Gatenby, R (On Application Of) v Newton Ayecliffe Magistrates' Court [2017] EWHC 3772 (Admin)

[2017] EWHC 3772 (Admin)

Case No C0/1315/2017

Venue IN THE LEEDS ADMINISTRATIVE COURT

Courtroom No. 14

The Courthouse

1 Oxford Row

Venue Leeds

West Yorkshire

LS1 3BG

11.06am – 13.07pm

Date Friday, 1 st December 2017

Before

THE HONOURABLE MR JUSTICE KING

Between

Gatenby, R (On Application Of)Claimant

Newton Ayecliffe Magistrates' CourtDefendant

B E T W E E N:

R E G I N A

ON APPLICATION OF

GATENBY

and

NEWTON AYECLIFFE MAGISTRATES’ COURT

DPP (Interested party)

MR NEWTON appeared on behalf of the Applicant

UNKNOWN COUNSEL on behalf of the Respondent

MR B DOUGLAS-JONES appeared on behalf of DPP

JUDGMENT (Approved)

[1]This comes before me by way of a challenge to the decision of the Magistrates’ Court of 10 January 2017 to endorse the driving licence of the claimant with 10 penalty points following his plea of guilty on 2 June 2016 to an offence of failing to provide a specimen of breath for analysis contrary to Section 7, subsection 6, of the Road Traffic Act.

[2]The particulars of the charge to which he pleaded guilty were in these terms: ‘On 15 April 2016 at Darlington, in the County of Durham, when suspected of having driven a vehicle and having been required to provide a specimen, or specimens, of breath for analysis by means of a device of the type approved by the Secretary of State, pursuant to Section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under Section 3A, 4, 5 or 5A thereof, failed, without reasonable excuse to do so’.

[3]The challenge is by way of judicial review for which permission has been granted.

[4]I deal first with the issue of whether judicial review lies, or whether there is on the face of things, a more appropriate route of challenge , namely an appeal against sentence to the Crown Court. I understand that in this case an appeal to the Crown Court has been lodged in time but has been stayed pending the outcome of this judicial review.

[5]I observe that originally, permission was refused on the basis of the availability of an alternative remedy in the Crown Court, and that in any event the challenge in this court should have been by way of case stated not by judicial review. Permission was subsequently granted on the ground that this is not an appropriate approach on the facts of this case. It is conceded by the Interested Party, and I endorse the concession, that judicial review does lie in this case. The relevant authorities, particularly R v Hereford Magistrates’ Court (ex parte Rowlands)

[1997] 2 Cr App R 340

, establish that the exhaustion of alternative avenues of appeal is not, as a matter of principle, necessary when seeking to challenging a magistrate’s decision. This is particularly so in the context of judicial review when, as in this case, procedural unfairness is relied on.

[6]I also endorse that which the interested party has laid before me in its skeleton argument, as a summary of the principles in Rowlands and the observations of Bingham LJ as he then was. That is that there is a need for any applicant for judicial review to advance an apparently plausible complaint as regards procedural unfairness; that immaterial and minor deviations from best practice will not in themselves, vitiate proceedings in the Magistrates’ Court. The key to any successful challenge on procedural unfairness is that the complaint is one which does go to vitiate the proceedings . The High Court should be generally slow to intervene in decisions of an Inferior Court . It should only do so where there are good grounds for doing so.

[7]As I have indicated, the primary ground, indeed the only ground, now being advanced, is one of procedural unfairness. This is to the effect that in the circumstances that I am about to set out, those representing the claimant on 10 January 2017 were not given a fair opportunity to lay case law before the court which would have had a material effect on the consideration of the issue of special reasons for not endorsing.

[8]I set out first the statutory framework within which the Magistrates were operating, before moving to the material facts and circumstances.

[9]As far as the statutory position is concerned, the appropriate schedule ( Schedule 2) to the Road Traffic Offenders Act 1988 (‘the Offenders Act’ ) sets out the applicable provisions relating to sentence for offences under the Road Traffic Act 1988 ( ‘the 1988 Act’ ).In relation to the offence to which the claimant had pleaded guilty, that is one under section 7 of the 1988 Act, disqualification is obligatory where the offender at the material time, was driving or attempting to drive the vehicle. In any other case, disqualification is discretionary but there is an obligatory endorsement of 10 penalty points. However, this is subject to section 44 of the Offenders Act under subsection 2 of which , where the court does not ( as happened in the present case ) order the person convicted to be disqualified, it need not order the otherwise obligatory endorsement if for special reasons it thinks fit not to do so.

[10]To amount to a special reason, a matter must: 1) be a mitigating or extenuating circumstance; 2) not amount in law to defence to a charge; 3) be directly connected with the commission of the offence; and 4) be one which the court ought properly to take into consideration when imposing sentence. What I have just set out comes from the case of R v Wickens

[1958] 42 Cr App R 236

. These principles flow from the exposition of what amounts to a special reason to be found in the R v Crossan [1939] NI 106 (KBD Ir). The critical distinction is that a circumstance peculiar to the offender, as distinct from one relating to the facts of the offence, is not a special reason for these purposes.

[11]The background facts are as follows. On Friday 15 April 2016 at about 10 past 5 in the evening, the claimant telephoned the police from a telephone kiosk on Halton Green stating he was having a domestic dispute with his partner who was hitting him. Two police officers, PCs Tennant and Hobson, attended him. They saw the two persons standing calm and apart, on the street near to the telephone box. PC Hobson spoke to the partner who alleged that the claimant had driven their car, a Nissan Juke vehicle, to the Greyhound Horse public house. That public house was near the scene of the telephone box. She alleged that he had driven it to that public house while intoxicated with alcohol. PC Tennant spoke to the claimant who was described as obstructive and appeared to be trembling.

[12]There has never been any dispute in this case the claimant at that time was drunk. The vehicle was observed to be parked at the rear of the public house. The claimant had possession of the vehicle keys. The officers required him to provide a roadside breath. He refused three times. He asserted that he had had a drink but had not been driving. He was arrested thereafter for failing to provide a specimen of breath and then, after making no reply to the caution, was conveyed to the police station. He refused there to provide a specimen of breath saying, ‘No. Why should I? If I’m over the limit, it’s because I’ve had a drink’. The claimant was then charged late that evening, with failing to provide a specimen. He was bailed to attend the Magistrates’ Court on 19 May 2016.

[13]Having initially said she would provide a statement, the partner declined to do so. One of the two officers, PC Hobson, also attended the public house and spoke to the staff. They could not remember a person of the claimant’s description being in the pub, and they also told him that the CCTV covering the rear car park was not working or available to view.

[14]The procedural history comes from the witness statement of the claimant’s solicitor, Marie Barker, dated 28 February 2017. On the claimant appearing in court on 19 May 016, his case was adjourned for further enquiries. Miss Barker, who represented the claimant throughout, states that in court on 2 June 2016, the guilty plea was entered on a basis of plea that the claimant had not been driving the vehicle or been in charge of the vehicle in the relevant period for the purposes of the offence. The prosecution at that stage did not accept the basis of plea. It is clear that the matter was listed eventually for a Newton hearing on 10 January 2017.

[15]There is in my papers something called a’ Preparation for Effective Trial ‘ form, produced under the criminal procedure rules, to be completed by both prosecutor and defendant. It is of interest that the prosecution to the question, ‘Does the prosecutor intend to serve more evidence?’ stated the following:

‘Defence have requested PC Tennant; enquiries to be made as no s’ment currently on file”. The defendant, or defendant’s representative, on that same page, stated in section 6 (headed ‘Advice on plea and absence’) ‘already pleaded’

. At internal page 3, under section 8.2 headed ‘What are the the disputed issues of fact or law fortrial’ this is stated on behalf of the defendant\; ‘The defendant denies driving the vehicle or being in charge of it’.

[16]I pause here to record the relevance of these facts. As already set out, if the defendant was not driving the vehicle, or attempting to drive it, this goes to sentence in that disqualification in these circumstances is not obligatory. The question of whether the defendant was in charge of it or not, does not in itself, within the terms of the statutory provisions, go to whether or not disqualification is obligatory or to the imposition of penalty points. However, it is clearly relevant to mitigation in that if it was found that the claimant was not in charge, this would go to the issue of what was the appropriate penalty by way of fine or otherwise. The Form makes no mention of the case being listed for a special reasons hearing although it has been accepted before me that if it were found that the claimant were not in charge of the vehicle at all, this could amount to a special reason within the legal principles I have already outlined.

[17]I note further at page five of this document, that in a part to be completed by both prosecutor and the defendant’s representative, as regards witnesses, it is ticked that two officers may well be called for the prosecution, PC Hobson and PC Tennant, and the defendant was expected to be a witness, and the disputed issue being recorded as ‘denies driving or being in charge.’ This is given under the question, ‘What disputed issue in the case makes it necessary the witness, in this case to give evidence in person?’

[18]Ultimately, when the case returned to court 10 January 2017, there was, it appears, confusion initially, certainly within the prosecution, as to the purpose of the hearing on that day.

[19]Before I set out my understanding of the facts concerning that occasion, it is convenient that I record the following as regards the sort of facts that are capable of amounting to special reasons for not endorsing the otherwise obligatory penalty points. Critical to this claim, is the authority of the decision in the McCormick v Hitchins [1988] RTR 182. I have before me two sources of what that case decided. I have the law report of the Divisional Court decision which, in the report I have, is at

[1986] 83 Cr App R page 11

. There is also before me the summary of the effect of McCormick given in Wilkinson’s Road Traffic Offences, currently at paragraph 21.47. This is the summary given:

‘ In McCormick v Hitchins [1988] RTR 182 it was held that where a defendant had no intention of driving a vehicle and he could not have been a danger on the road, there were special reasons for not endorsing the defendant’s licence with the obligatory 10 penalty points in respect of a charge under what is now s.7(6) of the 1988 Act when not driving or attempting to drive. Whilst it is clear in the light of McCormick v Hitchens and Bunyard v Hayes [1985] RTR 348 that the fact that a defendant charged under an offence under what is now s.7(6) of the 1988 Act was not driving at the material time, is capable in law of amounting to a special reason, it is equally clear that the courts still have a discretion under s. 44(2) of the 1988 Offenders Act, as to whether or not to order an endorsement. The Divisional Court so held in Rv Ashford and Tenterden Magistrates’

Court Ex parte Wood) [1988] RTR 178. On the particular facts of the case (defendant not driving but only because so dissuaded by a friend) the Justices had been entitled to order ,as they did , the endorsement of the statutory 10 penalty points on the defendant’s licence.’

[20]Any reading of the law report of McCormick demonstrates that what is said in Wilkinson is a fair summary of the case law. What it decides is that in a case where the defendant has been found (or it has been conceded) not to have been driving or attempting to drive at the material time, the fact, if found, that he had no intention to drive and could not have been a danger on the road, is capable of being a special reason for not endorsing, but notwithstanding such a finding, endorsement is still a matter in the discretion of the Justices. It is still for them to decide whether to choose to exercise their discretion in the defendant’s favour.

[21]What is also clear, is that in order to find facts amounting to special reasons, there has to be evidence before the court. The onus of establishing the facts on which the plea of special reasons is based, lies on the defendant. So in the context of this case, unless there were a concession by the prosecution, there will always have been a need for the defendant to give evidence, or provide evidence in some other way, to the effect that at the material time, he had not been driving or attempting to drive and that he had had no intention of driving.

[22]Let me go back to the facts according to Marie Barker. This is what she says in her statement: ‘2. The case next came before the court on 2 June when the defendant entered a guilty plea on the basis that he had not been driving or been in charge of a vehicle. I represented him on that occasion. It was agreed by the Legal Adviser, the prosecutor and myself, that a Newton hearing would be necessary to make a determination as to whether defendant was 1) driving, 2) ‘in charge’ or 3) neither driving nor in charge. It was also agreed if the defendant’s account was accepted, this could amount to a special reason not to endorse his licence at all. The case was adjourned again to 10 January 2017. 3. I attended a hearing on 10 January 2017 late as the date had not been placed into our court diary, and I was not, therefore, aware that the case was listed that day until the court rang to inform me. The telephone call was not received until well after 10am. I promptly made my way to court following a brief conversation with the Legal Adviser on the telephone, when she advised me that the prosecutor was willing to accept that the defendant was ‘in charge’ and not driving which removed the possibility of automatic disqualification. 4. Upon arriving at court, I attended upon the defendant in order to have a brief consultation with him before going into court. It remained clear that the defendant did not accept being in charge and was maintaining that he had never been in the vehicle after consuming alcohol, nor did he ever have any intention of driving. For the avoidance of doubt, my late arrival had no bearing on the events which followed as there was ample time to deal with matters due to the prosecution deciding not to call any evidence. 5. After attending upon the defendant, I entered the courtroom to speak with the Prosecutor and the Legal Adviser. I confirmed that the defendant did not accept that he was ‘in charge’ and the Newton hearing would therefore need to proceed. It was clear that neither the prosecutor nor the legal adviser realised that the defendant had already pleaded guilty to the charge. In fact, the prosecutor indicated that he had prepared this case to trial as the file had not been marked correctly. Upon checking the court file, the Legal Adviser confirmed it was listed as a Newton hearing, not a trial. 6. Discussions then took place between the Legal Adviser, the Prosecutor and me, in the absence of the Magistrates, as to why the case was listed. Of those present in court on 10 January 2017, I was the only one who had been present when it had been listed for a Newton hearing and special reasons argument on the last occasion. It had been agreed that if, after hearing evidence, the defendant was found by the magistrates to be driving, he would be automatically disqualified. If he was found to have been ‘in charge’ he would either receive 10 penalty points or be disqualified at the discretion of the court. And lastly, if he was found to be neither, this could amount to a special reason not to endorse his licence at all’.

[23]I interpose at this point, that what Miss Barker states as to the agreement on the previous occasion does not in fact correctly reflect the totality of the legal position as to what can amount to a special reason for non-endorsement . It is clear from McCormick v Hitchins itself, where the defendant had been in charge, that there can be special reasons, albeit the offender is in charge, on the facts as indicated in that case, namely where there is a finding of no intention to drive and the defendant could not have been a danger on the road.

[24]I continue with Miss Barker’s statement. ‘7. At this stage, the prosecutor took exception to what had been agreed at the last hearing. He stated that a finding that the defendant was not driving would mean he would fall to be sentenced either way by way of points or a discretionary disqualification regardless of whether he was ‘in charge’. He refused to concede that if the court found that he was neither driving nor ‘in charge’, this could be a special reason not to endorse. The Legal Adviser asked what case I relied on with respect to the special reason. I briefly left court to look up the case and came back, confirming that, as citied in Wilkinson, the case was McCormick v Hitchins. The prosecutor continued to state he could not accept that’.

[25]I interpose the following. I have already set out the summary of McCormick v Hitchins and I, myself, do not understand what Miss Barker is saying in paragraph 7 when she says that the prosecutor refused to concede that if the claimant was neither driving, nor in charge, this could be a special reason not to endorse. McCormick v Hitchins as regards special reasons, did not look to the issue of whether or not the offender he was in charge, but concerned a finding of fact in relation to someone who was not driving at the material time, that he had no intention to drive in the future. This issue of no intention to drive does not appear in paragraph 7. I might say, however, that by reference to that which Mr Newton originally asked me not to look at because it had not been properly produced in a witness statement, namely a chronology produced by the Legal Adviser attached to the Acknowledgement of Service on behalf of the court, it is clear that according to the Legal Adviser ,what was the issue between the prosecutor and Miss Barker, was that the prosecutor was refusing to accept that the fact the claimant had no intention of driving could be a special reason.

[26]Let me continue with Miss Barker’s witness statement: ‘8. I then left the court room again for a short period of time to speak to the defendant. Upon re-entering the courtroom, the legal adviser asked me to bring in the defendant without further attempt to resolve the conflict. I duly did so, and the magistrates came in to hear the case. 9. There then followed approximately 45 minutes of what can only be described as conflicting submissions between the prosecutor and me with the magistrates quite clearly, with respect, failing to understand what was happening. I continued to submit, as I had before the hearing, that the purpose of the listing was for the court to make the said determination as described above after hearing evidence from the defendant and then to proceed to sentence. The Prosecutor then indicated the CPS had no evidence the defendant was driving and that he would concede that point. He went on to say, however, this left the defendant to be sentenced either by way of penalty points or disqualification. He could not accept there could be a special reason not to endorse as he had not seen a copy of the case of McCormick v Hitchins. 10. The Magistrate then asked me why I had not filed and served a copy of the case. I indicated that I had never been directed to and at the last hearing, it was common ground between the legal adviser, the prosecutor and me, that if the defendant was found not to be driving, or ‘in charge’, this could be a special reason as per the case law. I went on to point out that this was cited in Wilkinsons and was a well-known, established element of the caselaw. In addition, it was not raised as an issue at the last hearing otherwise the Court could have directed skeleton arguments and the filing of a supporting caselaw. 11. I suggested that if it was now an issue, the court could proceed to hear the evidence and make the determination before adjourning to sentence and make directions in respect of the disputed issue’.

[27]I pause at this juncture. It is clear to me in paragraph 11 that by reference to determination, Miss Barker apparently refers to that which had been set out in the Preparation for Effective Trial form, that is the issue whether the claimant had been driving at the material time of the offence, or had been in charge. Again, she does not refer, unfortunately, to what undoubtedly was the critical issue for determination, arising out of McCormick v Hitchins, of whether, regardless of whether the defendant was in charge, so long as he had not been driving or attempting to drive at the material time, he had no intention of driving in the future, and could not be a danger on the road.

[28]I continue with paragraph 11:

‘I suggested that if it was now an issue, the court could proceed to hear the evidence and make the determination before adjourning to sentence and making directions in respect of the disputed issue. Alternatively, the case could be stood down for a short time while the case was made available to the prosecutor and the court. Obtaining a full transcript of the case would have taken a matter of minutes. I also questioned whether, in fact, the Prosecutor was conceding that the CPS had no evidence that the defendant was either driving or ‘in charge’

. He stated he could not concede that the defendant was not ‘in charge’ due to the potential implications regarding the sentence. I indicated these were two separate issues. 12. The Legal Adviser then specified that the case that I was relying upon should have been filed and served before the hearing. She did not at any stage cite the case of R v Picton which she refers to in her letter of 25 January 2017 to my firm. The Magistrates then discussed matters briefly between themselves and stated that the case regarding special reasons could not be relied upon due to it not being filed and served and there would be no adjournment. The court then directed they would proceed to the sentencing exercise. 13. The prosecutor outlined the CPS case then mentioned special reasons indicating that he could not accept that a finding of not driving could be a special reason, as per the case I cited, but he would not prevent an argument being advanced anyway. I put forward the defendant’s account by way of submission. I proceeded to ask the court to find that as there was no evidence of him driving, or ever having been inside the car after consuming alcohol, or having an intention to drive, that this was a special reason for not to endorse his licence. The legal adviser then quoted to the magistrates the case of what is capable of amounting to a special reason, the name of which I did not note down. ‘ 14.The Magistrates retired and asked for the legal adviser to join them. They returned and passed a sentence of 10 penalty points to be endorsed upon the defendant’s licence together with a fine of £120, prosecution costs £80, and a victim’s surcharge of £30. They said they found nothing in the case to suggest there was a special reason not to endorse the licence at all. No reference was made to any determination on whether the defendant was ‘in charge’ and the magistrates made no mention at all whether they accepted the defence position as I outlined’.

[29]As I have indicated, the only ground now being put forward for inviting this court to quash the sentence and to remit the matter to the magistrates, is the procedural unfairness in the court refusing to allow the claimant, through his solicitor, a short adjournment to obtain the law report of McCormick v Hitchins if ,as appears, the prosecution, and indeed the Legal Adviser, were not prepared to accept the Wilkinson summary of that which McCormick v Hitchins established .

[30]I have no doubt that there was procedural unfairness in this case. It beggars belief in my judgment that the prosecution, and the Legal Adviser, and, indeed, I have to say, the court, the magistrates, were not aware of their responsibility to ensure that the law governing special reasons was properly before the court.

[31]If the Legal Adviser and/or the Prosecution took the view that the Wilkinson summary of McCormick v Hitchins was not a proper basis for the principles relied on by the claimant’s solicitor as to what would amount to a special reason, then, of course, the court , on proper advice, should have acceded to a short adjournment for the obtaining of the law report. This would in all likelihood have taken a matter of minutes, given availability of computers, and the PCU, and so forth .

[32]Indeed, the Interested Party, the DPP, has conceded in its Detailed Grounds For Contesting the Claim that what happened was ‘ prima facie unfortunate’. Paragraph 33 of those Grounds is, in part, in these terms ::

[33]‘33.The DPP concedes that it is prima facie unfortunate that (1) MB sought to to rely on the principles in McCormick v Hitchens but failed to furnish the Court or the CPS with a copy of the judgment or a law report of the case; 2) neither party, nor CB,( a reference to the Legal Adviser), was able to obtain a copy of the judgment of the court, notwithstanding the case is reported and freely available, forexample, on the website. 3) the prosecutor was unwilling to address the court by relying on the summary the McCormick in Wilkinson’s ; 4) the court was invited to entertain an application for adjournment to obtain a copy ;5) the Court refused the application’

[34]The issue, however, is whether or not this procedural unfairness can be said to have vitiated the sentencing proceedings before the magistrates, and/or whether this court should, in exercise of discretion, grant the remedy sought bearing in mind that if the court declines to do so , there is still the availability of the appeal to the Crown Court.

[35]What is wholly unexplained in Miss Barker’s witness statement is why, notwithstanding the refusal of the court to grant that adjournment to obtain the law report, and notwithstanding the prosecution’s insistence that it would not accept ( and I take this to have been the position based on the Legal Adviser’s Chronology) that an intention not to drive could amount to a special reason, she simply ( again quoting her paragraph 13, ‘ proceeded to ask the court to find that, as there was no evidence of him driving or ever having been inside the car after consuming alcohol, or having an intention to drive, that this was a special reason for not to endorse his licence’, without first seeking to call her client to give evidence in support of the special reason put forward . On her own evidence, to this court Miss Barker put forward the defence account of events only by way of submission. She was not however prevented by the stance adopted by the prosecutor as to the applicable legal principles , from putting forward her own submissions as to what those legal principles were. She was not prevented from calling evidence from her client and seeking a determination of fact from the magistrates.

[36]The Magistrates could not lawfully have refused the opportunity for the defendant to give evidence on any issue of fact which went to sentence, in particular special reasons. Indeed, as is clear in the history, the case had been listed for a Newton hearing on facts material to sentence. Had the claimant given evidence, the Magistrates would have been compelled to make findings of fact. If they had made a finding of fact that the claimant had had no intention to drive and he could not have been a danger on the road, they would then have had to have gone on to decide whether or not there were special reasons for not endorsing, and if not, why not, bearing in mind that it was ultimately a matter for their discretion .

[37]One of the further unfortunate features of this case (again conceded by the DPP in their paragraph 33 of their Detailed Grounds) is that the Magistrates did not make any express findings as to whether or not the defendant was in charge of the vehicle and did not give any reasons why it did not find that special reasons existed, and/or why it had not exercised its discretion not to endorse the claimant’s driving licence. However, in the position the magistrates were in, this cannot be a good ground for this court to interfere with their finding of no special reason. Given there was no evidence before the court, either on the issue, if it be material, of whether the claimant was in charge or not, and no evidence at all of whether or not he had had an intention to drive in the future, the magistrates would have had no basis for finding special reasons in this case.

[38]The critical issue for me is whether there is any substance in the submission made by Mr Newton on behalf of the claimant that, as he put it in a written response, the entire nature of the proceedings and the way that the procedural issues raised were so unfairly dealt with, rendered any attempt to call evidence futile. The underlying issue in this claim, said Mr Newton, is that the claimant suffered procedural unfairness in the way the matter was dealt with and ‘therefore to criticise him for failing to give evidence is a defection from the real issue’. The whole purpose of the claimant giving evidence would have been to allow him to avail the legal principle, in McCormick v Hitchins. The refusal of the prosecutor to acknowledge the legal position and the refusal of the Magistrates’ Court to facilitate a proper resolution of the disagreement of law, rendered ( in the words of Mr Newton’s written submission ) ‘all that came after futile’.

[39]In all oral submission, Mr Newton made the frank concession that it may well be that a more robust legal representative would, notwithstanding what had been said by both the prosecutor and the court, have proceeded to call evidence and, in effect, put the court in the position whereby it had to make a determination of fact, and give reasons, stating the legal principles it was applying, for deciding ,if it did , that there were no special reasons in this case .

[40]Mr Newton went further and submitted that albeit Miss Barker did not positively apply to call evidence, given the circumstances, she should have been prompted to do so by the Legal Adviser.

[41]Ultimately, I have to decide how the principles of fairness should be applied to this claim. I have found there was procedural unfairness but I have also found that notwithstanding that procedural unfairness, it was always open to Miss Barker to call evidence but she did not do so, and absent such evidence it was not open to the Magistrates to find special reasons not to endorse the Claimant’s licence with the otherwise obligatory 10 penalty points.

[42]When I commenced hearing this case, my preliminary view was that the failure to call the claimant to give evidence, went to undermine the whole of this challenge. This is very much the submission of the Interested Party. Ultimately, however, I have been persuaded that the procedural unfairness in this case was so unfair that this court would not be giving proper recognition to that unfairness if it dismissed this claim /or refused the remedy sought. The effect of dismissing the claim and/or refusing the remedy is that the claimant will be prevented from having a first opportunity on the issue going to special reasons by giving evidence in the Magistrates Court and obtaining a determination on the issue from the magistrates before deciding whether he needs to utilise his right of appeal to the Crown Court. His only opportunity to give evidence and to obtain that determination will be in the Crown Court on appeal and this will be for the first and only time. This on the face of things is unfair.

[43]In my judgment, the failure of the Magistrates Court to allow the claimant a short adjournment, likely to have been a very short one , to obtain the reported legal authority and the failure of the Legal Adviser to advise the magistrates that it was essential, if it be an issue, that the applicable legal principles relating to special reasons be laid before the court in proper form, if a proper decision was on special reasons was to be made, did vitiate the proceedings thereafter.

[44]I have been persuaded that Miss Barker was, in effect, thrown off the course she would have followed had she been given the proper opportunity to obtain that authority, and that the failure to call her client to give evidence can be explained in that way. In other words, it all flowed from the preceding procedural unfairness.

[45]Accordingly there is, in my judgment, sufficient here, arising from the fundamental procedural unfairness which I have identified, to lead this court to conclude that the whole proceedings thereafter were vitiated, and that the claimant has , in effect, been denied a fair hearing on the issue of special reasons.

[46]I, therefore, grant the remedy which the claimant seeks, which is the quashing of the sentence of the magistrates and for the whole matter to be remitted to the magistrates for the purpose of a fresh sentence hearing. On that occasion, the issue of special reasons can be properly litigated with evidence being called and the applicable legal principles being laid before the court. End of judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com