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
		27 February 2013

1. MR JUSTICE FOSKETT: This is an appeal by way of case stated by an order made by the Sunderland Magistrates' Court on 11 April 2012, by virtue of which the information previously laid against the appellant was amended. The appellant challenges the decision underlying that order and asserts that it was contrary to the interests of justice to do so.
2. The case arises out of the arrest of the appellant on 26 September 2011, on suspicion of driving with excess alcohol. He was apparently threatening self-harm at the time and when he was asked to provide a specimen of breath, he failed to do so stating that he was: "Not right in the head."
3. As understand I it, the police officer accepted that there was a valid reason for not providing a specimen of breath at the time. However, later the officer asked him to provide a specimen of blood, which the appellant refused stating that he was "terrified of needles."
4. On the following day, 27 September 2011, an information was proffered by the CPS against the appellant alleging that he had failed, without reasonable excuse to do so, to provide a specimen of breath for analysis.
5. The appellant first appeared before the Magistrates' Court in response to that charge on that day and through his advisers notified the CPS that the charge was incorrect. The case was listed subsequently on 9 November for a case management hearing, and then again on 14 November for a decision to be made on the appellant's application for the trial to be vacated. The background to that application was that he had problems in obtaining legal aid and until those problems were resolved he could not instruct a medical\psychiatric expert. That application was granted and the trial date for 24 November was vacated. The trial was then listed for 3 February 2012, and on 18 January 2012 the matter was listed at the appellant's request for a further application for an adjournment because he had only recently been granted legal aid and no medical evidence was yet available.
6. That application was refused but on 30 January 2012, an application to similar effect was made and was not opposed by the CPS as the CPS wished to cross-examine the medical expert on the content of his report which had become available only shortly before that day. That report, as understand it, although I have not seen it myself, addressed the question of whether there was a defence to the allegation of failing to provide a specimen of breath. At all events, the application for the adjournment was agreed and the trial vacated until 11 April 2012. In the meantime, no application had been made to amend the information to allege that the offence was one of failing to supply a specimen of blood.
7. Because of the heavy list the case was not called until about 3.15 pm, and when both parties were ready to proceed at about 3.30 pm, counsel for the prosecution applied to the Court to amend the charge in the manner to which I have referred.
8. Submissions were made on both sides and the magistrates agreed to the proposed amendment. Given that the time estimate of the trial was half a day,it was concluded that there was insufficient time to commence the trial that afternoon and it was accordingly adjourned until 8 June 2012.
9. An issue has been raised before me as to whether, irrespective of the lateness of the hour, an adjournment would have been necessary because of the amendment. Mr Hays, who appeared for the respondent before me, says that it is not clear from the stated case whether the magistrates were told that an adjournment would be necessary. I am not sure that I am really in a position to draw a clear conclusion about that, but it seems right in the circumstances to assume in the appellant's favour that an adjournment would have been required arising from the late amendment to the charge.
10. It is, as I have indicated, the decision to permit the amendment to charge that is sought to be criticised, by the appellant in this appeal. It seems to me that the decision falls to be reviewed by reference to the material available to the magistrates at the time and the submissions made to them.
11. In fact, in due course, the appellant pleaded guilty to the amended charge and was sentenced to a community order for 12 months, with 50 hours of unpaid work. He was disqualified for 16 months subject to a 4 month reduction upon successful completion of the drink-drive rehabilitation course. I recite that simply for the purposes of historical accuracy.
12. I am not persuaded that it is right for me, when reviewing the magistrates' decision, to take into account something of which they were plainly not aware at the time.
13. The statement of the case provided by the magistrates is helpfully clear, and indicates that their attention was drawn to the relevant authorities to which I will refer briefly shortly and the essential arguments put forward by each side.
14. Their conclusion is summarised in the following propositions and I quote from the case stated:

"A) We have the statutory authority under the Section 123 Magistrates' Court Act [1980] to grant the amendment of the charge, as the amended charge arose out the same or substantially the same facts as had given rise to the original charge.

"B) Following the case of Williams v DPP [2009] eWHC 2354 (Admin) we applied the interests of justice test and we decided to allow the amendment as the appellant would not face the more serious charge than had already been charged.

"We concluded that there would be no additional prejudice to the appellant."

15. Mr Fish, who appeared before me today, does not seek to suggest that the magistrates were wrong in the first of those reasons: namely that they regarded the fact that the new charge was arising out of the same or substantially the same facts as giving rise to the original charge. That, in my view, was a sensible concession to make and certainly accords with my view of the background. I need in the circumstances say nothing more about that.
16. Let me turn briefly to the authorities and for this purpose I think I can refer simply to the question of Williams v DPP. That is reported at 2009 EWHC 2354 (Admin) and it was a decision of the Divisional Court comprising Thomas LJ and Burton J.
17. At paragraph 16 of the report, Thomas LJ said this:

"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' Court Act [1980] and in the single decision of this court to which it is necessary to refer, R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] 162 JPR 635."

The court was presided over by Lord Bingham, Chief~Justice, and the first judgment was given by Dyson J, as he then was.

After a careful review of all the authorities he sets 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. Then underneath:

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

1) The purpose of a six 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 practical after their alleged commission.

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

3) An information can be made after the expiry of the 6 month period, even to allege a different offence or different offences provided that sub-paragraph (i) The different offence or offences allege the "same as doing" as the original events and sub-paragraph (ii) The amendment can be made in the interests of justice.

15) These two conditions require a little elucidation. The phrase "same as doing" appears in the judgment of McCulloch 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."

18. As I have said no issue arises as to the question of whether, in this case, the new charge arose out of same or substantially the same facts as gave rise to the original offence. That question was to my mind a relatively simple one and was resolved in the way that it was. The question of whether in those circumstances (and against the background to which I have referred briefly) the amendment should in fact have been made is, to my mind, less straightforward.
19. The appellant drew attention to the defect in the charge on the day the original charge was proffered. Rectification of the charge seems to have been overlooked until the very last minute before the trial was due to take place in April 2012.
20. Mr Hays accepts, entirely correctly, that the failure to ensure that the appropriate charge was brought represented a "particularly lamentable failure" on the part of the CPS.
21. That entirely proper recognition of the failing brings to mind what Thomas LJ said in the case of Williams, in particular at paragraphs 28 and 29 and I quote:

"28. 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 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.

"29. Modern case management set out in the criminal procedure rules requires a proper attention to case management duties. There was no excuse whatsoever of counsel who has appeared for the CPS has proffered none for the failure to raise the application to make the amendment of the case management hearing on 3 July 2007; given that it 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."

Thomas LJ made similar comment at paragraph 33 of his judgment where he said this:

"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 resourcess efficiently by the proper conduct of case management under the criminal procedure rules.

The reason, therefore, it seems to me why it is over all 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."

22. Mr Fish has invited me to make a comparison between the facts of that case and the facts of the present case. It is not to my mind particularly helpful simply to compare the facts of this case with another such as Williams, where the Divisional Court held that the amendment should not be made.
23. Every case depends upon its own facts, the essential question being whether the principles appropriate to the question of whether the discretionary exercise involved in deciding whether to grant the amendment to the charge were observed.
24. The stated case shows that the magistrates took into account the fact that there would be no prejudice to the appellant if the amendment was to be allowed.
25. That, as it seems to me, was a judgment the magistrates were entitled to make and it would be one with which I would find it impossible to interfere.
26. The question is did they address the issue of the need to ensure that justice was dispensed with promptitude in the way in which Thomas LJ suggested should be the case? They did not say expressly that they took into account the need for the delivery of justice with promptitude. In that paragraph, which I have repeated a few moments ago, Thomas LJ referred to the fact that there was in that case 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, to the interests of justice.
27. The question, it seems to me, is whether the failure to mention that factor indicates that it was not something taken into account by the magistrates when making their decision in this case.
28. Mr Hays has reminded me of what was said in Piglowska v Piglowska [1999] 1 WLR 1360 by Lord Hoffman about the approach that an appellate court should adopt in relation to the reasoning process that is recorded in a lower court.

He said this at 1372G:

"The exigencies of daily courtroom life are such that reasons for judgment will always be capable as having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes such as was given by the District Judge. These reasons should be read on the assumption that unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.

"This is particularly true when the matters in question are so well known as those specified in Section 25.2:

An appellant court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by narrow textured analysis which enables them to claim that he has directed himself."

29. Undoubtedly, the whole of the case of Williams was drawn to the attention of the magistrates on this occasion and it would be difficult to believe that considerations of the kind that I have mentioned (namely, the requirement for justice to be dispensed expeditiously) were not well and truly in the minds of the justices who had to make the decision. It must have become commonplace to consider these issues in the climate that is referred to in the case of Williams.
30. I am not entirely convinced that every bench of magistrates would have granted the amendment at the late stage that it was granted in this case, but my task is simply to decide whether the decision was outside the band of reasonable responses to the issues that fell to the magistrates to consider.
31. On balance, I do not think that I can characterise their decision in that way and for those reasons the appeal is dismissed.
32. MR JUSTICE FOSKETT: I am very grateful to you both for your assistance. Are there any consequential matters arising from that?
33. MR HAYS: My Lord, there is one application by the Crown for costs, my learned friend is seeking --
34. MR JUSTICE FOSKETT: No, but thank you very much both of you for your help. I hope you have a good journey back.
35. MR HAYS: Thank you.