Golding v Secretary of State for Transport [2013] EWHC 300 (Admin)

Case No CO/11706/2012[2013] EWHC 300 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Tuesday 22 nd January 2013
M60 9DJ
Before
THE HONOURABLE MR JUSTICE KENNETH PARKER
Between
GoldingAppellantSecretary of State for TransportRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr O’Byrne (instructed by Gladstones Solicitors) appeared for AppellantMs Godfrey (instructed by the Treasury Solicitor) appeared for Respondent
Judgment
[1]The appellant, David John Golding, appeals by way of case stated against the decision of the South Cheshire Magistrates dated 2 July 2012 whereby the magistrates dismissed his appeal under section 100 of the Road Traffic Act 1988 against the decision taken by the Secretary of State for Transport, the respondent to this appeal, on 13 February 2012 to revoke the appellant's driving licence on medical grounds.[2]The case stated recites, firstly, the evidence that was before the magistrates' court on the issue of the appellant's fitness to retain a driving licence. At paragraph 3(i) the magistrates state that Dr Gareth Bowen Rees, a DVLA medical adviser, had stated that he had received information from the police consisting of a completed notification of possible disability form and 30 pages of police incident log from the early hours of 24 December 2011. Dr Rees, according to the magistrates, stated that the log made reference to many concerning points such as, inter alia, reference to the appellant having consumed Zopiclone, a sleeping tablet and hypnotic drug, champagne and wine prior to crashing his vehicle and reference to a bicycle found nearby and the police helicopter being employed to search the area.[3]Dr Rees summarised the contents of the report and incident log and stated that on 17 January 2012 a POLN1, a medical questionnaire, had been sent to the appellant for completion. It was not contested that the only information disclosed to the appellant at that stage was "we have received information from the police". Dr Rees later received the completed questionnaire from the appellant within which he admitted having been subject to a two-week course of Zopiclone on the day of the accident, but then stated that the crash was nothing to do with his medication. He made reference also to having bipolar disorder, a history of depression and historic alcoholic and cocaine misuse.[4]On 13 February 2012 Dr Rees made the decision to revoke the appellant's licence on the grounds that he had a relevant disability. The appellant was sent a letter describing his relevant disability in the following way, that it was "clear from information received that your current medication is causing side-effects that are likely to impair safe driving".[5]The appellant's driving licence was revoked by notice with effect from 17 March 2012. The magistrates go on to say that under cross-examination Dr Rees confirmed that he took the decision to revoke the driving licence based upon the police report and the completed medical questionnaire. He stated that the decision to revoke Mr Golding's licence was a holistic one and that the POLN 1 form was a pro forma document that was sent out as a matter of course. Dr Rees did not consider that he was under a duty to disclose any information to the appellant and he did not think it appropriate to make further inquiries with Mr Golding's GP or consultant.[6]The magistrates also record in the statement of case that the appellant himself gave evidence that he had in the past misused cocaine and alcohol. He confirmed that he had been diagnosed with depression in the past and also had recently been misdiagnosed with bipolar disorder. The account that he gave to the magistrates of the incident on 24 December was different markedly, noted the magistrates, to the one depicted in the police incident log. The appellant stated that he had not been drinking on the night in question. He had taken a Zopiclone tablet shortly before driving and it had not yet taken effect and the accident was caused by icy road conditions and not his medication. He stated that he was not taking any medication or suffering from any mental health condition as of 13 February 2012, nor was he presently taking medication or suffering from any such illness. He accepted that he had been a voluntary in-patient in a mental health ward a few days prior to the incident.[7]The magistrates also state that they heard evidence from Dr Ian Rogerson, a consultant psychiatrist. He said that the appellant had had episodes of depression and that there had been historic episodes of alcohol and cocaine misuse. Dr Rogerson confirmed that the appellant had been prescribed a two-week course of Zopiclone in December 2011. He confirmed that, as of 13 March 2012, to the best of his knowledge and belief it was more likely than not that the appellant did not suffer from bipolar affective disorder. The condition of major depressive disorder was fully remitted with a symptom-free period of three months, alcohol misuse was in remission and the appellant's drinking had been controlled within recommended limits for a period of six months. Cocaine misuse was in remission and he had abstained for a period of 12 months.[8]Under cross-examination Dr Rogerson accepted that there was a period in December 2011 when perhaps he should have considered notifying DVLA of the appellant's depressive illness.[9]The central holding of the magistrates on the appeal is really set out at paragraph 7 of the statement of case. In that paragraph the magistrates noted the legal advisor's advice. They noted that the appellant had admitted to having an accident on 24 December 2011 causing damage to his vehicle and left it unattended. They noted that the appellant had declared in his POLN 1 form that he had taken sedative hypnotic medication before he drove on 24 December 2011 and had suffered from a bipolar disorder which he had failed to notify the DVLA of previously in breach of the legal obligation. He had a history of illegal drug misuse and of misuse of alcohol. His leaving his vehicle unattended after the accident and failing to notify the DVLA of his bipolar disorder demonstrated a reluctance to cooperate with the authorities especially as regard the provision of sufficient information. The appellant had his licence restored to him within a matter of weeks as a result of his providing the DVLA with information satisfying the Secretary of State that it was safe to issue a licence. That licence was for one year, taking into account good practice guidelines based on the advice of the Secretary of State for Transport's honorary medical advisory panel on alcohol, drugs and driving.[10]The magistrates then said this, and in my judgment this is the crucial part of the statement of case:
"Taking all of the above into account, we concluded that, on the information before him on 13th February 2012, namely the police report and the POLN 1 form returned by the appellant, it was entirely reasonable for the Secretary of State to conclude that the appellant suffered from a relevant disability and posed an immediate risk to the public should he be allowed to continue to drive. Moreover, in the circumstances, namely that the Secretary of State was under some urgency to act taken together with the appellant's previous failures to disclose information, we considered that it was unreasonable to expect the decision to be delayed by making further extensive enquiries which may or may not uncover information to suggest that it was wrong. We concluded therefore that he decision to revoke the appellant's licence on 13th February was correct and lawful. Accordingly we dismissed the appeal"
The questions that the magistrates have posed for this court are as follows: "1) Were we correct to uphold the Secretary of State's decision that, in the circumstances in which he acted, there was sufficient evidence to satisfy him that the appellant was suffering from a relevant disability on the 13th February and that the likelihood of the appellant continuing to drive on or after that date was a source of danger to the public? 2) Were we right to find that there was evidence upon which we could conclude that the inquiry made by the Secretary of State was reasonable having particular regard to the appellant's contention that the Secretary of State failed to disclose sufficient information such that he felt unable to respond properly? 3) Was there evidence on which we could have made the finding that Mr Golding was suffering from a relevant disability as found by the Secretary of State on the 13th February 2012 when his licence was revoked?” The legislative framework[11]Firstly, to deal with appeals to the magistrates court, section 100 of the Road Traffic Act 1988, Part III, Licensing of Drivers of Vehicles, states as follows :
"A person who is aggrieved by the Secretary of State's … c) revocation of a licence in pursuance of Section 99 (3) or (3A) of this Act or by a notice served on him pursuant to section 92(5), 99C or 109B of this Act may, after giving the Secretary of State notice of his intention to do som appeal to a magistrates court... "
Subsection 100(2) says :
"On any such appeal the court... may make such order as it...thinks fit and the order shall be binding on the Secretary of State."
[12]There is authority that the proceedings before the magistrates are a complete appeal de novo. The principal authority for that proposition is Kavanagh v Chief Constable of Devon and Cornwall[1974] QB 624. That appeal was heard first before the Divisional Court, Lord Widgery CJ, Cusack and Mars-Jones JJ and then in the Court of Appeal before Lord Denning MR and Stamp and Roskill LJJ. In short the issue on that appeal was whether the magistrates could take account of matters that they had heard given in evidence, although on the strict application of the Rules of Criminal and indeed of Civil Procedure such matters may have constituted, for example, hearsay evidence that would not otherwise have been admissible. Both the Divisional Court and the Court of Appeal unequivocally stated that, on an appeal before the magistrates, the magistrates were entitled to have regard, firstly, to any material that was before the relevant decision maker that had prohibitive value on the issue in question, whether or not that material was strictly admissible in evidence by the ordinary rules of criminal or civil procedure.[13]Furthermore, as is made clear from the judgment of Lord Denning MR, the magistrates may have regard to any other material that is logically prohibitive on the matter that they must decide, namely whether the decision that is under challenge taken by the decision-maker at the date specified was the correct decision in all the circumstances now known to the court whether or not that material was before the decision-maker and indeed whether it could reasonably have been before the decision-maker at that time. That authority stresses the true nature of the proceedings in the magistrates' court, which is a de novo assessment by the magistrates themselves of whether the decision under challenge was correct, and that must be the essential focus of any appeal under this legislation.[14]As to the provisions regarding physical fitness, they are set out in sections 92 and then 93 of the same legislation. 92(1) provides that:
"An application for the grant of a licence must include declaration by the applicant, in such form as the Secretary of State may require, stating whether he is suffering or has at any time (or, if a period is prescribed for the purpose of this subsection, has during that period) suffered from any relevant disability or any prospective disability."
Subsection (2) says:
"In this part of this Act – ‘disability’ includes disease [and the persistent misuse of drugs or alcohol, whether or not such misuse amounts to dependency] ‘relevant disability’ in relation to any person means -- (a) any prescribed disability, and (b) any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public." 92(3) provides that: "
If it appears from the applicant's declaration, or if on inquiry of the Secretary of State is satisfied from other information, that the applicant is suffering from a relevant disability the Secretary of State must, subject to the following provisions of this section, refuse to grant the licence." Section 93 then deals specifically with the revocation of licences because of disability or prospective disability. 93(1) provides that:
"If the Secretary of State is at any time satisfied on inquiry – (a) that a licence holder is suffering from a relevant disability; and (b) the Secretary of State would be required by virtue of section 92(3)...of this Act to refuse an application for the licence made by him at that time, the Secretary of State may serve notice in writing on the licence holder revoking the licence with effect from such date as may be specified in the notice, not being earlier than the date of service of the notice."
[15]It can therefore be contemplated that in this case on 2 February 2012 the Secretary of State was satisfied in his own mind that this appellant did suffer from a relevant disability and, secondly, that if an application for a driving licence had been made on that date by the appellant, that application would have been refused pursuant to the provisions of section 92 to which I have made reference because of the appellant's putative disability or, if that were the case, prospective disability.[16]For completeness it should be noted that the prescribed disabilities are contained in the Motor Vehicles (Driving Licence) Regulations 1999 SI 1999/2864, Part IV, Disabilities, Disabilities prescribed in respect of Group 1 and 2 licences. And there under Regulation 71 are set out specific disabilities including, at 71(1)(e), “persistent misuse of drugs or alcohol, whether or nor such misuse amounts to dependency.”[17]I recited from the case stated the magistrates' reference to the guidance under the heading "At a glance chapters on psychiatric disorders, drug and alcohol abuse". That document has been before this court and chapter 4 of that guidance particularises certain psychiatric disorders and gives assistance to decision-makers as to how they should approach the question of disability in respect of the disorders. For example, anxiety or depression is specified. More severe anxiety states or depressive illnesses are also identified, and in both cases certain recommendations are made as to the appropriate action that should be taken.[18]Chapter 5 deals with drug and alcohol misuse and dependence and first of all identifies what would constitute such misuse and then goes on again in similar terms to say what the decision-maker should have regard to with references to minimum periods of abstinence. Similarly, in relation to drug misuse and dependence, there are recommendations in relation, in particular, to minimum periods of abstention in relation to drugs, depending essentially on the class of drug in question.[19]Turning now to the Grounds of Appeal, the appellant's principal point on this appeal is that, having regard to the conclusions that are stated in the magistrates' statement of case, the magistrates firstly simply failed to apply the correct test on an appeal to them as indicated both by the legislation and the authority to which I have referred. In substance it is said that the magistrates in effect applied a test that would have been appropriate if they were conducting a judicial review of the rationality or even proportionality of the decision taken by the Secretary of State. That, submits the appellant, is indicated by the statement in the conclusion, which I have cited, where the magistrates found that it was entirely reasonable for the Secretary of State to conclude that the appellant suffered from a relevant disability. There is not a plain statement by the magistrates that, having regard to all the material that was now before them including the evidence of Dr Rogerson, they concluded for themselves that at 2 February 2012 the appellant was suffering from a relevant disability.[20]Secondly, it is contended that it was incumbent upon the magistrates, particularly in the light of the way in which the proceedings had developed to specify precisely what relevant disability they had found that the appellant had suffered from at 2 February 2012 that disabled him from properly continuing to hold a licence.[21]In response Ms Godfrey contends that, although at first sight that criticism might appear to have some force, if the statement of case is looked at more completely then the criticism falls away. First, she says that the magistrates, notwithstanding their recital of the finding that the Secretary of State had taken a reasonable decision, had concluded that the decision was correct and lawful. Furthermore, she submits that that is reinforced by the memorandum of conviction, which stated as follows, that the magistrates were “satisfied Mr Golding [that is, the appellant] was suffering from a relevant disability as found by Secretary of State on 13/2 when licence was revoked therefore the Secretary of State were [sic] right to revoke the driving licence." And finally she directs the court's attention to the questions that are asked and the third question is, as already recited, was there evidence on which she could have made the finding that Mr Golding was suffering from a relevant disability as found by the Secretary of State on 13 February 2012 when his licence was revoked?[22]As to the second point, the lack of specificity on the relevant disability, Ms Godfrey submits that all the evidence was before the magistrates, namely the taking of the Zopiclone and the evidence in relation to the depressions from which he had suffered and also his history of alcohol and drug abuse, and that the real question for this court is whether the magistrates were entitled to find a relevant disability in the light of the material that was before them.[23]Notwithstanding the attractiveness of Ms Godfrey's submissions, I have concluded without hesitation that the magistrates in this matter did not apply the correct test. In my judgment the magistrates show plainly what they did and the way in which they approached the appeal before them when they state that it was entirely reasonable for the Secretary of State to conclude that the appellant suffered from a relevant disability. The fact that the magistrates then went on to state that the Secretary of State was correct in my judgment can be read only to mean that, because the Secretary of State had acted in a way that the magistrates considered rational and proportionate, the decision had to stand, notwithstanding the possibility that if the magistrates had themselves applied their minds to the same question, they on the material now before them might have reached a different conclusion.[24]I do not attach great weight to the Memorandum of Conviction. It appears to me that, on an appeal of this nature, I should focus my mind on what is stated plainly in the statement of case and in my judgment the magistrates have there, without any ambiguity, put the position squarely.[25]As to the questions, it is correct, as Ms Godfrey submits, that the third question does seem to be on point, namely to be describing the process that the magistrates should have undertaken. However, in my judgment, that is undermined by the magistrates’ including the first question. For the reasons that I have given, that first question is misconceived. The magistrates should not have been directing their minds to that issue and the fact that they have included that question at the very least throws very considerable doubt on whether the correct test was applied. This court must be satisfied that the magistrates did apply the right test and, for the reasons that I have given, having regard to the indicators in the statement of case, I am not satisfied to the appropriate degree of confidence that they did so.[26]Furthermore, again notwithstanding the attractive submissions advanced by Ms Godfrey, I have concluded that indeed the magistrates failed simply in this case to specify what the relevant disability was. That specification was really at the heart of this appeal and in my judgment it was imperative that the magistrates state precisely what it was that they found by way of relevant disability. If one has regard to the matters that the magistrates noted, some of them at first sight might be thought to have had only a tangential value. Firstly, the taking of the sedative hypnotic medication before he drove on 24 December 2011. The magistrates do not in any way indicate how that possible one-off taking of that medication would affect the validity of the decision taken on 2 February that at that date this appellant was not medically fit to retain a licence. I do not say, and I wish to emphasise this, that I myself have reached any conclusion on that matter. It may be that on full analysis there should be a conclusion that, having regard to the taking of the medication on 24 December 2011, indeed on 2 February 2012 this appellant was not fit to drive. However, the leap from the proposition that he had taken the medicine to one of unfitness to drive at a much later date is not an obvious step and would require in my judgment some explanation. The magistrates had referred to the bipolar disorder and the failure to notify earlier. On the face of it, it is not entirely clear again how that would relate to a finding of disability on 2 February 2012. There was evidence to which the magistrates themselves referred that that diagnosis may have been inaccurate and in any event its bearing on the position on 2 February 2012 needed some form of explanation.[27]The magistrates also referred to the history of illegal drug misuse and of misuse of alcohol. However, the magistrates made no explicit attempt to link that finding with the matters that are set out in the relevant guidance in relation to illegal drug misuse and misuse of alcohol so as to give some indication that they reached, if that would be the position, a conclusion that he was disabled by reason of persistent alcohol or drug misuse.[28]Similarly, the magistrates' reference to leaving the vehicle unattended and as to what subsequently happened on a further licence application are, with the greatest of respect, left somewhat up in the air and their link with any conclusion that he suffered from a relevant disability on 2 February is simply not properly articulated.[29]It is therefore impossible in this case to see from the matters recited by the magistrates what relevant disability they indeed found that the appellant suffered from at the relevant date. It was incumbent upon the magistrates in my judgment to reach a specific finding on this, to say for example that the disability arose as a result of what they had heard about the taking of medication or alternatively arose by reason of the illegal drug misuse and misuse of alcohol and then linking that to the matters set out in the guidance and applied to the specific circumstances of this case.[30]I should for the sake of completion state that a subsidiary ground was advanced by the appellant on this appeal that focussed essentially on the decision making procedure of the Secretary of State. In my view the central function, as I have already stated, of the magistrates is to determine for themselves, on the material before them on the date of the appeal, whether the decision taken at the date that it was by the primary decision maker was correct. I would deprecate challenges in the magistrates’ court on such appeal to the procedures actually adopted by the decision maker. That in a sense is simply to compound the error of treating the appeal as a form of judicial review to examine whether those procedures were entirely fair at the time or whether the decision maker had overlooked material that was either available to the decision maker at that time or could with reasonable diligence have been ascertained. The fact of the matter is that the appellant has the opportunity on the appeal to advance all material, and the proper focus of the appeal must be whether, in the light of that material, the decision at the relevant time was correct or not. In my judgment it simply distracts from that central task to focus on any alleged inadequacies in the earlier decision making process.[31]A further disadvantage of such distraction, in my view, is that the magistrates may then simply remit the matter, as if they were sitting as an administrative court, to the primary decision maker to take the decision again having regard to what is now known. That would simply cause unnecessary delay and probably result in yet a further appeal to the magistrates court and in all probability, for obvious reasons, what the appellant wants at that stage is a decision by the magistrates court, on the material before it, as to whether the challenged decision was correct or not.[32]For those reasons, I have decided that I should not explore that sub-issue as to the fairness or adequacy of the original investigating procedure that led to the challenged decision. However, for the earlier reasons, I shall allow the appeal. This is a somewhat unusual case in that, in the light of the manner in which this appeal has been developed and the way in which I have dealt with it, the questions that have been asked are with respect somewhat off the mark. Therefore in relation to question 1 my answer would be that the question is an irrelevant one and is simply indicative of the erroneous approach that I have said that the magistrates have taken. I would as to question 2 answer that that question, in the light of this judgment, need not be answered for the reasons that I have made plain. As to the third question, again I am not going to answer that question because respectfully I conclude that that also is off the mark. Whether or not there was evidence is not really at the core of this appeal. What is at the core of this appeal is whether the magistrates approached the question correctly and I have held that they did not for the two reasons that I have stated.[33]Accordingly, the matter must now be remitted to, I would suggest, a differently constituted bench to determine the relevant question identified in this judgment in accordance with the directions given in this judgment. MR O'BYRNE : Thank you my Lord. Forgive me, excuse me. There is a question of costs my Lord and they are substantial when one takes into account this court and the court below. I will recognise the principle of course that a local or national authority such as the Department cannot be restricted in their actions through a fear that costs will be awarded against them, but in this case effectively, if I can sum it up in this way, we came, we fought, we won, and we are, with respect we submit, entitled to costs both here and below. There will obviously be tax because the court will need to have full chapter and verse. MR JUSTICE KENNETH PARKER : Yes. MR O'BYRNE : But that's an application – MR JUSTICE KENNETH PARKER : Your costs of today, yes. MS GODFREY : My Lord as to costs in principle, in my submission, your Lordship has indicated in your judgment that this was a slightly unusual case. Your Lordship has taken the view that you are not going to answer the questions actually formulated which were the substance of this appeal on the basis on which the appeal was brought before this court. For the reasons that your Lordship has given and your Lordship has dealt with it, in my submission, a different approach, an approach that was not part of the case stated but an approach that your Lordship has taken, for the reasons that you have given, that the magistrates did not ask themselves the correct question. That was not, in my submission, the basis of the questions which were asked, which was the case that was stated and, the court having taken for the reasons that you have given a different approach, in my submission the appropriate order in relation to today would be for each party to bear their own costs. This is not a case where your Lordship has looked at the questions which have been formulated on the appellant's application and it is determined that they ought to be -- they ought to be answered in the appellant's favour and your Lordship has also not granted them the relief that they have sought in the course of Mr Golding being called to the -- an unrestricted licence. In those circumstances my Lord it is my submission that as a matter of principle the appropriate order should be no order that each party bear their own costs. MR JUSTICE KENNETH PARKER : Well, there is no evidence before me that the magistrates were in any way misled by anything that happened before them below. All that I can really see from the documents is that the appellant presented its case below with those then advising him on the basis that the decision was incorrect. There is nothing to indicate that below the appellant was approaching it on the basis that the magistrates were carrying out some sort of judicial review of the Secretary of State's decision and therefore I cannot really find any unreasonableness in the conduct of the appellant below, and the truth of the matter is that the appellant did not have the benefit below of a court directing its mind to what it should have done. Then the matter comes before me and it does seem to me that the complaint has been precisely that the magistrates did not apply the correct test. I can understand why the magistrates formulated the questions as they did. That was in accordance with how they thought that they needed to address the appeal. That, however, in my judgment was wrong and I do not think that that either can be used as a factor properly to deprive the appellant of his costs. And therefore I do not see any good reason in this case why the ordinary rule should not apply, namely that the appellant is entitled to costs both in the court below and on this appeal. And if those costs cannot be agreed then they will have to be assessed. Thank you very much. MR O'BYRNE : Thank you, my Lord.

Cited in 1 later judgment