is asked, a party will reply. Thomas LJ added:

    "Most people approach a case on the basis that they want justice done as they wish to be acquitted if they are innocent; it is our experience that the case where a defendant refuses to identify the issues is rare indeed. If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty."

    I respectfully adopt all of those statements which, in my view, are applicable in this case.

33. The second circumstance that is, in my view, relevant is that counsel for Mr Lawson in this case did ambush the prosecution on the questions of both the speed reading machinery and the signage. The points were not put forward clearly and openly by the defence, even at the stage of the cross-examination of Mr Spragett.

34. The third relevant circumstance is that it is long established that magistrates have a jurisdiction to adjourn a trial to permit the prosecution to rectify a deficiency in evidence which is only identified by the defence at a very late stage, after the close of the prosecution case. (See, for example, Middleton v Rowlet [1954] 1 WLR 831; Morris Hughes v Director of Public Prosecutions [2003] EWHC 2470 Admin at para 16 per Stanley Burnton J.)

35. Given all these circumstances, I am quite satisfied that the statement of the chairman -

    "Although it was not made clear until the final speech, we accept that the point about signage was raised tentatively in cross-examination. We have no alternative than to abort this trial" -

    cannot lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. In my judgment the chairman was saying, in non-legal terminology, that circumstances had arisen in which the court should exercise its discretion to adjourn the trial to permit the prosecution to adduce further evidence on the two issues that had not been raised by the defence until a very late stage in the proceedings.

36. Given the situation that had arisen, it was inevitable that the issue of an adjournment should arise. In my view, it is not surprising that the clerk should invite the prosecution to apply for an adjournment. That is not evidence of any type of bias or possible bias.

37. The third ground as originally relied upon by the claimant is wrong as a matter of law. Mr Corre now accepts that it is clear from the two cases I have already cited above and also the cases of Mohindra v Director of Public Prosecutions [2004] EWHC 490; Tuck v Vehicle Inspectorate [2004] EWHC 728 Admin; and Malcolm v Director of Public Prosecutions [2007] EWHC 363. I mention only these, but there are others which are contrary to the proposition originally put forward by the claimant.

38. Mr Corre submitted that the cases limited the jurisdiction of the magistrates to allow a party to re-open its case to circumstances where (a) the evidence was not controversial; and (b) it could have been dealt with on the day. I can discern no such restriction in any of the cases.

39. All the cases state, of course, that the courts' power to allow a case to be re-opened is a power which must be exercised rarely and having regard to the need to be fair to the defendant. A court must bear in mind the question of whether any prejudice to the defendant will be caused by a case being re-opened. However those points do not detract from the legal proposition that justices are entitled to hear evidence after the case has been closed where special circumstances exist.

40. I hope I have made clear that those special circumstances did exist in this case. Accordingly I reject the third ground advanced.

41. The last ground is, effectively, an argument that the magistrates' decision to grant the prosecution an adjournment, which was effectively to allow the prosecution to obtain the evidence which had not been put before the court, was unreasonable or perverse. It is, I think, accepted that this court will not interfere with the decision of the magistrates to adjourn unless its decision is wrong in principle or perverse. (See R v Tait [1997] RTR 17 at 22C; Tuck v Vehicle Inspectorate, to which I have referred).

42. In my judgment, given the facts of this case, the decision of the magistrates was correct in principle and certainly cannot be described as perverse. On the contrary, the decision was almost inevitable in the circumstances that had arisen, as I have described them.

43. Insofar as the fourth ground also suggests that Mr Lawson will be prejudiced by an adjournment because of inconvenience and possible additional costs, those are not matters which, in my view, must lead to the conclusion that the magistrates' decision was perverse. Those are matters which can be dealt with by the magistrates in a special costs order after the renewed hearing, if that is thought to be appropriate in the circumstances. That will be up to the magistrates to decide.

44. Accordingly I would dismiss this claim. I would add that my conclusion should not be taken as giving approval to prosecutors in magistrates' court cases who fail to exercise their duty to ensure that the relevant issues are identified at the earliest opportunity and well before any trial. It is the duty of both the prosecution and the defence to ensure that all the contested issues can be properly dealt with at the trial. It is equally the duty of magistrates actively to manage the case to ensure that the overriding objective of the Criminal Procedure Rules is fulfilled.

45. LORD JUSTICE RICHARDS: I agree. The claim will therefore be dismissed. Is there any further application?

46. MR COOPER: There is an application in respect of costs. I apologise for the fact that there is a rather scruffy

    handwritten schedule of costs.

47. LORD JUSTICE RICHARDS: We have had nothing. Nothing has been given to us in advance.

48. MR COOPER: I apologise for the fact that my Lord has nothing in advance. I have taken urgent instructions this morning in relation to the question of costs. I had hoped that the court received it in this form. If it is not in acceptable form, then those instructing me would undertake to lodge it within seven days.

49. LORD JUSTICE RICHARDS: Let us see what your scruffy document looks like. (Pause) You are asking for an order for costs to be summarily assessed in the total sum of £3,577.88.

50. MR COOPER: Yes.

51. LORD JUSTICE RICHARDS: Mr Corre, can you object to the principle?

52. MR CORRE: In principle, no. The details I have looked at; I am not in a position to refute the detail.

53. LORD JUSTICE RICHARDS: It looks like a proportionate sum for a matter of this sort. The alternative, given that the rules concerning provision of this material, this schedule, in advance having not been complied with, would be to order detailed assessment. But in a matter of this kind it is in no one's interests to follow that course.

54. MR CORRE: I have nothing to add.

55. LORD JUSTICE RICHARDS: We order that the claimant pay the prosecution costs in the sum summarily assessed at £3,577.88. There was at one point a stay placed on the Magistrates' Court proceedings. I think that probably evaporated on the grant of permission and nobody worried about putting a stay in place again.

56. MR COOPER: I think that may be right. I had assumed that because it was stayed until the termination of this case that I did not need to seek any further order in respect of it.

57. LORD JUSTICE RICHARDS: For the avoidance of doubt, any stay is lifted.

58. MR COOPER: Very well.