Warring Davies v CPS Bradford [2009] EWHC 1172 (Admin)

Case No CO/11026/2008[2009] EWHC 1172 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONTHE DIVISIONAL COURTVenue Royal Courts of JusticeStrandLondon WC2A 2LLDate Wednesday, 13 May 2009B e f o r e:LORD JUSTICE MAURICE KAYandMR JUSTICE COLLINS
Between
KENNETH WARRING DAVIESClaimantv
Between
CPS BRADFORDDefendant
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)
The Claimant appeared in person for in personMr T Khan (instructed by the Crown Prosection Service, Bradford) appeared for Defendant
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]I will ask Collins J to give the first judgment.[2]MR JUSTICE COLLINS: This is an appeal by way of case stated from a decision of the Bradford Crown Court reached as long ago as 2 or 3 November 2005 whereby it dismissed the appellant's appeal against his sentence at the Bradford Magistrates' Court, imposed on 3 December 2004. He was then convicted on his plea of guilty of exceeding the speed limit. He was alleged to have been, and accepted that he had been, travelling at 37 miles an hour in a 30 mile an hour limit. The appeal was against the refusal by the Justices to find special reasons for not endorsing his licence upon his conviction of the offence. The Crown Court dismissed his appeal against that refusal.[3]The appellant has the misfortune to suffer from diabetes. It is not necessary to go into the precise details of the type of diabetes, suffice it to say that he has disclosed to the authority, as one would expect, the fact that he suffers because clearly the dangers of a hypoglycaemic attack affecting driving and resulting in an accident is all too obvious. He has medical check-ups regularly and the licensing authority receives those check-ups and has allowed him to drive.[4]However, it has happened, and it did happen on the occasion in question, that he realised that a hypoglycaemic attack was about to develop as he was driving. He always carries in his car glucose, or whatever is needed, to deal with any attack that arises. There were other medical problems resulting from his condition, which also sometimes necessitated his having to stop and take remedial action. It is not necessary, as I say, to go into the full details of those for the purposes of this case.[5]What happened on this occasion was that (I think he did not in fact give evidence directly) his submissions as to the factual basis were, to a large extent, accepted by the court. He was driving home that evening. He had, at that time, a degree of instability in his diabetes and he appreciated that he might become hypoglycaemic, even though he had adopted a proper regime. However, when he was some quarter of a mile, or so, from his home he realised that a hypoglycaemic attack was upon him.[6]As it happened he was at that stage either just approaching, or had just come within the limits of, a speed camera, so he was well aware that any speed would be likely to be noted by that camera. Once the attack came upon him he appreciated that it was necessary to stop, as soon as possible, in order to take the necessary remedial measures. It was his contention that what he then did was indeed to take steps to come to a halt as soon as reasonably possible, appreciating of course that to continue to drive when a hypoglycaemic attack was taking place would be thoroughly dangerous.[7]Unfortunately he speeded up before coming to a halt. He tells us that he was not exceeding the speed limit before he approached the camera, and it was only when he appreciated the attack was upon him that, perhaps momentarily, he speeded up before he drew to a halt.[8]There is something of a history because initially the Crown Court refused to state a case. It was therefore necessary for Dr Warring Davies to seek judicial review of that decision and he obtained permission for that judicial review to proceed on 30 November 2006. That was a decision of Mitting J. For reasons, which no doubt seemed good to it, the Crown Court refused to accept that it should state a case once permission was granted, and the matter went to a full hearing before this court. An order was made, as a result, that a case should be stated.[9]It then, for reasons that we have not had explained, took some 15 months for the Recorder to state the case. I appreciate that we have heard no excuses, but, on the face of it, the delays by the Crown Court are inexcusable and the matter clearly ought to have been dealt with far more speedily than it was. However, that has not, in the end, made any difference to the matter as it comes before us.[10]Dr Warring Davies is concerned about the facts that have been put in the case and he has argued before us that those findings were not reasonable, having regard to the material that he put before the Crown Court. As we explained to him, the system that operates in this court is that we are bound by what is in the case stated, unless there are specific grounds raised before us as part of the case that the findings were unreasonable, in which case it would be obligatory for the court to have stated in the case what the evidence was which led to the findings which they reached. That has not happened.[11]The key findings, in my view, are in paragraph 6 of the case where the court, through the Recorder stating the case, records as follows (and I shall only refer to the material paragraphs):
"v) At the relevant time his diabetes was unstable and the Appellant knew that he might find himself becoming hypoglycaemic even if he adopted a proper regime of meals. vi) He ate between 6 - 8 on the evening in question before he drove home. vii) He realised at a point shortly before this particular speed camera that he was becoming hypoglycaemic and that he must stop and take glucose and then get home notwithstanding that he was only a quarter of a mile from his home (see paragraph 24 of the Skeleton Argument)." (Pausing there the skeleton argument in question has been put before the court and we have taken it into account since it is specifically referred to in the case.) "viii) He told us and we accepted his account that he decided to speed up shortly before the camera, notwithstanding the presence of the camera, because he needed to reach a safe point to stop and take glucose. ix) He did not suggest, and therefore we did not find that his medical condition caused him involuntarily to speed up or that he lost some of his concentration and therefore strayed over the limit he insisted that he had, in fact, deliberately speeded up before the camera in order to hasten himself to the point where he could stop and take glucose. x) He produced a record showing that he had, at 10.50 that night taken a reading when he got home which showed that his level was 2.3 which he told us and we accepted was very low and consistent with a hypoglycaemic attack."
[12]Those findings, in my view, are of fundamental importance because what the court is there saying is that the case put before them by the appellant was that he had not been caused by the hypoglycemic attack to speed up involuntarily, or that that condition caused him to speed. The contrary was the case; he had decided to come to a halt as soon as possible, but in order to find a safe point he speeded up before he slowed down. I should say that Dr Warring Davies has insisted that that is not an accurate record of what he put before the court, but, as I have already indicated, it is not possible, in the circumstances, for us to go behind those findings.[13]The Recorder went on to say this in paragraph 7 of the case, having noted in (i) under "Our findings of fact" that they accepted in general terms what had been said to them: ii) We noted at the relevant time he was unstable in his diabetes and therefore he knew that this sort of situation namely a hypoglycaemic attack was quite likely to arise." That may be putting it somewhat too high on the basis of what was put to them because, it seems, he recognised the possibility rather than the likelihood of an attack, but that is not a particularly material matter. iv) We felt that he had to be judged by the same standard as any other motorist and that his disability should not give him special treatment which was not to say that we did not sympathise and understand his position. v) We found difficulty in accepting that his hypoglycaemic state explained his decision to speed up. vi) We do not accept that he had to speed up and we found that he was not saying that it was his concentration which was impaired and that that led him to straying over the limit but that it was a conscious and deliberate decision which, in the circumstances we did not accept was sufficient reason to treat him differently from any other motorist. We found that it was not reasonable to speed up in the face of his condition."[14]There is no question but that an emergency created by something such as a hypoglycaemic attack can create a state of affairs which may result in special reasons being properly found as a result of something that otherwise might be a contravention of the law. That is a possibility. The question will always be whether, on the facts of a particular case, the individual defendant establishes, so that the court can find in his favour, that his actions were entirely reasonable, or were dictated by the emergency which came into existence.[15]I find difficulty in accepting, as a general proposition, the court's statement that he had to be judged by the same standard as any other motorist and his disability should not give him special treatment. If the hypoglycaemic condition had itself caused an involuntary speeding before an immediate coming to a halt it may be that the momentary excess of speed, which happened to be caught by the camera, could amount to a special reason. It is true that hypoglycaemia is something peculiar to the individual, but it is the effect of the attack on the driving which creates the situation, which can properly be said to amount to an emergency, or real difficulty, and which might, in such circumstances, justify a finding of special reasons for a momentary excess of the speed limit.[16]The problem is on the findings of the court that was not the situation that existed here, because in paragraph 7(vi) they find, as a fact, that it was a conscious and deliberate decision to exceed the speed limit before coming to a halt. It was their view that there was no reasonable excuse for that exceeding of the speed limit. Indeed, it is to be noted that the approach in these emergency situations to special reasons includes, importantly, these factors. I take these from the decision of this court in Chatters v Burke [1986] 3 All ER page 168:
"(i) how far the vehicle was driven (ii) in what manner it was driven (iii) the state of the vehicle (iv) whether the driver intended to go further. (v) the road traffic conditions prevailing at the time (vi)whether there was a possibility of danger by coming into contact with other road uses of pedestrians and (vii) what the reason was for the car being driven."
[17]One can see that those are all capable, in combination, of coming to the aid of a motorist such as the appellant if, but only if, the court is satisfied that there was, in the circumstances, an involuntary exceeding of the speed limit, or the exceeding of the speed limit was truly reasonable in order to come to a halt at the nearest possible convenient moment. As I say, that was not the basis of the findings reached by the Crown Court.[18]In those circumstances, sympathetic though the court was, and sympathetic though this court is with the situation in which the appellant finds himself, the reality is that there was no error of law in the decision reached by the Crown Court. There is certainly no error which could conceivably be based upon the findings, which the court has set out in the case stated. In those circumstances I would dismiss this appeal.

LORD JUSTICE MAURICE KAY: I agree. I do not doubt the appellant sincerely believes that he has been the victim of an injustice in that he considers that the courts below misunderstood the way in which he was putting his case. Be that as it may, for the reasons given by my Lord we are bound by the findings set out in the case stated. It is apparent that upon the basis of those findings there is no sustainable challenge to the conclusion that special reasons did not arise in this case.

[20]Like my Lord I accept that the sudden onset of the medical condition can amount to special reasons. However, it seems to me that on the findings that were made, and are set out in the case stated, this was not such a case. Accordingly I too would dismiss the appeal.[21]The questions posed to the High Court are as follows:(1) Were we right to find as a matter of law that the decision by the appellant to speed up (whether or not he was suffering from a hypoglycaemic attack) was not a special reason for not endorsing the appellant's licence under s.44 Road Traffic Offenders Act 1988?(2) Was it reasonable in all the circumstances to find that the appellant did not have a special reason for speeding up in that he could have chosen to slow down and stop? In each case, the answer is affirmative.

LORD JUSTICE MAURICE KAY: Thank you both very much.

[23]MR KHAN: My Lords, in light of the decision I am duty bound to make an application for the Crown's costs.

MR JUSTICE COLLINS: You can apply for costs out of Central Funds.

[25]MR KHAN: I am instructed by the Crown Prosecution Service, but if the Crown's costs can be paid out of Central Funds--

LORD JUSTICE MAURICE KAY: You do not mind where they come from as long as they come from somewhere, is that it?

[27]MR KHAN: As my Lord knows, I am duty bound to make an application.

LORD JUSTICE MAURICE KAY: If they can be made out of Central Funds that seems sensible. I have had difficulty with this provision before. Section 17 of the Prosecution of Offences Act says:

"(1)Subject to subsection (2) below, the court may— (a)in any proceedings in respect of an indictable offence; and (b)in any proceedings before a Divisional Court of the Queen’s Bench Division or the House of Lords in respect of a summary offence; order the payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings. (2)No order under this section may be made in favour of— (a)a public authority..."
Then:
"(6)In this section “public authority ” means— ... (b) the Crown Prosecution Service or any other government department;"

MR JUSTICE COLLINS: Since it is public funds, one way or the other.

LORD JUSTICE MAURICE KAY: It is for private prosecutors really. Prosecutors other than the CPS, the police and the local authorities, whoever they may be.

[31]MR JUSTICE COLLINS: I appreciate it is not your fault, by you I mean the CPS, but the system has not dealt very kindly with Dr Warring Davies in what has been necessary for him to reach this court. It cannot be said that this appeal was, from the outset, obviously completely without merit. For my part, I would have thought that probably the fair thing is to make no order.[32]MR KHAN: I do not press the point, my Lord.

LORD JUSTICE MAURICE KAY: It is a very merciful outcome, but I think that is what we should do.

MR JUSTICE COLLINS: We are not making you pay costs.

[35]THE APPLICANT: May I agree, my Lords. I think also a sense of justice if you were to look behind what has been going on -- let me just give you one example, a Smith LJ made an order and then you see, as my Lord has already recognised, 15 months before they even put pen to paper and then it took--

MR JUSTICE COLLINS: That is not the CPS's fault.

LORD JUSTICE MAURICE KAY: We are not making an order.

[38]THE APPLICANT: I do thank you ever so much.