Milne, R (on the application of) v Berwick-Upon-Tweed Magistrates' Court [2008] EWHC 2064 (Admin)

[2008] EWHC 2064 (Admin)Case No CO/7414/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 24th July 2008
Strand
London WC2
B E F O R E:
LORD JUSTICE PILL
MRS JUSTICE RAFFERTY
Between
THE QUEEN ON THE APPLICATION OF GRAHAM NASSAU GORDON MILNEClaimant-v-
Between
BERWICK-UPON-TWEED MAGISTRATES' COURTDefendant
Computer-Aided Transcript of the Palantype 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)
The Claimant appeared on his own behalf for The Defendant did not appear and was not represented
J U D G M E N T

LORD JUSTICE PILL:

Mrs Justice Rafferty will give the first judgment.

[2]MRS JUSTICE RAFFERTY: This is an application by Mr Graham Milne in person seeking permission out of time to challenge a decision made by the Magistrates' Court in Berwick-upon-Tweed on 20th June 2006, when it convicted him of disorderly conduct, contrary to section 5(1) of the Public Order Act 1986. He also complains about the refusal of the Crown Court sitting at Newcastle which heard his appeal from those proceedings, to allow him to refute letters it had received from the clerk to the justices.[3]The factual basis which brought him to the Magistrates' Court I can rehearse briefly. There was alleged a confrontation and some turbulence between Mr Milne and a traffic warden in Berwick-upon-Tweed in December 2005. The penalty imposed was no more than a conditional discharge for nine months with an order for payment of costs.[4]In a letter of June 2006 Mr Milne indicated his intention to appeal to the Crown Court against his conviction, and in it set out his grounds, to which we shall come, which included both the merits and assertions of procedural irregularities, including misdirection by the justices as to fact and law. It also included criticism of behaviour of their clerk.[5]Those papers, received by the Magistrates' Court, moved from it to the Crown Court sitting at Newcastle. With them went a letter of response from the clerk to the justices. Mr Milne wrote to the Magistrates' Court in February 2007, making plain his principal objection to that letter.[6]At the Crown Court on 13th March 2007 the matter proceeded by way of a rehearing and Mr Milne was vindicated. His conviction was quashed and necessarily his sentence fell away.[7]Seeking a remedy against the magistrates, Mr Milne now suggests the conduct of his trial deprived him of his Article 6 right to a fair hearing; the decisions of the magistrates were not made in good faith, his rights being ignored; and he complains as against the Crown Court that it fell into error, in that it declined to consider his complaints as I have just rehearsed in respect of the Magistrates' Court, that is it declined to consider his sense of grievance in respect of a violation of his Article 6 rights.[8]He seeks both a quashing and a commanding order (as he puts it) against the Crown Court, requiring it to reconsider the matter; a declaration that it acted unlawfully in its failure so to do; and a declaration that the Magistrates' Court acted unlawfully, illegally, incorrectly, improperly, disproportionately, irrationally, unfairly and/or in breach of his Article 6 rights by reason of its conduct during his trial, and he seeks damages.[9]This application is out of time and therefore necessarily he seeks an extension of time in which to lodge it.[10]There came a time when the claimant abandoned or appeared to abandon his action, but served a renewal notice and filed grounds for renewal. Notwithstanding that his appeal to the Crown Court at Newcastle succeeded, he there avers his entitlement to a remedy against the Berwick-upon-Tweed Magistrates' Court for the unlawful manner in which his original trial was conducted.[11]That being a brief rehearsal of the shape of proceedings, I turn now to the merits of Mr Milne's complaint in a little more detail.[12]Before the magistrates, conducting his defence in person, Mr Milne felt prejudiced, in that the court refused to allow the recall of two named traffic wardens, eyewitnesses, in his contention. He complained that he was compromised in his cross-examination of a police witness in respect of closed circuit television evidence; that the closed circuit television evidence provided to his erstwhile solicitor was not that used by the Crown within the hearing; he was denied access to his own case papers during the short adjournment because the court building was locked; that the three magistrates misdirected themselves, impermissibly allowing themselves to be influenced by allegations as to Mr Milne's conduct in an incident not charged; that his corresponding right in respect of the witnesses for the Crown was itself constrained; that one traffic warden was permitted to cite extraneous evidence; that the magistrates misdirected themselves in reaching a conclusion on the evidence she, the traffic warden, gave; and in concluding there was no difference between speaking in a raised voice as opposed to shouting; and in ignoring the closed circuit television footage; and in concluding that a female traffic warden had been caused alarm and distress, and ignoring clear evidence of collusion between the two witnesses for the Crown, and in ignoring his acknowledgement that he was distressed at a false accusation, and in failing to have due regard to his medical condition. The award of costs he submits was disproportionate, heavy and oppressive, the clerk to the justices wrong to instruct him to complete a statement of income and expenditure, given the information he, Mr Milne, supplied. The cumulative effect of those matters I have rehearsed amounted to an abuse of process, which abuse was embraced consciously, therefore amounting to an abuse of public office, corruption and a criminal offence. The conduct of the traffic wardens and two police officers was malicious prosecution, the key issue is what had been proved on the entirety of the evidence, the closed circuit television demonstrated very clearly — and Mr Milne sets out in five subsets how it demonstrates very clearly — that his defence was well founded.[13]Unequivocally aware of the nature of his complaint, the justices' clerk, whose name I do not find it necessary here to mention, composed a letter dated 3rd July 2006, which found its way to the Crown Court sitting at Newcastle as a precursor to Mr Milne's appeal.[14]I make plain that this court has not seen the magistrates' statement of reasons, although there is a reference to it at the conclusion of the letter from the justice' clerk. I note with some anxiety that the duty upon the Magistrates' Court to supply it to Mr Milne has not been fulfilled. I have supplied him with our my copy this morning and he has had an opportunity to read it, but although the fact that he was not given it is to be deprecated, this hearing can without any difficulty proceed without sight of it.[15]The letter from the justices' clerk enclosing the appeal papers suggested to the Crown Court sitting at Newcastle that a number of points raised by Mr Milne, all of which I have already rehearsed, did not find foundation in fact. It may be that the letter from the justices' clerk was intended, if not to embody at least to echo the reasons the magistrates gave. It is difficult for me, not having seen the reasons, to see whether that is so.[16]Whether or not that were the intention, the letter goes significantly further. The justices' clerk perceived himself as criticised and responded to that criticism. I take but two examples:
"I asked him [Mr Milne] [to] complete a means form to the best of his knowledge and belief in the circumstances. He was being obstructive and I said if he didn't know, to write 'Don't Know'. He said he would put that for everything so [I] reminded him he was likely to know his own name and national insurance number."
There is more to that refutation and there are other aspects of the letter in what I might describe as a similar vein.[17]In one paragraph the justices' clerk's response is simply "Total nonsense", and he suggests on four other occasions "Likewise". His concluding sentence reads:
"I shall be obliged if you would kindly draw to the attention of the Judge hearing the appeal the contents of this letter."
[18]Mr Milne was cross because this letter had been provided, and on 4th February 2007 he wrote to the author and said so. He set out his complaint. He reprimands the clerk, telling him that his letter was an unauthorised interference in the judicial process, which impugned his, Mr Milne's, honesty, since it contained several statements of fact that directly contradicted statements of fact he, Mr Milne, had made in his letter of appeal of 26th June 2006. He continued that since the judge at the Crown Court sitting at Newcastle had seen the clerk's letter, it, the letter, might affect his deliberations in a manner prejudicial to Mr Milne. He could only conclude that the writer's intention was that just this effect would be had. If that were so, should the writer have made intentionally any false statements that would amount to a conspiracy to pervert the course of justice. If there were false statements in error, that could be corrected. For those reasons, Mr Milne invited either correction or an acknowledgement that the letter should not have gone.[19]I come now to the initial original grounds submitted by Mr Milne, in which he makes the complaints I rehearsed at the beginning of this judgment and elaborates them as I listed when I went through his complaints as to the conduct of Berwick-upon-Tweed Magistrates' Court.[20]An acknowledgement of service from the Magistrates' Court, having reviewed chronology, goes on to make further submissions, a refutation of the assertion that Mr Milne was not permitted fully to cross-examine a named witness as to closed circuit television evidence, and necessarily a refutation of that decision being unfairly prejudicial to Mr Milne. It asserts that a full and lengthy cross-examination of the witness was in fact undertaken, who did not object, nor at any stage indicate that he wished further to cross-examine, and that since the matter proceeded at the Crown Court by way of a rehearing, the application for judicial review could be no more than a method of collateral attack upon the decision of the magistrates.[21]Permission to apply for judicial review was refused on 8th October 2007 when Sullivan J, on the papers, concluded that there was absolutely no prospect of success.[22]Mr Milne, in his renewal application, points out that because of a postal strike Sullivan J's decision did not reach him until later than one might expect. On 11th May 2007 he withdrew his first application for judicial review for sound personal reasons, which included impending professional examinations and his mistaken impression that he could do what was necessary rather more quickly than turned out to be the case. He had had a telephone conversation with a member of the Administrative Court Office as to withdrawal and subsequent renewal, which he had perhaps misunderstood. There were valid personal reasons prompting the withdrawal and the delay in submitting his second application, an impending holiday with his family, the only time when he could spend a good amount of time with it. He relied upon the overriding objective of the Civil Procedure Rules.[23]Mr Milne challenged the refusal of permission. He suggested it did not distinguish between the decision of the magistrates and the manner in which that decision was reached, and complained that a Magistrates' Court, if Sullivan J were right, could freely commit as many unlawful acts as it wished without fear of sanction.[24]Finally, in his application for extension of time in a letter dated 15th August 2007 to the Administrative Court Office, he repeats that he thought the conduct of the magistrates would be dealt with by way of the appeal process to the Crown Court. He did not follow up letters immediately because of his pending examinations and post examinations, he underestimated the time he would need to prepare his case.[25]Developing his submissions orally before us today, once again in person, Mr Milne complains that he has never secured a remedy for the real evil. He drew an analogy: were an individual found guilty of perjury and his appeal allowed, he would not have obtained a remedy in respect of the perjury itself. True it is that he had success before the Crown Court, but that is no answer, he submits, to the unlawful conduct of the Magistrates' Court or of the Crown Court in refusing to review the unlawful conduct of the Magistrates' Court. There are, he says, therefore two errors to be lain at the door of the Magistrates' Court: it has stopped him from cross-examination and vicariously it allowed the submission of the clerk's letter.[26]He reminds us that he has suffered considerable stress because of the litigation. He made a submission, whose shape I for my part found it a little difficult to identify, that if there is impugned behaviour, there must somewhere exist for it a remedy. With one's heart this was easy to understand; applying it to legal principle I found a little more difficult.[27]He told us that in the Crown Court sitting at Newcastle, His Honour Judge Milford QC, who had the letter from the justices' clerk, said that the writing and sending of it was "not improper" and "had no impact" upon the proceedings.[28]It is difficult for me to comment on the words of Judge Milford because we have no transcript and have not hitherto been referred to it, and experience teaches me that it is essential to read the entirety of a paragraph before risking comment. That being the case, I make none upon that suggestion. Mr Milne is plainly deeply disturbed by the wrongs he sees as visited upon him. He told us that he is acting here for himself, but also so as to sound the trumpet for the litigant aggrieved but lacking the personal resource or resolve to pursue a complaint as has Mr Milne. He is here, he told us finally, as a matter of principle because he has a strong sense of justice.[29]For my part, I could not criticise the courtesy and application with which Mr Milne has addressed us today. I understand his sense of grievance. The justices' clerk's letter should not have reached the Crown Court in the form that it did. If any of its content were permissible, it should have found its place within the magistrates' reasons and not in an adjuvant submission via the justices' clerk. I deprecate its sending.[30]I am entirely confident, however, that His Honour Judge Milford QC applied his own mind and that of the magistrates with whom he sat to the issue before him, that is the appeal of which his court was seised, in respect of which Mr Milne succeeded. Though in my judgment the letter from the justices' clerk in its form should not have gone, I struggle to see how Mr Milne's complaints in respect of the Magistrates' Court and the conduct of his trial can be sustained.[31]I would refuse extension of time for the pursuit of this action, which has no reasonable prospect of success. Although that decision would be conclusive, as will I hope have become plain from this brief judgment, I have nevertheless approached the matter by considering the merits. As to those, I am entirely in agreement with Sullivan J, that there is no reasonable prospect of success.

LORD JUSTICE PILL: I agree that the application should be refused. I also agree that it is appropriate to refuse on the merits. Had the court been of the view that Mr Milne had an arguable case on the merits, then I would have gone on to consider the question of delay, which has been the subject of representations by the magistrates which Mr Milne says had not been disclosed to him until this morning.

[33]The appropriate remedy for Mr Milne against the procedures of which he complains in the Magistrates' Court was by way of appeal to the Crown Court. He had a particular complaint about his not being allowed to cross-examine a witness as he would have wished. He exercised his right to appeal to the Crown Court and did so successfully.[34]I add a few words only because of the letter of 3rd July 2006 which the justices' clerk wrote. As Mrs Justice Rafferty has said, the claimant wants to make clear that he is not a troublemaker. What he wants is to make his stand and he wants recognition that a wrong has been done. He wants the Magistrates' Court made aware of that, and he does not want it to happen again. He directs those remarks primarily to the letter, though I accept that he has other complaints about the conduct in the Magistrates' Court, to which my earlier remarks apply.[35]The letter was belatedly disclosed to the claimant. It was disclosed at one of the several interlocutory hearings which occurred on 1st February 2007, that is six months after the letter was written. As Mrs Justice Rafferty has pointed out, the 3-page letter which the court clerk wrote, concludes with a statement that:
"The Justices' Reasons, which are attached, deal with the criticisms levelled at them."
[36]We have not been supplied with a copy of those reasons. Mr Milne says that he was not supplied with them. It may be that, if he is right about that, the reason was a reason said to have been given by the judge in the Crown Court, that the proceedings before the Crown Court were a rehearing, so that there was no need to disclose the justices' reasons. Whether or not that is right — and I respectfully very much doubt whether it is right — once the letter was disclosed, as it eventually was, the reasons should have been disclosed with it, because it is not easy to read or to analyse the letter without having the justices' own reasons alongside it.[37]This was a letter written by a court clerk. It is in part justification for the Magistrates' Court decision. It is in part an attempt to justify the clerk's own conduct as the legal adviser to the justices. The letter, for example, includes this comment at paragraph 5:
"His [the claimant's] unpleasant and uncooperative stance with the police officers less than five minutes after the allegation of section 5 was rightly considered by the Magistrates as indicative of his mood and likely behaviour moments earlier."
It was not for the court clerk to write to the Crown Court attempting to justify the conduct of the magistrates in that way.[38]At paragraph 14 reference is made to the claimant's own reference to a medical condition he has, a heart condition. In relation to that, the clerk states:
"My feeling was that Mr Milne thought that he had done rather well for himself in the afternoon and forgot his heart condition in the midst of his self-satisfaction."
That was an inappropriate comment for the court clerk to make in a letter which was clearly intended to come to the attention of the Crown Court judge and the lay justices, who would probably sit with him, who were to hear the appeal.[39]It was in my judgment wholly inappropriate for the court clerk to write to the Crown Court in those terms. It is fundamental that a court speaks in its judgment, and it is fundamental that if the court to which an appeal is to be made is to consider it, the court should have available only the reasons given by the court below. It should not have further representations of this kind, separate from the reasons, which are intended to influence the court. That applies at all levels. It would be equally inappropriate, and never happens, for a High Court judge to write to the Court of Appeal attempting to explain, outside his judgment, in a detailed way, the reason he had taken the action he did.[40]That should be brought to the attention of the Magistrates' Court. Copies of the judgments of Mrs Justice Rafferty and myself should be supplied both to the Magistrates' Court and to the Crown Court.[41]Beyond that, the claimant is not in my judgment entitled to the further order and declaration he seeks, and it is not arguable that this court would grant them to him. I agree that the application must be refused.[42]Thank you, Mr Milne.[43]MR MILNE: Is this the appropriate moment to seek leave to appeal?

LORD JUSTICE PILL: Having refused you leave, we are not in a position to give that. We have no jurisdiction to do that.

[45]MR MILNE: Meaning I have a right of appeal?

LORD JUSTICE PILL: You must take advice on that. It appears to me we do not have jurisdiction to give you any permission to appeal. Thank you very much.