Harrison, R (on the application of) v Flintshire Magistrates' Court

MR JUSTICE MITTING: On 31 October 2001, the claimant was stopped by a police officer, who had recorded her speed driving a Vauxhall Corsa motor car on B5441, Welsh Road, Sealand in Flintshire at 67 miles per hour. The officer believed in her case, as police officers had done in other cases, that a 30 mile per hour limit applied to the stretch of road in question. In fact, for reasons which have not been fully explained to me, but which are immaterial, the national speed limit applied to that stretch of road. The national speed limit was that imposed by SI 1978/1548 under section 84 of the Road Traffic Regulation Act 1984.

She was summoned to appear before the North Wales Magistrates' Court, sitting at Mold, on 25 April 2002. She pleaded guilty to the offence for which she was summoned, which was recorded in the memorandum of conviction as driving a motor vehicle on a restricted road at a speed exceeding 30 miles per hour "contrary to sections 81(1) and 89(1) of the Road Traffic Regulation Act 1984 and Schedule 2 of the Road Traffic Offenders Act 1988".

The penalty imposed upon her on 4 July 2002 was a fine of £130, an order that she pay prosecution costs of £35, disqualification from driving for 42 days and an endorsement upon her licence of six points.

The police meanwhile discovered that, contrary to their belief, the national speed limit applied to the relevant stretch of road, and on 31 October 2002, by solicitors instructed by them, wrote to motorists who either had been prosecuted for exceeding a 30 mile per hour speed limit or were about to be, notifying them that charges would be "withdrawn". That was, of course, too late for the claimant, who had, on legal advice, tendered an unequivocal plea. She was advised, and accepted the advice, that she could not set aside her plea in the Magistrates' Court, nor apply for leave to appeal out of time to the Crown Court.

At some time soon after receiving that letter she made an appointment with solicitors, P Lloyd Jones & Co, of Mold. The letter from the solicitors instructed by the police had advised her to seek legal advice. The advice which she received was that the only available means of correcting what she reasonably regarded as an injustice was judicial review. She was, of course, out of time for making a claim for judicial review by the time that she knew what had gone wrong. In those circumstances, I, and I anticipate any other judge sitting in the Administrative Court, would gladly have extended to her sufficient time to bring a claim had she and those retained by her acted promptly. She did not. Nor did they.

Mr Smith, who appears for her today, has frankly conceded that the delay of which I am about to speak, while in part the responsibility of the claimant, was in the main due to dilatoriness and administrative mishaps within the offices of P Lloyd Jones & Co.

The chronology with which I have been provided says that she had her first appointment to see them on the date that the letter was sent to her. That may not be right, but be that as it may, a letter of 20 January 2003 makes it clear that, at some stage before that date, she had an appointment with the solicitors with a view to bringing proceedings to put the matter right.

Nothing then happened. The solicitors wrote to her a letter of 20 January asking for her instructions. She says, and there is no reason to disbelieve her, that she did not receive the letter, and it was not until June of 2003 that she got in touch again with the solicitors to find out what was happening. That led to a further meeting and to letters, including a letter of 25 June 2003 from the solicitors to the Magistrates' Court requesting a memorandum of conviction. There was then a short period of delay of about six weeks before it was provided on 7 August 2003.

Nothing then happened until March 2004, when a witness statement was prepared for the claimant by the solicitors. The application for permission for judicial review was not made until 14 April 2004. In all, some 17 and a half months elapsed between 31 October 2002, when she was notified of the error, and the application for judicial review. On any view, a reasonable period within which to launch an application for permission was no more than three months from 31 November 2002. The time taken, therefore, has exceeded a reasonable period by 14 and a half months or thereabouts.

If this were a case in which such delay caused administrative difficulty or prejudice to any person, I would unhesitatingly have refused to entertain this application. In granting permission for judicial review, the question of delay was expressly reserved. I do, however, have to balance against the delay the fact that this claimant has, on any view, been subjected to a much heavier penalty than would have been the case had the facts been known. Indeed, it is argued that she would not have been prosecuted and would not have been convicted at all had the facts been known. In more serious criminal cases convictions are set aside, and indeed sentences are reduced where injustice would otherwise result, notwithstanding long periods of delay before the relief is sought. Although this is on a smaller scale than such cases, in principle there seems to me to be no difference. Where an unjust sentence has been imposed upon a claimant, then, notwithstanding the very long period of delay that has elapsed since she learnt about it, it would, in my view, be unjust to deprive her of relief on that ground alone.

The relief sought is the quashing of the conviction. Mr Smith submits that she was prosecuted for, and pleaded guilty to, an offence that charged her with exceeding a 30 mile per hour speed limit. In fact, she was charged with an offence contrary to section 89(1) of the 1984 Act, which is the section which creates the offence of exceeding a speed limit. It provides:

The summons plainly charged her with exceeding the speed limit for restricted roads under section 81 of the 1984 Act. She could and perhaps might have been charged instead under the statutory instrument to which have I have referred, made under section 84. But the fact is that, on any view, she was guilty of an offence of exceeding a speed limit imposed by or under an enactment to which section 89 applies.

The summons, had the facts been known, could readily have been amended before she tendered her plea. There was nothing in principle or in primary or secondary legislation to prevent the magistrates from amending the summons appropriately, even now. This is not a case in which the court would have lacked jurisdiction to entertain a guilty plea or to impose a sentence merely because the summons referred to the wrong statutory provisions imposing referred to the speed limit. She was properly prosecuted under an offence created by section 89. The Magistrates' Court, therefore, would have had power to impose upon her a fine and to endorse her licence had she pleaded guilty to the offence correctly charged, of which she was in fact guilty.

Mr Smith submits that, on the basis of guidelines issued by the Association of Chief Police Officers, that it may well be that the claimant would not have been prosecuted had the police realised that the speed limit applicable to the relevant stretch of road was 60 miles per hour. That may or may not be the case. I am not dealing with a review of police discretion whether or not to prosecute, but with an order of the Magistrates' Court, which is lawful in the sense that the Magistrates' Court had power to impose the sentence that it did, but mistaken in that the magistrates imposed a far more severe penalty than they would have done had the true facts been known.

What then should be done about it? I am not persuaded that it is just that her conviction should be set aside. She was guilty of an offence. The court was right to impose a penalty upon her for it. However, the court has power under section 142 of the Magistrates' Courts Act 1980 to put matters right. Section 142(1) is the relevant subsection, and provides:

The right remedy for the injustice which has occurred is for me to quash not her conviction but her sentence, and to remit the case to the Magistrates' Court with a direction that it should exercise its power under section 142(1) of the 1980 Act to reopen her case to rectify the obvious mistake in her sentence. The Magistrates' Court is the appropriate court to undertake that task. I do not have knowledge of local conditions or of local policies; the Magistrates' Court does. The court, in determining what sentence would be just to impose upon her, can however have regard to the fact that she has suffered a period of 42 days disqualification, with perhaps some financial loss to her resulting from it, which she ought not to have done. If the Magistrates' Court thought it right, and it is a matter for the Magistrates' Court and not for me, to reduce any fine or even not to impose any fine upon her to reflect that fact, then that would be within its power.

I do not anticipate that it would be urged upon the court, however, that exceptional circumstances exist such as to justify not endorsing her licence with the usual three penalty points. But again, that is a matter for the magistrates and not for me.

The order that I make, therefore, is that I quash the sentence imposed by the claimant and remit the matter to the Magistrates' Court to reopen the case to rectify the mistake which I have identified in the sentence under section 142 of the Magistrates' Courts Act 1980.

Now, costs?

MR SMITH: Yes, My Lord.

MR JUSTICE MITTING: The application says that the police have agreed to bear the claimant's reasonable costs. Is that a matter of private agreement?

MR SMITH: That is my understanding, my Lord. I spoke to my solicitors about this yesterday. Their understanding through the solicitors for the other side is that, whilst the police would accept the reasonable costs, what the police mean by that is not as much as the costs were in the previous judicial review hearing (inaudible) because P Lloyd Jones should have done it by now. So written into this, as I understand it, from P Lloyd Jones is that the costs will be truly reasonable --

MR JUSTICE MITTING: But you are not seeking from me any order for costs?

MR SMITH: That is my understanding -- that there is a private undertaking. I think the letter -- if I can just check -- It may well cover that. If not --

MR JUSTICE MITTING: No document I have seen contains that undertaking.

MR SMITH: No, that is right, it does not. It may be appropriate for an order to be made in that context. My understanding from the solicitors is that there is a private undertaking and also that costs would be assessed mutually between the two parties. So whether an order is appropriate in that case --

MR JUSTICE MITTING: It is up to you to say whether you are applying. If you are, then I have certain comments to make in the light of what I have said about delay.

MR SMITH: That is partly why I am wavering. My understanding is that there is an agreement to pay costs, but unless, my Lord, you gave me five minutes to take further instructions on whether they sought an order or whether that is something that was already conceded by the other party privately --

MR JUSTICE MITTING: In that event, what I better to is deal with the matter contingently upon your notifying the court whether an order is sought or not. You may need to address me on it. I am bound to say that I do not see why the police should pay solicitors' costs when judicial review has been, as I have indicated, unreasonably delayed by errors on their part. I do think that it would be reasonable in the exercise of my discretion to order them to pay the fees incurred by the claimant and a reasonable brief fee for your attendance, which is necessary in any event whenever the case would be heard, to seek the leave that I have granted. But I would wish to express by disapproval of the inefficiencies which I have identified by declining to make an order for costs beyond that. If you seek to persuade me otherwise, now is your chance.

MR SMITH: My Lord, in terms of the previous submissions in relation to the conduct of this case, I am clearly in some difficulty. All I can add, my Lord, is that, whilst there is some delay at the hands of the solicitors, there is also some delay which is in the hands of the applicant, although clearly the solicitors should have greater knowledge of the legal system and clearly --

MR JUSTICE MITTING: I would not expect an honourable firm of solicitors, and I have absolutely no reason to think that this firm is not an honourable firm of solicitors, to seek to charge their client for costs with which I have disallowed, or would disallow, for the reasons that I have given.

MR SMITH: My Lord, I think that, in reality, when it got to January last year when they informed the applicant that, in fact, she could apply for £30, they were truly acting (inaudible).

MR JUSTICE MITTING: There is no ground for thinking that they are anything other than an honourable firm, but they have, I hope, learnt that judicial review time limits are there for a purpose and are to be complied with.

MR SMITH: Yes, My Lord. I do wonder if I could speak with them and see if they are really wanting to apply for costs or if they are happy with the judgment in those terms.

MR JUSTICE MITTING: Yes.

MR SMITH: I clearly am in some difficulty.

MR JUSTICE MITTING: What I suggest you do is, if you seek an order for costs, that is the order which I will make. If you do not seek an order for costs, I will make no order for costs. Will you notify the court which it is?

MR SMITH: I will, my Lord.

MR JUSTICE MITTING: But there is no need for you to come back to court for me simply to dot that particular I and cross that T.

MR SMITH: I am grateful, my Lord.