Miller v Director of Public Prosecutions

A breach of the reasonable-time guarantee in Article 6 does not ordinarily invalidate a criminal conviction where the hearing remained fair and it was fair to try the defendant. The appropriate remedy depends on the nature of the breach and all the circumstances. It may include reducing the penalty imposed.

In a totting-up case, unreasonable delay may be considered under section 35(1) of the Road Traffic Offenders Act 1988 when deciding whether to mitigate the normal consequences of conviction. The court may substitute a shorter period of disqualification. A defendant is also entitled to reasonable costs necessarily incurred in a successful wasted-costs application.

The appellant had pleaded guilty by post to three speeding offences. The magistrates’ court unlawfully issued a warrant without first following the statutory procedure applicable where disqualification was being considered. The warrant was not executed for almost two years.

The magistrates rejected the appellant’s objections based on Article 6 and imposed fines, penalty points and a 12-month totting-up disqualification. They also made a wasted-costs order against the prosecution but refused the appellant’s costs of obtaining it. On a case stated, the questions were whether the delay breached Article 6 and whether the refusal of those costs was Wednesbury unreasonable.

1. Article 6 breach. The prosecution conceded, correctly, that the delay of over two years before sentencing, together with about a further year caused by the refusal to state a case, was unreasonable. The appellant had not contributed to the delay. The magistrates therefore erred in failing to find a breach of Article 6(1).
2. Remedy. The governing principles were stated by the majority in Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68. A retrospective breach after a fair hearing does not justify quashing a conviction unless the hearing was unfair or it was unfair to try the defendant. A reduction in penalty may be an appropriate remedy.
3. Disqualification. The court could take the unreasonable delay into account under section 35(1) of the Road Traffic Offenders Act 1988, which permits mitigation of the normal consequences of conviction having regard to all the circumstances, subject to section 35(4). A shorter disqualification was just and appropriate. The 12-month period was quashed and five months substituted.
4. Wasted costs. The appellant was entitled to reasonable costs for necessary work in making the wasted-costs application. The DPP’s offer of £375 plus VAT was ample and was ordered to be paid. The complaint about the amount of the original wasted-costs order was not pursued before the Divisional Court and was not allowed to be raised on this appeal.
5. As to the costs of the appeal, one half was ordered to be paid out of central funds, assessed at £3,000.

Divisional Court: On 4 July 2002, Rose LJ and Gibbs J directed the magistrates to state a case on the Article 6 and wasted-costs questions. The present court then determined those questions and allowed the appeal to the stated extent.