Parker v Bradford Crown Court

A statutory requirement may be mandatory, but it must be proved only when properly put in issue. A defence should identify an alleged evidential defect at the appropriate stage and give the prosecution a fair opportunity to address it. Raising the point for the first time in closing submissions may amount to an abuse of process and will not ordinarily support permission to challenge a refusal to state a case.

Permission may nevertheless be granted where there is an arguable question whether secondary legislation validly amended primary legislation under delegated powers derived from European legislation. Such an issue should receive a full hearing, with any government department having relevant responsibility given the opportunity to intervene.

The claimant was convicted in the Magistrates’ Court of driving with excess alcohol and failing to stop after a road traffic accident. His appeal to Bradford Crown Court was dismissed on 28 February 2006. The Crown Court refused to state a case, on the basis that the proposed questions were frivolous.

The claimant sought permission for judicial review of that refusal. One issue concerned the alleged failure to prove the warning required by section 7(7) of the Road Traffic Act 1988. The other concerned the validity of extending section 170 to “a road or other public place” by the Motor Vehicles (Compulsory Insurance) Regulations 2000. The central questions were whether either point was properly arguable and whether the Crown Court had been entitled to refuse to state a case.

1. Permission was refused in relation to the conviction for driving with excess alcohol. The court accepted that section 7(7) of the Road Traffic Act 1988 imposed a mandatory requirement. However, that requirement had to be proved only when properly put in issue.

2. The issue was not properly raised. It was first advanced at the end of closing submissions, after the prosecution had closed its case. The relevant witness had not been challenged about the warning, and the claimant’s own evidence was that he could not remember whether it had been given. The Crown therefore had no proper opportunity to deal with the allegation. In those circumstances, the claimant had no arguable basis for challenging the refusal to state a case.

3. The court distinguished R v Aylesbury Crown Court ex parte Lait [1998] EWHC Admin 319, which concerned compliance with section 69 of the Police and Criminal Evidence Act 1984. The court relied on Dhaliwal v Wolverhampton Magistrates’ Court [2005] EWHC 1284 Admin and R v Stephen Andrew Cook ex parte Director of Public Prosecutions (19 December 2000) in rejecting a tactic that sought to obtain an advantage by reserving the point until the end of the proceedings.

4. Permission was granted on the section 170 issue. The amendment extended the offence from an accident on a road to an accident on a road or other public place. It was arguable, in light of Cutter v Eagle Star Insurance Company [1998] All ER 417, that the amendment went beyond the requirements of the relevant directive and therefore exceeded the power to amend primary legislation through the fast-track procedure under the European Communities Act 1972.

5. The issue was important because it concerned the validity of an amendment to an Act of Parliament. The court directed that the matter proceed to a full hearing and that the papers be referred to the Treasury Solicitor so that the appropriate Secretary of State could consider intervention. The court discouraged the Crown Court from simply stating a case in response to the grant of permission.

• Bradford Crown Court: dismissed the claimant’s appeal against his Magistrates’ Court convictions on 28 February 2006 and refused to state a case.
• High Court (Administrative Court): granted permission for judicial review on the validity of the section 170 amendment, but refused permission on the section 7(7) issue.