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QUEEN v. INNER LONDON JUSTICES Ex parte ALEXANDER CUKIC [1995] EWHC Admin 3 (1st September, 1995)
IN
THE HIGH COURT OF JUSTICE
CO/0009/95
QUEEN'S
BENCH DIVISION
CROWN
OFFICE LIST
DIVISIONAL
COURT
Royal
Courts of Justice
The
Strand
London
Monday
18 May 1998
B
e f o r e:
THE
LORD CHIEF JUSTICE OF ENGLAND
(Lord
Bingham of Cornhill
)
and
MR
JUSTICE CRESSWELL
THE
QUEEN
-
v -
INNER
LONDON JUSTICES
Ex
parte ALEXANDER CUKIC
_______________
Computer
Aided Transcription by
Smith
Bernal, 180 Fleet Street, London EC4
Telephone
No: 071-421 4040
(Official
Shorthand Writers to the Court)
_______________
MR
NIGEL LEY (instructed by Messrs Lewis Nedas & Co, London NW1 OJH)
appeared on behalf of THE APPLICANT
MR
JOHN McGUINNESS (instructed by The Crown Prosecution Service,
Special
Casework Unit) appeared on behalf of THE RESPONDENT
_______________
J
U D G M E N T
(As
Approved by the Court
)
_______________
Monday
18 May 1998
THE
LORD CHIEF JUSTICE: I will ask Mr Justice Cresswell to give the first judgment.
1. MR
JUSTICE CRESSWELL: This is an application for judicial review made pursuant to
leave granted on 14 March 1995. The applicant seeks an order of mandamus to
compel the respondents to state a case for the opinion of this court.
2.
On 29 September 1992 the applicant was convicted at Wells Street
Magistrates' Court of failing on 3 May 1992 to provide a specimen of breath for
analysis contrary to section 7(6) of the Road Traffic Act 1988. The applicant
was sentenced on 4 February 1993. On 16 February the applicant requested the
respondents to state a case for the opinion of this court, asking three
questions. The first and second points have since been abandoned. The
remaining question was in these terms:
"Was
the court entitled to hold on the evidence that the wording of the form setting
out the defendant's rights, and given to the defendant by the police, did not
mislead him into believing that he was entitled to speak to a solicitor before
he provided a sample of breath?"
3. The
magistrate refused to state a case on the grounds that the application was
frivolous within the meaning of section 111(5) of the Magistrates' Courts Act
1980.
4.
According to the first affidavit of the applicant, he was lawfully
required to provide a specimen for analysis. Before that request was made, he
was handed by the custody officer a Metropolitan Police Form No 3053. He says:
"That
document misled me into thinking that I was entitled to speak to a solicitor
before providing a breath sample.... I submit that the natural meaning of it
is that you are entitled to consult a solicitor before answering any questions,
which to me included a request to provide a breath sample."
5.
Form 3053 was so far as relevant in these terms:
"If
you are asked questions about a suspected offence, you do not have to say
anything unless you wish to do so, but what you say may be given in evidence.
YOU
HAVE THE RIGHT TO:
1. SPEAK
TO AN INDEPENDENT SOLICITOR FREE OF CHARGE
2. HAVE
SOMEONE TOLD THAT YOU HAVE BEEN ARRESTED
3. CONSULT
THE CODES OF PRACTICE COVERING POLICE POWERS AND PROCEDURES.
YOU
MAY DO ANY OF THESE THINGS NOW, BUT IF YOU DO NOT, YOU MAY STILL DO SO ANY TIME
WHILST DETAINED AT THE POLICE STATION."
7. You
can speak to a solicitor at the police station at any time, day or night. It
will cost you nothing.
8. Access
to legal advice can only be delayed in certain exceptional circumstances (see
Annex B of Code of Practice C).
....
9. If
there is a delay, ask the police to contact the solicitor again. Normally, the
police must not question you until you have spoken to the solicitor. However,
there are certain circumstances in which the police may question you without a
solicitor being present (see paragraph 6.6 of Code of Practice C)...."
10. At
the foot of the form under the heading 'The right to consult the Codes of
Practice' is the following:
"The
Codes of Practice will be made available to you on request. These Codes govern
police procedures. The right to consult the Codes of Practice does not entitle
you to delay unreasonably any necessary investigative and administrative
action, neither does it allow procedures under the Road Traffic Act 1988
requiring the provision of breath, blood or urine specimens to be delayed."
11.
Mr Christopher Pratt, a Metropolitan Stipendiary Magistrate, stated in
an affidavit in response:
"The
Applicant's assertion that I ruled that nobody would be mislead by form No 3035
is entirely incorrect. I found as a fact on the evidence that the Applicant
was not misled by the form.
....
I found as a fact on the evidence that the Applicant had read most of the
entire form, even if not word for word. I found as a fact on the evidence that
his reading was selective to best suit his defence to the charge. I found as a
fact on the evidence that the Applicant was not misled by the form.
....
In view of my findings of fact, there was no need to exercise my discretion to
exclude evidence under Section 78.
....
I
found as a fact on the evidence that the Applicant was warned on two occasions
that failure to provide a specimen of breath for analysis would render him
liable to prosecution. I further found as a fact on the evidence that the
police officer administering the breath test procedure specifically drew the
attention of the Applicant to the paragraph in Book 116 dealing with the
consequences of failing to provide a specimen.
I
also found as a fact on the evidence that the Applicant's refusal to provide a
specimen until he had seen a Solicitor, amounted to a failure to provide a
specimen.
....
For
these reasons I considered that no point of law arose on which I should State a
Case and accordingly I certified the application as frivolous."
12.
Mr Ley for the applicant submits that if the defendant believed that he
was entitled to speak to a solicitor before providing a specimen, that could
amount to a reasonable excuse. Magistrates can only refuse to state a case if
the application is frivolous. Rejection of a person's testimony does not mean
that the opposite of what he is saying is true. The meaning of a written
document is a question of law. It is arguable that, as a matter of law, the
interpretation contended for by the applicant is correct.
13.
Mr McGuinness for the Director of Public Prosecutions in his skeleton
argument submitted as follows:
"The
Stipendiary Magistrate .... specifically found as a fact that the Applicant was
not misled by the Form and had read most of it. .... the Stipendiary
Magistrate found
as
a fact
that .... the Applicant's reading 'was selective to best suit his defence to
the charge.'
14. The
assertion by the Applicant in his second Affidavit that the Stipendiary
Magistrate, having disbelieved the Applicant's evidence on oath, was not
entitled to find as a fact that he was misled is erroneous. It is apparent
that one of the issues before the Magistrate was: whether or not the Applicant
was misled by Form 3053 into believing he had a right to consult a solicitor?
Clearly, the Magistrate had to be satisfied by the Prosecution that the
Applicant had not been so misled. Both parties gave evidence on this
particular issue, and it would have been a necessary part of his decision
making process for the Magistrate to have considered whether or not the
Prosecution had satisfied him beyond reasonable doubt that the Applicant had
not been misled. Having heard the evidence of the police officer and of the
Applicant, the Magistrate was perfectly entitled to make a finding of fact."
15.
I turn to consider section 7 of the Road Traffic Act 1988. That
section provides so far as relevant:
"(6)
A person who, without reasonable excuse, fails to provide a specimen when
required to do so in pursuance of this section is guilty of an offence.
(7)
A constable must, on requiring any person to provide a specimen in pursuance of
this section, warn him that a failure to provide it may render him liable to
prosecution."
In
DPP
v Billington
(1988) 87 Cr App R 68, Lloyd LJ (as he then was) said at page 82:
"Whether
circumstances are capable of amounting to a reasonable excuse .... is a
question of law: Whether they do amount to a reasonable excuse in any
particular case is a question of fact.... The fact that a defendant wishes to
see or consult with a solicitor before providing a specimen is incapable in law
of amounting to a reasonable excuse."
16. At
page 84 Lloyd LJ said:
"All
that the (Police and Criminal Evidence) Act requires is that the defendant be
permitted to consult a solicitor and soon as practicable. There is nothing in
the Act which requires the police, whether expressly or by implication, to
delay the taking of a specimen under section 8 of the Road Traffic Act in the
meantime."
In
Hudson
v DPP
(1991) 156 JPR 168, [1992] RTR 92, the appellant had contended before the Crown
Court that the wording of the North Yorkshire Police and Criminal Evidence Act
Form 4B (January 1986) and a Law Society form created in the mind of the
appellant, and would have created in the mind of any reasonable person in the
same circumstances as the appellant, a belief that he was entitled to consult a
solicitor before any further steps were taken by the police and that the
existence of that belief was the sole reason for the appellant's failure to
provide two specimens of breath as requested by the custody officer. This
contention was rejected by the Crown Court on the basis that the respondents
were right in their contention that section 78 of the 1984 Act had no
application to breath test procedures. Hodgson J said at page 175:
"I
am not able to say that there were no circumstances in this case which ruled
out any exercise of discretion under section 78 by the court.... It seems to
me that the only course open to this court is to remit the case to the Crown
Court for reconsideration.... It seems to me that it would, in this police
force and others who use an identical or similar form to the Form 300, be
helpful if there were included in the form an indication to a suspect that,
whilst he had a right to have someone informed of his arrest and a right to
consult with a solicitor, neither of those matters would be allowed in any way
to interfere with the breathalyser procedures, nor would they give the suspect
any right in law to delay the breathalyser procedure once it was put in
motion."
17.
In the present case there is an express finding of fact by the
magistrate that the applicant was not misled by the form entitled 'Notice to
detained person'. The magistrate, having heard evidence from the police and
from the applicant, was plainly entitled to come to that conclusion of fact.
It cannot be said that there was no evidence to support his finding of fact.
The application to state a case is frivolous. There is no prospect of a case
stated succeeding. An order to compel the respondents to state a case would
serve no useful purpose. In the light of the findings of the magistrate there
is no basis for the contention which Mr Ley seeks to advance. I would dismiss
this application and remove the suspension on disqualification imposed when
leave was granted.
THE
LORD CHIEF JUSTICE: I agree.
18. MR
McGUINNESS: My Lord, the Director would ask for costs. If the applicant is
legally aided I would ask for my costs on the usual terms, that is not to be
enforced without the leave of the court. Otherwise I simply apply for my
costs.
19. THE
LORD CHIEF JUSTICE: What do you say, Mr Ley?
20. MR
LEY: My Lord, he is legally aided. I would ask that the usual order be made,
that the applicant pay the respondents' costs, such costs not to be enforced
without the leave of the court, and that there be legal aid taxation of the
applicant's costs.
21. THE
LORD CHIEF JUSTICE: Yes, very well. We make that order.
__________________________________
© 1995 Crown Copyright
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