England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		6th March 2012

Mr Justice McCombe:

1. This is a renewed application for permission to apply for judicial review following refusal of such leave by HHJ Waksman QC on 23 February of this year.
2. The decision sought to be challenged in the proposed judicial review application is identified in the customary fashion in section 3 of the claim form in the following terms:

"The decision to stand a defendant in a criminal matter (being the claimant in this matter) for trial without a jurisdictionally competent court having examined the adduced abuse of process defence."

3. The claimant, Mr Alan Taylor, was charged with an offence under the Misuse of Drugs Act 1971 in respect of alleged production of a class B drug, namely cannabis, contrary to the provisions of that Act. He was duly charged and summoned to appear before the Wigan and Leigh Magistrates Court on 2 March this year, that is Friday of last week. On 21 February, he issued the claim form to which I have referred, and by it seeks the following relief:

"Interim remedy:

Prohibiting Order compelling the Defendant to adjourn the proposed trial pending the substantive hearing of his claim.

Further to the substantive hearing:

Declaration under s.8 of the Human Rights Act that the legislation as applied is incompatible with human rights.

A Stay of the criminal proceedings against the Claimant.

Advisory Declaration that the Secretary of State for the Home Department and the Advisory Council on the Misuse of Drugs have misconstrued the Misuse of Drugs Act and thus have erred in law re their duties under it.

Damages TBA."

4. Mr Taylor sought urgent consideration of the application for permission to apply and accordingly the matter came before HHJ Waksman QC on 23 February, when he refused permission.
5. Mr Taylor's complaint, amplified in written submissions and in oral argument through Mr Darryl Bickler, who has assisted him, is that the government have misconstrued the 1971 Act in a way as requiring them to fetter themselves as to how they treat the status of cannabis and have misunderstood their proper remit under the Act in scheduling that drug to the Act, with the consequences that certain acts in relation to that drug are illegal.
6. The argument that has been developed in the papers is that it is illegitimate for a person to be prosecuted for an offence in relation to cannabis when harmful drugs such as tobacco and alcohol do not attract such criminal sanction. Attention is drawn to the deliberations of the Statutory Advisory Council on the Misuse of Drugs, inviting consideration of these points in its role in advising ministers on the inclusion or exclusion of particular drugs in the schedules to the 1971 Act.
7. The fact remains that cannabis is a drug scheduled to the 1971 Act and its production is rendered a criminal offence. Whether to include it is entirely a matter for the Ministers and for Parliament.
8. The court has been informed and Mr Taylor has confirmed that, on the return date to the summons before the magistrates' court, he duly attended. He invited the court to adjourn the proceedings before it, pending this renewed application for permission. The application was declined and the learned district judge heard the case as presented by the Crown. Mr Taylor was asked whether he wished to give evidence, and our understanding is that he asked at that stage if he could change his plea to one of guilty. He duly did so. He was sentenced to a community order with an unpaid work requirement.
9. In the light of those events, the present claim has in my view become entirely academic. Mr Taylor stands convicted of the offence. We invited Mr Bickler on behalf of Mr Taylor to ask us what he would wish us to do by way of an order if the court were to grant permission to apply for judicial review. His answer was that he sought a mandatory order to quash the conviction. For my part I cannot see how such an order could be made in any event, following the unequivocal plea of guilty. Secondly, he asked for an advisory declaration, no doubt in terms of that set out in s.6, to which I have already referred.
10. It is well known that this court does not entertain such claims that are entirely academic and, in my judgment, for that reason alone the renewed application should be refused. However, it is only necessary to read the long and discursive submissions advanced by Mr Taylor, through Mr Bickler, to see that the arguments are no more in essence than reiteration with a slight supplement of the arguments raised before the court in a previous case, R (Stratton) v Waltham Forest Magistrates' Court [2009] EWHC 2457 (Admin), a decision of 1 July 2009. In that case, referring to Mr Stratton's argument, Wilkie J with whom Leveson LJ agreed, said this:

"15. ... The immediate challenge in this case is to the Magistrates' Court's decision to set in motion the process of his trial, having been charged with a criminal offence, which is established by an Act of Parliament, both by primary legislation and through the Order in Council process and where the decision of the CPS to bring the charge is not for a moment being challenged as having been unconscionable or procedurally improper. Rather, he argues that the Magistrates ought to assert some fundamental common law principle so as to decline to exercise the jurisdiction which they have to try such an offence essentially because, he says, they are obliged to accept his arguments that the legislation is being applied through the passage of subordinate legislation in a way which is discriminatory, irrational, illegal and a breach of the various human rights, which he has identified.


16. In my judgment, as a matter of law that is a hopeless argument. The Magistrates' Court, as he acknowledges, does not have any jurisdiction to declare, as incompatible with human rights, the legislation in question. In my judgment, the arguments which he puts forward do not begin to amount to a case for incompatibility, or for a case that any decision to prosecute is contrary to his human rights. What he has done is articulately to set out a particular policy position which he would prefer the Government to adopt, but which, thus far, it has not adopted. In my judgment that is not the business of this court and I have no hesitation in deciding that this is an unarguable challenge and that permission ought to be refused."

11. I note Mr Bickler's submission that, in form, the proceedings brought, were a challenge to the decision to prosecute. Here the applicant is rather different; it seeks the stay of proceedings before the Magistrates' Court. However, in my judgment, that is a distinction without a difference. It seems to me that the arguments, which I have read carefully on the papers, really go no further than those that were raised in Stratton's case. That no doubt is precisely why the learned district judge declined to grant an adjournment to the proceedings before him in the Magistrates' Court last week. As I have said, I consider the claim is entirely academic. The points sought to be raised are in any event considered in the case of Stratton and are essentially decided against the arguments now sought to be raised. The matter is one for Parliament, not for the courts.
12. Before leaving this case, I would comment that this is the second case pursued in this court through the advocacy of Mr Bickler. Each application has been essentially of a similar nature. Each has been hopeless and has engaged the public resources of the courts and to an extent the Crown Prosecution Service in the Magistrates' Court. This court has a very wide statutory power to order any person involved in the conduct of proceedings before it to pay costs of such proceedings. It may well be that if such proceedings are pursued by Mr Bickler in the future as an instrument of advancing the policy argument as he wishes to do so, and are unsuccessful, he will find that he will be ordered in due course to pay costs of any persons who incur expense in respect of proceedings brought.
13. For these reasons I would refuse any renewed application.

Mr Justice Hickinbottom:

14. I agree, and have nothing of substance to add, although despite the temperate and articulate manner in which Mr Bickler has made submissions before us, I would specifically endorse my Lord's comments about the potential consequences of Mr Bickler assisting further claimants in cases involving the same issues as this.

Order: Application refused.