England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		26th February 2013

1. MR JUSTICE CRANSTON: This is an appeal by way of case stated from a decision of the Luton and South Bedfordshire Magistrates' Court. The appellant, the Central Bedfordshire Council, appeals against the decision of the lay justices on 22nd May of last year to acquit Mr Tasir Shah, the respondent, following his trial. He had been accused that, on 14th April 2011, in Court Drive, Dunstable, Bedfordshire, he plied for hire a motor vehicle of a certain registration for which he did not have a licence. This was said to be contrary to section 45 of the Town Police Clauses Act 1847, as amended.
2. The case stated sets out a summary of the evidence the court heard. Essentially, a Trading Standards team was out in Dunstable on the night of 24th April 2011. Two officers gave evidence before the justices that they attempted to flag down private hire vehicles to see if they would accept a fare not previously booked. At 23.22 they flagged down a vehicle in Court Drive and the driver offered to take them to Beechwood Court for £5. When they arrived there they asked for the driver's name, he said it was Tasir. The Trading Standards officers took the registration and taxi plate numbers of the vehicle. The case stated then records that Mr Tasir Shah gave evidence. He accepted that the registration and taxi plate numbers which the Trading Standards officers had taken were those of his vehicle. He said that he only picked up advance bookings sent by his controller at Skyways Cars to the computer facility in his vehicle. He explained to the magistrates that he would acknowledge a booking and then proceed to collect his fare. He said that he had taken a fare from Luton at 23.07, arriving at Dunstable at 23.16. His next job was at 23.21, which he received when he was in Church Street in Dunstable at 23.21. It was to collect a fare at the Luton and Dunstable Hospital Social Club, which he did at 23.30, completing that job at 23.38. He then proceeded to another job in Luton. His evidence was that he could not drop the Trading Standards officers team off in Dunstable at 23.27 and be at the hospital at 23.30.
3. The case stated then continues that the justices heard from a woman who said that she had booked a taxi at 23.20 and Mr Tasir Shah, whom she recognised, had collected her from the hospital at 23.30.
4. There was also evidence from Mr Tasir Shah's controller at the taxi company. He stated that it would take 20 to 25 minutes to drive from Beechwood Court to the hospital.
5. The case stated then relates that the justices acquitted.

"We gave the following reasons:

(a) The defendant was at Court Drive at 23.16;

(b) There is no evidence that Mr Tasir Hussain Shah was there at 23.20 to pick up the team from the Council;

(c) He had accepted the call for his next job at 23.21 and arrived there at 23.30".

6. The case stated then poses this question for the opinion of the High Court:

"Were the Justices entitled to find that there was insufficient evidence on which to convict Mr Shah of the offence with which he was charged?"

7. There is a note attached to the case stated by the deputy justices' clerk:

"Luton and South Bedfordshire Magistrates Court wish to admit that the reasons given by the magistrates in this case are extremely limited and do not justify their decision".

8. In seeking to maintain the decision of the justices, Ms Farrant contends that, on the evidence, the justices were entitled to find that there was insufficient evidence on which to convict Mr Shah of this offence. The magistrates heard the case, they heard evidence from both sides, there was cross-examination, there were addresses by counsel, and at the end the justices were not satisfied on the criminal standard of the respondent's guilt. In her submission, the acquittal should stand. The passage in the case stated at (b) of the reasons, namely, that there was no evidence that the respondent was at Court Drive at 23.20, did not reflect how the case was conducted, nor did it reflect how the justices, having considered the evidence, could have reached that conclusion.
9. In continuing her attractively put submissions, Ms Farrant said that that comment had to be considered in context. In effect, it was an error when considered in the light of the whole of the case stated. What the justices were intending to convey by that statement was that they had not been sure that there was credible evidence that the respondent was there at Court Drive at 23.20 or, alternatively, that there was insufficient evidence to that effect. The "no evidence" reason in the case stated should not, in her submission, contaminate the acquittal. The findings of primary fact which were contested, taken together, demonstrated, in Ms Farrant's submission, that the justices doubted the prosecution case and that they gave credence to Mr Shah's defence as to where he was at particular points in time. The bottom line was that they were simply not sure of the prosecution case.
10. In her submissions, Ms Farrant contended that the case of Bracegirdle v Oxley [1947] KB 349 had no application to the present circumstances. That was a case where the primary facts were agreed and it was the secondary facts which were said, before the Divisional Court, to be perverse. Here the primary facts, as I have said, were contested and the magistrates came to a conclusion that they were entitled to in preferring the respondent's case to that of the appellant.
11. It is well established that if there is no evidence for a finding of fact by the justices, that constitutes an error of law. If no reasonable bench could have reached a finding, that also amounts to an error of law or to an ultra vires act. However, the weight to be attached to particular pieces of evidence is generally a matter for the justices. An appeal by case stated is not appropriate if a party believes that the justices have arrived at a finding for which there was evidence but which they contend the justices should not have reached, for example because it was against the weight of the evidence. That is Bracegirdle v Oxley, but also subsequent cases such as Oladimeji v Director of Public Prosecutions [2006] EWHC 1199 Admin, paragraph 4.
12. In my view, this case falls into the first category and this court should interfere. In my view, the passage in the case stated, namely that there was no evidence that the respondent was in Court Drive at 23.20, is wrong. Despite Ms Farrant's cogent submissions, it is not possible in my view to go behind that reason to infer words or meanings. The magistrates in no way qualified their reason. They do not suggest that they did not mean that there was literally no evidence. They do not, as Ms Farrant contended, suggest in any way that they were unsure about the prosecution case, that they did not think that the prosecution witnesses were credible or that there was insufficient evidence. They say quite plainly that there was no evidence.
13. There is no need for me to be tempted into considering the evidence which Ms Lambert, for the Council, mentions in her skeleton argument, namely that the timings given by the controller's clock could have been wrong or that it takes six rather than 20 to 25 minutes to get from Beechwood Court to the hospital.
14. The fact is that on its face the magistrates in the case stated seem to have disregarded the evidence of the Trading Standards officers. That evidence was to the effect that they had flagged down the respondent's taxi at a certain time and had been dropped off at another time. In the result, there was evidence. Consequently, on the face of the case stated the magistrates have not applied their minds to the proper questions which were before them. The only conclusion is that their reasoning was perverse.
15. On that basis the answer to the question posed is "no", the appeal is allowed and the case is remitted back to the Magistrates Court for re-trial.
16. Anything I have said must not be taken to pre-judge any further trial which may occur in relation to the respondent's behaviour on that evening almost two years ago.
17. MISS LAMBERT: Can I make an application for costs in this matter. I have served a costs schedule, I do not know whether your Lordship has received it.
18. MR JUSTICE CRANSTON: I do not have it.
19. MISS LAMBERT: Can I hand up this copy.
20. MR JUSTICE CRANSTON: On what basis can you get your costs? I mean, you have won.
21. MISS LAMBERT: The Civil Procedure Rules Part 44 govern such matters and the successful party is entitled to recoup their costs. The case stated procedure itself, under section 111 of the Magistrates' Courts Act --
22. MR JUSTICE CRANSTON: Is this civil procedure?
23. MISS LAMBERT: That does cover case stated matters. Section 111 of the Magistrates' Court Act of 1980 in any event allows this court to make any order, including one for costs, but there is provision, if your Lordship does not think that the respondent personally should pay, that the appellant can recover their costs from central funds.
24. MR JUSTICE CRANSTON: What are your costs, just tell me.
25. MISS LAMBERT: The costs in total are £4,472, but I can split the matter down: in the court below it was £2,585 and in this court £1,887. I have a full, broken down schedule if your Lordship would like to see it.
26. MR JUSTICE CRANSTON: Let me hear Ms Farrant on this.
27. MISS FARRANT: My Lord, I do not know if my Lord has Archbold, the relevant passage in the 2013 edition is paragraph 7-3.
28. MR JUSTICE CRANSTON: What page is that?
29. MISS FARRANT: 1117. The Senior Courts Act, section 20, the court can make any order in relation to the matter, including as to costs, as it thinks fit. In my submission, it would be unjust in this case for Mr Shah to bear the costs.
30. MR JUSTICE CRANSTON: It would be quite wrong because the magistrates got it wrong, but whether it comes out of central funds --
31. MISS LAMBERT: Yes, my Lord, in Taylor on Appeals, the latest edition of that work -- I do not know if your Lordship has that particular tome, I do have it downloaded onto my i-Pad -- he says at paragraph 3.140, in a criminal cause or matter the cost of a successful defendant or private prosecutor, which the Council is, may be awarded out of central funds.
32. MR JUSTICE CRANSTON: Yes. Well, you certainly have had to bear the costs. You can have the costs out of central funds.
33. MISS LAMBERT: I am grateful.