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
		4 March 2016

1. MR JUSTICE OUSELEY: This is an application for permission to apply for judicial review which has come on as a rolled-up hearing with considerable speed in circumstances where the disqualification of the claimant from driving after a conviction in relation to a drink drive offence meant that he wanted an interim suspension of the disqualification.
2. The proceedings in this case came before Wyn Williams J as an urgent application. The proceedings in this case are a challenge to the lawfulness of the refusal of magistrates to state a case. The urgency led Wyn Williams J on 11 February 2016 to order that the matter come before this court as a rolled-up hearing. He also pointed out that the focus of the hearing might not be on the precise question of whether the magistrates had applied the wrong test in refusing to state a case but on the substance of the point raised, which was whether the magistrates had either applied the wrong burden or reached an unreasonable conclusion in relation to the reasonableness of the reason given for not supplying a specimen of blood.
3. Turning to the background then in a little more detail. The claimant was charged with an offence under section 7(6) of the Road Traffic Act 1988 that on 10 May in London when suspected of having driven a vehicle and having been required to provide a specimen of blood for a laboratory test he had failed without reasonable excuse to do so. On 30 September 2015, the magistrates convicted him of that offence and ordered him to pay a fine and disqualified him for a period of a year. The proceedings before the magistrates revolved in the end around the question of whether the refusal, which undoubtedly took place, and was based on the claimant's statement at the police station during the course of the procedure that he had needle phobia, was a reasonable excuse. This would involve an examination of whether he indeed had a phobia and whether it was of such an extent as to prevent his consent being given to the procedure.
4. The law is clear that it is for the Crown to prove that there was no reasonable excuse but that does not mean that they have to discover reasonable excuses and then set about disproving any which might apply. They only have to disprove a reasonable excuse if there is some evidential basis provided by the claimant so that the issue is in play. If the issue has been raised with some evidential basis it is then for the prosecution to disprove it.
5. The evidence before the magistrates consisted of the evidence of one officer who had conducted the roadside procedure. Another officer, who appears not to have been contentious for a number of reasons but who was the procedural officer, was, it was said, desired to be called by the defendant in the course of the Magistrates' Court proceedings, so that questions could be asked of him about the procedure and in particular what he observed of the claimant's demeanour and whether there had been an immediate objection to giving a specimen on the grounds of a phobia.
6. The claimant, as defendant, specifically objected to the evidence of the doctor, who was part of the statutory procedure at the police station, being given by way of a written statement. It is clear that the claimant wished to, and indeed needed to, do more than merely put questions to her for information. Her evidence would have been hostile to the defence and she would have needed to be cross-examined. As she was not available, her evidence was not read and a tactical victory was scored on behalf of the claimant in those circumstances. But the question still remained: what evidence was there that the claimant had needle phobia and had it of a sufficient intensity? The defendant declined to give evidence at all. No submission of no case to answer was made but he refused to give evidence about his phobia, if there was a phobia, or any of the circumstances pertaining at the police station. He had given plenty of thought to whether medical evidence should be called on his behalf. No medical evidence was called on his behalf. There was no dispute but that he had said at the police station that he had a needle phobia. But that was not evidence raised in a way that required the police to disprove it. It might have alerted them to the fact that it could be an issue which they might need to disprove but it did not constitute an evidential basis that required them to go through the steps of considering the medical records of the claimant and having a medical examination of him carried out. It would have been quite easy for the claimant to have provided evidence himself which the police at that hearing would not have been in a position to rebut with direct evidence of their own. They might have sought an adjournment but that might have been difficult given that they had opposed one previously.
7. But as it was that was the position before the magistrates. The magistrates convicted. When they gave their reasons for convicting they said that all the necessary elements had been proved and the appellant did not raise the defence sufficiently. They drew an adverse inference from his failure to testify. He provided no evidence at court to support the allegation of needle phobia and he provided no medical evidence to support that. They did not believe his assertion made at the police station that he was needle phobic. In their view this did not amount to a reasonable excuse.
8. The tidied up reasons say that the reasonable excuse offered was needle phobia or medical reason and it was for the Crown to negate that excuse.

"We are sure on the evidence of the officer that the defendant refused when asked several times by the officer and although we have heard mention of reasonable excuse, needle phobia, we have heard no evidence today either from his own testimony or medical evidence to support that. Therefore there is nothing for the Crown to negate."

In my judgment, the position from the magistrates was abundantly clear.

9. The application to state a case said that the question was this:

"On the evidence, could a reasonable bench properly directing itself have held that the defendant failed to provided a specimen of blood without reasonable excuse?"

10. The ground of appeal was that there was evidence before the court that the defendant had raised the issue of reasonable excuse at the police station and this was all the defendant needed to do. There was no legal burden on him to prove it, it was for the prosecution to negate his reasonable excuse by calling evidence, which they had failed to do.
11. The magistrates' decision on the application was that the question posed in the application was not a question of law and accordingly they refused to state a case.
12. Various points were raised by Mr Ley, counsel who drafted the documents, and not by Ms Morris who appeared before me today. I just deal with them briefly so there is no doubt about the answer. The only reason, he rightly submitted, that it is lawful for a refusal to state a case is that the application is frivolous. But, in reality, because "frivolous" has a technical and enlarged meaning in relation to a statement of case, it covers a conclusion that the question asked is not a question of law or that the question asked has no reasonable basis for being pursued at all, is totally without merit or hopeless.
13. Although I am satisfied that the question posed was indeed a question of law, it was on analysis a question which could only be answered one way, and could obviously only be answered one way, in the light of the evidence which was produced to the magistrates. The application was therefore strictly frivolous as no tenable point of law was raised. The reason is this. It is for the claimant to provide some evidential basis for the asserted reasonable excuse, in this case needle phobia. It does not begin to be enough for a claimant to say at the police station "I have needle phobia" and then to cause the CPS to have to disprove that through a process of accessing his records and requiring a medical examination. It is for the defendant in the Magistrates' Court to provide some evidence, whether from him himself or from family or from a doctor, so as to provide an evidential basis of needle phobia, and of needle phobia to such an extent that it overcomes his power to grant consent to the taking of the specimen.
14. The mere fact of asserting at the police station immediately or otherwise that you have needle phobia cannot possibly constitute a basis for the police to have to disprove it. Whatever happens in the procedure at the police station, there has to be evidence at the Magistrates' Court that requires them to disprove it. There was none. It would otherwise be very easy for a person to assert during the course of the specimen taking procedure that he had an illness and it would be a very large task for the prosecution then to have to disprove all of that. There has to be some evidential basis, missing here.
15. Accordingly, the justices were entirely right to refuse to state a case. As Wyn Williams J foreshadowed in his comments, the case would be more likely to proceed on the basis of what was the substantive argument rather than a particularly refined view of the manner in which the magistrates chose to answer. He said the points are short and the hearing, he anticipates, will not focus upon whether a mandatory order should be made but rather whether in the light of the information they fell into any error of law.
16. I should also point out that is it perfectly clear from the magistrates' reasons that notwithstanding the apparent urgings of the CPS they made no error of law in relation to where the burden of proof lay, they got it right.
17. That therefore means that I refuse permission to proceed.
18. Ms Morris has also sought to raise, as indeed did Mr Ley in the claim form, an allegation that the magistrates had no evidence that the relevant procedures had been properly gone through. But that was not an issue upon which they had been asked to state a case. It is not open for someone to ask for a case to be stated on one basis and then to turn around and challenge it on a different basis. If he wanted to ask for the case to be stated on the question of whether there was evidence that the procedure had been fully complied with, that is what he ought to have done. He did not do so. The issue is therefore not before the court.
19. Accordingly, I dismiss this application by refusing permission.
20. Thank you Ms Morris.
21. MR HEPTONSTALL: My Lord, there is a application for costs. The schedule should have been served on the court. It was certainly served on the parties yesterday.
22. MR JUSTICE OUSELEY: I am not sure I have seen a schedule of costs.
23. MR HEPTONSTALL: The total amount of it as drafted was £842 to reflect 3 hours for the instructing solicitor and then 6 hours for me to prepare the skeleton and the hearing before you today of £155.
24. MR JUSTICE OUSELEY: Total?
25. MR HEPTONSTALL: £842.
26. MR JUSTICE OUSELEY: Was it plus £155?
27. MR HEPTONSTALL: No that was included. But I do make an application to increase it by a further £155. The reason is, my Lord, the scheme under which the Crown instructs advocates is a full daily rate of £310 and if it does not get passed 1.00 pm, we get the half day. I have made the estimation for today that we would be on the half day rather that as I had to last week put £310 and then reduce it. I now seek to increase it. The total would then be £997.
28. MR JUSTICE OUSELEY: Ms Morris?
29. MS MORRIS: My Lord, I cannot argue with the fact that there will have to be a costs order.
30. MR JUSTICE OUSELEY: It is not unreasonable.
31. MS MORRIS: No, it is not.
32. MR JUSTICE OUSELEY: There will be an order for costs of £997.