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
		24 July 2009

1. LORD JUSTICE THOMAS:

2. The facts relating to the charge

2. As long ago as 5 January 2007, that is to say some two and a half years ago, the appellant was seen by police officers at 11.25pm to be in his BMW, parked in a public road with the engine running. He was slumped behind the steering wheel. The appellant agreed to provide a road side breath sample. The reading was 91 milligrams of alcohol per 100 millilitres of breath. He was arrested and taken to the police station.
3. An attempt was made to obtain a sample of breath, but insufficient breath was produced. He said he had bronchitis. A decision was made to take a sample of blood or urine. When asked if there was a medical reason for not taking a blood sample he said he was afraid of needles. The decision was taken to proceed with a urine sample, but he failed to provide one.
4. He was charged with an offence contrary to section 7(6) of the Road Traffic Act 1988, the particulars of that being that he failed to provided a specimen of breath.

6. The pre-trial proceedings

5. He was then bailed to appear on 6 January 2007 at the Chorley Wood Magistrates' Court. He pleaded not guilty on 6 January 2007. Somewhat surprisingly, the matter was adjourned until 3 July 2007 for a case management hearing. I would observe that an adjournment of that length is wrong in principle. The Magistrates' Courts are courts of summary jurisdiction with an obligation to proceed to hear cases within a reasonable time limit. An adjournment for a case management hearing of that length is completely unacceptable in a modern system of justice.
6. At the case management hearing on 3 July 2007, that is a period of 5 months and 28 days after the charge, that not guilty plea was confirmed. It does not appear that much else happened, save that the CPS and the court were told that there was a triable issue as to whether there was a reasonable excuse in relation to the charge of failing to provide a specimen of breath, and that the trial would take place on medical evidence. Again, surprisingly, bearing in mind the nature of this case, the trial was adjourned until 19 October 2007, some 9 months and 14 days after the charge. That is a period that is, again, completely unacceptable for a case of this kind.

9. The duties at the case management hearing

7. It is, of course, the obligation of any party, prior to a case management conference, carefully to look at the papers so as to apprise the court of the issues. This is a duty that this court emphasised in another case relating to the Chorley justices, where this court observed that the criminal procedure rules had effected a sea-change and trials by ambush were no longer to take place. Those principles apply as much to the prosecution; it is their duty properly to examine the file prior to the case management hearing. Case management hearings are not exercises in formality. They are the proper occasion for each of the parties carefully to examine its case; for the magistrates, or their clerks, to subject the case to scrutiny so the trial can take place efficiently by concentrating on the identified issues and the evidence needed in respect of them.
8. Unfortunately what happened in this case is that it appears that the Crown Prosecution Service did not examine the papers with the degree of care a court would have expected prior to the case management hearing on 5 July 2007. That examination could only have taken place on 7 August 2007 or shortly prior thereto, because only on that occasion did the Crown Prosecution Service spot that they had charged the appellant with the wrong offence; this was after the case management hearing. They wrote to the appellant in these terms on 7 August 2007:

"I have recently had the opportunity of reviewing the file. Your client is erroneously charged with a failure to provide specimens of breath, whereas he should have been charged with a failure to provide a specimen of urine. Please note that there will be an application to amend the charge on the day of the trial. I have sent a copy of this letter to the court. This development may render the issue of medical evidence to be of no significance as your client simply refuses to supply a specimen of urine, but that is a matter for you."

9. The observations in respect of that letter that must be made are as follows: (i) The Senior Crown Prosecutor who wrote this letter should have reviewed the file prior to the case management hearing. It is pointless having a case management hearing if the papers are not read before the hearing but are read subsequently to it. (ii) It was obvious that there was a mistake, but we have had no explanation whatsoever as to why that was not picked up prior to the case management hearing. The only inference that there can be drawn is that the Senior Crown Prosecutor manifestly failed in his duty to read the papers prior to the case management hearing. (iii) The letter stated that there could be an application to amend the charge on the day of the trial. If the Senior Crown Prosecutor had thought properly of his duties to the court under the Criminal Procedure Rules, it would have been his duty to have asked the court to have a hearing so that the issue of an amendment could be determined prior to the trial. If the amendment had been refused, one would assume there would have been no trial; if the amendment had been allowed there would have been plenty of time to prepare for the trial. Again, it is a matter of regret that no explanation of this yet further failure by the Senior Crown Prosecutor has been given to us.
10. The Crown Prosecution Service wrote, it is fair to say, to the appellant's solicitors, reminding the appellant, on 19 September 2007, that there had been no reply to its letter of 7 August 2007. It was only on 17 October 2007 that the appellant's solicitors wrote to the Crown Prosecution Service asking for a copy of the amended charge. Again, there was a failure to observe the Criminal Procedure Rules and the duty imposed upon the parties to cooperate and assist the court in the proper disposal of cases.

The hearing on the date fixed for trial

11. On 19 October 2007, the date fixed for the trial, an application was made to amend the charge to one of failing to supply a specimen of urine, contrary to section 7(6)(b) of the Road Traffic Act 1988. The appellant's solicitors opposed the application. The justices decided that the application should be allowed and adjourned the trial until 4 February 2008. That is, again, 13 months or so after the original offence. We have tried to ascertain what happened on 19 October 2007 and why there was the considerable further delay, but it has not been possible to do so.

15. The amendment of the charge

12. When the magistrates were faced with the application for an amendment the law was clear, and remains clear. The principles are set out in section 123 and 127 of the Magistrates' Courts Act 1980, and in the single decision of this court to which it is necessary to refer, R v Scunthorpe Justices Ex parte Kerry McPhee and Ex parte Mandy Gallagher [1998] 162 JP 635. The court was presided over by Lord Bingham CJ, and the first judgment was given by Dyson J, as he then was. After a careful review of the authorities he set out the principles; they are to be found at the subsequent paragraphing of this judgment that has been carried out by BAILLI at paragraph 14 and 15 of that report.

"14. In my judgment the following principles can be derived from the authorities:

(1) The purpose of a 6 month time limit imposed by section 127 of the 1980 Act is to ensure that the summary offences are charged and tried as soon as reasonably practicable after their alleged commission.

(2) Where an information has been laid within the 6 month period it can be amended after the expiry of that period.

(3) An information can be amended after the expiry of the 6 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.

15. 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."

17. The same misdoing

13. I may pause there to consider the first condition – "the same misdoing", before turning to the second condition relating to the interests of justice. The first observation I would wish to make is that, in conformity with the decision in the Court of Appeal Criminal Division in R v Erskine [2009] EWCA Crim 1425, it should normally be necessary only to refer to a case that lays down a principle. We have had, and the justices were no doubt referred to, a number of other cases. That should be unnecessary in accordance with what the Lord Chief Justice has said in Erskine.
14. Secondly, the condition as to "the same misdoing" is one that is fact specific. There was before this court in Thornhill v Uxbridge Magistrates' Court and the CPS [2008] EWHC 508 (Admin), a question as to whether, in the particular circumstances of that case, a person who was charged with failing to provide a breath test and subsequently charged with failing to provide a specimen of urine, there was the same misdoing. That case was a case where the CPS did not appear and were not represented; it cannot form much of an authority. But it should in any event be unnecessary to refer to that case, because, as is clear from the judgment of Dyson J, one has to look at whether the offence arises out of the same or substantially the same facts.
15. In the particular circumstances of this case there have been circumstances in which, as I have set out, there was a failure to provide a blood sample almost immediately before the failure to provide the urine sample. There was no distance in time between them. They are both tests which go to establish the fitness of the individual concerned to drive a car at the relevant time. The offence created under s.7(6) is one that covers in one sub-paragraph the failure to provide a specimen of breath, and in the second sub-paragraph, the failure to provide a specimen of urine.
16. It seems to me, applying the test in Scunthorpe Justices, to the facts of this case (and one would imagine in the overwhelming majority of cases of this type) the offences do arise out of the same, or substantially the same, facts. However, as is clear from Dyson J's judgment, this is a fact-specific decision. Therefore I consider that the justices, in so far as they considered that first condition, were correct.

22. The interest of justice

17. However, they then had to consider the interests of justice condition, as in the judgment in Scunthorpe Justices, Dyson J went on to set out observations about the interests of justice. One of those observation is pertinent:
18. "There may also be cases where a late application to amend by the prosecution would give rise to an application for an adjournment. If the justices were to conclude that an amendment of the information would necessitate an adjournment, that might well be a good reason for refusing an application to amend in view of the basic purpose of the 6-month time limit imposed by section 127 of the Magistrates' Courts Act 1980. The need for an adjournment on that ground ought, however, to be rare, since the amended offence will arose out of the same or substantially the same facts as the original case."
19. Unfortunately, the case provided by the justices, for us, does not explain why they decided that it was necessary to grant an adjournment. It could be because the appellant needed some time to consider his position, but that time was time that should have been measured in minutes not months. There was no reason at all why the justices should not immediately have said to the appellant, 'Well of course you may have some time to consider with your lawyer your position', and an answer could have been given very quickly within minutes on that same day. Justices must require lawyers to deal with the matter at court and not grant an adjournment to another day for a party to consider its position, unless there are compelling reasons. The process of summary justice is otherwise defeated.
20. If it had transpired that the appellant had a real medical reason for needing an adjournment to obtain expert advice, then the justices could have been told and they would have then had to consider the necessity of medical evidence. If that had been the position, it would have been very difficult to see how, quite apart from the matter to which I shall return in a moment, the interests of justice could have been met if the case required an adjournment if the amendment was properly required.
21. It may also have been the case that the lists in the court at Chorley are very busy. It would be somewhat surprising to find that the court is so busy that a case has to go off from October 2007 to February 2008. That is no doubt a matter that can be carefully looked into by the Presiding Judges of the circuit. However, the fact that a trial date has been fixed and the court is busy highlights the real problem in this case, and why in my view it was not in the interests of justice to grant the amendment.
22. Modern case management, set out in the Criminal Procedure Rules, requires a proper attention to case management duties. There was no excuse whatsoever (and counsel who has appeared for the CPS has proffered none) for the failure to raise the application to make the amendment at the case management hearing on 3 July 2007, given that was over 5 months after the charge and the case was a simple one. Even if that could be excused, there is no excuse for the failure to apply to the court for a short hearing to determine the question of the amendment once the point was appreciated on 7 August 2007.
23. It is very important for parties to bear in mind that the resources of the court are not limitless. It is their duty to examine the case carefully at the case management conference and if, as sometimes happens, an oversight occurs, to apply immediately to the court in accordance with the duties under the Criminal Procedure Rules. The parties cannot leave matters to a trial, particularly in a busy court where it may be that the resources of the court do not permit an adjourned trial to take place for some time. The prosecutor and the defence solicitor must keep an eye on these issues.
24. Although I consider the justices were correct in their decision, on the facts of this case, that the condition for allowing the amendment relating to "the same misdoing" was met, it was not met in relation to the interests of justice condition. The interests of justice under our modern procedural code required the amendment to have been refused, if (as we must assume to be the case) there would have been an adjournment until February 2008. In fact, it transpired that the adjournment was for an even longer period, until 19 March 2008. Why that happened is again not clear, but there can have been no way in which the case should have been allowed to proceed in the circumstances set out, given the assumption on which we must proceed, that an adjournment was required.
25. For those reasons therefore, it seems to me that the case has to be remitted to the justices at Chorley, with a direction to refuse the Crown leave to amend the charge.

Observations on the need to observe the Criminal Procedure Rules

26. I would only add that it has been very forcibly argued by counsel who has appeared on behalf of the Crown Prosecution Service, to whom we are greatly indebted to the assistance and candour with which he has put forward his case, that the result of our decision will be that someone who appeared to have little defence to a case will in fact not be convicted and have his conviction set aside.
27. However, it is a clear and longstanding principle of our courts that justice must be delivered with promptitude. What has changed is the obligation of the parties to ensure that the court, whose resources are limited, are able to use those resources efficiently by the proper conduct of case management under the Criminal Procedure Rules. The reason, therefore, it seems to me why it is overall in the interests of justice to decide the case in the way in which I consider it should be decided, is that there was a fundamental failure on the part of the Crown properly to have regard, in their preparation of this case, to the observance of the Criminal Procedure Rules, particularly in the case management hearing, and to the interests of justice. Those interests are best served in this case by disallowing the amendment to the charge.
28. MR JUSTICE BURTON: I agree. I would only seek to add just a few words to my Lord's reference to the case of Thornhill 208 EWHC 508 Admin, and the judgment of Silber J which was a very short one and which was, as my Lord has said, without the benefit of any argument. He said in paragraph 80 of the judgment that he concluded that there was a substantial difference, in his view, between the Scunthorpe justices case and the present case before him because:

"The wrong-doing in the present case is very different from that which led to the original charge. There is a distinct difference between a failure to provide a specimen of urine and one of breath."

29. In so far as that is intended to be a statement to be relied on in other cases, I would, for my part, respectfully disagree with the him. The test is plainly, as my Lord has said, set out in Dyson J's judgment in Scunthorpe Justices, which makes it plain that although the phrase 'the same misdoing' is that which is intended to be guidance, in his view those words 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". In this case, where the appellant arrived at the police station at 23.40, and within a few minutes thereafter was taken through the procedure, first, in relation to alcohol, and then in relation to urine, in my judgment, it cannot possibly be denied that it was substantially the same facts as gave rise to both offences.
30. In those circumstances, any suggestion that there is a difference in the wrong-doing is not the proper test and not one which should be followed in future.
31. MR ADDISON: My Lord, there is one application. I am legally aided, but legal aid that my instructing solicitor was granted on the basis that the matter was not being opposed. When that changed it was not amended, and my solicitor has been involved in work and contact with the CPS, and there were other matters my learned friend is aware of which led to other correspondence. I would therefore ask for a defendant's cost order to cover work by my instructing solicitor which is not covered by legal aid.
32. MR JUSTICE BURTON: What work did your instructing solicitor have to do?
33. MR ADDISON: I beg your pardon?
34. MR JUSTICE BURTON: I can understand why you had to do some work, but what did your instructing solicitor have to do?
35. MR ADDISON: Well, there was a --
36. MR JUSTICE BURTON: Did I not deal with this yesterday? It was put before me yesterday --
37. MR ADDISON: I was not aware of that my Lord.
38. MR JUSTICE BURTON: That is all right. What was put before me yesterday was an application for a representation order, which, in any event, on the basis it was drafted would have only have taken place as from yesterday, to cover work by your solicitors. It seemed to me that there was no work by your solicitors yesterday, and my Lord is now asked what work was there before. The fact is, the grounds out before Collins J in adjourning this indicated that the CPS should put in a skeleton, but he, at that stage, expressly concluded that it should only be legal aid for a aggregate, knowing that the advocate, you, would have to deal with the skeleton. I can not see what is new since Collins J's order which was limited to advocates only.
39. MR ADDISON: There was a factual issue raised by the CPS which has not appeared before your Lordships this morning, which was that the CPS did not appear in Hornsville (?) because they were not informed of the matter, and my instructing solicitor had to contact the solicitors who appeared in Hornsville to resolve that matter.
40. MR JUSTICE BURTON: Hornsville has got nothing to do with this court.
41. MR ADDISON: I accept that, my Lord, but it had to do with the preparation of this case because it was at the time that might have been an issue before this court. My instructing solicitor had to be involved with it, the matters were brought to the attention of my learned friend, we discussed it and we decided that those matters were not of help to the court and did not involve this court, and should not be put in. Nevertheless, there was work involved by matters which were raised by the Crown prosecution Service. What I am asking for is a defence costs order out of central funds because those are matters which were raised by the Crown prosecution service to my instructing solicitors.
42. MR JUSTICE BURTON: I am afraid you have got all you are going to get from this.
43. MR ADDISON: Well it is not for me, my Lord, it is for my instructing solicitors.
44. MR JUSTICE BURTON: Well, you and your instructing solicitor have got all that they will get. There is no reason, properly analysed, for your instructing solicitor to be concerned with, this was a pure point of law.
45. MR ADDISON: Well, very good, my Lord.
46. MR JUSTICE BURTON: Thank you very much.
47. MR DONNELLY: Thank you, my Lords.
48. LORD JUSTICE THOMAS: Thank you very much indeed for your great help, particularly if you could convey our thanks also to your predecessor for at least remedying the deficiencies in the case provided by the Chorley justices.
49. MR DONNELLY: I most certainly will.
50. LORD JUSTICE THOMAS: Thank you.