R (Faithfull) v Ipswich Crown Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON,MR JUSTICE GIBBS,LORD JUSTICE RICHARDS |
| Judgment Date | 26 October 2007 |
| Neutral Citation | [2007] EWHC 2229 (Admin),[2007] EWHC 2763 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2007 |
| Docket Number | CO/2229/2007,CO/742/2007 |
[2007] EWHC 2229 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Stanley Burnton
CO/742/2007
Mr H Southey (instructed by Leigh Day & Co) appeared on behalf of the Claimant
Mr A Edwards (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is a renewed application for permission to apply for judicial review of the Secretary of State for Transport's refusal for judicial review of Regulations made by the Secretary of State which have resulted in the refusal of a driving licence to the claimant.
She has been unable to drive since 2001 as a result of a refusal of a driving licence on account of her epilepsy. It is common ground that she suffers from epilepsy. It is said on her behalf that her epilepsy is, perhaps unusually, not such as to disable her from driving in the sense that if she were able to drive she would not present a significantly greater risk to herself or to other persons or anyone else who drives a motorcar. One has, I think, to bear in mind that any motor vehicle can be not only a dangerous but a lethal weapon. It is not surprising that there are Regulations which regulate the medical requirements of those seeking a driving licence. The issue of a driving licence to someone who, because of his or her medical condition is a risk to himself, herself or more particularly to others, is a very serious matter.
The application arises because there is medical evidence that her epilepsy does not involve a risk, although she has suffered from attacks during the past year. The effect of the Regulations at the moment is that someone who suffers from epilepsy cannot be granted a licence if he or she has suffered an epileptic attack during the last 12 months. As I understand the matter, the claimant has suffered attacks, although they are so minor that they would not constitute a risk, or at least that is the effect of the medical evidence that is before me.
The Regulations themselves are long-standing. They came into force in 1999 and it is accepted that they were correctly applied by the Secretary of State, or those deciding on behalf of the Secretary of State, to refuse a licence for the reason I have already indicated.
It is sought to attack the Regulations on two bases. The first is that there is an arguable infringement of a Convention right under Article 8, respect for the individual's private and family life. The second is that the decision made under the Regulation effects a breach of the statutory duty under section 49A of the Disability Discrimination Act 1995 which came into force on 4th December last year.
It appears from the correspondence before me that the Regulation, and indeed the ongoing regulation of the medical requirements of those seeking a driving licence or having a driving licence, have been considered by what is referred to as the Honorary Medical Advisory Panel on Neurological Disorders and Driving of the Secretary of State. The Panel is referred to in a letter of 17th January 2006 and in an earlier letter of 7th November 2005. It is apparent from that correspondence that the Panel does now appreciate that there are persons who suffer epilepsy which does not affect their awareness or function so as to justify a refusal of a driving licence, and that the Secretary of State and the Panel are supportive of changes to the European legislation and to the United Kingdom Regulations which would enable a positive decision to be made in the claimant's case, assuming that the medical evidence remains in its present form.
Turning first to Article 8, there is no decision of the Commission or the European Court to indicate that a prohibition on driving infringes Article 8. There are decisions on the question whether a driving licence is a species of property for the purposes of Article 1 of the First Protocol, and it is now conceded that it is not. As far as I am aware, in none of those decisions was it suggested that a driving licence or the lack of a driving licence might constitute a breach of Article 8. An examination of what is involved in the refusal of a driving licence would support the conclusion that there is no breach of Article 8 in those circumstances. I appreciate that this is a case where the claimant herself suffers from more than one condition and they affect the degree to which she needs a car and the degree to which she can use other forms of transport. But there is, for instance, nothing precluding her taking a taxi other than her means. Taking public transport, which is a necessity to many people because they cannot afford a car, is more difficult for her, but in my judgment it is difficult to see in her circumstances that there is a breach of Article 8 involved.
Moreover, one has to bear in mind that Article 8 is not an unqualified right. The State is entitled and indeed, in circumstances such as the present, bound to introduce legislation in relation to driving safety. It is not surprising that it is of a general nature. There is no evidence to show that in the past anyone has been improperly inconvenienced by the current state of the Regulations. The prospects of the State failing to justify the regulation under Article 8, it seems to me, are remote. Moreover, there has been very considerable delay in bringing the Article 8 claim and the consequences of the claimant succeeding on previous cases which have been considered pursuant to the Regulations is not clear if, contrary to my view, there is an arguable breach of Article 8. For all those reasons I would refuse permission under Article 8.
So far as the Disability Discrimination Act is concerned, there are questions of statutory interpretation. I expressed surprise that the Act can have the effect of rendering ultra vires legislation lawfully made before it came into force. It is said that there is a real prospect of that occurring because when this legislation came into existence and was considered the statutory provision of the Disability Discrimination Act was not in force. But, as I have already indicated, it is clear that there was medical advice behind the Regulations which are the subject of these proceedings. Indeed, the fact that they differ from the European suggestion of a two year period without a seizure indicates that a view was taken by the Government as to what was necessary in the circumstances. In my judgment, it is highly unlikely that the Act can be construed so as to render unlawful delegated legislation made before it came into force.
The difficulties of the claimant do not end there. The legislation requires due regard to be had to a disability. What is due regard must depend on the circumstances, but it certainly does not mean that in every individual case a decision which is appropriate to the individual facts must be made if it is appropriate for there to be a general rule applicable to the class of cases applying in a particular case; otherwise there could be no general legislation of the kind presently under consideration. Moreover, it seems to me that what is suffered from in this case is not a disability within the meaning of the Act. The Act lists disabilities, and the present mobility is the only one which could possibly be the result of a legal decision. The remainder are clearly disabilities which directly result from a physical or mental condition. Here, it is said that this one does because it is the result of a legal decision, but the legal decision has to be made in respect of someone who is already suffering under a disability. Moreover, it is unclear to me that there is in any way a mobility impairment in this case. The meaning of an impairment of mobility is an impairment in terms of walking and moving. The mobility of the claimant is constrained only in the sense that she cannot drive, but she can be driven. She can move by public transport, although admittedly she finds that less comfortable than for other people.
For all those reasons, it seems to me that this is not a case in which the Disability Discrimination Act points can assist her. That is a view I come to somewhat reluctantly, because I have much sympathy for her, as indeed, it is clear, does the Panel to which I have referred. It is to be hoped that the Regulations will in due course be changed, but at the moment it seems to me that this is not a case in which I could or should grant permission. Accordingly I refuse it.
My Lord, can I ask for Legal Services Commission assessment?
Yes, certainly. Thank you both very much.
[2007] EWHC 2763 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Richards
Mr Justice Gibbs
CO/2229/2007
Mr M Fordham QC and Mr I Steele (instructed by Adams Harrison) appeared on behalf of the Claimant
Mr R Sadd (instructed by the CPS) appeared on behalf of the Interested Party
The Defendant did not attend and was not represented
The claimant, Mr Faithfull, challenges an order of His Honour Judge...
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