McCombie v Liverpool City Magistrates' Court [2011] EWHC 758 (Admin)

Case No CO/2109/2010[2011] EWHC 758 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 10th March 2011
Between
JAMES JOHN MCCOMBIEAppellant
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
_______________
v
Between
LIVERPOOL CITY MAGISTRATES' COURTRespondent_______________Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)_______________Miss C Gianota (instructed by Byrne Frodsham & Co) appeared for AppellantMr Z Chaudry (instructed by the Crown Prosecution Service) appeared for Respondent_______________J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal by way of case stated from a decision of District Judge Lomax, sitting in the Liverpool Magistrates' Court, as long ago as 18th December 2008. The reason for the lapse of time is that initially the District Judge declined to state a case, asserting that the application was frivolous within the meaning of that word in this context, and the appellant sought judicial review of the refusal. That application in due course succeeded on 2nd November 2009. Thereupon there was a fresh application to state a case and the case was eventually stated on 1st February of last year. I fear that it has taken altogether too long a time to be heard.[2]The offences which the appellant faced were four, all of which arose out of a road traffic incident which itself occurred in the early hours of the morning of 1st December 2007. There is no question but that his car was involved in the incident in the course of which a pedestrian crossing the road was run down and very seriously injured. The car did not stop, nor was the accident reported. The incident itself occurred at about 3.27 in the morning. I give a precise time as will become apparent because times at which various things happened in the early hours of that morning are important. There was CCTV evidence which enabled fairly accurate times to be given. It was not until after midday that the appellant was seen when his car which had been involved in the incident was seen outside the house in which he was then living.[3]When he was taken to the police station, having been arrested, it was clear that he had been drinking. The reading when he was breathalysed was not over the limit, but the evidence that the prosecution sought to rely on involved back calculation. It was said that as a result it was clear that he had been drinking in excess of the limit at the time of the incident. That charge was dismissed, mainly because of the District Judge's view that the back calculation was not evidence that could in the circumstances properly be relied on. Accordingly, it is not necessary to say any more about that.[4]The other three charges involved one of driving without due care and attention, one of failing to stop following the accident and, finally, failing to report the accident to a police officer. He was convicted on those three charges.[5]The case before this court is based on the contention that the evidence that was produced in court was insufficient to justify a conviction.[6]The District Judge has set out at considerable length, and that is not intended in any way to be critical, the findings of fact that he reached on the evidence which he summarises and the conclusions which he drew. He recognised that the various pieces of evidence upon which he relied could not individually have justified a finding that the appellant was guilty of the offences, but, taken together, the circumstantial evidence was sufficient, in his view, to enable him to conclude properly that the offences were proved beyond reasonable doubt. The only issue was whether the appellant was the driver of his car at the material time.[7]As I have said, the incident occurred at 3.27 am or a few seconds perhaps either side of that. It is accepted that that time was one which was correct on the evidence; there is no issue about that. The appellant himself, who is a doctor, at the material time lived with a fellow doctor called Dr Newby at an address in Liverpool. Each of them had decided to go out the night before to a club called Heebeejeebies, which is, I gather, in the centre or near the centre of Liverpool. The appellant left the club somewhere round about 3 am. He then got into a taxi. His case was that he had got a taxi, gone straight home and had arrived home at 4 am. He had not driven his car. What in fact he had done with his car was to leave it at a place called Rankin Hall. Indeed, he and Dr Newby had both gone in the car, which he was driving, and had left it there outside the apartment of a friend. They had been with the friend for about an hour and had then gone by taxi to the city centre to the club.[8]Dr Newby gave evidence before the District Judge that he had left the club before the appellant. He had left at about 2 or 2.30 am. He had thought of getting some food but in the end had decided not to, so he had walked some of the distance home and he had arrived, he said, at approximately 3.30 in the morning and watched television until about 4 o'clock, when the appellant had arrived. The appellant accepted that he had indeed arrived home at about 4 o'clock in the morning.[9]He had left the club shortly after 3 o'clock in the morning. There is CCTV evidence which shows him a few seconds after 3.12, am apparently with a number of others getting a taxi. Whether the number of others including himself got into the taxi or into a particular taxi is not clear. Indeed, it is suggested that it was not clear whether he himself got into a taxi. The District Judge decided that he had probably got into a taxi and that that taxi would have left some time at or shortly after 3.15 in the morning. That allowed time for the appellant to have left the club, to have walked and waited for a taxi.[10]The appellant's car, as I say, was seen at 3.27:37 some 500 to 600 yards past where the incident took place. That meant that the incident itself, assuming a speed of 30 miles an hour, would have occurred some 40 seconds earlier, hence the time of 3.27.[11]The case against the appellant was built on a number of factors. First, it was his car. Secondly, the car was the next morning outside his home address and it had been locked and the alarm set, so that whoever had used it had used a key which belonged to the car. The appellant accepted that he had put the key that he had used when driving the car and leaving it at Rankin Hall into his pocket. He said that he did not know what had happened to that key thereafter because the key that he had in his possession when the police came round to the house was the spare key. So according to him the key that had been used when he had driven the car had disappeared. In his address (although due to police incompetence it was not established for sure from whose room it was taken) there was found a grey jersey which had on it a significant number of glass fragments which came from the windscreen of the car which had shattered as a result of the impact with the unfortunate victim who was injured. That could only have got into the premises either through Dr Newby or through the appellant, so one or other must have been driving the car. It was accepted that the glass fragments showed that the jersey was being worn by whoever was driving at the material time.[12]The appellant was outside the club getting a taxi at 3.12 am. He did not arrive home until 4 am. No explanation was given which would explain why it took such a long time to cover the distance.[13]The appellant, when interviewed by the police, said that he could not remember anything of what happened and he could not remember driving the car, but he was not saying then that he had not been driving. He changed his tune during the hearing before the District Judge. It was his case then that he was positive that he had not been driving the car. Essentially, those were the major matters that were relied on by the prosecution.[14]As I say, the appellant's case was that he had not driven and he relied on a number of factors which he said then, and says now, were such as made the conclusion that it was him unreliable. First, there was the time between 3.12 or 3.15, when it was said that he got into the taxi outside the club, and 3.27, when the incident occurred. He would have had to have gone to pick up his car so that the taxi would have driven him there and then driven his car to the scene of the incident. There was evidence from a police officer who had at the same time of night driven a route -- I say that advisedly because of course there were different ways that could have been used on the particular journey -- between the club and where the car was parked and then from where the car was parked to where the incident took place. That, according to the police officer, took 20 minutes. That of course was longer than the time between 3.15 and 3.27. There was, however, evidence from a police sergeant who knew the route, although admittedly had not driven it himself, that he could have done it in less time, and indeed in such time as would have enabled the appellant to have been at the scene of the incident at the time that it took place. The District Judge, who himself was familiar with the centre of Liverpool and knew the route, was able to confirm from his own experience that it could have been travelled within that timescale, even assuming all speed limits were kept.[15]Miss Gianota submits that so far as the taxi was concerned, the appellant would have had, assuming it was him, no control over the speed of the taxi, and one has to take account of the fact that, even without much traffic at that time in the early morning, there was the likelihood of at least some possibly red traffic lights, some need to slow down from time to time at junctions and so on. Thus one should not assume a steady speed of 30 miles an hour, which of course is the speed limit in the city.[16]The District Judge dealt with that issue and, as I say, was persuaded, relying on the evidence of the police sergeant and his own knowledge, that it was possible for the appellant to have arrived at the scene within the timescale and it was reasonable to believe that he had got into the taxi. As he put it:
"As no-one saw [the appellant] getting into a taxi or actually driving the BMW, the issue in respect of this particular evidence was not whether it was proof that he was the driver but whether it remained possible that he could have been. A finding that it would not have been possible to drive the necessary distance in the necessary time would clearly have undermined the prosecution case. However, my finding that he could have been the driver was not, on its own, sufficient to convict him. It was, however, another piece of circumstantial evidence that needed to be considered in conjunction with all the other evidence presented."
That is a perfectly correct way of approaching this issue and it seems to me that it is quite impossible to conclude that it was not reasonable for him to have concluded as he did.[17]The District Judge next considered the jersey and recognised that, due largely to police incompetence, it could not be said that the jumper certainly belonged to the appellant, rather than his house mate. He said this:
"The fact still remained that the jumper had to have been worn by the driver of the BMW [that is because of the glass fragments on it and that is not disputed], it had to have been worn by someone in possession of both car and house keys; and it had to have been worn by a person who entered the house after 03.30 hours."
That is because of Dr Newby's evidence, which was not challenged at the hearing, that he had arrived home at 3.30 am and then watched television until the appellant returned at 4 o'clock. "The only person", the District judge continued, "who could have fitted these criteria was [the appellant]". There was an issue about the colour of the jersey, but having seen the CCTV and having seen the jersey the District Judge was satisfied that it was properly described as either brown or grey. Accordingly, that again was another factor that he was entitled to take into account in deciding whether the circumstantial evidence added up to sufficient to be satisfied that he was at the material time the driver of the car.[18]There was scientific evidence dealing with the likelihood of glass fragments being in the driver's hair and the possibility of some damage from flying glass to the driver's face. There was no damage to the appellant's face, no marks of any sort, and when his hair was combed (he had long hair at the time) no fragments of any sort were found. This was not until after midday, or probably a bit later. So he would have had an opportunity, although he denied that he had, to have washed his hair. It is suggested that the photograph which was taken when he was at the police station is inconsistent with someone having taken a shower. I think all one can say, looking at it, is that he had not shaved; that of course means very little. True it is that the scientist indicated that there was still a probability or a likelihood of some sort that some fragments might still remain even if he had had a shower, but he also said that the bulk would have disappeared in all probability after a couple of hours. So, again, that is a factor which might be said to weaken the case against him. On the other hand, it did not rule out the possibility that, provided the other bits of evidence were sufficiently strong when added together, that he was indeed the driver. The impact had caused the windscreen to shatter on the passenger side. That would not have prevented fragments hitting the person's face. However, while the appellant did not have any damage to his face, nor did Dr Newby.[19]One other matter that was relied on by the District Judge and was of some importance was that if -- as I say, Miss Gianota recognises that this is the only alternative -- it was his house mate, Dr Newby, who actually had been driving, then the case that it had been Dr Newby depended upon some rather surprising circumstances. It must have meant that Dr Newby had in his possession a key. It could not have been the spare key, unless of course I suppose it was suggested that he had used the spare key and then had replaced it before the appellant returned to the house, although in those circumstances Dr Newby could not conceivably have got to the house at 3.30 if he had been involved in the incident at 3.27, some three minutes earlier. More importantly, it must have meant that either the appellant had for some reason given him his car key before he left the club or Dr Newby must have gone out with the intention of taking the appellant's car, whether or not he agreed that it should be driven by him. It is, to say the least, as the District Judge himself indicated, exceedingly improbable that that would have been the situation. He dealt with it in this way in the case at paragraph 3.10:
"David Newby had returned home before the BMW had collided with [the victim] and was not the driver. Whilst there is no independent evidence of the time David Newby returned, his evidence of being home at approximately 03.30 hours was never challenged by the defence. This despite the obvious fact that the driver of the BMW had to be one of only two people who possessed a set of house keys. David Newby would also have to have had possession of a set of car keys in order to drive the BMW. The one set of car keys that [the appellant] took with him were (according to him) put in his trouser pocket once the car had been parked. David Newby would therefore have had to either have stolen the keys from [the appellant] or have been given the keys by [the appellant] in order to take possession of them. No evidence remotely supporting either proposition exists. There are, however, two sets of car keys for the BMW and it is theoretically possible that David Newby could have had possession of the second set of BMW keys before he left the house that night. But that would have required David Newby to have had a pre-determined plan to return home using the appellant's BMW once it had been parked. Once again there is no evidence, whatsoever, to support this theory. In any event, the second set of car keys was found to be in the possession of [the appellant] - not David Newby - the next morning."
So there was a high degree of improbability in the contention that Newby was able to have been the driver of the car at the material time.[20]Another matter that the District Judge took into account was the fact that he had seen and heard the appellant give evidence. He dealt with this in an entirely proper fashion. What he said was this, in the course of a paragraph which criticised the appellant's defence strategy:
"The defence case was also not helped by the manner in which [the appellant] gave his evidence. After many years practice in the Magistrates' Courts, I read very little into a person's demeanour in court. Anxiety and stress clearly affects people in different ways. However, [the appellant's] demeanour was so odd and so exceptional that it was impossible to ignore it. Whilst giving evidence he constantly looked down and avoided making eye contact. He spoke in a whispered manner that was barely audible at times. He had to be prompted by his solicitor to raise his voice on several occasions. [He] gave every impression of being severely traumatised by his predicament. That was understandable were it not for that fact that his behaviour in court sat in stark contrast with a "professional" person his solicitor repeatedly sought to portray him as. [The appellant] was referred to as "no ordinary defendant - but a Doctor for whom certain standards were expected"
. I drew no adverse conclusions whatsoever from his demeanour but it was apparent that it was inhibiting the presentation of the defence case. It also made it extremely difficult to assess the credibility of [his] testimony - particularly when he gave evidence that was inconsistent with his earlier statements." He then went on to say that, despite all that, it was the duty of the prosecution to prove beyond reasonable doubt guilt. There was not a single piece of direct evidence that placed him behind the wheel of the car, but it was a case that relied on circumstantial evidence in the fullest sense of the word. As he put it in paragraph 7.7:
"It was a prosecution based on various pieces of evidence that required or allowed the court to make a deduction in order to conclude that a fact existed. That fact being that [the appellant] was the driver of the BMW at the time [of the collision]"
. He decided, adding all those pieces of evidence together, that he was satisfied beyond reasonable doubt that the appellant was the driver.[21]Miss Gianota submits now that it was not possible, or should not have been regarded as possible, to rule Dr Newby out as having been the driver and that in those circumstances it could not properly be said that the conclusion reached by the District Judge was a proper one.[22]It is perfectly true to say that it would have been difficult for the appellant, no doubt, to put a positive case to Dr Newby since he was saying that he had no memory of anything that had happened that night, but the District Judge's comment that it was never even put to Dr Newby that he had access to or had been given the key or that the jumper was actually his jumper was, to say the least, a little curious, and one would have expected any competent defence advocate to have considered it was his duty to raise those issues if the case in truth had to be that it was either the one or the other. It certainly was not, on the face of it, the way that it was put before the District Judge. The case before him was put simply on the basis that it was not the appellant.[23]I have no doubt whatever that the District Judge, in his very careful reasons (and he obviously took considerable care over the matter), was entitled to decide as he did. It is true to say, as he indeed himself says, that no individual piece of evidence standing on its own was sufficient to prove guilt beyond reasonable doubt, but when all are added together, and given some of the implausibilities of any alternative suggestion, were quite sufficient to justify the conclusion reached by the District Judge.[24]In those circumstances, I have no hesitation in answering the question posed in the affirmative, namely that on all the evidence that was adduced a reasonable bench, properly directing itself, could have found to the criminal standard of proof that the appellant was driving the car that was involved in the collision on the 1st December 2007. In those circumstances this appeal is dismissed.[25]MR CHAUDRY: Although I cannot specify amounts, I do apply for our costs.

MR JUSTICE COLLINS: Miss Gianota, you cannot resist that, can you?

[27]MISS GIANOTA: I cannot, although there is the issue in relation to the costs of judicial review.

MR JUSTICE COLLINS: Did Blake J not make an order?

[29]MISS GIANOTA: They were reserved to this case.[30]MR JUSTICE COLLINS: I had missed that. Of course he succeeded. What do you say about that, Mr Chaudry? My inclination is to say no order for costs on the judicial review, but it may be submitted that should be some degree of set off.[31]MR CHAUDRY: My Lord, in relation to the judicial review --

MR JUSTICE COLLINS: Did the CPS appear at the judicial review?

[33]MISS GIANOTA: No -- well, they received all the information but they chose not to attend, which obviously they are entitled to do.[34]MR JUSTICE COLLINS: I think, with the greatest possible respect to Blake J, and to Judge Pelling, this is not a case where I would have thought judicial review was appropriate. It seems to me you ought to have appealed to the Crown Court. There we are.[35]MISS GIANOTA: Notwithstanding that, however, the case stated should not have been refused on the grounds it was.[36]MR JUSTICE COLLINS: It is true and you succeeded. I do not think it would be appropriate or proper to make any order that affects the CPS. As I say, the CPS did not involve itself in the judicial review.[37]MISS GIANOTA: I would submit that the costs should be for costs out of central funds for the judicial review alone.[38]MR JUSTICE COLLINS: I do not have power, as you know, to order costs out of central funds, but that can be got round if I am satisfied it is an appropriate order. Does it apply to judicial review? I thought it only applied to case stated.[39]MISS GIANOTA: It only applies to case stated, I think.[40]MR JUSTICE COLLINS: I do not think there is power to award costs out of central funds on a judicial review, is there? I do not have an Archbold in this court.[41]MISS GIANOTA: No, it needs to be a Divisional Court.[42]MR JUSTICE COLLINS: I am pretty sure that there is not that power on a judicial review, but I am bound to say, even if there was, I do not think it would be an appropriate case. As I say, what I think is the appropriate order would be no order for costs. So far as these costs are concerned, again it will be detailed assessment if not agreed.[43]MISS GIANOTA: Your Lordship mentioned about off-setting the judicial review costs potentially against these costs.[44]MR JUSTICE COLLINS: No. I am not going to make any order as far as the judicial review is concerned.[45]MISS GIANOTA: Very well.