Gatenby, R (On Application Of) v Newton Ayecliffe Magistrates' Court

Judicial review may lie against a magistrates’ sentencing decision despite an available appeal, particularly where a plausible complaint of procedural unfairness is raised. Minor departures from good practice do not suffice; the unfairness must vitiate the proceedings. A circumstance may constitute a special reason for avoiding obligatory endorsement where it is mitigating or extenuating, is not a defence, is directly connected with the offence, and ought properly to be considered in sentencing. Where the defendant’s lack of driving, lack of intention to drive and inability to pose a danger are established, the court retains discretion whether to endorse. A refusal to allow a short adjournment to obtain relevant authority, coupled with inadequate legal assistance, may deny a fair hearing and justify quashing the sentence.

The claimant pleaded guilty to failing to provide a specimen of breath under Road Traffic Act 1988, section 7(6). The magistrates later imposed the obligatory 10 penalty points. The case had been listed for a Newton hearing concerning whether the claimant had been driving or in charge of the vehicle and for consideration of special reasons.

At the sentencing hearing, the claimant’s solicitor relied on McCormick v Hitchins but was refused a short adjournment to obtain the report. The magistrates proceeded without hearing evidence from the claimant and imposed the endorsement. The central issue was whether the procedural unfairness vitiated the sentencing proceedings.

1. Judicial review lay notwithstanding the available Crown Court appeal. The claimant advanced a plausible complaint of procedural unfairness. Exhaustion of alternative remedies was not a matter of principle where such unfairness was alleged, although the High Court should intervene in inferior-court decisions only on good grounds: R v Hereford Magistrates’ Court (ex parte Rowlands) [1997] 2 Cr App R 340.

2. The statutory framework made endorsement of 10 penalty points obligatory unless the court found special reasons under section 44(2) of the Road Traffic Offenders Act 1988. A special reason had to be a mitigating or extenuating circumstance, not amount in law to a defence, be directly connected with the offence, and be a matter which the court ought properly to consider in sentencing: R v Wickens [1958] 42 Cr App R 236; R v Crossan [1939] NI 106 (KBD Ir).

3. McCormick v Hitchins [1988] RTR 182, also reported at [1986] 83 Cr App R 11, established that where a defendant was not driving or attempting to drive, lack of intention to drive and inability to be a danger on the road were capable of amounting to special reasons. That remained a matter for the magistrates’ discretion, and could apply even where the defendant had been in charge of the vehicle. The defendant bore the evidential burden.

4. The claimant was entitled to give evidence on facts relevant to sentence. Had he established the relevant facts, the magistrates would have had to determine whether special reasons existed and, if not endorsing, explain their exercise of discretion. Although the claimant’s solicitor could have called evidence, the refusal of a short adjournment to obtain the authority, and the failure to ensure that the applicable legal principles were properly before the court, had diverted the hearing and denied the claimant a fair first opportunity to litigate special reasons.

5. The sentencing proceedings were therefore vitiated. The sentence was quashed and the matter remitted to the magistrates for a fresh sentencing hearing, at which evidence could be called and the legal principles concerning special reasons properly addressed.

• High Court (Administrative Court): judicial review granted. The magistrates’ sentence was quashed and the matter remitted for a fresh sentencing hearing.
• Newton Ayecliffe Magistrates’ Court: imposed 10 penalty points, a fine of £120, prosecution costs of £80 and a victim surcharge of £30. A Crown Court appeal had been lodged and stayed pending the judicial review.