Robertson, R (on the application of) v South Western Magistrates' Court

LORD JUSTICE CLARKE: On 23rd May 2002 the claimant, Mr Eric Robertson, was convicted by District Judge Grant at South Western Magistrates' Court of an offence of driving with excess alcohol on 5th August 2001, contrary to section 5(1)(a) of the Road Traffic Act 1988 ("the 1988 Act"). He was fined and disqualified from driving for one year. On 10th June 2002 he made an application that the District Judge state a case for the opinion of the High Court asking seven questions. On 25th June 2002 the District Judge refused to state a case on the ground that the application was frivolous. He issued a certificate, which includes the following:

On 14th August 2002 the claimant filed a claim form seeking judicial review of the refusal to state a case and a mandatory order compelling the defendant to state a case. Maurice Kay J subsequently granted permission to apply for judicial review and suspended the disqualification pending the hearing of the application.

The District Judge has indicated that he does not intend to appear or be represented at the hearing before us. Somewhat belatedly, the prosecution instructed Miss Power to appear on its behalf. We are much obliged to her for her assistance.

Section 111 of the Magistrates' Courts Act 1980 provides, so far as relevant:

It is important to have in mind that this is an application for judicial review. The question is whether the District Judge's conclusion that the application was frivolous was wrong in principle, which means in effect that the question is whether we are persuaded that no reasonable magistrate would have refused to state a case. If the application succeeds it will lead to an order that the District Judge state a case; it will not lead to the determination of any of the questions of law.

In R v Mildenhall Magistrates' Court ex parte Forest Heath District Council [1997] 161 JP 401, Lord Bingham CJ, with whom Millett LJ and Potter LJ agreed, said, at page 408, in the course of giving the leading judgment in the Court of Appeal:

The District Judge gave no detailed reasons for his decision to refuse to state a case. He did, however, give written reasons for his conclusions on conviction. They include the following account of the underlying facts:

It appears to me that the District Judge may have regarded the hour specified by the Act as beginning with the end, as it were, of his "seeing the FME".

The District Judge then identified the nature of the defence or defences advanced and made a number of findings of fact, to some of which I will return in a moment.

I should perhaps note in passing that the claimant was also charged with failing without reasonable excuse to provide a specimen of urine, but at the beginning of the trial, which began on 22nd May 2002, the prosecution offered no evidence on that charge and it was accordingly dismissed.

As already indicated, the claimant invited the District Judge to state seven questions for the opinion of the High Court. They can be grouped under three headings as follows: (1) self-incrimination; (2) the urine sample procedure; and (3) the device. I shall consider each in turn.

This defence is the subject of the claimant's proposed question 1, which is in these terms: "Did the defendant have a fair trial when the evidence on which I found that he had been driving had been his answer to questioning by police officers and which answer he was under a legal duty to give by virtue of the Road Traffic Act 1988, Section 172?". In his skeleton argument for this application, Mr Ley has re-stated question 1 in two ways: "Is nemo tenetur scipsum accusare still good law? Can an answer to a question under section 172 [of the 1988 Act] be inadmissible in evidence because it amounts to compulsory self-incrimination?".

Mr Ley, who appeared for the claimant before the District Judge, told us, and we of course accept, that he objected to the admissibility of the evidence that the claimant had admitted, when asked while he was in the back seat of the car, that he had been driving the car. The basis of the objection was that the claimant, as a person alleged to be guilty of an offence to which section 172 of the 1988 Act applied, was required to give information which it was in his power to give and might lead to the identification of the driver within the meaning of section 172(2)(b). Mr Ley submitted, and submits, that the claimant's right not to incriminate himself is protected by Article 6 of the European Convention on Human Rights, and he further submits, if necessary, that it would be disproportionate to permit his admission to be given in evidence against him.

Mr Ley's difficulty is that this very point has been decided against him by this court in DPP v Wilson [2002] RTR 6 following the decision of the Privy Council in Brown v Stott [2001] RTR 121 on appeal from Scotland, where the point was considered in detail. In the ordinary way, I would regard any attempt to challenge those decisions as hopeless. However, Mr Ley relies on two particular decisions of the European Court of Human Rights which were decided after Brown v Stott and were not considered in Wilson. They are Heaney & McGuiness v Ireland 34720/97 and JB v Switzerland 31827/96, which were decided on 21st December 2000 and 3rd May 2001 respectively. Mr Ley submits that the reasoning in those cases, especially Heaney, is inconsistent with Brown v Stott and that the English courts should follow them and not it.

In a detailed commentary to Heaney in 2001 Crim LR 481 "AJA", whom I believe to be Professor Andrew Ashworth QC, contrasted the reasoning in Brown v Stott with that in Heaney. He expressed the view that there are differences between them. Thus, for example, he said at page 482 that some of the reasoning in Heaney leaves the status of section 172 of the 1988 Act in doubt. A little later he said at page 483 that the place of the proportionality doctrine needs further clarification. He ultimately concluded that the differences do not necessarily lead to the conclusion that Brown v Stott should not been decided differently, although, he says, that it ought surely to have been reasoned differently: see page 484.

I express no view on the strength of the submissions made by Mr Ley, or indeed on the opinions expressed by Professor Ashworth, but they do seem to me to lead plainly to the conclusion that the application that the District Judge state a case on question 1 was not frivolous.

I was concerned during the argument as to whether the claimant was "required" to give information within the meaning of section 172(2)(b) of the 1988 Act. Miss Power submitted strongly that the claimant was not so required, but Mr Ley drew our attention to the fact that the same could have been said on the facts of Brown v Stott.

I would hold that in all these circumstances no reasonable magistrate could have held that an application to state a case on question 1 was frivolous in the sense described by Lord Bingham in the Mildenhall Magistrates case to which I have referred.

Questions 2, 3 and 4 are in these terms: "2. Was there any evidence on which a reasonable Bench, properly directing themselves, could have held that the correct procedure had been followed for the provision of urine samples by the defendant?; 3. Was it Wednesbury unreasonable for me to have held that the correct procedure had been followed for the provision of urine samples by the defendant?; 4. If the answer to 2 and 3 are "no", was I still entitled to convict the defendant on the evidence of the results of that analysis of his breath samples, if the latter had been accurately analysed by an approved device?".

Sections 7 and 8 of the 1988 Act provide, so far as relevant, as follows:

The District Judge identified the point taken Mr Ley in this regard as being that the claimant was not allowed a full hour to exercise his option to provide two urine samples in accordance with the Act. In this regard the District Judge's account of the facts was as follows:

The District Judge thus held, one, that the procedure adopted by the custody sergeant complied with the Act, and, two, that even if it did not, the prosecution could rely upon the two breath specimens obtained earlier.

Mr Ley submits that those conclusions are wrong in law. He submits, in particular that where, as here, the claimant claims under section 8(2) that the breath specimen should be replaced by such a specimen as may be required under section 7(4), he is entitled to a proper opportunity to produce such a specimen. So here he submits that on the District Judge's findings of fact, once the FME had expressed the opinion that a specimen of blood should not be taken, he, that is the claimant, was entitled to supply a specimen of urine.

Mr Ley further relies on section 7(5), which, it will be recalled, provides:

The District Judge did not make precise findings, but he held that there was a delay between the time that the custody sergeant first requested the claimant to provide a urine sample and the time he was permitted to urinate. Miss Power submits that the hour runs from the first of those two times, but it seems to me to be at least arguable that it runs from the second. There seems to me to be at least some force in the submission that a person cannot be "required" to provide a urine sample at a time when he is at the same time not being permitted by the police to do so.

Mr Ley further submits that the District Judge should have made clear findings of fact on the question whether the claimant was given a full hour from that moment.

In a passage which I have already quoted, the District Judge set out some of the evidence of the claimant, which included his evidence that he provided his first sample of urine, namely the one to be discarded, after about half an hour, and because of the delay in his being requested to provide that first sample he was not able to provide the second useable sample within the half hour remaining. He also recorded the claimant's evidence that he confirmed to the custody officer that he was able to provide a further specimen of urine 15 minutes after the hour was up but was told that the time period for providing that specimen had expired.

Mr Ley submits, with some force, that the District Judge does not say, at any rate expressly, whether he rejected that evidence as untrue. He submits that the District Judge's approach was wrong in principle: he should have directed himself that the hour started when the claimant was first permitted to urinate, and that if he concluded that the claimant's evidence that he was not allowed a full hour thereafter was or might be true, the claimant was entitled to be acquitted because the prosecution could not then rely upon the evidence from the breath specimen on the ground that he had been denied the opportunity to obtain and rely upon a urine specimen.

Mr Ley seeks to distinguish the decision in DPP v Winstanley [1993] RTR 222 relied upon by the District Judge because the defendant there had not been deprived of any such right by the police. He, Mr Ley, further relies upon DPP v Warren [1993] AC 319 at 330, approving Hobbs v Clerk [1998] RTR 36, in support of the proposition that the police must not do anything to prevent a defendant from exercising his right to produce, for example, a urine specimen.

In support of his submission as to the correct approach to the claimant's evidence, Mr Ley relies upon Rush v DPP [1994] RTR 268, where it was held by this court that justices should have been advised that if they thought, as a result of any evidence they heard from police officers or the defendant, that a conversation relied upon by her might have taken place and might have been in the terms alleged by her, and that as a result she might have been dissuaded from exercising her right to provide an alternative specimen, they should acquit because the prosecution would have failed to prove beyond reasonable doubt that the correct statutory procedure had been followed. Mr Ley submits that an application of those principles here would have led to the correct approach to the claimant's evidence identified in paragraph 28 above.

Finally, Mr Ley relies upon the decision in Johnson v West Yorkshire Police [1986] RTR 167, where a conviction for driving with excess alcohol in breath was quashed because the driver was denied his opportunity to provide a replacement specimen pursuant to section 8(2) of the 1988 Act because the correct procedure was not used for obtaining a specimen of body fluid.

In my judgment, those arguments are not frivolous or hopeless. Whether they will succeed on the facts here is, of course, an entirely different question upon which I express no opinion. However, I would hold that an application that the District Judge state appropriate questions on this part of the case were far from frivolous, and that the District Judge was plainly wrong to hold that it was. In my view, an appropriate order for mandamus should be granted. It seems to me to be appropriate to discuss the precise form of the order and, in particular, the precise form of the questions upon which a case should be stated with counsel before they are finalised.

I also express the fervent hope that the District Judge will be able to set out his findings of fact more fully than they are set out at present, no doubt with the appropriate assistance of written submissions from the parties, as contemplated by the relevant provisions of the Magistrates' Courts Rules.

Questions 5, 6 and 7 are in these terms: "5. Was there any evidence on which a reasonable Bench, properly directing themselves, could have held that the defendant's breath had been analysed by an approved device?; 6. Was it Wednesbury unreasonable for me to have held that the defendant's breath had been analysed by an approved device?; 7. Was it Wednesbury unreasonable for me to have held that the results of the defendant's breath analyses were accurate?". Those questions encompass a number of different points which had been made to the District Judge.

It became clear during the course of the argument that the point which Mr Ley wishes to advance now is significantly narrower than the points which were advanced before the District Judge. In particular, before the District Judge one of the points which Mr Ley sought to advance was, as I understand it, that the device was not an approved device or, more accurately, that he was entitled to challenge the approval of the device. However, he properly recognises that that point has now been decided in DPP v Memery [2002] EWHC 1720 Admin, unreported, 4th July 2002, which is of course after the conviction in this case. In the light of that decision, Mr Ley, to my mind entirely properly, does not seek to advance that point.

The point he does wish to take, however, is that there was uncontradicted expert evidence that the breathalyser device had been altered so that it was not the device which had been approved by the relevant Secretary of State. He recognises that that is essentially a question of fact. His difficulty, which I think he also recognises, is that on the face of the District Judge's judgment that issue of fact was resolved against him, because the District Judge said, "I found that the machine in this case is an approved device and I did not find, having heard all the evidence, that the machine had ceased to be an approved device".

The problem with that conclusion is however one which is entirely properly recognised by Miss Power on behalf of the prosecution. It is that there are nowhere any reasons given for that conclusion. It appears to me that the District Judge should have given some reasons, albeit short and no doubt concise reasons, for the conclusions which he reached, especially since he was in effect, as I understand it, rejecting the uncontradicted evidence of experts called on behalf of the defence. This is a case in which the prosecution called no expert evidence. I am far from saying that the District Judge was not entitled to reject uncontradicted evidence, but I entirely see the force of the point that some reasons at least should have been given for his decision.

In these circumstances, given the absence of any reasons at all, I have reached the conclusion that it was wrong in principle to refuse to state a case raising an appropriate question under this head on the ground that it was frivolous. It has been accepted by Miss Power, again to my mind entirely properly, that given that conclusion in this court the correct course would be to formulate an appropriate question with a view to inviting the District Judge to state shortly his reasons for reaching the conclusion which he did.

The final question, question 7, essentially raises the possibility that there was alcohol in the mouth (or what I understand is known as mouth alcohol) which, if it were present, would, it is said on the evidence, exaggerate the amount of alcohol in the body. However, as my Lord observed during the course of the argument, the District Judge expressly held that there was no evidence in this case of mouth alcohol. In those circumstances, it appears to me that the District Judge was entitled to refuse to state a case on that question, and indeed in the course of the argument Mr Ley in effect abandoned that part of the application.

For these reasons, I would allow this appeal in relation to the three topics which I have mentioned, subject to that last point. I would make an appropriate order for mandamus, but before deciding on the precise form of the order I would wish to hear some further submissions from counsel.

MR JUSTICE JACK: I agree. In my view the resolution of the matters arising in connection with sections 7 and 8 of the Road Traffic Act 1988 is dependant upon rather fuller findings of fact than were made in the judgment delivered by the District Judge. When the facts established by the prosecution in accordance with the criminal standard of proof are set out, the answers may be quite readily apparent.

LORD JUSTICE CLARKE: This is a postscript to the judgments.

Following discussion with counsel, the order will be an order of mandamus directing the District Judge to state a case for the opinion of the High Court on the following four questions: "1. On the facts found by the District Judge relating to the statement of the defendant that he was the driver of the vehicle, was that statement properly admitted in evidence to prove that he was the driver?; 2. On the facts found by the District Judge relating to when the provision of a specimen of urine was required for the purpose of sections 7(4) and (5) of the Road Traffic Act 1988, and on the facts found by the District Judge as to the period of time on which the defendant was permitted to provide specimens for that purpose, was it established by the prosecution that sections 8(2) and 7(4) and (5) had been complied with and that the prosecution could rely on the specimens of breath?; 3. On the facts found as set out in question 2 and those relating to the defendant's ability to provide a second specimen of urine, should the officer have permitted the defendant to provide a second specimen of urine when the defendant stated that he was able to provide one?; 4. On the facts found by the District Judge as to any alterations made to the breathalyser device used to take specimens of breath from the defendant as compared with the version of that device approved by the Secretary of State, was it open to the District Judge to hold that the device was an approved device for the purposes of section 7 of the Road Traffic Act 1988?".

In the light of the submissions of counsel I would just add this. Each of these questions uses the expression "on the facts found". That is of course a reference to the facts found as set out in the case stated; it is not simply a reference to the facts stated in the judgment which we have at present. On the contrary, for the reasons that we have each given, we are of the opinion that it will be necessary for further findings of fact to be set out. Equally, I tried to indicate that in my opinion it was desirable for the District Judge to give short reasons as to why he rejected the unchallenged defence evidence of modifications and/or alterations to the relevant machine. I feel sure that the court hearing the special case will expect the District Judge's findings of fact to state, albeit shortly, the reasons why he rejected that evidence.

MR LEY: My Lord, I have an application. Firstly, my client was disqualified from driving. Maurice Kay J ordered his disqualification be suspended pending the hearing of the motion.

LORD JUSTICE CLARKE: That suspension will be continued to the hearing of the special case.

MR LEY: Secondly, my Lord, I would ask for an order for the defendant's costs to be paid out of central funds.

LORD JUSTICE CLARKE: It is a bit difficult to resist that, Miss Power?

MISS POWER: My Lord, I would not resist it.

LORD JUSTICE CLARKE: Very well. The claimant's costs of this application to be paid out of central funds.

MR LEY: I am much obliged. Thirdly, would you order that this case, when it is heard, is heard by a Divisional Court. The reason I say that, my Lord, is --

LORD JUSTICE CLARKE: Yes.

MR LEY: I am much obliged to your Lordship.

MR JUSTICE JACK: Should we say anything about the time in which the District Judge is to state his case? I think that the statutory scheme sets out a power for him to extend the time.

MR LEY: I know, my Lord. A Crown Court judge has the power to extend the time in the Crown Court. The magistrates have no power to extend the time.

LORD JUSTICE CLARKE: How long does the time run from? Well, the time has already expired.

MR LEY: My Lord, yes. I imagine the time would run from when he receives a sealed order, as that is the requirement to state the case but --

LORD JUSTICE CLARKE: I think my Lord is right, it would be desirable for our order to give some direction about that, and we will assume we have power to do that. We must have general case managements powers, I feel sure. These rules do not seem to focus quite on this situation, I think.

MR LEY: No, my Lord.

LORD JUSTICE CLARKE: The time begins when an application is made in writing signed on behalf of the applicant.

MR LEY: The Crown Court rules --

MR JUSTICE JACK: Just give me a moment, would you.

LORD JUSTICE CLARKE: My Lord has just suggested that rule 77 of the Magistrates' Courts Rules 1981 provides "within 21 days after receipt of an application made in accordance with rule 76 the justices' chief executive [and so on] shall send a draft to the applicant", and really what is suggested is that we might indicate the moment from which that 21 days might run. 21 days does not sound much to me.

MR LEY: I was thinking of 28 days, but I do not know.

LORD JUSTICE CLARKE: What happens next? The order of this court is sent to the magistrates, is that by the Court?

THE COURT CLERK: We send copies to the claimant, defendant and interested party, so, yes, it will go to the court.

MR LEY: The defendant is the court, my Lord.

THE COURT CLERK: The defendant is the court, so it will go to the justices' clerk in the first instance and then onto the relevant District Judge.

LORD JUSTICE CLARKE: Unless anybody says we have no power to do this, I think that what we would perhaps do is to direct that the period of 21 days in rule 77 of the Magistrates' Courts Rules 1981 should be extended to 28 days and should run from receipt by the defendant of the order of the court.

MR LEY: Yes, my Lord.

LORD JUSTICE CLARKE: Does that meet the case reasonably?

MR LEY: I think it does, my Lord, and then leave it to the defendant to seek his remedy if he wants further time.

LORD JUSTICE CLARKE: No doubt some arrangement could be made, but it is obviously desirable that the matter should be dealt with reasonably quickly.

MR LEY: That is right, my Lord.

LORD JUSTICE CLARKE: Because it is already quite a stale case.

We will also direct that a copy of the judgment be sent to the defendant and, if it is necessary, to direct that a transcript be prepared with expedition, but I feel sure that will happen anyway.

MR LEY: Sorry, my Lord, is the 28 days to run from receipt of the order or receipt of the judgment, or will they be sent out simultaneously?

THE COURT CLERK: The order could go out tomorrow.

LORD JUSTICE CLARKE: It will run from the receipt of the order or the judgment, whichever is the later.

MR LEY: I am much obliged to your Lordship.