Milne, R (on the application of) v Berwick-Upon-Tweed Magistrates' Court

Where procedural complaints arise from a magistrates’ court trial, the ordinary and appropriate remedy is an appeal to the Crown Court. Judicial review should not be used as a collateral route to obtain further declarations or damages after a successful rehearing appeal, particularly where the proposed claim has no reasonable prospect of success.

A magistrates’ court speaks through its reasons. Its clerk must not send separate representations to the appellate court seeking to justify the magistrates’ decision or the clerk’s own conduct. Any permissible explanation belongs in the court’s reasons.

Graham Milne sought permission out of time to challenge his conviction by Berwick-upon-Tweed Magistrates’ Court for disorderly conduct contrary to section 5(1) of the Public Order Act 1986. He alleged procedural unfairness, including restrictions on cross-examination and the transmission of an argumentative letter by the justices’ clerk to the Crown Court.

His appeal to the Crown Court proceeded by way of rehearing and succeeded, so that the conviction and sentence were quashed. He nevertheless sought judicial review, declarations, a mandatory order and damages. Permission had previously been refused on the papers. The issues were whether time should be extended and whether the proposed judicial review had any reasonable prospect of success.

1. Application refused. The court refused an extension of time. Mrs Justice Rafferty held that the claim had no reasonable prospect of success and reached that conclusion on the merits as well as on delay. Lord Justice Pill agreed.
2. The appropriate remedy for complaints about the procedure followed in the magistrates’ court was an appeal to the Crown Court. Mr Milne had exercised that remedy successfully by way of rehearing, with the result that his conviction and sentence fell away. Judicial review could not provide the further declarations, mandatory order or damages sought for the original proceedings.
3. The court nevertheless criticised the justices’ clerk’s letter. Mrs Justice Rafferty considered that the letter should not have been sent in that form. If any explanation was permissible, it should have been contained in the magistrates’ reasons rather than in a separate submission by the clerk.
4. Lord Justice Pill stated that it was fundamental that a court speaks through its judgment and that an appellate court should have the reasons given below, not additional representations intended to influence the appeal. The clerk’s attempt to justify the magistrates’ conduct, and his personal comments about the claimant, were wholly inappropriate.
5. The judgments were directed to be supplied to both the magistrates’ court and the Crown Court. The further orders and declarations sought by the claimant were refused.

• Magistrates’ Court: The claimant was convicted on 20 June 2006.
• Crown Court sitting at Newcastle: The claimant’s appeal proceeded by way of rehearing on 13 March 2007. The conviction was quashed and the sentence fell away.
• High Court (Administrative Court): Permission for judicial review was refused on the papers on 8 October 2007. The renewed application and application for an extension of time were refused in this judgment.