Watson v Director of Public Prosecutions [2006] EWHC 3429 (Admin)

Case No CO/3389/2006[2006] EWHC 3429 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 8 November 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE FULFORD
Between
WATSONClaimant-v -
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer -Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR NIGEL LEY (instructed by Murray Partnership) appeared for CLAIMANTMR HALL (instructed by Crown Prosecution Service) appeared for DEFENDANT
JUDGMENT
[1]MR JUSTICE FULFORD: Introduction Jonathan Watson was convicted by the Justices, sitting for the County of Kent acting in and for the Local Justice Area of North Kent, on 24 October 2005, of four offences, the informations having been preferred on 13 April 2003, as follows:
"(i) On 1 December, 2002 at Gravesend in the County of Kent the appellant having been required to provide a specimen of breath for analysis by means of a device approved by the Secretary of State pursuant to Section 7 of the Road Traffic Act 1988 in the course of an investigation into whether he had committed an offence under section 3A, 4 or 5 thereof failed without reasonable excuse to do so. Contrary to Section 7 (6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. (ii) On 1 December, 2002 at Gravesend in the County of Kent the appellant drove a mechanically propelled vehicle, namely a silver Subaru Impreza WRX index GN02 UMH on a road, namely Wrotham Road, Culverstone without due care and attention. Contrary to Section 3 of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. (iii) On 1 December, 2002 at Gravesend in the County of Kent the appellant being the driver of a mechanically propelled vehicle, namely a silver Subaru Impreza WRX index GN02 UMH owing to the presence of which on a road, namely Wrotham Road, Culverstone an accident occurred whereby damage was caused to property forming part of the land on which the road was situated or land adjacent to it, namely Culverstone service station failed to stop. Contrary to Section 170 (4) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. (iv) On 1 December, 2002 at Gravesend in the County of Kent the appellant being the driver of a mechanically propelled vehicle, namely a silver Subaru Impreza WRX index GN02 UMH owing to the presence of which on a road, or other public place, namely Wrotham Road, Culverstone an accident occurred whereby damage was caused to property forming part of the land on which the road was situated or land adjacent to it, namely Culverstone service station, and not having given your name and address to a person having reasonable grounds for requiring you to do so, failed to report the accident at a police station or to a constable as soon as was reasonably practicable and in any case within twenty -four hours of the occurrence of the accident. Contrary to Section 170 (4) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988."
[2]In this appeal by way of Case Stated the appellant only challenged his conviction on the first of those four informations and, as a result, the justices in stating their Case focused on that charge alone. I note, however, that in his written submissions Mr Ley seeks to extend the impact of his arguments so as to attack all four convictions (skeleton argument, paragraph 14). In relation to the first charge the justices found the following facts: "(a) On 1 December, 2002 the appellant was driving his vehicle, a silver Subaru Impreza, registration number GN02 UMH, on Wrotham Road, Culverstone, Kent when it was involved in a road traffic accident in which his vehicle crashed into a petrol station forecourt and damaged petrol pumps. The appellant left his damaged vehicle at the scene without stopping for a sufficient time to give his details or to report the accident to the police. (b) Acting on information as to the identity of the driver, the police attended at the appellant's home address of 16, Willow Walk, Meopham, Gravesend, Kent. When the occupants of the house failed to respond to the police officers knocking at the door the police officers used keys found in the vehicle to enter the house. They found the appellant in the house and arrested him and took him to Gravesend Police Station. (c) At Gravesend Police Station the appellant was required to provide two specimens of breath into the Lion Intoximeter machine. He successfully provided one sample. He then declined to provide a second sample saying that he needed to use the toilet. The police officer explained to the appellant that the procedure could not be delayed and that he could use the toilet after he had provided the second sample. The procedure for taking the second specimen would have taken less than a minute. He warned the appellant of the implications of not providing the second sample, namely that the appellant could be charged with the offence of failing to provide a specimen of breath. The appellant continued to refuse to provide the second specimen. He was then charged with the offence alleged in the first information. (d) On 6 December, 2002 the appellant made a claim for the damage to his vehicle to his insurance company. The appellant's claim for insurance stated that he was the driver of the motor vehicle on 1 December, 2002. (e) On 27 February, 2004 the respondent applied for an adjournment of the trial listed for hearing on 1 March, 2004 on the ground that two prosecution witnesses, Mr Bulman and PC Hall, were not available on 1 March, 2004. The appellant opposed the adjournment. The justices refused to grant the prosecution request for an adjournment." (I interpolate to note that Ms Bulman, the claims superintendent at the National Farmers Union (“NFU”), the appellant's insurers, was to be called to produce and prove documents received or created during the course of her employer's business: first, an e.mail from the RAC giving details of a claim by the appellant for the cost of repairs to his car arising out of an accident on 1 December 2002; second, a letter from the NFU to the claimant stating that he was the driver of the car at the time of the accident and inviting him to confirm that the details were correct or to correct any inaccuracy; third, a report from Collins Associates detailing the damage and the repairs to the claimant's car; and fourth, a letter to a police officer in the Kent Constabulary, identifying an account into which £6,978.01 was paid by the NFU in settlement of the appellant's claim. PC Hall simply proved the receipt and transmission of the relevant documents to the Kent police.) "(f) On 1 March, 2004 the respondent repeated the request for an adjournment for the same reasons advanced on 27 February, 2004. The appellant opposed the request. The justices granted the prosecution request for the adjournment. (g) On 6 May, 2005 the Administrative Court quashed the decision of the justices ruling of 1 March, 2004 on the basis that the justices should not have revisited the decision of 27 February, 2004 without a change of circumstances, there being no change of circumstances. The Administrative Court ruled that the prosecution could now adduce the evidence from the missing witness, Ms Bulman, under Sections 117 and 134 of the Criminal Justice Act 2003 and that the prosecution should not be unjustly fettered and that the justices should consider the case in the light of the Court's observations and apply the law as it is laid down in the Criminal Justice Act 2003. (h) On 26 September, 2005 the justices made a pre -trial ruling pursuant to Section 117 of the Criminal Justice Act 2003 (and after considering Section 78 of the Police and Criminal Evidence Act 1984) allowing hearsay evidence relating to the insurance claim to be admitted as part of the prosecution evidence adduced on 24 October, 2005. (i) We found the appellant guilty of the first information (and of each of the other three informations). We adjourned sentence for pre -sentence reports. The appellant was sentenced on 22 November, 2005.” The Arguments before the Justices[3]The justices were asked by Mr Ley, on behalf of the appellant, to consider five particular arguments, as follows: First Contention: There was no evidence on which a reasonable bench of justices, properly directing themselves, could have held that the hearsay evidence of the insurance documents was admissible. Second Contention: In the alternative, if there was such evidence the bench failed properly or at all to exercise its discretion under Section 78 of the Police and Criminal Evidence Act 1984 to exclude the hearsay evidence having regard to this court's decision of 6 May 2005. The appellant argued that the justices should interpret the Administrative Court decision as obliging the prosecution to present their case as if the adjournment had not been granted and that the prosecution should not be allowed to benefit from their own mistake. Third Contention: There was no sufficient evidence on which the court could hold that the appellant was aware of the breath test procedure and, in particular, he had not been given a warning of possible prosecution before he provided his first and only breath specimen. (As regards this contention, the justices have indicated this point was not argued before them on the day of the trial and it was only raised subsequently during the course of the application to them to state a case.) Fourth Contention: PC Owen did not lawfully enter the appellant's house and did not lawfully arrest the appellant. Fifth Contention: The appellant had a reasonable excuse for failing to provide two specimens of breath for analysis, namely that he wanted – and should have been allowed – to use the lavatory before the second test; that it was reasonable for him only to provide a second breath specimen thereafter; and that the failure to allow him so to do was unreasonable/unlawful.[4]After correspondence between the appellant and the clerk to the justices the appellant abandoned contentions 1 and 4 and, accordingly, in stating their case, the justices only considered contentions 2, 3 and 5.[5]As regards the extant issues, the respondent submitted as follows: Second Contention: The Administrative Court did not restrict the admission of hearsay evidence and there was no sustainable basis under Section 78 of the Police and Criminal Evidence Act to exclude that evidence. This court's decision, argued the prosecution, merely prohibited the Crown from calling the oral evidence of two witnesses, namely Ms Bulman and PC Hall. The justices were reminded in argument that in paragraph 11 of the judgment of Mitting J (with which Sedley LJ agreed), the learned judge indicated that the prosecution could adduce this evidence under Sections 117 and 134 of the Criminal Justice Act 2003. In paragraph 14 of his judgment, Mitting J expressly stated that there was no other limitation that he would impose on the prosecution since to do so would unjustly fetter their case. The justices were generally invited by the learned judge to apply the law under the Criminal Justice Act 2003. Third Contention: The prosecution's case was that the police constable's warning after the appellant's failure to provide the second specimen was sufficient to satisfy the requirements of Section 7 (7) of the Road Traffic Offenders Act 1988. Fifth Contention: In relation to this argument the prosecution submitted that the appellant's request to go to the lavatory, in the absence of medical evidence, could not amount to a reasonable excuse not to provide the second breath specimen. The Conclusions of the Justices and their Questions[6]The justices reached the following conclusions: Second Contention:
" ..... this is a frivolous ground of appeal in light of the clear judgment of the Administrative Court that the prosecution were allowed to admit hearsay evidence (paragraph 11 of the judgment), that the prosecution should not be unjustly fettered (paragraph 14 of the judgment) and that the justices apply (sic) the law under the Criminal Justice Act 2003 (paragraph 14 of the judgment). In the absence of any challenge to the way in which the justices applied the Criminal Justice Act 2003 there appears to us no basis for challenging the admission of the hearsay evidence pursuant to Section 78 of the Police and Criminal Evidence Act 1984."
Third Contention:
" ..... we accepted that the police officer failed to give the warning required under Section 7 (7) of the Road Traffic Offenders Act 1988 when he required the first specimen of breath but that he did give the required warning when the appellant failed to provide the second specimen of breath and that this warning satisfied the requirements of Section 7 (7) of the 1988 Act. We were satisfied that the warning given by the police officer explained the consequences of failing to provide the second breath specimen and that the appellant, having heard the warning, failed to provide the second specimen in full knowledge of the consequences."
Fifth Contention:
" ..... this is a frivolous ground of appeal in that in the absence of any medical evidence the mere assertion by a defendant asked to provide two specimens of breath that the procedure must be stopped while he goes to the toilet cannot amount to a reasonable excuse not to provide a specimen of breath. On the evidence we were satisfied that the appellant could have waited for the short period of time it would have taken him to complete the procedure and then been allowed to go to the toilet."
[7]The questions the justices identified for the opinion of this court are: Question 1: Are we correct in rejecting the second and fifth contentions as frivolous? Question 2: Were we correct in our interpretation of Section 7 (7) of the Road Traffic Offenders Act 1988 by holding that the police officer satisfied the requirements of the section by giving the appropriate warning after the provision of the first breath specimen and after the defendant had refused to supply the second breath specimen? The Decision of Mitting J in the earlier Appeal[8]Because of the arguments that have been raised on this appeal, it is necessary to consider in a little detail part of the judgment of Mitting J in the earlier appeal to this court. Having found the matter straightforward as regards the overall merits of the appeal, the learned

judge set out the following:

"8 Thus far, in my view, this application is straightforward. Consideration of the relief claimed is not. It is: 'An order of prohibition, prohibiting the interested party from adducing at the trial of the claimant any evidence which they would not have been in a position to adduced on 1 March, if the claimant's trial had gone ahead on that day.' 9 That formulation of the relief sought creates two problems. First, it begs the question of what evidence the prosecution would have been able to adduce had the trial gone ahead and, secondly, since 4 April 2005 the law governing the admission of evidence of business documents has changed: the Criminal Justice Act 1988 sections 24 and 27 have been replaced by the Cirminal Justice Act 2003 sections 117 and 134. 10 Without the oral evidence of the two witnesses, the prosecution could have adduced the documents produced by Miss Bulman simply by producing them 'authorised in such manner as the court may approve' or a copy similarly authorised (section 27 of the 1988 Act). 11 The authenticity of the documents is not clearly in dispute; the position is simply that Mr Ley, for the claimant, is not able to say whether he accepts them or not. Given the description of them in Miss Bulman's statement, it seems highly unlikely that their authenticity could in fact have been challenged. The justices could accordingly have approved their authenticity in any manner that it may approve, including reading the written statement of Miss Bulman. There is no requirement in law that the justices, when considering how a business document should be approved, should apply the strict rules of evidence governing oral evidence. It is unnecessary for that purpose that the witness statement of the person authenticating documents should be accepted under section 9 of the Criminal Justice Act 1967 by the defence. The evidence upon which the prosecution wished to rely could have been adduced by that means. It can now be adduced under sections 117 and 134 of the 2003 Act. 12 As to the evidence of PC Hall, the prosecution never needed it at all. This is not a case in which business documents were going to be subjected to forensic analysis so that transmission of them was required to be proved. All that PC Hall did was to prove an unnecessary link in a chain of transmission from the NFU to the CPS. If it was thought necessary to establish that chain for the purpose of the magistrates' approval under section 27, then again the magistrates could, as in the case of Miss Bulman, have relied on the written statement of PC Hall and could still do so. 13 The extent, therefore, to which the prosecution evidence would have been limited if the case had gone ahead is itself very limited. The prosecution would not have been able to rely upon the oral evidence of Miss Bulman or the oral evidence of PC Hall. 14 To that extent the claimant has been placed in a position less favourable than he would have been placed if the adjournment, which should have been refused, was refused. To preserve the limited advantage to which he is entitled, in my view, the order that he seeks should be limited to a prohibition upon the prosecution adducing the oral evidence of Miss Bulman and PC Hall, but not to any other extent. To order any further restriction would, in my view, unjustly fetter the prosecution. Further, to require the magistrates to apply rules of evidence which applied in March 2004 when they have now been repealed would be contrary to principle. The justices should consider the case in the light of the observations made and apply the law as it is laid down in the 2003 Criminal Justice Act. 15 To that extent, and to that extent only, I would allow this application."
The Submissions on this Appeal[9]To a very large extent the arguments raised before us have mirrored those addressed to the justices, except that the appellant no longer advances any submissions under the third contention which is now abandoned. Second Contention:[10]Under this heading, Mr Ley in his written submissions has emphasised that it is the appellant's case that the prosecution should have been barred from admitting any evidence which they were not in a position to call on 1 May 2006. He argues that the justices never identified the evidence available to the prosecution on 1 March 2004. Mr Ley suggests we should infer that some of the evidence they relied on during the trial was unavailable on that day because otherwise the Crown would not have sought an adjournment. He further submits that the justices should have addressed expressly whether a decision to limit the prosecution to the evidence available on 1 March would have fettered the Crown unduly in the presentation of its case. Mr Ley stresses that at trial the prosecution introduced oral evidence from another employee of the NFU, Miss Linda Wilson, which, self -evidently, had not been obtained prior to 1 March 2004.[11]In his oral argument before us Mr Ley additionally founded his submissions on the provisions of Section 78 of the Police and Criminal Evidence Act and has submitted that, in the exercise of their discretion, the justices should have refused to admit this evidence because of its potential unfair effect on this trial. Fifth Contention:[12]Essentially, the argument mounted by Mr Ley in his written submissions is that the appellant should have been allowed to use the lavatory, and, if he had been given that indulgence, it would have been his responsibility to return in time – and before the device had closed down – in order to provide the second specimen. Mr Ley submitted that the appellant had the right to decline to give a specimen up until the moment the machine shut down (which occurs after three minutes). It is argued that in the circumstances he had a reasonable excuse for acting as he did.[13]Generally in the course of his written argument Mr Ley submitted that the justices failed to give sufficient reasons for the decisions that they made, and furthermore the appellant's entitlement to a fair trial under the Convention has been breached. The Respondent[14]Mr Hall, for the respondent, submitted that the evidence called by the prosecution accorded with the judgment of Mitting J and was fairly admitted. He argued that there is no basis for the submission that the prosecution were limited to the admissible evidence in their hands as of 1 March 2004. As regards the failure to provide a second specimen, it is submitted the appellant had no entitlement to choose when, during the three -minute period before the machine closed down, he would provide a second specimen. Furthermore it is argued that he had no reasonable excuse he could rely on, based on his physical or mental ability or any risk to his health, for his failure to provide a specimen. My Analysis Second Contention:[15]In my judgment, the following matters are critical in the analysis of this ground of appeal. As Mitting J observed at paragraph 10 of his judgment, as a matter of law, the prosecution were in a position to introduce the relevant business documents under both the Criminal Justice Act 2003 and the Criminal Justice Act 1988 without the evidence of either Ms Bulman or PC Hall. The authenticity of those documents was not sensibly in dispute, and accordingly all of the relevant material was receivable without the oral evidence of these witnesses. Furthermore, on analysis, the evidence of PC Hall was simply unnecessary because it dealt with undisputed issues relating to the transmission of those documents. Insofar as any element of her evidence needed to be introduced, her witness statement could have been read.[16]The only limitation indicated by Mitting J on the evidence that the prosecution could call was, in his view, that they should be denied the opportunity of calling live evidence from Ms Bulman and PC Hall. That limitation aside, the judge made it clear that no greater restriction should be placed on the evidence that the respondent could introduce. I repeat that view was shared by Sedley LJ.[17]As set out above, during the trial on 24 October 2005 the Crown called Linda Wilson, a claims superintendent from the insurers, although the justices had indicated that the relevant documents which she produced were admissible hearsay evidence. She was cross -examined by Mr Ley, for the appellant, about those documents and about certain aspects of company procedure, and moreover I note that previously the appellant had declined to agree the statement of Ms Bulman. In those circumstances counsel for the respondent had concluded the fairest approach for the appellant was for the prosecution to call this witness, who could be cross -examined about the documents the prosecution were seeking to rely on and which they had permission to introduce.[18]Those factors reveal the appellant's arguments in this regard to be without merit. The prosecution did not breach the restrictions that this court in the earlier appeal had indicated should be imposed; they gained the justices' consent to introduce the documents as hearsay under Section 117 of the Criminal Justice Act 2003; and thereafter, in a spirit of fair play, they called a relevant witness who could be questioned by the appellant about this area of the case.[19]I reject, therefore, the suggestion that natural justice, the ingredients of a fair trial or “general fairness” - still less the earlier judgment of this court - required the justices to restrict the respondent in the case they could present at trial to the evidence available to them on 1 March 2004.[20]No authority or legal principle has been advanced in support of the appellant’s arguments on this issue, save for the suggested maxim that "the prosecution should not be allowed to benefit from its own mistake". In support of that proposition, Mr Ley has taken us to the decision of the Privy Council in Dennis Reid v The Queen [1980] AC 343 and, in particular, he invited our attention to a passage in the judgment of Lord Diplock at page 348:
"It would conflict with the basic principle that in every criminal trial it is for the prosecution to prove its case against the defendant, if a new trial were ordered in cases where at the original trial the evidence which the prosecution had chosen to adduce was insufficient to justify a conviction by any reasonable jury which had been properly directed. In such a case whether or not the jury's verdict of guilty was induced by some misdirection of the judge at the trial is immaterial; the governing reason why the verdict must be set aside is because the prosecution having chosen to bring the defendant to trial had failed to adduce sufficient evidence to justify convicting him of the offence with which he has been charged. To order a new trial would be to give the prosecution a second chance to make good the evidential deficiencies in its case - and, if a second chance, why not a third? To do so would, in their Lordships' view, amount to an error of principle in the exercise of the power under section 14 (2) of the Judicature (Appellate Jurisdiction) Act."
[21]However, that statement of principle by Lord Diplock relates to the matters which a court ought to consider when exercising its discretion as to whether a re -trial should be ordered rather than the evidence which would be admissible on any re -trial. In those circumstances I find that authority is of limited assistance in relation to the particular issues raised on this appeal. Not infrequently appeals are allowed by the Court of Appeal (Criminal Division) on the basis of an error, sometimes a significant error, on the part of the prosecution. On any re -trial (if one is ordered) the Crown are not limited to the evidence that was available to them at the date of the original trial. Instead they can call any additional, or different, evidence, subject to the usual constraints of admissibility. This can lead to a markedly different – and sometimes stronger – case being presented to the jury during the re -trial.[22]Mr Ley submitted we should be uninfluenced by that history because the position may be that no one has previously thought of arguing the point. For my own part, I would express great surprise if hitherto counsel had not thought of this argument if it truly had any merit.[23]As to Section 78 of the Criminal Evidence Act 1984, which is Mr Ley's main oral argument on this appeal, as I have already described there were no reasons of fairness in my judgment which should have led the justices to exclude or even to consider excluding this evidence. Fifth Contention:[24]Essentially in his arguments under this head Mr Ley is seeking to reverse a decision which he argued and lost before this court in 1996. In Cosgrove v DPP [1997] RTR 154, Mr Ley, on behalf of that appellant, submitted that since the intoximeter afforded a three -minute period before it shut down, in every case a person must be given the full three minutes to comply with the request to provide a specimen, and it could not be said that there had been an unreasonable refusal unless that period of time had elapsed. In response to that argument, this court held there was no principle of law that a person must necessarily be allowed the full three minutes to provide the breath specimen and, in consequence, there is no requirement that he be told that he had three minutes in which to complete the test. Instead, if the administering officer concluded that a person was failing to provide a specimen before the three minutes expired, he was entitled, as a matter of law, to stop the procedure. In my judgment, there is no basis for us to depart from the decision of this court in Cosgrove, and none has been identified for us.[25]In this case, given the appellant had already provided the first breath specimen and was insisting that rather than give a second specimen, which would have taken less than a minute, he wanted first of all to use the lavatory, the administering officer indicated - in my view wholly sustainably - that if he did not immediately provide the second specimen, his refusal to do so would constitute a failure to complete the test. That decision of the officer and the subsequent endorsement of it by the justices, given the history I have outlined, were unimpeachable.[26]I note that it was not Mr Ley who brought Cosgrove to our attention, but Mr Hall for the prosecution.[27]In the circumstances, I would answer the only question we are now asked to address - the justices' first question - yes, and dismiss this appeal.

LORD JUSTICE LATHAM: I agree.

[29]MR HALL: I make an application for the respondent's costs, and I am happy to put them at precisely £500.

LORD JUSTICE LATHAM: Has any schedule or document been submitted to the appellant's advisers?

[31]MR HALL: I think not (?).

LORD JUSTICE LATHAM: Mr Ley?

[33]MR LEY: I have not all the papers, but Lord Justice Forbes (?) made it clear that there is only one way to get the prosecution to follow the rules; if they do not serve their statement, they do not get their costs.

LORD JUSTICE LATHAM: If we were to think of it on its merits as opposed to a policing exercise, what would you have to say about £500?

[35]MR LEY: I am not a solicitor, I am not really able to say.

LORD JUSTICE LATHAM: Mr Hall, what do you say about it as a policing exercise, that we should not give you your costs if you do not follow the rules and indicate in a schedule what the level of costs are?

[37]MR HALL: If the application for costs had been a considerable one, about which there had to be some justifiable dispute and discussion, I would agree. This, I would submit, is a modest sum, a statement of costs which I am happy to put forward to be done with it. (Pause)

LORD JUSTICE LATHAM:

[38]Mr Hall, we are prepared, because, and only because, the amount of the costs asked for is clearly well within what the case is likely to have cost the prosecution, to make an order for costs in the sum of £500. It does seem to me, bearing in mind this is the second occasion upon which the prosecution has come to this court without having at least given either a full schedule detailing what costs have been incurred or an indication that they are going to limit costs to a figure well within such a sum - - I am troubled, and it may be that we will have to consider the extent to which it would be appropriate in future to make it plain to prosecuting authorities that, as a matter of course, costs will not be awarded even if they are asked for in a sum which is clearly well within the sum which has been expended.[39]MR HALL: I will ensure that message gets through. There is one further point if costs are finished with. This court on an earlier occasion lifted the appellant's disqualification from driving; I assume that on the dismissal of his appeal that automatically comes back into effect.

LORD JUSTICE LATHAM: It does.

[41]MR LEY: Could he pay the costs off after the Magistrates' Court costs and fine which they do not enforce until after the hearing? Could he pay off the fine at the same rate as he pays off the fine in the Magistrates' Court?

LORD JUSTICE LATHAM: Do you happen to know how much that is?

[43]MR LEY: I have it somewhere.

LORD JUSTICE LATHAM: This is troubling me. It is easy to allow these things to go through on the nod, but the fact is that if you want time to pay costs we ought to be told what his means are.

[45]MR LEY: Yes, except that of course I have no - - under the rules my solicitor should have been served with a schedule. If we had been served with a schedule - - - - -

LORD JUSTICE LATHAM: I do not think that can excuse you from not being in a position to help the court or to inform the court as to your client's means.

[47]MR LEY: I apologise. Normally when I say pay off at the same rate as the Magistrates' Court, the court has accepted it. I entirely accept what you suggest.

LORD JUSTICE LATHAM: Mr Ley, it has become a habit. I think that we might need to consider, in the light of problems with both sides, whether some sort of practice direction or some other sort of notification to the parties may be necessary in order to ensure that the court exercises its jurisdiction in relation to costs from a proper basis.

[49]MR LEY: I am sorry that I have not been able to assist your Lordships.

LORD JUSTICE LATHAM: For the moment, we are content that the order should be that the costs awarded by this court should be met in the same way as he is meeting, or will be meeting, the Magistrates' Court orders, at the same rate in other words, but after completion of payment of the fine and costs order made below.

[51]MR LEY: I am obliged. - - -