McCombie, R (on the application of) v Liverpool City Magistrates' Court

An application to state a case may be refused as frivolous only where it is futile, misconceived, hopeless or academic. The court must not refuse merely because it considers its decision correct, assumes that the applicant should have pursued another remedy, or treats evidential questions as incapable of raising a question of law.

Where the evidence arguably leaves open whether a defendant was the driver, the proper question is whether, on all the evidence, conviction was legally open to the magistrates. A case should identify that generic legal question rather than isolate disputed evidential points. If the application is seriously arguable, the magistrates must state the case and explain the evidence and findings relied upon.

The claimant sought judicial review of a District Judge’s refusal to state a case following his conviction in the Liverpool Magistrates’ Court for driving without due care and attention, failing to stop and failing to report an accident. The proposed questions concerned the timing of events, the colour and continuity of a jumper containing glass fragments, the absence of glass in the claimant’s hair, and the weight given to evidence concerning another possible driver.

Permission had been granted for a rolled-up hearing, but the court confined the hearing to whether the refusal to state a case should be quashed. The central issue was whether the application was properly certified as frivolous under section 111 of the Magistrates Court Act 1980.

1. The judicial review was allowed. The District Judge’s refusal to state a case was quashed, and the matter was remitted for a case to be stated. The court declined to determine the substantive appeal itself because the interested prosecuting authority and the District Judge’s fuller reasoning were needed to identify the material facts and issues.
2. The expression “frivolous” in this context bears the meaning explained in R v North West Suffolk (Mildenhall) Magistrates’ Court ex parte Forest Heath District Council [1997] EWCA Civ 1575: the application must be futile, misconceived, hopeless or academic. The threshold is high. Magistrates must not certify an application merely because they believe their decision to be correct, or because the applicant could have pursued an appeal to the Crown Court.
3. The proposed questions were defective because they isolated individual factual matters. The proper question was whether, on all the evidence adduced at trial, the District Judge could properly be satisfied beyond reasonable doubt that the claimant was the driver and therefore guilty. If there is a seriously arguable case that conviction was not legally open on the evidence, the case must be stated, with the evidence, findings and reasoning identified.
4. The District Judge had failed to address material matters, including the timing evidence and the different colours attributed to the claimant’s and the recovered jumpers. He had also wrongly treated Dr Newby as a defence witness and thereby suggested that the claimant was bound by evidence which the prosecution had called. The prosecution bore the burden of excluding other reasonable possibilities; the claimant was not required to identify the actual driver.
5. The application was within time. Under section 111(3) of the Magistrates Court Act 1980, where sentence is adjourned after conviction, time runs from the date of sentence or other disposal.

High Court (Administrative Court): The judicial review was allowed. The District Judge was required to state a case, and the substantive appeal was left for consideration by a Divisional Court.