Miller v Director of Public Prosecutions

This is an appeal by way of case stated from a decision of Redbridge Magistrates' Court on 6 September 2001. It arises out of informations preferred against the appellant on 18 March 1999, and summonses served on 24 March 1999, in respect of three separate speeding offences in February 1999. It was alleged that he had been travelling on 21 February at a speed of 62 mph in a 40 mph limit, on 22 February at 58 mph in the same 40 mph limit, and on 27 February at 66 mph in a 50 mph limit.

The case first came before the magistrates' court on 6 May 1999, the return date on the summonses. The appellant had previously pleaded guilty by post and did not attend the hearing. The court had before it the forms in which he had duly entered a written plea in respect of each of the three informations. No mitigation had been provided. The court was not in possession of his driving licence. Since the justices were considering disqualification based on the pleas of guilty, they wished to secure the appellant's attendance at a further hearing. For that purpose they issued a warrant backed for bail. That was an unlawful course, as is now conceded. They relied on s.13 of the Magistrates’ Courts Act 1980, but had not considered s.13(4) which meant that a warrant could not be issued unless the court had first adjourned to give written notice to the appellant that the court was considering imposing a disqualification and he had then failed to attend the adjourned hearing. The present proceedings, however, relate not to the unlawfulness of the warrant but to the history of the case after the warrant was issued.

The warrant was drafted and dispatched by the court to the Metropolitan Police within seven days of the hearing on 6 May 1999. There was then a delay of two years before the warrant was executed. The suggestion subsequently made by the CPS was that the delay in execution of the warrant may have been due to the low priority given by the police to execution of such traffic offence warrants. Whether that was the reason or the warrant was simply overlooked or the delay had some other cause does not matter for present purposes. The relevant points are that responsibility for the delay lay with the police and not with the appellant, and that it was not until May 2001 that the appellant was contacted by the police by telephone to be informed that they were in possession of a warrant. He then attended the police station and was bailed to attend the magistrates’ court on 14 May 2001.

When he attended on 14 May he complained about the delay and the justices adjourned the case to 22 May for him to seek legal advice and for sentence.

On 22 May the appellant was represented by counsel and the justices were faced with arguments of abuse of process and infringement of Article 6 ECHR based on the delay. But the case had been listed before a court dealing with postal guilty pleas and there was insufficient time for the justices to hear legal argument. The case was therefore adjourned to 9 July.

On 9 July the case was further adjourned to 2 August at the request of the CPS. This was because, although the appellant had served a skeleton argument on the CPS the week prior to the hearing, it had not been included in prosecuting counsel's instructions and counsel had therefore not had a chance to consider it. This was subsequently the subject of a wasted costs application by the appellant.

On 2 August the justices heard substantial argument on the legal issues. The appellant contended that the delay in the disposal of the case was an infringement of Article 6 and that in those circumstances he should be permitted to change his plea to not guilty and to have the case against him dismissed for breach of the Convention right as to a trial within a reasonable time. The justices rejected those arguments, holding that whilst the delay was excessive for a case of this type it did not warrant either a finding of abuse of process or dismissal of the charges on the grounds of an infringement of Article 6.

After dealing with those issues the justices had insufficient time to move to sentencing and to hear the appellant’s wasted costs application. There was therefore a further adjournment to 6 September.

On 6 September the justices dealt with all outstanding matters. As to sentence, they fined the appellant £150 in respect of each offence. His licence was endorsed with 4 penalty points in respect of each offence. It was already subject to two endorsements for speeding offences in July 2000. The total number of penalty points was such that the justices disqualified him for 12 months under the totting up provisions of s.35 of the Road Traffic Offenders Act 1988.

The justices decided that costs against him should be limited to the amount that would be claimed by the prosecution in the case of a guilty plea, namely £35 for each offence. He was therefore ordered to pay a total of £105 prosecution costs.

The justices also made a wasted costs order against the CPS, in the sum of £125, which was very much lower than the total claimed by the appellant. No amount was included in respect of the costs of the application for wasted costs itself.

After that hearing the appellant's solicitors wrote to the justices requesting them to state a case on a number of questions. The justices refused to do so, on the ground that the application was frivolous. The appellant sought judicial review of the refusal. The matter came before the Divisional Court (Rose LJ and Gibbs J) on 4 July 2002, when the court directed the justices to state a case on two questions, namely (1) whether they erred in law in deciding that there had not been a breach of Article 6 and (2) whether they were wrong to refuse to award the appellant his costs of obtaining the wasted costs order itself. Certain other issues concerning the wasted costs order were not pursued before the Divisional Court. The court refused to direct the justices to state a case on a further point concerning the admissibility of the print-out of the appellant's previous convictions which the justices had before them. There was held to be nothing in that point.

The appellant’s disqualification took effect when imposed on 6 September 2001. The information given to me by Mr Ley, counsel for the appellant, is that it continued in effect until 1 March 2002, when it was suspended by this court in the context of the application for judicial review of the refusal to state a case. The appellant has therefore completed almost 6 months of the period of disqualification, with the balance of just over 6 months to run once the suspension is lifted.

Pursuant to the direction of the Divisional Court the justices stated a case on 25 October 2002, raising for the opinion of the High Court two questions, which are in substance: (1) whether the justices were wrong to find that the delay had not given rise to a breach of Article 6, and (2) whether it was Wednesbury unreasonable to refuse to award the appellant the costs of and incidental to the wasted costs application. Those are the questions now before me for decision.

At the hearing on 3 March 2003 I heard submissions on all matters that could sensibly be canvassed at that stage. Both counsel agreed, however, that it was not sensible to make submissions at that time on the central point in the case, concerning the remedies open to the court where there has been a failure to determine a charge within a reasonable time. On that issue the principal authority in England and Wales was the decision of the Court of Appeal in Attorney General’s Reference (No. 2 of 2001) [2002] 1 Cr App R 272. But doubt had been cast on it by decisions of the Privy Council on the corresponding position in Scotland, including R v. Lord Advocate [2003] 2 WLR 317; and Attorney General’s Reference (No. 2 of 2001) was itself on appeal to the House of Lords, with the hearing scheduled for April 2003. In the circumstances I adjourned the case part heard, leaving argument on that issue for development in the light of the judgment of the House of Lords. I directed that written submissions be filed after that judgment had been handed down, leaving it open to the parties to apply for a further oral hearing if so advised.

In the event it was only in December 2003 that the House of Lords handed down judgment in Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68, [2004] 1 All ER 1148. Thereafter, after prompting by the court, Mr Ley submitted brief written submissions on behalf of the appellant. The court was informed that the DPP did not wish to make any further submissions. Neither party requested a further hearing.

One of the guarantees provided by Article 6 is that in the determination of a criminal charge against him a person is entitled to a hearing within a reasonable time.

The appellant’s case in brief is that there was a breach of Article 6 since, in relation to issues as simple as those raised by the three informations against the appellant, a delay of over 2 years in the determination of the case against him was unreasonable. No complaint is made about the delay from the laying of the information to the return date on the summonses. It is said that a reasonable period from then until the sentencing hearing would have been about 1 month. The whole of the additional time that the claimant had to wait until sentencing was unreasonable delay. That includes the period of almost 2 years until the matter came back before the court in May 2001, none of which was the fault of the appellant. It also includes the period of over 3 months from then until the final hearing on 6 September 2001, which again was not the fault of the appellant. He was entitled to take the points he raised. The adjournment in July was a result of the prosecution's failure to provide a copy of the defence skeleton argument to counsel in advance of the hearing. The adjournment in August was the fault of the court in ignoring the defence time estimate and failing to allow sufficient time for the case in the list. So there was a total period of over 2 years of unreasonable delay prior to sentencing.

In addition, it is submitted, this court should take into account any unreasonable delay in the appeal process. As to that, the process of getting a case stated should have taken about 12 weeks but in fact took over a year as a result of the justices’ unreasonable refusal to accede to the application to state a case and the need to go to the Divisional Court for an order requiring them to do so. No complaint is made about the period after the eventual statement of a case.

It is unnecessary for me to examine the authorities on what amounts to a reasonable time for the determination of a charge. That is because Mr Doyle QC, on behalf of the DPP, concedes that there was unreasonable delay in this case. He accepts that the summons related to straightforward uncontested allegations of speeding which, following submission of pleas of guilty by post, ought to have been determined no later than June or July 1999, that the relevant period of delay between the service of the summons on 24 March 1999 and sentencing on 6 September 2001 was unreasonable, that the claimant did not contribute to the unreasonable delay, and that therefore in breach of Article 6 the claimant’s criminal charges were not determined within a reasonable time. It is also accepted that account should be taken of the further unreasonable delay occasioned by the refusal of the justices to state a case.

In my view the DPP's concession is rightly made. I do not need to decide the precise period of unreasonable delay. It suffices that a total period of over 2 years in the magistrates' court and a further year or so in time wasted over the appeal, in such a simple case with guilty pleas, was excessive and in breach of Article 6.

The next question is what is the appropriate remedy for the unreasonable delay. At the hearing Mr Ley submitted that the claimant should have been allowed to change his pleas and the charges against him should then have been dismissed; it was unlawful or unreasonable of the justices not to adopt that course, and this court should therefore quash the convictions. Mr Ley’s alternative submission was that the sentence should be reduced.

Since the hearing the relevant legal principles have been authoritatively stated by the House of Lords in Attorney General’s Reference (No. 2 of 2001) (see above). It is sufficient for present purposes to cite the following passage from the speech of Lord Bingham, representing the view of the majority:

“24.

If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s convention right under art 6(1). For such breach there must be afforded such remedy as may be just and appropriate (s.8(1) of the Human Rights Act 1988) or (in convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.”

In his recent written submissions, Mr Ley realistically accepts that, in the light of that judgment, the appellant can no longer seek the quashing of his convictions. It is conceded that a fair hearing was possible and there is no suggestion that it was unfair to hold the hearing. Accordingly Mr Ley falls back on what was previously his alternative submission, namely that the appropriate remedy for the breach of the appellant’s right under Article 6(1) is a reduction in sentence.

As to the specifics of any reduction in sentence, Mr Ley’s original submissions were directed first to quashing the endorsement on the appellant’s licence or reducing the number of penalty points, but he came in the end to focus on a reduction in the period of disqualification, on the basis that the appellant has already served nearly half the period of disqualification and the effect of disqualification is to cancel out all existing penalty points. In his recent written submission he submits that the court should quash the 1 year’s disqualification and substitute such period of disqualification as is equal to the time that the appellant has already served (i.e. between the imposition of the disqualification and its suspension by this court).

A reduction in sentence was the course that Mr Doyle submitted from the outset to be in general terms appropriate in the circumstances. Although properly avoiding any submissions on the specific outcome, he very helpfully drew my attention to the relevant statutory provisions and the accepted approach in relation to them.

Under s.44 of the Road Traffic Offenders Act 1988, endorsement is mandatory unless there are “special reasons” for not endorsing. Since special reasons have to relate to the offence, it is difficult to see how the period of unreasonable delay could amount to a special reason in this case. As regards disqualification, on the other hand, the court has a broader discretion. Under s.35(1) of the Road Traffic Offenders Act 1988, disqualification under the totting up procedure, for a minimum period of 6 months, is mandatory in a case such as this “unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified”. The court can look at all the circumstances, save that no account is to be taken of the matters in s.35(4), which include “hardship, other than exceptional hardship”. Mr Doyle submits that if unreasonable delay counts as “hardship” within s.35(4), then it can also count as “exceptional hardship” which can therefore lawfully be taken into account in the exercise of the discretion under s.35(1): by analogy with “exceptional hardship” in the context of the Matrimonial Causes Act 1973, considered in Fay v. Fay [1982] 2 All ER 922, it covers “something out of the ordinary” (926d-g).

Mr Doyle accepts that if the justices had approached the matter properly they might have taken the view that there should be no disqualification or a shorter period of disqualification in this case. He points out, too, that if the case had come before the justices in June or July 1999, as it should have done, there would have been no other penalty points on the appellant’s licence (since the other offences were committed only in 2000) and the justices might not have thought it right to disqualify for these 3 offences alone.

I am satisfied that, for the reasons given by Mr Doyle, the court can properly take into account the period of unreasonable delay in deciding under s.35(1) of the 1988 Act whether in all the circumstances there are grounds for mitigating the normal consequences of the appellant’s convictions. I am also satisfied that a reduction in the period of disqualification is a just and appropriate remedy in the circumstances for the breach of the appellant’s Article 6(1) right. In the ordinary course I would have been inclined to substitute a period of 6 months’ disqualification. However, in view of the additional time that has elapsed in the determination of this appeal (through no-one’s fault, but while awaiting the judgment in Attorney General’s Reference (No. 2 of 2001)) I do not think that it would be fair to require the appellant now to serve even the few additional days’ disqualification to which such an order would give rise. So as to avoid any argument about the precise period of reduction that is required, I shall simply quash the existing period of 1 year and substitute a period of 5 months’ disqualification.

On this question there is no dispute over the principle. Mr Doyle accepts that the appellant was entitled to reasonable costs for necessary work in making the wasted costs application.

The only question therefore is what sum should be awarded. The DPP has made an offer which includes the sum of £375 plus VAT in respect of the costs of making the application. That offer has been refused. The court bundle did not include any documents that would enable the court to determine an appropriate costs figure, but at the hearing Mr Ley handed in some documents from which it would appear that the appellant is claiming in the region of £650 plus VAT for counsel’s and solicitor’s fees in connection with the application.

The wasted costs application was of the simplest kind. The wasted costs were the costs thrown away by the hearing on 9 July 2001 which had to be adjourned because a copy of the appellant’s skeleton argument had not been included in the instructions to prosecuting counsel. It was a point requiring minimal elaboration. Nor was a separate hearing required, since the wasted costs application was dealt with at the same time as sentencing on 6 September 2001. The fact that it could not be dealt with at the hearing on 2 August was the result of insufficient time being available after the Article 6 issues had been resolved, and again there was no separate hearing.

Looking at the matter overall, I am satisfied that the sum offered by DPP is ample to cover the reasonable costs of an application of this kind in the magistrates’ court, given that it did not even give rise to a separate hearing. I shall therefore order the DPP to pay the additional sum of £375 plus VAT in accordance with the offer already made. (I have considered Mr Ley’s alternative suggestion that I should order detailed assessment, but I doubt whether this could be dealt with at same time as the costs of the present appeal and in any event I consider that it would be inappropriate to deal with the matter in that way rather than by way of a robust summary assessment.)

Mr Ley has also tried to raise a further issue concerning the amount of the wasted costs order. He says that the case stated discloses an error in the justices’ reasoning. In paragraph 6(D) of the case stated the justices say:

“The bill of costs submitted by the appellant was excessive. The court had estimated the length of the 6^th September 2001 hearing to be approximately one hour which was not Wednesbury unreasonable taking into account the issues to be dealt with. Counsel for the appellant had kept no actual times of hearings and had claimed for half a day attendance at court (750.00). The justices were of the view that a fee of £250 reflecting one hour’s court attendance was appropriate and that half of that figure of £250 was attributed to wasted costs, so that defence costs should amount to £125 and wasted costs to a similar amount ….”

Mr Ley submits that the relevant hearing was the hearing on 9 July, not that on 6 September: it was the need to adjourn the hearing on 9 July that caused costs to be wasted. Moreover there was no basis for allowing only half of the costs of that hearing, since the whole of the attendance at the hearing was wasted.

It is, however, clear from paragraphs 10-11 of the judgment of the Divisional Court on 4 July 2002 (when the justices were ordered to state a case) that Mr Ley did not pursue any complaint about the amount of the wasted costs order. It is too late to do so now. I accept that the passage I have quoted from the case stated is confused, but I am not satisfied that the justices have focused on the point as they would have done had they been directed to state a case on the specific issue. Nor am I satisfied in any event that the actual amount of the wasted costs award was unreasonably low. So this point, which does not relate to either of the questions raised in the case stated, is not one that I have allowed the appellant to pursue.

As regards the questions raised in the case stated, I give the following answers:

The period of 1 year’s disqualification imposed by the justices is quashed and a period of 5 months’ disqualification is substituted for it. The DPP is ordered to pay the appellant the sum of £375 plus VAT in respect of the costs of the application for a wasted costs order. To that extent and for the reasons given the appeal is allowed.