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Cite as: [2006] EWHC 1199 (Admin)

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Neutral Citation Number: [2006] EWHC 1199 (Admin)


Royal Courts of Justice
London WC2
11th May 2006

B e f o r e :





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MR COLIN HART (instructed by Messrs CT Emezie Solicitors, Enfield EN3 7XU) appeared on behalf of the Appellant
MR ROBERT O'SULLIVAN (instructed by Crown Prosecution Services, Kingston Branch, Tolworth Tower, Surbiton, Surrey KT6 7DS) appeared on behalf of the Respondent



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  1. LORD JUSTICE KEENE: The appeal from the South West London Justices sitting at Kingston upon Thames in this case comes to this court by way of case stated. It arises from the conviction of the appellant on 2nd November 2005 of an offence under section 7(6) of the Road Traffic Act 1988, of failing without reasonable excuse to provide a specimen of breath when required to do so under that section.
  2. Before turning to the issues such as they are on this appeal, there are some general observations about appeals by case stated that I am prompted to make by the format and content of the case stated in this appeal. It is highly unsatisfactory for this court to be presented with so poorly a laid out case as the one before us. Rule 64.6 of the Criminal Procedure Rules 2005 (formerly Rule 81 of the Magistrates' Courts Rules 1981) provides as follows:
  3. "(1) A case stated by the magistrates' court shall state the facts found by the court and the question or questions of law or jurisdiction on which the opinion of the High Court is sought.
    (2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the particular finding of fact which it is claimed cannot be supported by the evidence before the magistrates' court shall be specified in the case.
    (3) Unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the case shall not contain a statement of evidence."
  4. It appears to me that those concerned with drafting the case stated in the present case paid little or no attention to the provisions of that rule. Those provisions derive from the fact that the function of this court in respect of a case stated is to determine whether the decision of the justices is "wrong in law or is in excess of jurisdiction" (see section 111(1) of the Magistrates' Courts Act 1980). This court is consequently only concerned with the state of the evidence before the justices in so far as it is said that the findings of fact made by them demonstrate an error of law or an error of jurisdiction.
  5. What this court does need in all cases are clear findings of fact, and a clear identification of the questions of law which are said to arise. The justices should decline to pose questions for this court unless those questions are ones of law. If there is no evidence for a finding of fact, that will give rise to an error of law. But the weight to be attached to particular pieces of evidence is a matter for the justices. Only if no reasonable Bench could have reached the finding in question will that finding produce an error of law or amount to an ultra vires act. If a defendant believes that the justices have arrived at a finding for which there was evidence but at which he contends they should not have arrived (for example, because it was against the weight of the evidence), his remedy lies in an appeal to the crown court, not in an appeal by case stated to this court.
  6. The case stated in the present case runs together a summary of the evidence given with comments by the justices, for example, in respect of the appellant's evidence. It does not, as it should, clearly separate the summary of evidence from the findings of fact. Normally that separation will best be achieved by the use of headings. As I shall indicate in due course, the questions posed at the end of the case stated here are largely ones of fact not law. It is also helpful if the rudimentary step is taken of numbering the paragraphs in any case stated in a sequential manner. That makes for far easier reference when the appeal is heard by this court.
  7. Doing the best that one can with the case stated in the present case, the facts are as follows. The appellant was stopped by police on the morning of 5th April 2005 for not wearing a seat belt. A roadside breath test was requested and was given. It proved positive and the appellant was then taken to Kingston police station. The justices rejected evidence from him that he had had difficulty in providing that roadside breath test and that it had taken at least five attempts.
  8. At the police station the appellant successfully provided the first specimen of breath, which produced a reading of 72. He then had three attempts to produce a second specimen, but without success. The justices seem to have accepted that he was then asked, "Are there any medical reasons why you have not provided two specimens of breath?", to which he gave no reply. In answer to a question about medication, he said that he was on Amoxicillin for an eye infection. The Bench rejected evidence from the appellant that he had been coughing throughout, and that he had said to the officer that he was taking Amoxicillin for a throat and eye infection.
  9. The justices did accept that the appellant had suffered episodes of asthma since early childhood, but had not had any problems with it for a number of years and did not carry an inhaler. They said in the case stated that there was no evidence given by the appellant or anyone else that he showed signs of suffering an asthma attack on the day in question. They accepted the evidence of the appellant's general practitioner, Dr Gupta, that he had seen the appellant on 29th March 2005, a week before the incident, and had on that occasion prescribed antibiotics for a throat infection, that the appellant was not being treated at that time for asthma and that there were not concerns regarding his breathing on that date. It was also accepted that Dr Gupta saw the appellant three days after the incident, that is to say on 8th April 2005. The justices noted that Dr Gupta's evidence was of what they described as "unspecific relevance to the date in question".
  10. There had also been expert evidence from both sides put before the Bench. This came from Dr Lyons for the prosecution and from Dr Josse for the appellant. Both men dealt with the issue of asthma attacks. Dr Lyons had observed that the appellant had provided a first specimen of breath at the police station at 8.46am and that the final failed attempt was at 8.51am, in other words five minutes later. In his opinion it would be unlikely that anyone's asthma could deteriorate in such a short time, without it being obvious to a lay observer. Dr Josse disagreed on that. His evidence was that the lining of the airways could become inflamed as the air rushed over it. According to the case stated:
  11. "... while accepting Dr Lyons' point about the period of time between the two specimens he [that is Dr Josse] indicated that the irritation could have started even before the first specimen was given."
  12. The justices accepted Dr Josse's evidence about how there could be a sudden asthma attack and the nature of the symptoms. But, as I have noted, they found no evidence that the appellant showed any signs of such an attack on the day in question, and they concluded that he had failed to provide a specimen without reasonable excuse. Consequently, they convicted him.
  13. The first question posed in the case stated refers to a sentence which appears in the summary of Dr Josse's evidence. The sentence reads:
  14. "Dr Josse indicated when giving evidence that he did not disagree with Dr Lyons over quite a bit of his evidence."

    The first question posed in the case is as follows:

    "1. Were we right to conclude that the Evidence of Dr Lyons and Dr Josse was substantially in agreement?"
  15. That is not a question of law. It refers on the face of it to a conclusion of fact. Moreover, it appears to refer back to a note of evidence actually given by Dr Josse to which I have just referred. In any event, the justices did then in the case stated note the disagreement between the two experts on the nature and speed of deterioration of the airways.
  16. There is nothing in this point. No question of law is raised. In so far as an answer is appropriate, the answer would be "yes" to that question, because it is a matter which lies within the justices' jurisdiction.
  17. I take the next two questions in the case together. The second and third questions are as follows:
  18. "2. Were we right to conclude that there was no evidence to support Dr Josse's conclusion that the defendant may have been suffering from a narrowing of the airways?
    3. Were we right to conclude that Dr Gupta's evidence was unspecific to the date in question?"
  19. On behalf of the appellant, Mr Hart argues that the finding in question 2 was wrong. The medical records indicated that the appellant had attended Dr Gupta on 29th March with an upper respiratory tract infection for which antibiotics were prescribed, that is to say he was then suffering from a throat infection. Three days after the attempted breath test, the appellant saw Dr Gupta again. Mr Hart argues that this was because the throat infection had not cleared up, and consequently there was evidence that the appellant was suffering from such an infection on 5th April. It is said that it was totally irrational and wrong to say that, while a person was suffering from breathing difficulties on 29th March and these difficulties were still there on 8th April, then go on to hold that those same difficulties in breathing were definitely not there on 5th April.
  20. I could see the force of that proposition if that was the evidence. But it was not. Dr Gupta's evidence was that on 29th March 2005 there were not any concerns about the appellant's breathing. The case stated is then silent as to why the appellant attended Dr Gupta's surgery on 8th April, and apparently the medical records do not reveal any more than that a steroid injection was given on that occasion. Dr Gupta's written report refers to the appellant complaining on 8th April of "wheezing".
  21. It may be that one could not say that there was no evidence from which one might have concluded that the appellant might have been suffering from a narrowing of the airways on 5th April. But the finding of the justices was that there was no evidence of signs that on the day in question he was suffering from an asthma attack and consequential narrowing of the airways on that day. That seems to me to have been a finding open to the justices, given the evidence that the appellant had not had difficulty in providing a roadside breath specimen; that he had successfully provided a first one at the police station; that he did not suggest at the time that there was any medical reason for his subsequent failure to provide a second one; that he had not been coughing at the time; and all that against the background of evidence that he had not had any asthma problems for a number of years, and that there had not been any concerns about his breathing when he was seen by Dr Gupta on 29th March.
  22. That being so, the Bench was in my judgment entitled to conclude, as they appear to have done, that they were sure that the appellant was not suffering from an asthma attack and a narrowing of the airways on 5th April, or indeed any medical condition which caused a failure on his part to be able to provide a specimen of breath.
  23. Question 3, which I have already set out, raises in the way in which it has been formulated no issue of law.
  24. Question 4 in the case stated reads as follows:
  25. "4. Were we right to conclude that the defendant's evidence was substantially at odds with that of the police officers at the roadside and therefore do not find the evidence of the defendant credible?"
  26. This again refers to a finding of fact. Credibility is par excellence a matter for the trial court. It will be very rare for this court, which has not seen or heard a witness, to interfere with such a finding by a court which has done so. In the present case it is clear from the case stated that there were significant conflicts between the evidence of the police officers involved in the roadside test and the appellant, especially as to the number of attempts to provide the specimen of breath at that stage. The officers' evidence was given by way of written statements under section 9 of the Criminal Justice Act 1967. No notice was served on behalf of the appellant requiring their attendance at trial, nor was any application made at the trial to the court to seek their attendance then. In those circumstances, the justices were entitled to prefer the evidence of the officers and to take that evidence into account when assessing the appellant's credibility.
  27. At the end of all this, the real issue is whether the justices were entitled on the evidence and the facts they found to conclude that the appellant had no reasonable excuse for his failure. It seems to me that they were. In the light of the facts to which I have referred, their conclusion was not perverse. It was within the range of conclusions properly open to them.
  28. For those reasons, for my part, I would dismiss this appeal.
  29. MR JUSTICE JACK: I agree. I would add only this. The four questions posed in the case stated are taken straight from the appellant's solicitors' letter to the Magistrates' Court dated 21st November 2005. The dangers of accepting a request to state a case without subjecting the proposed questions to examination to see if they are appropriate questions are demonstrated in Lord Justice Keene's judgment.
  30. LORD JUSTICE KEENE: Thank you.
  31. Yes Mr O'Sullivan?
  32. MR O'SULLIVAN: There is no application for costs, given that the appellant is publicly funded. However Rule 81 of the Magistrates' Courts Rules has been replaced in the same terms, by Part 64.6 of the Criminal Procedure Rules 2005.
  33. LORD JUSTICE KEENE: Thank you. Let me make a note of that. Give it to me again, would you?
  34. MR O'SULLIVAN: Part 64.6 of the Criminal Procedure Rules 2005.
  35. LORD JUSTICE KEENE: Thank you. When I approve the transcript of my judgment I will make that amendment. I trust there is no objection to that Mr Hart?
  36. MR HART: Of course not.
  37. LORD JUSTICE KEENE: I am most grateful to you Mr O'Sullivan for that correction. Thank you very much.
  38. ______________________________

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