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
		16 May 2008

1. MR JUSTICE PENRY-DAVEY: This is an application for judicial review of a decision of the Staines Justices permitting the Vehicle Operator Services Agency ("VOSA") to resume and continue its prosecution of the claimant.
2. The claimant initially faced prosecution by two agencies, the Crown Prosecution Service ("CPS") and VOSA.
3. Those prosecutions arose out of exactly the same incident and alleged the permitting of driving without the correct class of driving licence, using a vehicle without insurance and exceeding the maximum permitted axle weight. The changes related to a check at Junction 9 on the M25 on 26 July 2006 and to a vehicle driven by a driver called Thomas Petch. On 26 March 2007 solicitors for VOSA wrote to the Magistrates' Court as follows:

"We are informed by HSR Solicitors for the defence that the police have also taken proceedings against this operator for permitting driving without the right class of driving licence and overloading offences. Our client's investigations reveal that VOSA and police prosecutions arise from the same incident and are therefore duplicates. On the basis only that there is before your court summonses for permitting no driving licence and overweight offences brought by the police in relation to the same venue date and vehicle as noted above, VOSA instruct us to withdraw their proceedings. Please accept this letter as our formal request as to either offer no evidence or withdraw the proceedings. Should there be any material discrepancy in the information outlined above then we respectfully request a further adjournment for further investigation. In the circumstances we should be grateful if this matter could be dealt with in the absence of the prosecution since only withdrawal of the process is contemplated."

4. Following that letter the summonses made by VOSA were marked withdrawn and appear on the court record as no evidence offered.
5. There was a court hearing on 28 March 2007 where the CPS, after hearing all the representations from solicitors on behalf of the claimant, decided to offer no evidence against the claimant. It was submitted to the CPS that the driver of the vehicle involved had already been prosecuted for exactly the same offences for which the claimant faced prosecution and had been fined £200 for the driving licence offence and £450 for the overloading offences. The CPS then offered no evidence against the claimant after VOSA had taken the same course. At the time VOSA offered no evidence the CPS was still pursuing its prosecution and it is submitted that the decision to offer no evidence by the CPS was not linked to the decision made by VOSA, and the CPS were aware that VOSA had offered no evidence.
6. On 4 April 2007 the Director of Legal Services to the North Surrey Local Justice Area wrote to the claimant:

"When your representative attended court on 28 March 2007 he was advised that all proceedings had been withdrawn. Unfortunately this was incorrect in that the application to withdraw the prosecution brought by the Vehicle Operator Services Agency should have been contingent on the prosecution by the police going ahead. The court has been contacted by the representatives of the Agency and it is now clear that their prosecution should not have been withdrawn. The matter has therefore been re-listed for hearing on 23 May 2007 at 10 am when a representative should attend."

7. On 20 June 2007 the justices set aside the withdrawal of the VOSA summons and permitted the VOSA prosecution to continue. Their stated reasons are as follows:

"It is agreed that Section 142 of the Magistrates' Courts Act 1980 does not apply to this situation. Two sets of summonses were issued which were in effect duplicate applications against Green & Green Scaffolding (London) Ltd for offences alleged on 26 July 2006. One prosecution was brought by the CPS and the other by VOSA. VOSA sought to withdraw their summonses on the basis the CPS (the police) case would continue. The application by VOSA was supported by a letter dated 26 March 2007 of Martin Dalton Solicitor including a paragraph -

'Should there be any material discrepancy in the information ..... above then we respectfully request a further adjournment for further investigation.'

The summonses laid by VOSA were marked 'withdrawn'. However the CPS also made application for their summonses to be withdrawn which the court did. Martin Dalton Solicitor, representing VOSA, made application for the withdrawal of the VOSA summonses to be re-opened and set aside. The court has to consider whether there is a Common Law power to review the proceedings in this way. We are satisfied that pursuant to R v Marsham ex p Lawrence [1912] 2 KB 263 there is power to re-try a case where some irregularity has vitiated the proceedings. In this case the irregularity is that the court marked the VOSA summons 'withdrawn' without ensuring the CPS/police matter would proceed. We are satisfied we have the power to review the proceedings. We are satisfied that in the interests of justice it is appropriate for us to exercise this power by setting aside the withdrawal of the VOSA prosecution as it was not the court's intention to have withdrawn both sets of summonses against Green & Green Scaffolding."

8. It is to be noted that despite the concession in their reasons that Section 142 does not apply, in their grounds for contesting the claim the justices contend that there was power to re-open the proceedings pursuant to Section 142 and under Common Law.
9. In my judgment the concession was correct. Section 142 extends only to cases where the defendant has been found guilty, that is R v Gravesend Justices ex p Dexter [1977] Crim LR 298, and not where the prosecution has withdrawn the charges, Coles v East Penrith Justices [1998] 162 JP at 687.
10. Marsham concerns the trial of an allegation of assault on a police officer in the exercise of his duty where, by inadvertence, the officer gave evidence without being sworn. Later in the day when the irregularity was noticed the magistrates heard the case again. The officer was duly sworn and the defendant again convicted. He sought to quash the second conviction on the ground that he had previously been put in peril in respect of the same offence. The court held that as he had not been legally convicted the first time, he therefore had not been in peril at the time of the second hearing; the second conviction was good. That is very different from this case.
11. At the time the court marked the VOSA summonses as withdrawn the CPS was still pursuing its prosecution, but the court had no power to ensure that the CPS prosecution would proceed to its conclusion, that being a matter for the CPS. Even if the reason for VOSA seeking withdrawal of those summonses was that there were identical proceedings by the CPS, a subsequent decision by the CPS to offer no evidence does not, in my judgment, in any way vitiate the withdrawal of the VOSA summonses. It appears that subsequently the CPS, for reasons unconnected with and independent of the withdrawal of the VOSA summonses, decided to offer no evidence in respect of their prosecution.
12. When the justices stated it was not their intention to have withdrawn both sets of summonses against the claimant the claimant submits that that is irrelevant. In my judgment that is correct. The case that is cited by the justices is of no assistance. The course of events in this case did not constitute any irregularity so as to vitiate the decision to withdraw the VOSA summonses. It follows that the decision to review the matter and to permit the VOSA prosecution to proceed was unfounded. There was in the circumstances that obtained no irregularity such as would vitiate the decision to withdraw and, in consequence, no basis in law for the decision the justices made.
13. Accordingly, I would quash the decision of the justices to set aside the withdrawal of the VOSA summonses.
14. LORD JUSTICE MAURICE KAY: So would I.
15. MR GILL: There is an application on behalf of the claimant for costs from central funds.
16. LORD JUSTICE MAURICE KAY: You cannot get costs on a case stated appeal but you can on judicial review.
17. MR GILL: I believe so, yes (Pause).
18. LORD JUSTICE MAURICE KAY: Yes, ordered from central funds.
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