Hoar-Stevens v Richmond Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE ROYCE |
| Judgment Date | 23 October 2003 |
| Neutral Citation | [2003] EWHC 2660 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3262/2003 |
| Date | 23 October 2003 |
[2003] EWHC 2660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Mr Justice Royce
CO/3262/2003
MR JEREMY CARTER-MANNING QC and MR PHILLIP LUCAS (instructed by Edward Fail Neale & Co of Twickenham) appeared on behalf of the CLAIMANT
MRS KIM HOLLIS QC and MISS A POWER (instructed by Crown Prosecution Service, Kingston) appeared on behalf of the DEFENDANT
MISS KATHERINE KELLEHER (Instructed by Lansbury Worthington of London) appeared on behalf the INTERESTED PARTY
This is an application for judicial review of a decision of District Judge Marshall made on 12 June 2003 at the Richmond Magistrates' Court when, at the conclusion of the prosecution case, she refused an application made on behalf of the defendant that the proceedings be stayed on the basis that the prosecution had not made adequate disclosure of material which, it was said, could be relevant in relation to the reliability of an intoximeter EC/1R Evidential Breath Testing Instrument, serial no. 03603.
In General No Relief During Hearing, Jurisdiction
Normally this court will not entertain an application for a quashing order in relation to a decision made in a magistrate's court where the proceedings in that court are not complete. In R v Rochford Justices ex p Buck (1978) 68 Cr.App.R 114 it was said that there is no jurisdiction to do so, and a distinction was drawn between an order to direct a magistrate to hear and determine a matter, which can be obtained if he refuses to do so, and an order, as Cockburn CJ put it in Carden (1879) 5 QBD 1 at 5, "to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject". Such control, it was said, could only be exercised when the case was at an end. In Buck the prosecution had sought to introduce certain evidence which the justices ruled inadmissible. The matter was then adjourned to enable the prosecution to test the ruling in the Divisional Court. When giving judgment in this court Lord Widgery CJ said that the decision to adjourn was wrong. The prosecution were asking this court to do what Cockburn CJ had said could not be done, that is to say to exercise a measure of control over the way the magistrates try the case. At page 118 he said:
"The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings.
Accordingly, I would be prepared to dispose of this matter on the first argued point, namely, that there was no jurisdiction in this Court to interfere with the justices' decision, that not having been reached by termination of the proceedings below."
Should proceed if jurisdiction
In the present case I am completely satisfied that if there is jurisdiction this matter ought to proceed not only because counsel on both sides are here ready to address us in relation to the substantive issues but also because the question of discovery does urgently need to be addressed by this court. In order to make good that point, to which both sides have referred, I will refer, briefly, to the history of this case.
The claimant was arrested on Saturday 9 March 2002 when his vehicle was stopped and he failed a roadside breath test. He was taken to Twickenham Police Station where he provided two more samples of breath, which were taken on the intoximeter machine to which I have referred at the start of this judgment. The readings were positive, so he was charged with an offence contrary to Section 5 (1) (a) of the Road Traffic Act 1988.
On 13 March 2002 he appeared in Richmond Magistrates' Court and pleaded not guilty. The machine at the police station was of a type which had been approved by the Secretary of State, but those acting for the claimant were anxious to explore its reliability, and they could only do so if they could get access to certain records.
The disclosure obligations of the prosecution are set out in the Criminal Proceedings and Investigations Act 1996 and in the Attorney General's Guidelines. In this case the prosecutor's primary disclosure did not deal with the history of the machine, and there is no obvious reason why it should have done so. Matters then followed a somewhat surprising course. One might expect that within 14 days of primary disclosure the claimant would have opted to serve a defence case statement in terms which would have triggered secondary disclosure under the Act. But that is not what occurred. No such statement was served until 20 January 2003, and meanwhile on 24 May 2002 District Judge Wassall directed the prosecution to disclose certain information in relation to the history of the machine. A similar order was made in relation to a number of other cases in which it may be that defence statements had been served in terms which would enable those defendants to apply for orders pursuant to Section 8 of the 1996 Act.
After 24 May 2002 some more information was disclosed by the prosecution, but one underlying problem was that the machine had been made and serviced by Intoximeters, an independent company, who had records of their own.
At a pre-trial review on 16 September 2002 another district judge —District Judge Clarke —gave further directions in relation to disclosure in this and other cases, after which some more information was provided, and a defence expert examined the machine. Only thereafter was the defence case statement served.
In the early months of this year some more material was disclosed, and then on 14 April 2003 before District Judge Marshall the trial began. On 15 April there was a further application under Section 8 of the 1996 Act which yielded a letter from Intoximeters which said they had nothing which would undermine the prosecution or assist the defence. Submissions were then made as to abuse of process and as to whether the prosecution evidence as to the results of the tests at the police station should be excluded pursuant to Section 78 of the Police and Criminal Evidence Act 1984. It was in relation to the first of those submissions that District Judge Marshall ruled in favour of the Crown on 12 June 2003. She held that she was not bound by the previous orders for disclosure which had to be reviewed in the light of subsequent events, and expressed her conclusion as to disclosure as follows:
"In summary then, my answer to the first matter for consideration, is that the Crown have not complied fully with their duties under the statutory scheme for disclosure in that they have not enquired of the Home Office as to the existence of relevant material and have not sought from...
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Table of Cases
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