McCombie, R (on the application of) v Liverpool City Magistrates' Court

There is before the court an application for judicial review of a decision of the District Judge, sitting at the Liverpool Magistrates Court, to refuse to state a case in relation to a criminal trial that he had conducted whereby he found the present claimant (then the defendant) guilty of road traffic offences, driving without due care and attention, failing to stop and failing to report an accident, the findings of guilt being made on 18 December 2008 with sentence being adjourned until early February 2009.

The case came before HHJ Pelling QC, sitting as a judge of the High Court, who granted permission to challenge the decision on 3 August 2009. At the same time, on the papers, His Honour ceded to a submission made by the claimant that if this application for judicial review of the refusal of the District Judge to state a case would be granted, then the matter could proceed to a substantive hearing of the case stated itself. The interested party, the prosecuting authority in this case, had not filed an Acknowledgment of Service and subject to the grant of permission had intimated an intention not to participate in these proceedings and, accordingly, had not made any formal comment about the factual foundation of the case. The defendant, the Liverpool City Magistrates’ Court, as is normal where judicial review is sought of a judicial decision, has abided by the decision itself and has not commented on the factual matters in the case stated other than in terms of the decision itself.

At the outset of this case I intimated that, having regard to the factual position today and having regard to the facts in the authority relied upon by the claimant, a case of Sun World v Hammersmith and Fulham [1999] EWHC (QB) 271, which had persuaded HHJ Pelling to give directions for a rolled-up hearing, that in my judgement that was no longer an appropriate course. I indicated that I was varying those directions and that the hearing today would be limited to the question of whether relief should be granted on the judicial review of the District Judge’s decision.

Because that direction was being varied, it was also appropriate to reconsider the earlier direction given by HHJ Pelling that this was a criminal case not suitable for hearing by a single judge. Whilst that indication would undoubtedly be appropriate if it had been contemplated that this court would be hearing the full appeal by way of case stated, it did not follow that such a direction was appropriate if it was merely confining itself to the first issue of whether the District Judge’s decision was susceptible to judicial review and should be quashed.

So, having varied, in the exercise of the court’s powers under CPR 54, the directions given as regards a rolled-up hearing, I also varied the direction that enabled this court sitting as a single judge to hear the judicial review application.

It is necessary now to say something about the criminal proceedings that are the subject matter of this application. As indicated, the offence concerned a driving accident and its consequences that took place in the city of Liverpool in the early hours of Saturday 1 December 2007. It appears from the evidence that was subsequently obtained that a BMW motor vehicle registered to the claimant in these proceedings, as I will describe him hereafter, was seen and caught on a CCTV camera at 03.27 AM in the early hours of the morning, showing damage to a window and a light missing in a part of Liverpool known as Aigburth Road. It is accepted for the purpose of this application that that CCTV image must have recorded the vehicle shortly after it had become involved in an accident whereby it struck two young women who had been dropped in that area shortly before by a taxi, they having been out in Liverpool town centre the previous evening and into the small hours of the following morning.

The car was identified as being connected with the accident by evidence other than the CCTV footage. In particular, when the car was recovered from outside the claimant’s flat on or after 1 December, forensic examination revealed that a piece of jewellery from one of the victims of the accident had been found in the car and there was no other explanation for that save that that vehicle had been involved in the accident.

Further there was a connection between a woollen jumper, sometimes referred to as a cardigan, that was found in residential premises that were occupied by the claimant and a witness in the case. The jumper was said, on examination, to have contained a great many fragments of glass which had come from the windscreen of the damaged BMW. The pattern of glass found in the BMW suggested that there was no-one sitting in the passenger seat that would have protected the seat from a shower of glass, and the intensity of the glass fragments found in the jumper suggested that the person who was driving the BMW was wearing the jumper.

The claimant was a medical student, a trainee surgeon, and so was his flatmate, Dr Newby. They lived at Park Avenue, L18. Another friend of theirs, Mr Harris, lived at a separate address at Rankin Hall, Ullet Road, L8. The claimant had driven his motor vehicle to Mr Harris’s address. The claimant, Mr Harris and Dr Newby all travelled into the town centre and went out drinking on Friday night. Iit seems, a quantity of alcohol had been consumed. Dr Newby had returned home earlier at a different time from the claimant and the claimant had returned back, he says, by himself, later.

When the claimant was arrested, on 1 December, it was pointed out that his BMW motor car was in a damaged condition parked outside his house and it was being investigated as to whether he had been driving it at the time of the accident. He indicated that he could not remember much about how he got back that evening and what if anything he had been driving, and that remained his defence throughout these proceedings. Undoubtedly as he had told the District Judge when he gave evidence that he had drunk a quantity of alcohol but, for various reasons, it was not possible to sustain a charge of driving with excess alcohol and that charge was dismissed against him. But his own account was that alcohol had played a role in his incapacity to remember what had happened.

So the central issue at the trial that was, could the Crown prove that it was the claimant who had been driving his own BMW motor vehicle at the time of the accident? On the face of it there were the incriminatory facts that: (1) it was his vehicle that appeared to have been involved in the accident; (2) his vehicle was recovered outside his home; (3) he could not say whether he had been driving it or not; (4) in his home had been recovered the jumper or cardigan that had shards of glass on it, apparently as a result of the windscreen breakage, almost certainly during impact and in the course of the accident.

By the end of the trial it appeared to be common ground that if the jumper had found its way into the residential premises that the claimant and Dr Newby lived in and only they appear to have had ability to access the premises with front door keys, then common sense suggested it was one of them who must have been responsible for the jumper finding its way into the house.

As against that, the summary of the evidence that was prepared for the purposes of this application for judicial review records three facts upon which the claimant relies in his defence and in this judicial review. The first is that it is said that at trial CCTV evidence was adduced that identified him near the taxi rank somewhere in the centre of Liverpool, with a time of 3.12 am. Though the agreed facts do not say so, the court will presume that timing of CCTV evidence within Liverpool works on the same clock, so a CCTV record of time at Liverpool city centre of 3.12am should be properly contrasted with a CCTV of 3.27am of a BMW elsewhere in Liverpool travelling down the road in question. That is a gap of 15 minutes. The agreed facts indicate that at trial a police constable had, at some point after the date in question, driven the appropriate journey to mirror what the Crown’s case was against the claimant at trial, namely the journey from the taxi rank in the Liverpool town centre to Rankin Hall, the address of the friend where the BMW had been left earlier that evening and on from Rankin Hall to the place of the accident in Aigburth Road.

As there is no map and no agreed distances the court was unable to do more than identify that the evidence at trial suggested that the police officer reproducing that journey at the “correct time of day”, by which the court infers the early hours of Saturday morning, took 20 minutes. It is uncertain as to whether that evidence was tested in any way and whether there was a minimum and maximum journey time, but, on the face of it, if it takes 20 minutes from the rank near which the claimant had been seen at 3.12 to get to the place of the accident by way of Rankin Hall, that would suggest he could not have been at the accident scene earlier than 3.32 some five minutes after his BMW was recorded apparently moving away from the scene of the accident. No alibi notice had been served; it is still unclear when those CCTV timings were made known to the defence that may have afforded an alibi defence.

As previously noted the statement of facts has been seen by the defendant magistrate and, either the Chief Constable or the CPS on his behalf as an interested party has not excited any intervention to amend or to challenge it.

Secondly, it is said that the CCTV that had identified the claimants at the taxi rank in the centre of Liverpool at 3.12 was of sufficient clarity so that an observing officer was able to identify his style and colour of clothing. It is said that it it could be ascertained that he was wearing a brown jumper on that occasion. Before this court a summary of a second interview that took place between the police and this claimant on 3 March 2008 was referred to and it is said that it was the summary that was before the District Judge at trial. The summary reads as follows:

“Question: Asked the claimant what clothing he was wearing on the previous evening.

Answer: Jeans, a T shirt and jumper, I can’t remember exactly what it was.

Question: If I was to say to you a brown cardigan?

Answer: I’ve got a grey cardigan.

Question: Refers to CCTV footage in the (inaudible) corner of Chinatown where a male is sitting in a taxi. Stills had been taken from the footage. Showed stills to the claimant and asked if it was the gentleman in the photographs.

Answer: Yeah.

Question: Continued, referring to footage of the male getting into a taxi which drove off. Put it to claimant he appeared to be wearing a brown cardigan, white T shirt and blue jeans…..”

I understand that the CCTV in question was played to the District Judge and there is no indication on the summary present before this court that anyone changed their view as to the colour of the knitted garment, jumper or cardigan, that the claimant was said to have been wearing at 3.12.

The agreed statement of facts records that the jumper that is the subject of forensic scientific analysis and was found to contained a great deal of glass was grey in colour, a grey cardigan rather than a brown cardigan. Its exhibit number was MPL3. The cardigan was produced at trial, when its colour would no doubt be seen by all concerned, though looking back at the section 9 statement of the prosecution’s expert witness, it is not immediately apparent that he identified the colour in that statement. However, the point is that if that was the way it was put in interview and the way it appeared at trial, it would appear that the claimant was wearing a different coloured item of knitwear than the item that was recovered from his house that was found with glass on it. That was a pointer against him being the driver of the vehicle that night.

Allied to that question is that it appears that the continuity of evidence about where that piece of knitwear was taken from in the house leaves something to be desired. The police apparently did a search of the house when no-one else was present and the police officer at trial was unable to remember whose bedroom he took the jumper from. So although there is the incriminatory factor of the jumper that came from the house, it was unclear which bedroom it came from. If the claimant was not wearing the incriminating item on the night in question that might be a pointer that someone else was.

Those two matters alone might have alerted either the prosecution or magistrates to topics that would require some careful investigation. There is a third topic relied upon by the claimant in these proceedings, namely that hair combing samples were taken from him and, when analysed, no glass was found in his hair. He has long hair, and defence experts suggested it would be unusual for a person who was driving with long hair, in circumstances where his windscreen was broken with the quantity of glass fragments that were recovered, not to have had any glass in his hair. There may be a number of imponderables explaining the absence of glass, but for present purposes the claimant points to that piece of evidence as a further factor pointing against him being the driver of the vehicle.

The claimant was convicted after trial on 17/18 December 2008. He was remanded before the courts pending sentence, but he was granted bail on terms, pending sentence and then he was sentenced on 5 February 2009 to three months’ imprisonment. At that stage he declined to seek bail pending an appeal. It appears that originally he or someone on his behalf served a notice of appeal against both conviction and sentence to proceed to the Crown Court, but on 20 February he withdrew such an appeal but instead applied to the District Judge who had convicted him to state a case.

The application to state a case posed five questions. The fifth questions relates to the period of disqualification as part of the sentence. Although permission to challenge the District Judge in respect of the refusal to state the case relating to sentence had been granted, that application has not been pursued before me. Consideration of the question whether a DJ could properly have imposed that sentence is not dependent on a conviction for driving with excess alcohol and require a much fuller consideration of the permissible range of penalties for conduct that led to two young women receiving injuries. I therefore dismiss this application in so far as it relates to sentence.

The other four questions all ask, essentially, whether the District Judge was right to conclude, first, that there was sufficient time for the claimant to have gone from central Liverpool to the scene of the accident; second, that the right colour jumper had been worn; third to have dismissed the significance of the absence of glass shards in the claimant’s hair and fourth whether the DJ was right to place weight on the fact that the defence had not put to Dr Newby that he had driven the vehicle.

In my judgment, asking a discrete series of evidential questions was the wrong way of stating a case, which requires a case to identify the question of law.. The right question in my judgment was a generic question: namely whether on all the evidence that was adduced before him entitled the District Judge to be satisfied so that he was sure that the claimant was indeed the driver of the vehicle at the time of the accident and therefore guilty of these offences.

In response to the application after a period of delay that is not the fault of the claimants, the District Judge said that he was of the opinion that the application was frivolous and so certified it. He relied upon detailed reasons for his conclusion set out in a letter of that same date. The letter is nearly two pages long. The District Judge is to be commended for giving reasons as to the decision for treating the application as frivolous, a point to which I shall shortly return. However, in retrospect it seems that a number of points made in the letter were at least unfortunate.

First, some play is made as to whether the claimant is an aggrieved person because the application made to state the case says that he was dissatisfied by his conviction. The District Judge, on the basis of a potential difference between being aggrieved and dissatisfied, rather speculated as to what may have been behind the application to state a case rather than pursue an appeal in the Crown Court and whether someone else was promoting the application throwing doubt on what the defendant’s own genuine intentions were. In my judgment none of that is helpful when one comes to see the test of when a DJ can refuse to state a case. If the defendant was dissatisfied with the ruling he was aggrieved by it and certainly had standing to ask the DJ to state a case. It is further no answer to such an application to point out that he might have appealed against conviction and sentence to the Crown Court by way of appeal against rehearing.

If the claimant has a seriously arguable case or a case that cannot be rejected as frivolous that on the evidence that was adduced at trial it was not open as a matter of law to the court to convict him, then the court needs to explain what evidence it heard, what facts it found and why it was satisfied that the evidence did in fact entitled it to reach the conclusion it did. If there were gaps in the prosecution case at trial, there may very well be good reason why the claimant would not wish to give the Crown an opportunity to fill them. So neither of these two reasons could afford a proper basis to refuse to state a case.

The District Judge then goes on to say in his reasons as follows:

“Furthermore I am struggling to identify any question of law which to state a case. Every question you raise in your letter is based upon a clear issue of fact. The appropriate remedy therefore to pursue an appeal to the Crown Court (James v Chief Constable of Kent (1986) Times 7^th June). The recent withdrawal of the appeal of the Crown Court would suggest that Mr. McCombe is unwilling for another court to hear the same evidence at a rehearing”,

Whilst I accept that the form in which he was asked to state the case was defective and invited a response that the claimant was essentially querying questions of fact, the District Judge himself identifies the proper approach in a case of this sort in the following paragraph:

“I accept that it is legitimate to ask the opinion of the High Court as to whether there was evidence on which the court could come to a decision. In this case the factual basis of the conviction is incontrovertible for the following reasons.”

Four bullet points are then relied upon dealing with the conviction. The timing point is not addressed, the difference in the colour of the jumper is not addressed and bullet points 3and 4 are in these following terms:

“3)

By your client’s own admission only he and Mr Newby had keys to the house and the ‘jumper’ could only have been placed in the house by one of them.

4)

Mr Newby was a defence witness and gave evidence to the court on your client’s behalf to the effect that he returned home earlier than the claimant and alone.”

The DJ goes on to make a comment about the fact that Dr Newby was a defence witness whose evidence the claimant was relying on.. Unfortunately that is an error because Dr Newby was called by the prosecution so it would not have been a case of the claimant being bound by the evidence of his own witness that he was presenting on his behalf.

After a letter before action where that error was drawn to the District Judge’s attention, he wrote a further explanation for his decision on 14 May 2009 and explains that that error had occurred because of the gap in time between trial and the response to the application to state a case:

“However, do not confuse the drafting of a letter written 12 weeks after the trial with the events of the trial itself. As you are well aware, judgment was given immediately at the close of trial with the evidence fresh in everyone’s mind. I gave clear and detailed reasons for my decision in open court and no misdirection occurred.”

He then records his trial notes, which confirmed that Mr Newby said he had arrived home at approximately 3.30, and the claimant, according to Mr Newby, had arrived back at approximately 4.00 am. Again he noted at the end of that passage the cross-examination was brief and Mr Newby’s testimony is not challenged, and in the following paragraph makes a point that Mr Newby’s estimated time of return would appear to remove him from the window of option for the accident and to conclude that the evidence relating to the claimant did not.

When this application for permission came before HHJ Pelling he was concerned at least about the timing point and the colour of the jumper point in respect of conviction. The claimant points out that, although s.111 of the Magistrates Court Act 1980 has a proviso not requiring the District Judge to state a case where it is considered that the application is frivolous, that “frivolous” may have particular meaning in the case law of this court. So much is clear from the authority of R v North West Suffolk (Mildenhall) Magistrates’ Court ex parte Forest Heath District Council [1997] EWCA Civ 1575, a decision of the Court of Appeal Civil Division presided over by Lord Bingham of Cornhill LCJ, as he then was. He said as follows:

“I think it very unfortunate that the expression 'frivolous' ever entered the lexicon of procedural jargon. To the man or woman in the street 'frivolous' is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come. It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge. Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre. But there are cases in which justices can properly form an opinion that an application as frivolous. Where they do, it will be very helpful to indicate, however briefly, why they form that opinion. A blunt and unexplained refusal, as in this case, may well leave an applicant entirely uncertain as to why the justices regard an application futile, misconceived, hopeless or academic. Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs.”

This, of course, is not a case where the District Judge has declined to give reasons, but the reasons themselves have given rise to two problems. First, there is a degree of speculation as to why the application has been made rather than the pursuit to appeal the merits of the Crown Court and that speculation was undesirable and unhelpful in the present circumstances.

This court has itself examined whether there was something in the timing of this application that would entitle the District Judge to certify. The court was conscious that an application to certify needs to be made within 21 days of the decision of the justices in question, as it appeared that by the time of the application for judicial review it was conviction and conviction alone that was within the ambit of the challenge. At first blush it might have been thought that 21 days had expired in January long before the application was made to state the case was made on 28 February. In response it has been pointed out that there is s.111 subsection (3) of the Magistrates Court Act provides that:

“For the purpose of subsection (2) above, the day on which the decision of the magistrates court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender.”  

So it appears that 21 days does not run in a Magistrates Court case until the sentence is concluded. That of course is the opposite from the situation in the Court of Appeal Criminal Division, where someone who wishes to complain against conviction must give in their notice even though sentence may have been adjourned.

So the application was made within time and nothing as to the route the claimant wished to take to challenge this conviction itself threw doubt on the over three days of the application.

Second, The District Judge made the unfortunate error in his first decision to imagine that Dr Newby was a defence witness and that fact had prevented the defence from challenging his evidence. That was not the case. There was no onus on the claimant to identify who the driver was; rather it would have been for the prosecution to eliminate all other candidates. Although there were factors probative of guilt that this court has outlined, there were other factors pointing the other way, particularly the timing and the colour of the jumper point. I conclude a detailed exposition of the reasoning of those aspects of the evidence was required. That could only be achieved by way of a case stated on which all parties have had an opportunity to comment..

I am satisfied accordingly satisfied that, given the high threshold required to refuse to state a case as frivolous, and the fact parts of the agreed facts would point away to the claimant himself being the driver of his vehicle, that this is a case which a properly self-directing District Judge could not have concluded that the application in respect of convictionwas frivolous and therefore I should quash that decision. It follows in the circumstances that there is an outstanding obligation to state a case.

For the reasons I have given earlier I do not accept that this is a case in which the court can go on to decide the appeal by way of case stated because the participation of the interested party, in identifying all the material facts that go into the stated case, and of course the benefit of the District Judge’s reasoning on the questions that he has identified in his judgment are of considerable importance.

For those reasons this application is allowed. As I have already indicated the court would expect a interested party to play a role in the perfecting the case to be stated in this court which will be considered in due course. I will direct that the timetable for stating a case should commence with service of this order and I will direct expedition of a transcript explaining my reasons. At present the appeal by way of case stated will need to be considered by a Divisional court bit that is subject toi any revised directions the judge in charge of the Administrative Court list may make may the appeal is received.