Oladimeji v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,MR JUSTICE JACK,Lord Justice Keene |
| Judgment Date | 11 May 2006 |
| Neutral Citation | [2006] EWHC 1199 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/604/2006 |
| Date | 11 May 2006 |
[2006] EWHC 1199 (Admin)
Lord Justice Keene
Mr Justice Jack
CO/604/2006
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
MR COLIN HART (instructed by Messrs CT Emezie Solicitors, Enfield EN3 7XU) appeared on behalf of the Appellant
MR ROBERT O'SULLIVAN (instructed by Crown Prosecution Services, Kingston Branch, Tolworth Tower, Surbiton, Surrey KT6 7DS) appeared on behalf of the Respondent
The appeal from the South West London Justices sitting at Kingston upon Thames in this case comes to this court by way of case stated. It arises from the conviction of the appellant on 2nd November 2005 of an offence under section 7(6) of the Road Traffic Act 1988, of failing without reasonable excuse to provide a specimen of breath when required to do so under that section.
Before turning to the issues such as they are on this appeal, there are some general observations about appeals by case stated that I am prompted to make by the format and content of the case stated in this appeal. It is highly unsatisfactory for this court to be presented with so poorly a laid out case as the one before us. Rule 64.6 of the Criminal Procedure Rules 2005 (formerly Rule 81 of the Magistrates' Courts Rules 1981) provides as follows:
"(1) A case stated by the magistrates' court shall state the facts found by the court and the question or questions of law or jurisdiction on which the opinion of the High Court is sought.
(2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the particular finding of fact which it is claimed cannot be supported by the evidence before the magistrates' court shall be specified in the case.
(3) Unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the case shall not contain a statement of evidence."
It appears to me that those concerned with drafting the case stated in the present case paid little or no attention to the provisions of that rule. Those provisions derive from the fact that the function of this court in respect of a case stated is to determine whether the decision of the justices is "wrong in law or is in excess of jurisdiction" (see section 111(1) of the Magistrates' Courts Act 1980). This court is consequently only concerned with the state of the evidence before the justices in so far as it is said that the findings of fact made by them demonstrate an error of law or an error of jurisdiction.
What this court does need in all cases are clear findings of fact, and a clear identification of the questions of law which are said to arise. The justices should decline to pose questions for this court unless those questions are ones of law. If there is no evidence for a finding of fact, that will give rise to an error of law. But the weight to be attached to particular pieces of evidence is a matter for the justices. Only if no reasonable Bench could have reached the finding in question will that finding produce an error of law or amount to an ultra vires act. If a defendant believes that the justices have arrived at a finding for which there was evidence but at which he contends they should not have arrived (for example, because it was against the weight of the evidence), his remedy lies in an appeal to the crown court, not in an appeal by case stated to this court.
The case stated in the present case runs together a summary of the evidence given with comments by the justices, for example, in respect of the appellant's evidence. It does not, as it should, clearly separate the summary of evidence from the findings of fact. Normally that separation will best be achieved by the use of headings. As I shall indicate in due course, the questions posed at the end of the case stated here are largely ones of fact not law. It is also helpful if the rudimentary step is taken of numbering the paragraphs in any case stated in a sequential manner. That makes for far easier reference when the appeal is heard by this court.
Doing the best that one can with the case stated in the present case, the facts are as follows. The appellant was stopped by police on the morning of 5th April 2005 for not wearing a seat belt. A roadside breath test was requested and was given. It proved positive and the appellant was then taken to Kingston police station. The justices rejected evidence from him that he had had difficulty in providing that roadside breath test and that it had taken at least five attempts.
At the police station the appellant successfully provided the first specimen of breath, which produced a reading of 72. He then had three attempts to produce a second specimen, but without success. The justices seem to have accepted that he was then asked, "Are there any medical reasons why you have not provided two specimens of breath?", to which he gave no reply. In answer to a question about medication, he said that he was on Amoxicillin for an eye infection. The Bench rejected evidence from the appellant that he had been coughing throughout, and that he had said to the officer that he was taking Amoxicillin for a throat and eye infection.
The justices did accept that the appellant had suffered episodes of asthma since early childhood, but had not had any problems with it for a number of years and did not carry an inhaler. They said in the case stated that there was no evidence given by the appellant or anyone else that he showed signs of suffering an asthma attack on the day in question. They accepted the evidence of the appellant's general practitioner, Dr Gupta, that he had seen the appellant on 29th March 2005, a week before the incident, and had on that occasion prescribed antibiotics for a throat infection, that the appellant was not being treated at that time for asthma and that there were not concerns regarding his breathing on that date. It was also accepted that Dr Gupta saw the appellant three days after the incident, that is to say on 8th April 2005. The justices noted that Dr Gupta's evidence was of what they described as "unspecific relevance to...
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