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
		Wednesday, 01 July 2009

1. MR JUSTICE WILKIE: This is a singularly unfortunate case in many respects, most significantly serious is that the prosecution of Mr Bull, for driving without due care and attention, arose out of a road accident which took place on 10 March 2007 in which the victim of that accident, Mr Hampson, was unfortunately killed when the bus being driven by Mr Bull was in collision with him and knocked him down on a pelican crossing.
2. The case comes to this court on 1 July 2009, getting on for two years and four months after the accident occurred, as an appeal by way of case stated, although it does not come directly to this court in that form because, although the trial took place on 26 June 2008, an information having been laid a year earlier in June 2007, following upon the conviction of Mr Bull, there was a request made by his solicitors to the court to provide a case to be stated for appeal to this court. The court refused that application. There was then an application for judicial review of that refusal, which this case formally remains.
3. Permission was granted on 17 October 2008 and in due course a case was stated, dated 16 March 2009, without the issue of the refusal to state a case having been litigated. Accordingly today in substance we are dealing with the appeal by way of case stated.
4. At the trial, which took place over two days on 26 and 27 June 2008, Mr Bull was represented by his solicitor, Mr Pelly. The prosecution was represented by Miss Karen Holdcroft. The bench was a bench of lay Justices. The legal adviser was a Miss Mehan. It was anticipated that there would be a number of lay witnesses, three of whom were to be called, an eyewitness, Mrs Haylett and two PCSOs, David Hosie and Michael Roche.
5. In addition there were a number of witness statements to be read, having been given under section 9. They were, respectively a police constable who attended the scene, a vehicle examiner, a collision investigator, the police officer who obtained Mr Bull's first account of the incident, the sister of Mr Hampson, who gave evidence as to his physical disability which caused him to walk slowly, and the police officer who served the summons on Mr Bull.
6. In addition to those witnesses of fact, both the prosecution and the defence were prepared to call two experts each: forensic pathologists, and, in the case of the prosecution, a collision investigator, PC Johnson, and, in the case of the defence, a Mr Wealleans, an independent transport and vehicle consultant. As we say, the trial was listed for two days.
7. It is perhaps salutary to comment that, in an attempt to be helpful in advance of the trial actually starting, the three lawyers who were involved: the defence solicitor, the prosecution solicitor and the legal adviser, had a discussion and it was agreed amongst them that the magistrates should be told that the issue in the trial "revolved around what colour the lights were showing at the time of the incident".
8. A consequence of that agreement, which was communicated to the magistrates, was that it thereupon became the case that the evidence of the four expert witnesses ceased to have any direct relevance to what then appeared to be the sole issue of fact to be focused upon by the magistrates. Accordingly all four experts were released. It appears that three of them remained, no doubt out of genuine interest, until the lunch adjournment, by which stage the lay evidence of the prosecution had been given. That included the evidence of Mrs Haylett, who was the only eyewitness to the accident called by the prosecution, the other two police officers having heard the collision and having arrived shortly afterwards.
9. It is apparent from the brief record of her evidence recorded in the case stated that her evidence before the magistrates fell significantly short of that which, no doubt, the prosecution had hoped. If the case had been exclusively conducted on the basis that the sole factual issue was the colour of the light at the point at which Mr Bull entered the crossing, then it was highly unlikely that he would be convicted of the offence with which he was charged.
10. At that stage it appears that the prosecution reconsidered their position and indicated to the magistrates that, as part of their case, they wished to adduce the written reports of the pathologist and PC Johnson. In so far as they are relevant, the combined effect of those reports were that Mr Hampson's injuries from which he died were predominantly on his left side.
11. Based upon that, PC Johnson drew the inference, and proffered the opinion, that Mr Hampson must have been crossing the road from the right across in front of the driver of the bus to have almost reached the far side of the road when the bus's nearside corner collided with him. Had the magistrates been sure of that sequence of events, then it would not be surprising were they to have concluded that Mr Bull was careless in failing to observe a man with a disability walking slowly right across the road in front of him.
12. Surprisingly, Mr Pelly seems to have permitted that evidence to be read, thereby giving the impression that this evidence was not in dispute, without having raised any objection, and without having indicated that it completely changed the nature of the case from that which had been agreed at the outset. Certainly there is no indication in the case stated that any such objection was made, nor, however, is there any indication in the case stated that the magistrates made it clear to Mr Pelly and his client that from that point the examination of the factual matrix was going to be on a much more extensive basis than that which everybody had previously assumed.
13. However, that evidence was read. Not only that, but when the turn came of the defence to present its case, Mr Bull gave evidence in chief. He not only dealt with the question of what colour the traffic lights were showing when he entered the pedestrian crossing, but he also gave evidence as to the point at which Mr Hampson was visible to him. He said that he first saw him on the left side of his windscreen a foot away. He had not seen him before, approaching the traffic lights, and he gave evidence that he definitely did not approach from the right-hand side of the road, otherwise he would have seen him.
14. In addition, the defence invited the magistrates to consider their expert reports in a written form, notwithstanding the fact that the defence expert, Mr Wealleans, whilst accepting the inference which PC Johnson drew: that one explanation of the position of Mr Hampson's injuries was that he crossed over in front of the bus from the right-hand side of the road; also provided an alternative explanation which was that Mr Hampson could have entered the crossing from the left, perceived that it was a dangerous manoeuvre, turned around to make his way back to the safety of the pavement, at which point he was struck by the bus, sustaining those injuries.
15. Again, neither of those experts was present. Their evidence was proffered in written form. The magistrates were therefore, left to cope, as best they could, with whatever differences in emphasis the reports contained.
16. There was, in addition, a legal issue in connection with the evidence given by Mr Bull. It is the case that in his immediate responses to the police he had not asserted that the lights were at green when he entered the crossing. He had apparently, on legal advice, given a no comment interview. The legal adviser advised the magistrates that it was open to them in those circumstances to draw an adverse inference from Mr Bull's silence at interview. The magistrates were addressed by both the prosecution and the defence.
17. According to the case stated, the prosecution contended both that Mr Bull entered the crossing when the lights were either red or at amber, and that he failed to see Mr Hampson because he was distracted by some other event. The defence contended both that the lights were at green when Mr Bull went through them, and that he did not see Mr Hampson until the last moment because he just stepped out from his left side into his path.
18. The magistrates then retired and, having considered the matter, gave their reasons. We have the advantage of the reasons that they gave at the time from the form that they filled in. They found him guilty as charged. However, in so doing they came to a specific conclusion on what had been described to them as being the issue around which the case revolved. That finding was in Mr Bull's favour: they were unable to be sure that the lights were on red, or indeed on amber, when he entered the crossing.
19. They came to that view notwithstanding the fact that they did draw an adverse inference as to his silence on that issue in interview. Nonetheless, the quality of Miss Haylett's evidence was such that they were not sure, beyond reasonable doubt, as to the colour of the lights. They then went on, however, to conclude their reasoning in respect of their finding of guilt in the following terms:

"However, despite our finding in relation to the lights, in the circumstances we find that Mr Bull fell far below the required standard of a competent & careful driver. Those circumstances being the fact that Mr Bull should have seen Mr Hampson but didn't. We heard evidence from Mr Bull that he didn't see Mr Hampson until the last minute. We are of the opinion that Mr Bull when approaching the crossing should have seen Mr Hampson as the area was well lit and the conditions were good. We know that the button for the lights was pressed by Mr Hampson. Therefore Mr Bull should have seen him regardless of his position."

It is to be observed that, within that concluding paragraph in their reasons, there is a complete absence of any finding of fact as to whether Mr Hampson approached the crossing from the right, so as to walk right across the road in front of the bus before being struck, or from the left. One can infer that they were not sure that he came from the right because of the concluding remark that Mr Bull should have seen him regardless of his position, but the absence of any such clear finding of fact presents a significant difficulty in understanding their process of reasoning. Furthermore, if they were concluding that they were sure that his driving fell below the requisite standard to the requisite degree on the basis that Mr Hampson may well have approached from the left, there really is an almost total absence of reasoning.

20. In my judgment this trial process was unsatisfactory from start to finish. The initial attempt by the lawyers to identify a single issue, whilst no doubt admirable in terms of seeking to have an efficient hearing, was insufficiently thought through, as, plainly, that issue was not the only issue of significance and indeed must have been plain from the conflict of evidence as between the two accident reconstructions. That being the case, the magistrates failed to indicate, with any clarity, that they were prepared to widen the ambit of their factual inquiry, thereby they admitted evidence, which was not agreed, in written form and the matter went off half-cock.
21. The alternative basis being put forward by the prosecution for the case of careless driving was, essentially, on the footing that their reconstruction expert's opinion was that Mr Hampson must have come across from the right, and that, on that basis, there would be a clear-cut case of careless driving. However, it does not appear to us that it was ever articulated on their part that, even if Mr Hampson came from the left, the lack of foresight on the part of Mr Bull was sufficient to satisfy the legal requirement for proving the offence.
22. Certainly Mr Bull, in his evidence, seemed to emphasise that Mr Hampson did not come from the right, which rather indicates that in his mind, whether or not it was Mr Pelly's mind, that was the secondary issue in the case. It is clear, at any rate from looking at the case stated, that neither the prosecution nor the defence addressed the magistrates on the basis, which appears to have been the basis upon which the magistrates concluded that the case was proved.
23. Thus it appears to us that all the participants contributed to this trial being less than satisfactory. This is the more serious because, although the offence charged was a relatively minor one, the trial arose out of a fatal accident and Mr Hampson and his relatives deserved rather better than they received from the court.
24. We have considered whether the mistakes made by the respective contributors to this unsatisfactory trial may have cancelled each other out, and it is certainly right to say that an argument could be put forward to that effect. However, it is not our job to try to reconstruct a fair and proper trial in the face of a multiplicity of errors and misjudgments. Looking at the material that we have, and in particular the case stated and the magistrates' reasons, we are satisfied that there were procedural errors on the part of the magistrates which failed to enable Mr Bull and his adviser properly to address the issues which concerned the magistrates.
25. Whilst we are in no doubt that the magistrates were fully entitled to consider all the evidence and all the possible bases for a finding of guilt, if they were to do so they must have made it clear to the defendant what were the bases they were considering in order that the defendant and his advisers might respond to them. Plainly that did not happen in this case. It therefore follows that this conviction must be quashed.
26. Although Mr Laprell, on behalf of Mr Bull, says that he could not complain if the matter were sent back to a different bench for a new trial, he does point out that the events are now more than two years away and inevitably memories will have faded. Plainly that is a matter that we should consider in deciding whether or not to remit or simply call a halt to these proceedings. It has to be pointed out, however, that there was an alternative route open to Mr Bull, which was to have appealed to the Crown Court where there would have been a full hearing. Undoubtedly that would, and could, have been arranged within a matter of weeks, if not a small number of months. He chose, and as we have concluded rightly, to go by way of case stated, but that has resulted in significant delay and that was his choice.
27. In my judgment the delay that has thereby occurred is not such as persuades me that this case has no future and should be stopped here and now, and, for my part, I would remit the matter back to the magistrates for a fresh hearing if the prosecution wish to proceed further with this case.
28. LORD JUSTICE LEVESON: I agree. All those advising disappointed litigants before the magistrates should be well aware of the risks of pursuing an appeal by way of case stated, as opposed to appealing by way of rehearing to the Crown Court. Pure issues of law are rare. When they arise they are perfectly properly resolved by way of case stated. Where issues of facts with but a scintilla of law are involved, although I can well understand advisers taking the view that errors made by the other side in the lower court could be corrected on appeal to the Crown Court, case stated presents its own risks. The purpose of the appellate system is to provide a just result for all litigants. For that reason, I particularly endorse my Lords' observations in relation to consequences of delay in connection with the re-hearing of this particular trial.
29. MR LAPRELL: My Lord, I do not seek the costs of this appeal against the prosecution, I do seek them from Central Funds.
30. LORD JUSTICE LEVESON: Very good.
31. MR LAPRELL: I am obliged. Could I ask for the direction that they be assessed in the usual way?
32. LORD JUSTICE LEVESON: By all means.
33. MR LAPRELL: I am reminded by my instructing solicitor I should include in that the costs here and below from Central Funds. Obviously the costs of the retrial will have to be determined.
34. LORD JUSTICE LEVESON: I am not so sure about that. First of all, I need to be persuaded that there is a jurisdiction to order the costs from below from Central Funds in a case such as this, and secondly, speaking for myself, I would have preferred to leave that until the ultimate resolution of the case.
35. MR LAPRELL: I do not think there is anything to preclude you directing that the magistrates consider the costs. Could I deal with those in order, if I may? I cannot immediately give you chapter and verse, but there definitely is authority that you have jurisdiction to deal with the costs here and below: costs of the whole case to date. You can split them and give one but not the other, but you certainly have jurisdiction to deal with costs here and below.
36. LORD JUSTICE LEVESON: I would like to know, I am afraid it may be you will have to come back later on in the day, what the authority is for allowing us to now award from Central Funds the trial of this summary case in the Magistrates' Court?
37. MR LAPRELL: Because the magistrates have jurisdiction to award.
38. LORD JUSTICE LEVESON: From Central Funds?
39. MR LAPRELL: Yes, the defendant's costs order is the customary order for a successful defendant in the Magistrates' Court, just as in the Crown Court.
40. MR JUSTICE WILKIE: Not if he is acquitted he would have been--
41. MR LAPRELL: I said a successful defendant.
42. MR JUSTICE WILKIE: To some extent his representation was part of the offer--
43. MR LAPRELL: That goes to merit not jurisdiction. There is certainly jurisdiction because the magistrates had jurisdiction and you have assumed that jurisdiction. Going to the second point, I am helpfully told it is section 17 of the Prosecution of Offences Act 1975.
44. LORD JUSTICE LEVESON: Section 17(1), paragraph 6.23, deals with proceedings in respect of the indictable offence.
45. MR LAPRELL: The offence as here. That is certainly right.
46. LORD JUSTICE LEVESON: Also any proceedings for a Divisional Court, or the House of Lords in a summary offence.
47. MR LAPRELL: It is section 16-(3) of Archbold on page 589:

"16.—(1) Where—

(a ) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;

(b ) a magistrates' court inquiring into an indictable offence as examining justices determines not to commit the accused for trial;

(c ) a magistrates' court dealing summarily with an offence dismisses the information;

that court or, in a case falling within paragraph (a) above, a magistrates' court for that area, may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a 'defendant's costs order')."

48. LORD JUSTICE LEVESON: We have not done any of that.
49. LAPRELL: You now have that jurisdiction.
50. LORD JUSTICE LEVESON: We have not dismissed the information. We have ordered it to be tried.
51. LAPRELL: You have set aside the conviction so it has not been dismissed. That is certainly right. They have been neither convicted nor acquitted, so we are therefore in a lacuna between the provisions of the Act.
52. LORD JUSTICE LEVESON: It is one of the issues that might have to be decided by the magistrates when the case is dealt with. Doubtless their attention will be directed to the terms of this judgment--
53. LAPRELL: In those circumstances, my Lord, can I simply ask again for what I think I have already got?
54. LORD JUSTICE LEVESON: You already have it. You do not want it twice. Thank you very much indeed.