R ROBERTSON v South WESTERN Magistrates' Court

JurisdictionEngland & Wales
JudgeLORD JUSTICE CLARKE,MR JUSTICE JACK
Judgment Date15 January 2003
Neutral Citation[2003] EWHC 63 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/3879/2002
Date15 January 2003

[2003] EWHC 63 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand London WC2

Before:

Lord Justice Clarke

Mr Justice Jack

CO/3879/2002

The Queen On The Application Of Robertson
(Claimant)
and
South Western Magistrates' Court
(Defendant)

MR N LEY (instructed by Byrne Frodsham & Co, Widnes) appeared on behalf of the CLAIMANT

The DEFENDANT did not appear and was not represented

MISS A POWER (instructed by CPS Kingston Branch) appeared on behalf of the INTERESTED PARTY

Wednesday, 15th January 2002

LORD JUSTICE CLARKE
1

On 23rd May 2002 the claimant, Mr Eric Robertson, was convicted by District Judge Grant at South Western Magistrates' Court of an offence of driving with excess alcohol on 5th August 2001, contrary to section 5(1)(a) of the Road Traffic Act 1988 ("the 1988 Act"). He was fined and disqualified from driving for one year. On 10th June 2002 he made an application that the District Judge state a case for the opinion of the High Court asking seven questions. On 25th June 2002 the District Judge refused to state a case on the ground that the application was frivolous. He issued a certificate, which includes the following:

"I am of the opinion that the application is frivolous and so refuse to state a case on the basis that the Application requesting me to state a case discloses no point of law."

2

On 14th August 2002 the claimant filed a claim form seeking judicial review of the refusal to state a case and a mandatory order compelling the defendant to state a case. Maurice Kay J subsequently granted permission to apply for judicial review and suspended the disqualification pending the hearing of the application.

3

The District Judge has indicated that he does not intend to appear or be represented at the hearing before us. Somewhat belatedly, the prosecution instructed Miss Power to appear on its behalf. We are much obliged to her for her assistance.

4

Section 111 of the Magistrates' Courts Act 1980 provides, so far as relevant:

"(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction … may question the proceeding on the ground that it is wrong in law … by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law … involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31st December 1879 is final …

(5) If the justices are of opinion that an application under this section is frivolous, they may refuse to state a case, and, if the applicant so requires, shall give him a certificate stating that the application has been refused …

(6) Where justices refuse to state a case, the High Court may, on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case."

5

It is important to have in mind that this is an application for judicial review. The question is whether the District Judge's conclusion that the application was frivolous was wrong in principle, which means in effect that the question is whether we are persuaded that no reasonable magistrate would have refused to state a case. If the application succeeds it will lead to an order that the District Judge state a case; it will not lead to the determination of any of the questions of law.

6

In R v Mildenhall Magistrates' Court ex parte Forest Heath District Council [1997] 161 JP 401, Lord Bingham CJ, with whom Millett LJ and Potter LJ agreed, said, at page 408, in the course of giving the leading judgment in the Court of Appeal:

"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 is 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 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."

7

The District Judge gave no detailed reasons for his decision to refuse to state a case. He did, however, give written reasons for his conclusions on conviction. They include the following account of the underlying facts:

"… at about 12.30am in the early hours of Sunday 5 August 2001 police officers attended Armory Way, Wandsworth where an incident had occurred. They found a Porsche motor vehicle that had collided with a roadside crash barrier. A person in the back seat of the vehicle identified himself as Mr Robertson and confirmed that he had been driving the vehicle at the time of the incident. Mr Robertson was asked to take a roadside breath test which proved positive, he was arrested and taken to Wandsworth police station.

At the police station he came before Sergeant Parry who was the custody officer. Sergeant Parry stated that Mr Robertson smelt of intoxicating liquor, his eyes were glazed and his speech was slurred which description was not challenged in cross-examination. The breathalyser procedure was carried out and Mr Robertson was offered the opportunity to have a sample of blood taken to replace the breath sample with the lower proportion of alcohol in accordance with the provisions of section 8(2) Road Traffic Act 1988 as the second sample of breath showed a reading of 50…

Mr Robertson was subsequently seen by the FME and it transpired that he had a fear of needles. On the advice of the FME Mr Robertson was asked to provide two samples of urine within an hour of seeing the FME. There appears to have been some initial confusion on the part of the custody officer about the procedure to adopt with urine samples but Mr Robertson urinated in the toilet after that initial delay but was not able to urinate again and provide the second statutory specimen of urine within the hour specified by the Act."

8

It appears to me that the District Judge may have regarded the hour specified by the Act as beginning with the end, as it were, of his "seeing the FME".

9

The District Judge then identified the nature of the defence or defences advanced and made a number of findings of fact, to some of which I will return in a moment.

10

I should perhaps note in passing that the claimant was also charged with failing without reasonable excuse to provide a specimen of urine, but at the beginning of the trial, which began on 22nd May 2002, the prosecution offered no evidence on that charge and it was accordingly dismissed.

11

As already indicated, the claimant invited the District Judge to state seven questions for the opinion of the High Court. They can be grouped under three headings as follows: (1) self-incrimination; (2) the urine sample procedure; and (3) the device. I shall consider each in turn.

(1) Self-incrimination.

12

This defence is the subject of the claimant's proposed question 1, which is in these terms: "Did the defendant have a fair trial when the evidence on which I found that he had been driving had been his answer to questioning by police officers and which answer he was under a legal duty to give by virtue of the Road Traffic Act 1988, Section 172?". In his skeleton argument for this application, Mr Ley has re-stated question 1 in two ways: "Is nemo tenetur scipsum accusare still good law? Can an answer to a question under section 172 [of the 1988 Act] be inadmissible in evidence because it amounts to compulsory self-incrimination?".

13

Mr Ley, who appeared for the claimant before the District Judge, told us, and we of course accept, that he objected to the admissibility of the evidence that the claimant had admitted, when asked while he was in the back seat of the car, that he had been driving the car. The basis of the objection was that the claimant, as a person alleged to be guilty of an offence to which section 172 of the 1988 Act applied, was required to give information which it was in his power to give and might lead to the identification of the driver within the meaning of section 172(2)(b). Mr Ley submitted, and submits, that the claimant's right not to incriminate himself is protected by Article 6 of the European Convention on Human Rights, and he further submits, if necessary, that it would be disproportionate to permit his admission to be given in evidence against him.

14

Mr Ley's difficulty is that this very point has been decided against him by this court in DPP v Wilson [2002] RTR 6 following the decision of the Privy Council in Brown v Stott [2001] RTR 121 on appeal from Scotland, where the point was considered in detail. In the ordinary way, I would regard any attempt to challenge those decisions as...

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