Neutral Citation Number: [2014] EWHC 2323 (Admin)
Case No. CO/16562/2013 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 5 June 2014
 
B e f o r e: 

MRS JUSTICE SIMLER
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Between: 
THE QUEEN ON THE APPLICATION OF HITCHEN 
Claimant
v 

OXFORD MAGISTRATES COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr H Tomlinson QC appeared on behalf of the Claimant
The Defendant did not appear and was not represented
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J U D G M E N T 

1.	MRS JUSTICE SIMLER:  I do not propose to give a fully reasoned decision at this stage in circumstances where I propose to give permission in relation to grounds one, three and four.  I will just give some short reasons for that and for refusing permission on ground two. 
2.	The claimant submits in relation to ground one that the wrong legal test was applied by the defendant in this case, because the defendant considered whether the DVLA were reasonable in their conclusion that the appellant was suffering from an age related cognitive impairment.  The correct approach was of course for the defendant to consider whether the decision was correct in all of the circumstances known to the court at the date of the appeal.  
3.	Whilst it is right that the decision document is not to be read as a statute and single sentences are not to be taken in isolation, nor is infelicity of expression to be relied upon, having regard both to the statement of the magistrates (page 117 of the document in the document dated 2 August 2013) that the evidence and reports from the accident and driving assessment supports that the DVLA were reasonable and correct to revoke Miss Hitchen's licence and the statement in the conclusion paragraph "we believe that the appellant has not proved her case on the balance of probabilities", it is arguable that the defendant adopted the wrong legal test in this case.  That concern is not entirely allayed by the bench chairman's reasons for refusing to state a case because, as Mr Tomlinson has emphasised, the question is not what conclusion the bench reached but what legal approach they adopted.  In my judgment in those circumstances, there is an arguable case raised in relation to ground one.  
4.	As far as ground two is concerned, the central function of the magistrates is to determine for themselves on the material before them at the appeal hearing, whether the decision taken to revoke the licence on the date that it was made was correct.  This is not a review jurisdiction.  The decision to revoke made on 26 September 2012, referred in addition to chronic obstructive pulmonary disease ‑‑ which was not pursued ‑‑ to an as yet undiagnosed medical condition, and subsequent correspondence made clear that this was a reference to age‑related cognitive decline.  In the circumstances, an assessment of the likelihood of there being a condition impairing the driver's ability to drive safely was made.  It was identified in the revocation decision letter as an "as yet undiagnosed medical condition" and there was no misdirection in law when the defendant considered whether the subsequent evidence made good that condition, as an age‑related cognitive impairment.  In those circumstances I am not persuaded that there is any arguable basis for judicial review afforded by ground two.
5.	Ground three involves an argument that the defendant misdirected themselves in law by focusing solely on the basis of driving ability, thereby failing to consider the statutory requirement that there is evidence that the licence holder has a medical disability which is likely to cause the driving of the vehicle by him to be dangerous.  In relation to that it is said that there was no evidence before the Magistrates' Court entitling them to reach a conclusion adverse to the claimant here.  
6.	Dr Morgan's report, of course, stated that his assessment had found no evidence of age‑related cognitive impairment and the report regarding the on road assessment on which Dr Pauli based his conclusions did not establish the cause of the unsatisfactory driving.  
7.	On this approach it is at least arguable that any older driver whose driving was poor could have his or her licence revoked on the basis of age‑related cognitive impairment without any medical evidence at all.  By contrast, the licence of a younger driver with exactly the same levels of poor driving performance could not have his or her licence revoked.  The fallacy of this approach, if it was the approach adopted, is obvious and would be wholly inconsistent with the statutory provisions being applied.  In my judgment that does raise an important and arguable ground for judicial review.
8.	Similarly, as far as ground four is concerned, this involves a rationality challenge to the statement made by the Magistrates' Court that the medical evidence presented by the appellant since revocation of her licence was not indicative of her condition on the day of revocation.  
9.	I am persuaded that this too, is an arguable ground.  The reason for the cognitive impairment here was said to be age‑related.  As a matter of logic, evidence of an absence of cognitive impairment at a later point in time ‑‑ here the assessment performed by Dr Morgan in May 2013 ‑‑ absent some compelling reason or evidence, is likely to be logically relevant to and probative of the existence of an impairment at the earlier revocation date.  Given that the condition is age‑related, absent clear medical evidence to suggest recovery from such a condition it is difficult to see how medical evidence presented at the appeal can be said not to be indicative of the appellant's condition on the earlier revocation date.  In those circumstances, again, as far as ground four is concerned it is at least arguable that this was an irrational conclusion.  
10.	For those shortly stated reasons, I propose to give permission on grounds one, three and four and to refuse permission on ground two.
11.	Mr Tomlinson, standard directions.
12.	MR TOMLINSON:  Yes.
13.	MRS JUSTICE SIMLER:  Can I ask you to draw up an order to that effect.
14.	MR TOMLINSON:  I will. 
15.	MRS JUSTICE SIMLER:  That is very helpful.  Thank you very much for your assistance, both in writing and orally.