Robertson, R (on the application of) v South Western Magistrates' Court

On judicial review of a refusal to state a case, the question is whether the magistrate’s conclusion that the proposed case was frivolous was wrong in principle. The High Court does not determine the underlying questions of law at that stage. An application is not frivolous merely because the magistrate considers the conviction correct or immune from challenge. It may be refused only where it is futile, misconceived, hopeless or academic. Where statutory procedure or disputed evidence raises an arguable legal issue, the magistrate should state a case and give sufficiently clear findings and reasons. A refusal to state a case concerning an approved device may also be unlawful where the magistrate rejects uncontradicted expert evidence without reasons.

The claimant was convicted of driving with excess alcohol and disqualified from driving. He applied under Magistrates' Courts Act 1980, section 111, for the District Judge to state a case on seven proposed questions concerning self-incrimination, the statutory urine-sample procedure and the approval and accuracy of the breathalyser device.

The District Judge refused, certifying that the application was frivolous. Permission for judicial review was granted and the disqualification was suspended. The central issue was whether a reasonable magistrate could have refused to state a case on the proposed questions.

1. Outcome. The claim succeeded to the extent that the District Judge was directed by mandamus to state a case on four questions. The question concerning mouth alcohol was not pursued and the refusal to state a case on it was upheld. The claimant’s costs were ordered to be paid out of central funds, and the suspension of disqualification was continued.
2. Applicable threshold. Under section 111 of the Magistrates' Courts Act 1980, judicial review examined whether the conclusion that the application was frivolous was wrong in principle. The practical question was whether no reasonable magistrate would have refused to state a case. The High Court was not deciding the underlying questions of law.
3. Self-incrimination. Although DPP v Wilson [2002] RTR 6, following Brown v Stott [2001] RTR 121, had decided the substantive issue against the claimant, the later decisions of the European Court of Human Rights relied on by him, Heaney & McGuiness v Ireland 34720/97 and JB v Switzerland 31827/96, made the proposed question non-frivolous. No reasonable magistrate could have refused to state a case on it.
4. Urine specimens. Sections 7 and 8 of the Road Traffic Act 1988 raised arguable questions about when the one-hour period began, whether a person could be required to provide urine while not permitted to do so, and whether police conduct had denied a proper opportunity to provide the statutory specimens. The District Judge had not made sufficiently precise findings of fact. The proposed questions were therefore far from frivolous, without the High Court expressing any view on their eventual merits.
5. Approved device. The claimant accepted that the general challenge to approval had been decided in DPP v Memery [2002] EWHC 1720 Admin and did not pursue it. A narrower issue remained whether alterations had caused the device to cease to be the approved device. The District Judge rejected uncontradicted defence expert evidence without giving reasons. That omission made refusal to state a case wrong in principle. The District Judge was directed to give short reasons and fuller findings, including reasons for rejecting the expert evidence.
6. Final directions. The case was to be stated on four questions concerning admission of the driving statement, compliance with sections 8(2) and 7(4) and (5), the opportunity to provide a second urine specimen, and alterations to the breathalyser device. The period under rule 77 of the Magistrates' Courts Rules 1981 was extended to 28 days from receipt of the order or judgment, whichever was later.

The District Judge refused to state a case, certifying under section 111(5) of the Magistrates' Courts Act 1980 that the application was frivolous. The Administrative Court granted judicial review and ordered mandamus under section 111(6), directing the District Judge to state a case on four questions.