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
		8 September 2015

1. MR JUSTICE COLLINS: This is a renewed application for permission to seek judicial review of the decision of Warwick Crown Court in dealing with an appeal by the claimant against his conviction by the magistrates as long ago as April 2010 of a number of driving offences, the most serious of which were dangerous driving and failing to provide a specimen of breath. He was fined and disqualified from driving for a period totalling 17 months. The original conviction took place in his absence. The reason for that was that he was in Spain and he produced to the court an indication that there were medical reasons why he was unable to return from Spain to attend court. However, it seems that the court did not accept that and dealt with the matter in his absence and then sentenced him, as I have indicated. He appealed against that, not surprisingly, because prima facie the decision to proceed in his absence may well have been challengeable. Be that as it may, he had, of course, an appeal on the merits.
2. Sadly, in March 2011, he sustained a very serious injury when he was run over by a lorry. This resulted in the amputation of his right leg below the knee, some injuries to his other leg and equally problems created by what has been diagnosed since as PTSD and there is no question but that he continues to suffer. Indeed, one of the points made on his behalf is that the disqualification bears more harshly because he needs to have mobility in order to get around and this is the more difficult because of the disqualification. That, it is submitted, is a factor which should have, as we shall see, applied to the dismissal of his appeal. However, what happened then was this. First of all, apparently the Crown Court dismissed his appeal without hearing the evidence. Quite why that happened is not clear but the appeal was reinstated. In fact, apparently he had been arrested in June 2012 in a Motability vehicle for driving whilst disqualified. The result, it seems, was that the disqualification was suspended, certainly from then and it may be even from earlier. But, as I say, that is not a matter into which I need go for the purposes of this application.
3. The appeal was put before His Honour Judge Parker in July 2012 and was then adjourned on medical grounds. We do not have in the papers any indication as to the material which persuaded Judge Parker on that occasion to adjourn but, having regard to the substance of the medical reports, one can well understand why that was done. It was not until 20 June 2014 that the appeal was again listed. But there was a letter from the general practitioner and that apparently resulted in the appeal being adjourned. Again the papers do not contain details of that but it is perhaps not necessary. However, the matter came before Judge Parker again on 10 October 2014. Then the court had medical evidence which indicated that the claimant would not be fit to attend for another 6 to 12 months unless circumstances changed in the meantime. But as matters stood, according again to the same general practitioner, the claimant was not in a fit state. That was a combination of physical problems and the anxiety, stress, depression and PTSD, which were additional pressures to his physical problems, and that apparently there was a possibility in the doctor's view of panic attacks and severe anxiety which could affect his mental health in the future.
4. The judge had to decide what course to adopt in those circumstances. Albeit the transcript before me indicates that the claimant was represented by counsel, that is an error, he clearly was not. His representation came later, in December, which is the decision which is the subject of challenge. The judge had to consider, as I say, the history. He had the medical report to which I have referred but he had to consider whether in all the circumstances he was obliged to adjourn or to take some middle course; the middle course in question being that he would hear the evidence of the prosecution witnesses and then adjourn to enable the claimant to attend or to provide a hearsay statement in accordance with section 116 of the relevant Act, which he would be very sympathetic to accept. What he said, correctly, was that the court had a discretion. Fairness to the defence, he acknowledged, was of prime importance, but fairness to the prosecution must also be taken into account and the court had to have regard to all the circumstances, including the appellant's behaviour in absenting himself.
5. There had been, apparently, contact with counsel or solicitors at very much the last moment and false information given that a particular firm of solicitors was to represent the claimant. The judge expressed some sympathy because of the medical report but there was, in the court's view, no good excuse for the delay and in particular for the failure to take any positive steps to instruct representatives. The court indicated that it was unlikely, indeed more than unlikely, that the appellant would as a result attend voluntarily having regard to the medical evidence and it was in the view of the judge unreasonable and wholly disproportionate to adjourn for what was likely to be up to 12 months. He made the point, which was, in my view, an entirely material point, that the claimant had done nothing about sending someone to represent him and he had never suggested the possibility of submitting a statement to be taken into account. In all the circumstances, the judge took the view that it was appropriate to continue but the basis upon which the court did so was to hear, as I say, the evidence, in fact, of the police officers who had dealt with the claimant and had arrested him. One can understand that that was not by any means the most satisfactory way of dealing with it and it may be that the better course would have been to have adjourned, as they were going to have to adjourn in order to enable the claimant to put in a statement, to enable him at least to have representation and so the representative could cross-examine the police officers, assuming he could obtain instructions.
6. However, the matter then came before court on 11 December 2014. The claimant was then represented by counsel. He did not attend. There was produced a report from the general practitioner. That again indicated that the claimant would be unable to attend court. It went further and indicated on that occasion that due to his mental state he was unable to give instructions and the original report, I am told, stated that the doctor and his solicitor agreed that he would not be able to give instructions. That was amended and the reference to the solicitor deleted. But at the hearing the position was that the solicitor did not agree that it was not possible to obtain instructions. There was also a further matter which exercised the judge about the report, namely that there was a reference to a psychiatrist accepting the referral but the judge happened to know that the particular psychiatrist was about to leave, or indeed may well by then have left, this country and gone to Canada and thus it would not have been possible for him to accept instructions. No doubt that may have indicated to the judge that there was some doubt to be attached to the authenticity of that medical report.
7. However, counsel appearing for the appellant indicated that he took the view that in all the circumstances he was unable to continue to represent the claimant and should withdraw. But he remained to give such assistance as the court felt was necessary. The judge indicated that he had to be cautious about whether or not to proceed and to adjourn and not to draw any inappropriate or improper inferences against the appellant and he had had an exchange with counsel which, as he said, demonstrated that there had never been any defence case of sorts. But the fact that no case had been advanced historically and none was being advanced then did not permit the court to draw any inference adverse to the claimant and the fact that he had not given evidence and was not there to give evidence meant that it could not draw an inference adverse from that either. So the judge clearly had full regard to the problems of continuing but was satisfied that the claimant had failed to take reasonable steps to enable his case could be put and that was a decision which on the material before the judge he was, in my view, clearly entitled to take. Having regard to the nature of the offences, the decision was that the order of the magistrates should be upheld.
8. Mr Walker-Nolan submits that having regard to the serious change of circumstances, in particular the problems relating to his inability to drive and so to enable him to be mobile, that this should have persuaded the court to amend the disqualification. Of course, a minimum period of 12 months had to be imposed but the submission really was that perhaps that should have been reduced to the minimum, namely 12 months. As it happens, the disqualification suspension was removed in October of last year and so the claimant has served some 10 months or so of the period of disqualification; maybe more because it is not entirely clear when the disqualification was suspended, so I suspect he may have served a bit more than the 10 months or so.
9. I have dealt with the history in some considerable detail but the problem also that the claimant faces is that the judge was entitled to rely upon what counsel put to him. Harsh though it may sometimes seem, the House of Lords has decided in the case of Al-Mehdawi v Secretary of State for the Home Department [1989] UKHL 7 that an individual is not able to say successfully that he was let down by his legal advisers. Because if a legal adviser is employed by an individual, then he is caught, generally speaking, by actions that were taken by that legal adviser. His remedy will be a claim against the legal adviser if he can establish that he has suffered damage as a result. But so far as judicial review is concerned, it will normally be the case that an individual is not entitled, as I say, to rely on errors by those representing him. I am not suggesting that there was such an error. Counsel has not been contacted to give his version, in so far as there are suggestions, and certainly there were when this claim was originally instituted, that he had not followed his client's instructions properly.
10. In all the circumstances, for the reasons I have somewhat fully set out, in my judgment Nicola Davies J was correct in deciding that this claim was not arguable. Accordingly, this application is refused.