Stace, R (on the application of) v Milton Keynes Magistrates' Court [2006] EWHC 1049 (Admin)

Case No CO/5710/2005

[2006] EWHC 1049 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 12 th May 2006

Before

THE HON MR JUSTICE KEITH

Between

The Queen (on the application of Christopher Stace)Claimant

Milton Keynes Magistrates’ CourtDefendant

(Transcript of the Handed Down Judgment of

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Mr Graham Goodwill (instructed by Whatley & Co) for Claimant

for The Defendant did not appear and was not represented

Judgment

Introduction

[1]This a claim for judicial review of the dismissal by Milton Keynes Magistrates’ Court of an appeal by the Claimant, Christopher Stace, from a decision of the Traffic Commissioner for the Eastern Traffic Area revoking Mr Stace’s entitlement to hold a passenger-carrying vehicle driver’s licence, known as a PCV driver’s licence. Permission to proceed with the claim was given by Leveson J.

The statutory framework

[2]PCV driver’s licences are granted by the Secretary of State for Transport, Local Government and the Regions in accordance with Part IV of the Road Traffic Act 1988 (“the Act”). Section 112 of the Act authorises the Secretary of State to grant such a licence only if “he is satisfied, having regard to his conduct, that [the applicant for such a licence] is a fit person to hold the licence…” Section 121(1) of the Act provides that the applicant’s conduct means “his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding” a PCV driver’s licence.

[3]Sections 115-117 of the Act contain provisions relating to the revocation of a PCV driver’s licence, and the disqualification of the holder from driving passenger-carrying vehicles and holding such a licence in the future. The provisions, so far as is material, are as follows: Section 115(1):

“A… passenger-carrying vehicle driver’s licence… (b) must be revoked or suspended if [the holder’s] conduct is such as to make him unfit to hold such a licence…”

Section 116(1):

“Any question arising– (a) under section 115(1)(b)… as to whether a person is or is not, by reason of his conduct, fit to hold a… passenger-carrying vehicle driver’s licence… may be referred by the Secretary of State to the traffic commissioner for the area in which the holder of the licence resides.”

Section 116(2):

“Where, on any reference under subsection (1)(a) above, the traffic commissioner determines that the holder of the licence is not fit to hold a… passenger-carrying vehicle driver’s licence,… he shall also determine whether the conduct of the holder of the licence is such as to require the revocation of his licence or only its suspension; and if the former, whether the holder of the licence should be disqualified under section 117(2)(a)… (and if so, for what period)…”

Section 117(2):

“Where in pursuance of section 115(1)(b)… the Secretary of State revokes a person’s… passenger-carrying vehicle driver’s licence, the Secretary of State may– (a) order the holder to be disqualified indefinitely or for such period as the Secretary of State thinks fit…”

[4]Appeals against decisions made under these provisions are governed by section 119 of the Act, which provides, so far as is material:

“(1) A person who, being the holder of… a… passenger- carrying vehicle driver’s licence… is aggrieved by the Secretary of State’s… suspension or revocation of such a licence in pursuance of section 115… may, after giving to the Secretary of State and any traffic commissioner to whom the matter was referred notice of his intention to do so, appeal to a magistrates’ court acting for the petty sessions area in which the holder of… the licence resides… (3) On any appeal under subsection (1) above the court… may make such order as it thinks fit and the order shall be binding on the Secretary of State.”

The facts

[5]Mr Stace was granted a PCV driver’s licence in September 2001, and was employed as a bus driver in Milton Keynes. At the end of 2003, his marriage ran into difficulties, and he faced charges alleging that on three occasions – on 8 January, 10 January and 25 March 2004 – he had assaulted his wife by beating her. He also faced a charge of failing to surrender after being granted bail following his arrest for the third attack on his wife. On 5 May 2004, a community rehabilitation order for 12 months was made in respect of each of the charges, conditional upon him attending a community domestic violence programme – though when it was discovered that 12 months was insufficient for him to participate in such a programme, the length of the community rehabilitation order was increased to 2 years. The register of convictions showed that the court decided not to make any order for compensation in view of the couple’s attempt at reconciliation.

[6]In the light of these convictions, the Secretary of State referred the question of Mr Stace’s fitness to hold a PCV driver’s licence to the Traffic Commissioner under section 116(1) of the Act. Mr Stace was required to attend a hearing before the Traffic Commissioner on 9 July 2004. He failed to attend, and a further hearing was set for 27 July 2004. He failed to attend that hearing as well, and the Traffic Commissioner decided to proceed in Mr Stace’s absence. He decided, pursuant to section 116(2) of the Act, that Mr Stace’s entitlement to hold a PCV driver’s licence should be revoked with effect from 31 July 2004. He also decided, pursuant to section 117(2) of the Act, that Mr Stace was to be disqualified from holding or obtaining a PCV driver’s licence indefinitely.

[7]Mr Stace appealed against that decision to Milton Keynes Magistrates’ Court. His appeal was heard on 6 May 2005. Mr Stace gave evidence, as did his sister. He said that he was suffering from depression, and his sister, who is a state registered nurse, told the magistrates that Mr Stace had attended at a centre which she named since “it was thought he might commit suicide”. She said that she had power of attorney for him as “he doesn’t have the energy to sort things out” for himself. On the other hand, she said that Mr Stace had worked on the buses in Milton Keynes 6 days a week without any problem. He loved driving, and did not pose a threat to anyone. A letter from his employers stated that they would certainly consider re-employing him if he got his PCV driver’s licence back. The magistrates also had a letter from Mr Stace’s probation officer. She commented that since Mr Stace had always denied assaulting his wife, it had not been possible to undertake any offence-focused work with him, but she added that he had fully complied with the order, that she was not aware of any further offences having been committed by him, that he was currently assessed as being of low risk of re-offending, and that she was making an application to the court for the early discharge of the order due to the good progress he had made.

[8]The magistrates dismissed the appeal. They were subsequently requested to give their reasons for doing so, and the document which they produced, after summarising the evidence, said this:

“In coming to its decision the bench took particular note of the fact that Mr Stace had three convictions for assault, and a conviction for failing to attend [sic]. We also noted that although the CRO had gone well the order was still in place and Mr Stace was still suffering from depression. We noted that vocational entitlement can only be achieved by demonstrating fitness and therefore:- This bench having regard to Mr Stace’s conduct finds that he is not a fit person [to] hold a PCV licence.”

The filing of the claim

[9]Mr Stace wished to appeal against the decision of the magistrates. When his solicitors wrote to the magistrates’ clerk requesting reasons for their decision, they also asked for confirmation that the appeal was to the Crown Court. They were subsequently given a summary of those reasons over the telephone, but in that conversation they were not told that the appeal was not to the Crown Court. Accordingly, a notice of appeal was lodged with Aylesbury Crown Court. However, the Crown Court does not have jurisdiction to hear appeals from appeals heard by a magistrates’ court under section 119 of the Act, and on 5 July 2005 Mr Stace abandoned his appeal to the Crown Court. By then the time for applying to the magistrates for a case to be stated for the opinion of the High Court had expired. That would have been a more appropriate course to take in view of the point which it is sought to take on his behalf – namely that the magistrates erred in law by taking into account irrelevant considerations. Since it was too late to do that, Mr Stace’s only recourse was to file a claim for judicial review. That was filed in the Administrative Court Office on 8 August 2005.

[10]Why did it take until then to file it? The reason was that Mr Stace and his solicitors were looking for ways to avoid a potentially costly claim for judicial review. They reckoned that since the Traffic Commissioner’s decision had been reached in Mr Stace’s absence he might consider a review of his decision in the light of the evidence which had emerged at the hearing before the magistrates’ court. Accordingly, Mr Stace’s solicitors wrote to the Traffic Commissioner on 15 July 2005 requesting him to consider the re-convening of a hearing for the purposes of assessing Mr Stace’s fitness to hold a PCV driver’s licence. However, reg. 57 of the Motor Vehicles (Driving Licences) Regulations 1999 prevented the Traffic Commissioner from reconsidering his order for 5 years. Mr Stace’s solicitors were informed of that by letter dated 4 August 2005. They proceeded to file the claim for judicial review without any further delay.

[11]The judicial review claim form had to be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose: see rule 54.5(1) of the Civil Procedure Rules. The grounds to make the claim first arose on 6 May 2005, and so the claim had to be filed by 6 August 2005. But that day was a Saturday, and the court office was closed that day: see para. 2.1(1) of the Practice Direction supplementing Part 2 of the Civil Procedure Rules. That meant that filing the claim on the following Monday, which was the next day the office was open, meant that the claim form had been filed not later than 3 months after 6 May 2005: see rule 2.8(5) of the Civil Procedure Rules.

[12]Although the claim form was filed within the 3 months deadline, I do not think that it can be said that it was filed promptly. But the reason for the delay is now clear, and Mr Stace was not blameworthy at all. His solicitors should perhaps have researched the appropriateness of an appeal to the Crown Court themselves, rather than relying upon the absence of a response from the magistrates’ clerk contradicting their assumption that an appeal lay to the Crown Court. But his solicitors had at least done something to check that an appeal to the Crown Court was appropriate. The delay has caused hardship only to Mr Stace, who has had to wait longer for his challenge to the magistrates’ decision to be dealt with than would otherwise have been the case, and the delay has not been detrimental to good administration. In granting permission for the claim to proceed, Leveson J must have regarded it as at least arguable that Mr Stace’s time for filing the claim form should be extended. In the circumstances, I extend Mr Stace’s time for filing the claim form to the date when it was in fact filed.

The appropriateness of judicial review

[13]It has often been said that a remedy by way of judicial review should not be granted where an alternative remedy exists. But for Mr Stace’s solicitors’ failure to appreciate that if an appeal was to be lodged against the decision of the magistrates it had to be by way of case stated rather than to the Crown Court, the remedy of an appeal by way of case stated would have been available. In the event, it was not. It could therefore be said that when the claim for judicial review was filed, no other remedy was available to Mr Stace.

[14]But that is not a sure foundation to rest a claim for judicial review. A claimant, for example, should not be able to proceed by way of judicial review by allowing his time for taking an alternative course to lapse. I prefer to base my decision that a claim for judicial review was not an inappropriate course for Mr Stace to take on the footing that it was just as appropriate a remedy in his case as an appeal by way of case stated would have been. It is true that this case is not one where, for example, the impartiality of the magistrates is being impugned or procedural unfairness is said to have occurred – allegations which are unquestionably better adjudicated upon in a claim for judicial review rather than by an appeal by way of case stated. It is also true that when the allegation is that the magistrates erred in law by taking irrelevant considerations into account – which is the allegation here – an appeal by way of case stated has been regarded as the obvious remedy. That has been because magistrates do not normally give reasons for their decisions, though fairness may well now require them to do so by virtue of

Art. 6(1) of the European Convention on Human Rights

. Only through the statement of the case will it normally be revealed whether the magistrates took irrelevant considerations into account or otherwise erred in law. However, the magistrates in this case acceded to a request to give their reasons, and the rationale for an appeal by way of case stated being preferable to a claim for judicial review disappears.

[15]When giving permission for the claim to proceed, Leveson J recognised that an appeal by way of case stated was the more appropriate way of challenging the decision of the magistrates, but he granted permission nevertheless, because the outcome of the claim did not appear to depend upon facts which were in dispute. For my part, I have concluded that judicial review was not an inappropriate way to proceed on the basis that the provision of reasons by the magistrates made it unnecessary for Mr Stace to ask them to state a case in order to find out what the reasons were.

The considerations taken into account

[16]It is important to remember what the magistrates had to decide. They had to decide whether Mr Stace was “a fit person” to hold a PCV driver’s licence. In deciding fitness, they had to have regard to, and only to, his conduct. Part VI of the Motor Vehicles (Driving Licences) Regulations 1999 deal, for example, with a driver whose mental disorder or physical incapacity makes him unfit to hold a PCV driver’s licence. But in having regard to Mr Stace’s conduct, the magistrates were not required to look only at his convictions. They had to look at his other conduct as well – for example, his failure to appear at either of the hearings before the Traffic Commissioner and the way he had responded positively to the community rehabilitation order. And when it came to considering his convictions, they were not supposed to look at them in a vacuum. They had to look at them in the context of whether conduct of that particular kind might affect his fitness to drive passenger-carrying vehicles. That was, I think, what Mr Nigel Pleming QC, sitting as a Deputy Judge of the High Court, may have been driving at when he said in Secretary of State for Transport, Local Government and the Regions v Snowdon

[2002] EWHC 2394 (Admin)

at [34] that “an applicant’s personal circumstances [have] to be considered”. How serious was Mr Stace’s conduct? What were the risks of any repetition of violence? In what way did his propensity for violence impinge upon his abilities as a driver? And to what extent was he a risk to those passengers with whom he would come into contact?

[17]If those were the questions the magistrates addressed, they did not say so in their reasons. Those reasons refer to only three things. On the positive side, the magistrates said that Mr Stace’s community rehabilitation order had gone well, though they did not refer to the fact that it had gone so well that an application was about to be made for its discharge. But what is worrying are the two negative things which they took into consideration. The fact that the community rehabilitation order was still in place was not a relevant factor. It was not open to the magistrates to say that Mr Stace was not a fit person to hold a PCV driver’s licence because, to use a colloquialism, “he was still on probation”. The fact that he was on probation was because of his conduct which had caused the community rehabilitation order to be imposed in the first place. Of course, how he had responded to the community rehabilitation order was part of his conduct which had to be considered, and it was that conduct as well, rather than the fact that the community rehabilitation order was still in operation, which had to be addressed.

[18]Also concerning is the way the magistrates took Mr Stace’s depression into account. I do not say that Mr Stace’s depression had to be ignored. It was relevant to the likelihood of his violent conduct being repeated, and to whether members of the public were at greater risk from attack by him than might otherwise have been the case. But since the magistrates’ reasons do not record them as having addressed these questions, it looks as if the magistrates thought that it was inappropriate for someone suffering from depression to have a PVC driver’s licence. But it was what his depression said about the possibility of a repetition of his conduct which was important, rather than the fact that he was suffering from depression.

[19]For these reasons, I have come to the conclusion that the magistrates’ decision was flawed. They took into account an irrelevant consideration, namely the fact that the community rehabilitation order was still in place. They failed to put a relevant consideration, namely Mr Stace’s depression, in its proper context. And they do not appear to have looked at his conduct in the context of whether conduct of that particular kind might affect his fitness to drive passenger-carrying vehicles.

[20]In the interests of completeness, I should mention that certain passages in an article about the role of the Traffic Commissioners were cited to the magistrates. The article was “Appeals by HGV and bus drivers against decisions of Traffic Commissioners”, published in the 9 September 1995 issue of Justice of the Peace and Local Government Law. The passages which were cited referred to the principle that where matters of public safety are concerned, an appellate court ought to be extremely slow to interfere with the exercise of any discretion by the Traffic Commissioners whose primary duty is to safeguard public safety. But these passages related, not to appeals to a magistrates’ court under section 119 of the Act, but to appeals from disciplinary decisions of the Traffic Commissioners to the Transport Tribunal. Appeals to a magistrates’ court under section 119 are different. The magistrates exercise their own judgement. They may take account of any reasons given by the Traffic Commissioner for the decision appealed from, but they should not approach the appeal on the basis that it is to be dismissed unless there was something wrong in principle with the original decision. Having said that, there is nothing in the magistrates’ reasons which suggests that they adopted this erroneous approach.

The relief

[21]For these reasons, this claim for judicial review succeeds, and the decision of the magistrates dismissing Mr Stace’s appeal must be quashed. The decision of the magistrates ordering Mr Stace to pay the Traffic Commissioner’s costs of the appeal falls away. Mr Graham Goodwill for Mr Stace asked me to go further, and to direct that the appeal against the decision of the Traffic Commissioner be allowed. He relied on rule 54.19(3) of the Civil Procedure Rules, which applies when a court has made a quashing order in respect of a decision to which the claim relates. Instead of remitting the matter to the decision-maker, rule 54.19(3) permits the court, when it concludes that no purpose would be served by taking that course, to take the decision itself. But that can only be done if there is no doubt what the decision will be if the decision-maker decides the matter in accordance with law. This is not such a case. I therefore remit Mr Stace’s appeal to Milton Keynes Magistrates’ Court, and I direct that the appeal be heard afresh by magistrates who did not participate in the earlier appeal.

[22]As I said at the conclusion of the hearing, I do not want to put anyone to the expense of having to attend court when the judgment is handed down, and I leave it to the parties to see if they can agree costs. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any representations which are made. If the magistrates wish to apply for permission to appeal, their clerk should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing.