Miller v DPP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards |
| Judgment Date | 25 March 2004 |
| Neutral Citation | [2004] EWHC 595 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4656/2002 |
| Date | 25 March 2004 |
[2004] EWHC 595 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/4656/2002
Nigel Ley (instructed by Kaye, Testler & Co.) for the Appellant
Peter Doyle QC (instructed by Barry Graves of CPS) for the Respondent
This is an appeal by way of case stated from a decision of Redbridge Magistrates' Court on 6 September 200It 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.
Article 6 ECHR
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...
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