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
		17 June 2008

1. MR JUSTICE MACKAY: It is alleged that on 16 December 2006 at about 1.30 in the morning, the interested party, Mr Alan Loveridge, drove a minibus with three passengers away from the King's Head public house in Leonard Stanley, Gloucestershire to take them home. In the course of that journey, in a road called Bath Road, the passengers noticed or felt that the vehicle had driven over something. That something later proved to be the body of a woman lying in the road. Mr Loveridge did not stop, but dropped off his passengers, and then returned the vehicle to his home and went on foot to a second public house, the Victoria, where he stayed for some time, drinking until a quarter to 4 in the morning. Enquiries carried out in the meantime led to his address, where the minibus was found, and found with what later proved to be the blood and body tissue of the deceased woman on the front axle. Police located Mr Loveridge at 5 minutes to 4 and arrested him on suspicion of causing death by dangerous driving. A specimen of his breath taken some time after 4 o'clock in the morning indicated he was twice the legal limit.
2. Further investigations followed which embraced two types of expert evidence. The first indicated the possibility that the deceased woman was already dead when the minibus ran her over. There was, secondly, a reconstruction expert's report which indicated that the visibility at the relevant part of the road was poor; the minibus had been driving at a suitable speed for the road; and the manner of its driving did not support any allegation of dangerous driving. Therefore, on 6 June 2007, just within the six-month period from the incident, the interested party, Mr Loveridge, was charged not with causing death by dangerous driving, but with driving a vehicle with a blood alcohol concentration above the prescribed limit, contrary to section 5 of the Road Traffic Act 1988. At the time of charge, the police served evidence on him, which included evidence of his pre-incident consumption of alcohol at the King's Head, the first of the two public houses.
3. On 29 June, Mr Loveridge appeared in court and pleaded not guilty to that charge. The prosecution said they were seeking further expert evidence from a Dr Chatterton relating to the customary back calculation from the time of his breath test to the time of driving, in view of the fact that, in interview, the interested party had revealed that he had spent some time after the incident drinking at the second public house, the Victoria. That expert had been asked to report by a request made in February at a time before a prosecution for causing death by dangerous driving had been ruled out, and he had not been able to reach a conclusion.
4. Following the adjournment which was granted by the court on 29 June 2007, they pressed for a further view. The expert remained either unable or unwilling to provide a report expressing any concluded view. On 24 August 2007, at a case progression hearing, the prosecution failed to secure the vacation of the trial date of 7 November 2007 so as to enable a report to be obtained.
5. On 10 September 2007, the Chief Crown Prosecutor wrote to Mr Loveridge's solicitor, a letter that the solicitor claims not to have received, saying that she proposed to apply to amend the charge to one of driving under the influence of drink or drugs contrary to section 4 of the Road Traffic Act 1988, and she referred in her letter to this court's decision in the case of R v Scunthorpe Justices ex p McPhee and Gallagher, Divisional Court, 24 February 1998 (CO/1748/97). At the next court hearing on 5 October 2007, the prosecution made their application to amend, as they called it, or more accurately, to seek to lay a new charge under section 4 and offer no evidence on the section 5 charge. The defendant was represented at that hearing. The application was granted, and the defence then indicated that they intended to apply for a stay of the proceedings as an abuse of process. It was argued that the defendant had no notice prior to 24 August, eight months after the incident, that there was any suggestion that the amount of alcohol that the interested party claimed to have consumed was in issue, that is to say, after the incident at the Victoria. He could not receive a fair trial, therefore, because of the delay, as he now realistically could not obtain evidence from other drinkers at the first public house as to his consumption after such a passage of time.
6. On 5 November 2007, the decision which it is now sought to quash on the application of the claimant, this abuse argument was entertained and heard by Deputy District Judge Nicholls. At the heart of the argument was the proposition that the laying of the section 4 charge out of time was unlawful, and that the evidence of unfitness to drive from eyewitnesses at the King's Head had been available to the prosecution for eight months and there was no good reason for the delay. The claimants argued that the amendments had been made by a previous decision of the court, and lawfully made under the provisions of the Scunthorpe Justices decision, though the Deputy District Judge says in the acknowledgment of service that he has no recollection of it having been suggested that he could not revisit the amendment decision. At all events, it is clear from the acknowledgment of service and his account of the hearing that both the amendment issue, as it may be called, and the abuse of process issue were before him.
7. The decision of the Deputy District Judge was in favour of the application. He first held that the October decision to allow the amendment was wrong in law as, firstly, the new charge would raise issues as to the manner of the defendant's driving which was not previously the case, and secondly that the authorities supported amendments made a few days out of time, not a few months. Thirdly, he held that the fairness of the trial had been prejudiced by what was said to be unexplained delay and it was no longer possible for the defendant to obtain CCTV or other evidence from the public house as to what he had been drinking before the incident happened. He therefore found that there had been an abuse of process.
8. I should interject at this point the basis on which the parties were addressing the amendment issue, as it was called, in the light of the Scunthorpe Justices case, the relevant part of which reads, in the judgment of Dyson J (as he then was), in these terms, having reviewed previous authorities:

"(1) The purpose of the six-month time limit imposed by section 127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission.

(2) Where an information has been laid within the six-month period it can be amended after the expiry of that period.

(3) An information can be amended after the expiry of the six-month period, even to allege a different offence or different offences provided that:

(i) the different offence or offences allege the 'same misdoing' as the original offence; and

(ii) the amendment can be made in the interests of justice.

These two conditions require a little elucidation. The phrase 'same misdoing' appears in the judgment of McCullough J in Simpson v Roberts. In my view it should not be construed too narrowly. I understand it to mean that the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence."

9. Two issues therefore are raised by the claimants in this case. The first is that the ruling of 5 October 2007 was binding on the court thereafter, and therefore the Deputy District Judge had no jurisdiction to entertain that feature of the application on 5 November. section 8B of the Magistrates' Courts Act 1980 and its relevant parts reads as follows:

"(1) Subject to subsections (3) and (6), a ruling under section 8A has binding effect from the time it is made until the case against the accused ... is disposed of.

...

(3) A magistrates' court may discharge or vary (or further vary) a ruling under section 8A if-

...

(b) the court has given the parties an opportunity to be heard, and

(c) it appears to the court that it is in the interests of justice to do so.

(4) The court may act under subsection (3)-

(a) on an application by a party to the case, or

(b) of its own motion.

(5) No application may be made under subsection (4)(a) unless there has been a material change of circumstances since the ruling was made ... "

10. It appears therefore, on a strict reading of this section, that where the court acts of its own motion to vary a previous ruling, the grounds for discharge or variation are simply the interests of justice, and where an application is made by a party, there is an additional requirement for proof of material change of circumstances.
11. It is not crystal clear what the nature of the application on 5 November was, but it was certainly triggered by a defence application to dismiss all charges for abuse of process. Inherent in that application was the proposition that the earlier order of 5 October was wrong and should never have been made. There was no room to argue that any material change of circumstances had taken place in the intervening month. But I should assume, in the defendant's favour, that this was a revisiting by the court of its earlier ruling, carried out, in the words of the section, of its own motion.
12. I for my part find it difficult, indeed impossible, to accept that it can be in the interests of justice for the same court to feel free, in effect, to annul or discharge its own earlier ruling without there being some compelling reason, such as changed circumstances or fresh evidence, so to do. I would not regard it as being in the interests of justice for one bench to set aside a previous bench's ruling previously because on the same material it thought it would reach a different conclusion.
13. The second issue is whether the court's decision to stay for abuse of process as an exercise of its discretion was the result of a misdirection of itself or one which no reasonable justices could make. The original decision to amend was made in the light of the court's decision in Scunthorpe Justices, the relevant parts of which I have set out above.
14. The relevant delay which can be identified here is that which fell between 6 June, the preferring of a section 5 charge, and the application to amend on 5 October, therefore some four months. It is right to say that no detailed explanation, or indeed no particular explanation of any kind, has been put forward for this delay. It therefore seems likely that, as the interested party argue and as the Chief Prosecutor herself effectively said in her letter of 10 September, that she had simply not considered the file fully until shortly before that letter. There is no doubt in my mind that the amended charge, so to call it, which the prosecution now wish to proceed with is a charge which arises from the same or substantially the same facts, to use the language of the Scunthorpe Justices case. The question therefore is: could the amendment be made in the interests of justice, which must necessarily include those of the prosecution, as well as the defendant's plain right to a fair trial in these circumstances?
15. The bench which ordered the amendment on 5 October may not have heard the fullest of arguments on the issue, or specific representations as to the prejudice that would be caused to the defence were the amendment made. Having now heard these arguments, rehearsed as they are in the interested party's skeleton argument of 3 June 2008, and which have not been added to by any oral argument today, the interested party having decided not to attend, I am of the view that the decision to allow the new charge to be preferred was one which was fully open to the District Judge, who made it on 5 October, and one which a reasonable bench of magistrates could have taken.
16. The delay that I have identified was indeed more than minimal, but could not be called, in my judgment, excessive. This was not from the prosecution's perspective a wholly straightforward case. As to whether any prejudice has been occasioned to the defendant, the issue of how much he had had to drink, both in terms of its quantity and in terms of its effect upon him, was always in play, even back in the times when the prosecution were contemplating a charge of causing death by dangerous driving, and they served evidence which covered it. It was always, whatever the charge, in the defendant's interest to seek to obtain evidence which minimised the amount of what he had consumed in the King's Head and maximise what he had consumed in the Victoria. In any event, the Deputy District Judge, in reaching the questioned decision on 5 October, purported to rule as he did under the rubric of abuse of process; one where the burden of proof lies on the defendant, and, more importantly, where the jurisdiction of Magistrates' Courts was carefully and closely defined by the House of Lords and Lord Griffiths in the case of R v Horseferry Road Magistrates' Court ex p Bennett [1994] 1 AC 42, where he said:

"However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures."

17. Here there is no suggestion and no argument to the effect that there has been manipulation of the court procedures. There is undoubtedly delay and it is undoubtedly substantial, and that is undesirable in the case of summary proceedings, but it is not, in my judgment, such as to directly affect the fairness of the trial for the reasons I have given above.
18. I for my part would therefore conclude that the decision of 5 November to stay for an abuse of process was either as a result of the court's misdirecting itself or was a decision which no reasonable justices could have made in the circumstances, and would grant the relief sought in this claim.
19. LORD JUSTICE RICHARDS: I agree.
20. Now, the relief sought, Ms Hennessy, is an order quashing the Magistrates' Court decision of 5 November 2007 which stayed the prosecution of the interested party.
21. MS HENNESSY: I am grateful.
22. MR JUSTICE MACKAY: Do you also seek a direction that the Magistrates' Court re-list the case for trial?
23. MS HENNESSY: Yes, please. It will need to now go back.
24. MR JUSTICE MACKAY: That will ensure that everybody knows where they stand.
25. MS HENNESSY: Yes.
26. LORD JUSTICE RICHARDS: And there is no application for costs?
27. MS HENNESSY: The prosecution's costs of this matter, yes. I would ask that they be assessed. The prosecution has relatively limited its costs by being very careful about them, but nonetheless has incurred some.
28. LORD JUSTICE RICHARDS: But who are you claiming costs against?
29. MS HENNESSY: I think I would have to claim against the defendant Tribunal who did not come to defendant their claim.
30. LORD JUSTICE RICHARDS: It is perfectly standard in this jurisdiction for the defendant Tribunal not to come and defend its claim, one of the reasons being that if it does, it exposes itself to a liability for costs which it does not otherwise have. The possibility remains of a claim for costs or an application for costs against the interested party, but again that is a matter that it is difficult for this court to deal with in the absence of the interested party.
31. MS HENNESSY: I think so, yes. On that basis, given that the prosecution has ameliorated its costs very carefully, I think it can manage without them.
32. LORD JUSTICE RICHARDS: No order as to costs. Thank you very much.