Pownall & Rodber, R (on the application of) v Flintshire Magistrates Court [2004] EWHC 1289 (Admin)

Case No CO/5931/2003-CO/6233/2003[2004] EWHC 1289 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 14th May 2004
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
MR JUSTICE RICHARDS
Between
THE QUEEN ON THE APPLICATION OF POWNALL & RODBERClaimant-v-
Between
FLINTSHIRE MAGISTRATES COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S MILLS (instructed by DE CORDOVA, ALIS AND FLICE) appeared for CLAIMANT for The DEFENDANT did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE RICHARDS: The Court has before it two claims for judicial review in respect of convictions for exceeding the speed limit.[2]In each case the offence charged was driving a motor vehicle at a speed exceeding 30 mph on a restricted road, namely the B5441 Welsh Road in Sealand. In each case the claimant pleaded guilty before the Flintshire Magistrates' Court.[3]The claims arise out of the subsequent discovery that the requisite traffic order to support the speed limit was not in place. The legal limit on the relevant stretch of road was therefore 60 mph and neither claimant was driving in excess of that limit.[4]Mr Pownall was stopped on 9th November 2001 for driving a Ford Transit van at a speed of 56 mph. A summons was subsequently issued and his case was dealt with on the basis of a written plea of guilty on 25th June 2002. He was fined £80 and ordered to pay £35 costs. His licence was endorsed with six penalty points.[5]Mr Rodber was stopped on 8th December 2001 for driving a Range Rover at 51 mph. A summons was issued. His case was dealt with in court, where he appeared in person, on 9th July 2002. He pleaded guilty. He was fined £200 and ordered to pay £30 costs. His licence was endorsed and he was disqualified from driving under the toting up provisions of section 35 of the Road Traffic Offenders Act 1988.[6]Both men when stopped by the police were told that the speed limit on the road was 30 mph. The cases proceeded and the pleas of guilty were entered on the understanding by all concerned that that was indeed the legal position.[7]A problem about the validity of the speed limit was subsequently identified and received a degree of local publicity, which resulted in both men entering into correspondence with the North Wales police.[8]Mr Rodber then received a letter from the police dated 26th September 2002 informing him that it appeared that the relevant stretch of road was not served by an appropriate order and that, although enquiries were ongoing, it would be in order for him to drive in the meantime - a pragmatic approach whatever the validity of the position adopted.[9]Both claimants then received a letter dated 31st October 2002, from solicitors retained by the police confirming that the requisite orders to support the speed limit had not been in place and that as a result the offences were to be "withdrawn". All reasonable assistance was offered in securing a reversal of the convictions and an application for judicial review was suggested.[10]Both claimants did eventually apply for judicial review. There was a long delay before they did so but extensions of time were granted at the permission stage and no more be said about delay.[11]One other claim of a similar nature has already been before the court: see The Queen (on the application of Smith) v Flintshire Magistrates Court [2003] EWCA 106 (Admin), a decision of 30th June 2003, in which on an unopposed application Owen J quashed the claimant's conviction.[12]The two cases before us are likewise unopposed. Mr Mills, who appears for both claimants, has put his case clearly and succinctly in very helpful written submissions. He submits that as a result of an error each claimant has a conviction for an offence he did not commit. The police have admitted the error. No appeal lies to the Crown Court under section 142 of the Magistrates' Court Act 1980 since the conviction was on a plea of guilty. Judicial review therefore is the only remedy. It is submitted that the situation is analogous to that of R v Bolton justices ex parte Scally [1991] 2 All ER 619, where the claimants had pleaded guilty to offences of driving with excess alcohol on the basis of apparently incontrovertible evidence that the alcohol level in their blood exceeded the prescribed level. It was later discovered that the evidence was flawed. The Divisional Court quashed the convictions. The reasoning of the court is accurately summarised in the headnote which states:
"The court had jurisdiction to quash the conviction of a defendant who had pleaded guilty to a charge before magistrates on the basis of flawed evidence unwittingly relied on by the prosecution, even though the conviction was obtained without unfairness on the part of the court or malpractice by the prosecution. Although no dishonesty had been involved, the process leading to the convictions of the applicants for driving with excess alcohol in their blood had been corrupted by the prosecutor (a combination of the police and the Crown Prosecution Service) in a manner which was unfair in that it gave the applicants no proper opportunity to decide whether to plead guilty or not guilty and wrongly denied them a complete defence to the charges. The conduct of the prosecution therefore was analogous to fraud, collusion or perjury and entitled the court to intervene by way of judicial review."
[13]So too here, submits Mr Mills, the claimants were entitled to rely on the assertion by the police that the relevant speed limit was 30 mph. There was no unfairness by the court or malpractice by the police or prosecution, but the whole case proceeded on an entirely false premise and the claimants were misled into pleading guilty to an offence which had not been committed.[14]For my part, I accept those submissions and I am satisfied, as was Owen J in the similar case to which I have referred, that these cases fall within the scope of the principles laid down in Ex parte Scally. I would therefore quash both convictions. The North Wales police have agreed to meet the claimant's reasonable costs in each case. Therefore, I order the North Wales police to pay the claimant's costs, to be subject to detailed assessment if not agreed.

MR JUSTICE NEWMAN: I agree.