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 December 2008

1. LORD JUSTICE SCOTT BAKER: This is an appeal by way of case stated against a decision of the Ealing Justices on 23 July 2007 when they convicted the appellant of driving whilst disqualified and driving without insurance. For the former, he was sentenced to six months' imprisonment and disqualified for five years. In respect of the latter, no separate penalty was imposed.
2. The offences are alleged to have occurred on 30 October 2006 in Harold Road, London, NW10. The prosecution sought and obtained leave to adduce evidence of 11 previous convictions for driving whilst disqualified as evidence of propensity. That took place at an earlier hearing before a different bench of justices, and indeed there had been a yet earlier directions hearing in order to prepare the case for trial.
3. It was not disputed that the appellant drove a motor vehicle on the day in question. The issue is whether the justices were entitled to find that he was a disqualified driver. When interviewed following arrest, the appellant gave no reply to each of the questions that he was asked. One of those questions was whether he was disqualified by the Blackfriars Crown Court on 16 June 2003 for a period of five years and until he passed a test.
4. The previous convictions were put in evidence by the prosecution and they were admitted, but they did not include details of the sentences imposed. There was no formal admission that the appellant was disqualified from driving at the material time, and no certificate of disqualification was put in evidence before the court. In the case stated, the justices say that they were satisfied beyond reasonable doubt, given the way the case had been managed and run, that the appellant was disqualified on 30 October when he was seen to be driving the vehicle, and indeed admitted driving the vehicle. The justices said that, at both the case management hearing on 12 March 2006 and on the hearing of the application with regard to bad character evidence on 23 March of the same year, the parties were in agreement that the appellant was disqualified from driving at the material time. The justices did not leave matters there because they went on also to rely on the appellant's no comment answer to the question about disqualification at the Blackfriars Crown Court that had been put to him. There was however never any formal admission that the appellant was disqualified, nor was there any application to re-open the evidence. Further, there was nothing to suggest that the appellant's representative accepted that it was agreed at any stage that the appellant was disqualified.
5. The position appears to us to be this: that the two previous hearings (first the directions hearing on 12 March and secondly the bad character application hearing on 23 March) would have been conducted by a different bench of justices. There is no record of either of those hearings that is either referred to in the case stated or is anywhere in the papers before this court.
6. Mr Hasslacher, who has appeared before us for the appellant, readily accepts that his client's appeal has, on its face, no merit whatever. But, he submits, that is not the end of the matter because it is essential in this case, as in every other case, that there should be material on which the court was justified in concluding that the charge was established. It is his submission that, look as one may, one simply cannot find any admissible evidence that the appellant was disqualified from driving at the material time.
7. We have been referred to the decision of Newman J in the case of Pattison v the Director of Public Prosecutions [2005] EWHC 2938 (Admin). He referred to a number of authorities and then recited various principles. Two of them are of significance, in my judgment, in the present appeal. The first is that, as with any other essential element of an offence, the prosecution must prove to the criminal standard that the person accused was a disqualified driver, and secondly it can be proved by any admissible means, such as an admission -- even a non-formal one by the accused -- that he was a disqualified driver. As I have already mentioned, there was no formal admission in this case. There is a clear procedure under the Criminal Procedure Rules for formal admissions in criminal proceedings. That was not followed in this case. What is said is that at the preliminary hearing it was agreed by the parties that the appellant was disqualified on the relevant date, 30 October 2006. There is however nothing to support that.
8. In the body of the case stated, the justices recite briefly the evidence that they heard. What is significant, in my judgment, is that at no point in that recital is any reference whatsoever made to the alleged agreement that the defendant was disqualified on 30 October. There is nothing to indicate the basis on which the justices were able to reach that conclusion. It seems to me likely that what occurred was this: that at the preliminary hearings it was made clear that the issue before the court was going to be whether or not the appellant was driving the vehicle in question on 30 October. I suspect, although it is no more than suspicion (and one certainly cannot reach a clear conclusion about this), that it may well be that nothing was said one way or the other about whether the appellant was disqualified, but it was simply inferred that that was not in issue and would be an agreed fact at the hearing.
9. Mr Hasslacher makes the point that the purpose of a preliminary pretrial hearing is to narrow the issues and shorten the subsequent criminal proceedings so that everybody knows what they are. But, he submits, there is a clear procedure for dealing with facts that are agreed, and that is a procedure that cannot be short-circuited by inference. In my judgment, there is force in Mr Hasslacher's submission. One of the purposes of having a formal procedure for agreed admissions is so that there will not subsequently be a dispute as to what was or was not agreed in the particular case.
10. How is it that the justices were able to reach the conclusion that they did in the case in the absence of any evidence that both parties were in agreement that the defendant was disqualified on 30 October 2006? Absent any evidence, it seems to me that the likely course is that they were given information by the clerk of the court that there had been these two previous hearings before different benches when it was clear that disqualification was not in dispute. It is of course possible that there had been some kind of informal agreement on one or other or both of those occasions, but we have seen no evidence of that. Indeed, in the course of the case stated, in paragraph 8 the justices recite the appellant's solicitor's closing speech, which included the fact that there was no certificate of disqualification from any court, nor had the appellant made a formal or informal admission that he was disqualified. That would appear to indicate that nothing formally was said before the court. It may be that that left open the question of what had been said on a previous occasion, but the situation is left entirely in the air.
11. The magistrates recite that, in giving their reasons, they gave weight to the no comment answer in interview of the appellant about disqualification. That suggests to me that they felt that the agreement that the appellant was disqualified to which they had earlier referred was, on the face of it, not sufficient to establish disqualification. Be that as it may, in my view the justices were entirely wrong to draw any inference from the appellant's lack of answer to the question in this case. What happened was this: there was no submission of no case to answer at the end of the prosecution case, but the appellant then left the court, called no evidence and left it to his solicitor to conclude the case.
12. In those circumstances, bearing in mind section 34, it seems to me that it was wholly inappropriate for the magistrates to have drawn any inference from the lack of comment on the part of the appellant. It is not as if he subsequently relied on any fact or matter which gave rise to the opportunity of drawing the adverse inference from the failure to answer the question.
13. This, in my judgment, is an unsatisfactory case, where neither the prosecution nor the defence come out of it with any credit because the issue about disqualification could easily have been resolved one way or the other at the hearing before the justices. It appears that the prosecution in particular simply sat back and did nothing. They had the opportunity to apply for an adjournment to rectify the matter by proper formal proof, and if costs were thrown away in doing so, to ask for a wasted costs order against the appellant's solicitor. They chose, however, to do nothing, and the result is this case stated that comes before this court today.
14. The question posed by the justices is:

"Were we entitled to convict the appellant on the basis of the way the case had been managed, and the particulars of previous convictions before us under section 101(1)(d) of the Criminal Justice Act 2003?"

15. The evidence of previous convictions did not specify any period of disqualification, and therefore the justices were not entitled to rely on the particulars that were put before them. Nor, in my judgment, were the justices entitled to convict the appellant on the basis of the way the case had been managed and the fact that there had been no positive issue before the court as to the fact of disqualification. At the end of the day, the position is that the Crown always has to prove its case. There are a variety of ways of doing that. They could have sought a formal admission in this case but did not do so.
16. I would therefore, for my part, allow the appeal and answer the posed question in the negative.
17. MR JUSTICE MADDISON: I agree. It gives me no pleasure that this appeal should be allowed, but for the reasons explained by my Lord, Scott Baker LJ, it seems to me that the conclusion that there was no admissible evidence of disqualification in this case was inescapable.
18. LORD JUSTICE SCOTT BAKER: We will resume at 10 past 2. Is there any application for costs in this matter?
19. MR HASSLACHER: My Lord, yes. I have not been given a figure in relation to it.
20. LORD JUSTICE SCOTT BAKER: Shall we deal with that at 10 past 2?
21. MR HASSLACHER: Certainly.

(Short Adjournment)

22. LORD JUSTICE SCOTT BAKER: Yes?
23. MR HASSLACHER: My Lord has asked for a figure in relation to costs. I have taken the time to confirm that a legal aid certificate is in place, and whilst it is encouraged that one seeks cost in any event, it is a matter of getting Peter to pay Paul. Unless your Lordship is against that in principle, I make no application for costs.
24. LORD JUSTICE SCOTT BAKER: We are, as you appreciate, very concerned that this case was listed twice.
25. MR HASSLACHER: My Lord, I myself was very concerned. I was in some great professional difficulty by reason of what occurred on the last occasion.
26. LORD JUSTICE SCOTT BAKER: It is just hopeless incompetence on behalf of the Crown Prosecution Service and I do not see why they should not pay the costs that have been thrown away.
27. MR HASSLACHER: My Lord, indeed. I raised wasted costs on the last hearing. I do not believe that it is answerable, although of course it is for the Crown to address that. My Lords, I do feel strongly myself about what occurred on the last occasion.
28. LORD JUSTICE SCOTT BAKER: It is not just on the last occasion, it is ever since, but you probably have not seen the correspondence.
29. MR HASSLACHER: No documentation and asking for a reply by way of a skeleton argument in all this time. Of course, I do not blame my learned friend, who acted --
30. LORD JUSTICE SCOTT BAKER: No, he has been in an impossible position.
31. MR HASSLACHER: Since 4 o'clock yesterday.
32. LORD JUSTICE SCOTT BAKER: Yes. There would have been nobody here at all but for the action that I took two days ago.
33. MR HASSLACHER: And he might have been entitled to ask for more time, but he did not. But in that respect, yes, on the principle of this, my Lord, and on due consideration I do ask for costs therefore from the Crown.
34. LORD JUSTICE SCOTT BAKER: Yes. We better hear what Mr Evison has to say.
35. MR EVISON: I am not able to resist the application for costs in the circumstances since there are clearly omissions on the Crown's behalf in relation to the April hearing, and this application has been successful.
36. LORD JUSTICE SCOTT BAKER: Are the costs agreed? I have not been given a figure.
37. MR HASSLACHER: My Lord, I have not been given a figure either. Normally in these circumstances they are to be assessed once my opponent has gone into this court.
38. LORD JUSTICE SCOTT BAKER: If we said to be assessed if not agreed, would that be satisfactory?
39. MR HASSLACHER: Yes, my Lord.
40. LORD JUSTICE SCOTT BAKER: Now what is the position about the --
41. MR EVISON: My Lord, the District Crown Prosecutor responsible for this division, Mr Torrington, is here at court.
42. LORD JUSTICE SCOTT BAKER: He is the Chief Crown Prosecutor for the area, is he?
43. MR EVISON: He is the District Crown Prosecutor, but responsible for that area.
44. LORD JUSTICE SCOTT BAKER: What I asked for was the Chief Crown Prosecutor for the area. I made that clear. Is that his position?
45. MR EVISON: Mr Torrington is the responsible Crown Prosecutor for the Harrow division. If your Lordship wished to have the Chief Crown Prosecutor, I would have to get the Chief Crown Prosecutor for the whole of the London area, Ms Sharpling, here at court.
46. LORD JUSTICE SCOTT BAKER: We had better hear what Mr Torrington has to say.
47. MR EVISON: Certainly. Your Lordship wishes to hear from him personally?
48. LORD JUSTICE SCOTT BAKER: I thought that the court had made itself clear, but let me reiterate if not. On 24 April, this matter was listed and was adjourned, and the court made a specific order against the Crown Prosecution Service that it was to explain why nobody had attended, and if it wished to resist these proceedings, to lodge a document indicating on what basis. That was served on 6 May on the Crown Prosecution Service and there was no response. On 27 August of this year, the Crown Prosecution Service was telephoned. The Administrative Court office spoke to a CPS representative. They confirmed that the appeal had been received and nothing had been done with it, but since then there has been no further contact and there has been no correspondence from the CPS. An attempt was made to agree a fixed date for the hearing. The list office spoke to a lady at the CPS, who simply said that she had no record of the case.
49. When I first saw the papers in this matter, I indicated that, unless there was a proper explanation from the Crown Prosecution Service prior to the hearing, the Chief Crown Prosecutor would have to come to court and explain the failure to comply with the court order and the other apparent incompetence of the organisation. I was told yesterday that that would be dealt with and you would be given full instructions to deal with it. It became apparent this morning that you were in no position to deal with it, and therefore the picture that is certainly presented to me is that the Crown Prosecution Service, in the shape of Mr Torrington's area for which he is responsible, simply do not bother to comply with orders of the court, and are not in the least interested when the court is anxious to have a proper explanation. In other words, they are in contempt of court and "Let the court get on with it". That is the way it appears.
50. MR EVISON: Mr Torrington tells me that the file in question was destroyed on 30 August this year, so I cannot understand why that should be the case when there was a telephone call three days before. That would not be unusual. Obviously once notification is received of a case stated, which would have been in the early part of 2007, the case file should be kept alive.
51. LORD JUSTICE SCOTT BAKER: What has happened then? Why was the order of the court not complied with in April?
52. MR EVISON: Mr Torrington cannot find the file. It has been destroyed, and there is no explanation --
53. LORD JUSTICE SCOTT BAKER: He better come into the witness box and explain the incompetence of his organisation and why there are no management controls.
54. MR EVISON: Does your Lordship wish Mr Torrington to be sworn in?
55. LORD JUSTICE SCOTT BAKER: That is not necessary.
(Mr Andrew Torrington, District Crown Prosecutor, called to give evidence)
56. MR TORRINGTON: My Lord, can I first of all apologise. I did write to your Lordship yesterday afternoon, and I understood that you did not require me --
57. LORD JUSTICE SCOTT BAKER: Yes, I have seen that letter, but that is on the basis that some explanation is given. All we are told is: "Oh, we lost the file". It really is not good enough for an organisation that ought to have some competence and leadership about it.
58. MR TORRINGTON: Yes, your Lordship is absolutely right.
59. LORD JUSTICE SCOTT BAKER: What is being done about this?
60. MR TORRINGTON: We have not been able to locate what has happened to the file. Since I wrote, the file in fact was destroyed on 30 August according to the computer tracking system.
61. LORD JUSTICE SCOTT BAKER: On whose authority?
62. MR TORRINGTON: It would have been on the authority of the admin manager, I understand, probably during a clear-out of files -- in fact on the files.
63. LORD JUSTICE SCOTT BAKER: No doubt in that file was an order of the court which was not complied with. What enquiries have you made about that?
64. MR TORRINGTON: My Lord, all of this correspondence is given to the casework manager. She has a file of appeal cases. I believe this is the first occasion in three years where anything like this has happened, but I accept that at least two contacts from the court have gone unanswered and that clearly is unacceptable. That has been made very clear to the managers concerned, and I once again apologise as deep as I can that this situation has arisen.
65. LORD JUSTICE SCOTT BAKER: Yes. There really seem to be two aspects to this. The first is the failure of the Crown Prosecution Service; and secondly, the lack of appreciation of the gravity of what has happened and the fact that orders of the court are made to be complied with and not simply ignored, and that really has not been tackled.
66. MR TORRINGTON: My Lord, the gravity is very clear to me, and I have made it clear to the managers concerned this morning. The file should not have been destroyed. The correspondence that was correctly addressed to my office should have been linked and dealt with directly, and whoever took the message on 27 August should have dealt with it properly. Regrettably we have not been able to identify who it was who actually took the message, but --
67. LORD JUSTICE SCOTT BAKER: What steps can you take to ensure that this does not happen again?
68. MR TORRINGTON: As I say, my Lord, this is the first time it has happened in three years. People do understand what their responsibilities are. There is a proper in-tray for the unit as a whole, and there is somebody who is assigned to deal with this type of case.
69. LORD JUSTICE SCOTT BAKER: It may be that it is my experience, but there do seem to be quite a large proportion of cases stated -- and I am not referring to your particular area at the moment -- where the magistrates rule in favour of a defendant having heard argument from the Crown Prosecution Service, there is then a case stated, and there is no appearance whatever by the Crown Prosecution Service and they do not indicate whether they are going to resist the proceedings or concede the proceedings. It makes it very difficult for the court listing if, when these points are taken in the court below, they are not followed up one way or the other.
70. MR TORRINGTON: Indeed, my Lord. I think the current position is that each party should notify the other if there is a hearing, and that may indeed be one of the problems in this particular case. I do not know because I have not been able to establish what correspondence there was in the past on the file, but that is a possible lacuna.
71. LORD JUSTICE SCOTT BAKER: Thank you for coming. I appreciate it was probably inconvenient, but in order to get the message home that the court is very concerned with matters of this kind, it was necessary to get a proper explanation for what went wrong. It could have been saved if adequate instructions had been given to counsel this morning. Thank you.