Hassani, R (on the application of) v West London Magistrates' Court

1. LORD JUSTICE IRWIN: In this case, the applicant seeks now to withdraw his renewed application for permission to apply for judicial review. This case calls out for a ruling, even though that application will succeed.

2. The applicant, Mr Hassani, was convicted of driving a Porsche motor car with excess alcohol, namely 57 micrograms of alcohol in 100 millilitres of breath. He was convicted following a trial before District Judge Snow on 30 June 2016 in the Westminster Magistrates' Court. On 4 October 2016 (ie somewhat beyond the three-month time limit), he sought to challenge the conviction by way of judicial review. He had not given any evidence in his trial. The Crown case was uncontradicted. Nor did he seek to appeal to the Crown Court, which would have addressed the merits of the case in a rehearing.

3. Permission to apply for judicial review was refused on paper by Edis J on 12 November 2016. That judge gave full and closely argued reasons why there was no merit in the challenge, as well as noting that it was out of time. The applicant then renewed his application.

4. Throughout the process, he has been represented by Olliers Solicitors, who set out to specialise in motoring defences, and until recently by counsel, Mr Philip Lucas, who likewise apparently specialises in such defences. He prepared extensive grounds for judicial review. He also made a witness statement, many pages long, complaining about what happened in the trial before District Judge Snow. This of course meant that Mr Lucas was no longer in a position properly to act as counsel. It is not clear from the papers (and of course this court must operate from the papers) whether he withdrew, or his instructions were withdrawn.

5. Fresh counsel, Mr Benson QC, has advised Mr Hassani, and it is clear that the withdrawal of the application was following advice from Mr Benson. That was good advice. We are grateful to Mr Benson for attending today. He has not sought to go into the detail of the case; nor has he been in a position, given the withdrawal, to analyse the case on the applicant's behalf. However, it is clear to me, having reviewed these papers in detail, that the application for permission for judicial review was totally without any merit.

6. The trial was marred by an excessive number of technical points being raised on Mr Hassani's behalf. There were complaints about disclosure. There were attempts to lengthen the trial without advance notice being given. The Applicant’s solicitors had confirmed in writing that they were "trial ready". In his witness statement, Mr Lucas claims that he made an application for an adjournment of the hearing. District Judge Snow has stated that he has no memory and no note of such an application. The notes of the legal advisor present contain no record of such an application. There was an application to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 on the ground that the evidence had not been seen by the defence, and thus a defence expert had not been fully instructed.

7. The relevant form for the drink-drive breath testing procedure is known as the MGDDA form. That had been completed at the police station. The officer in the case, Police Sergeant Ellis, had properly completed it. He brought a copy to the court. Mr Lucas objected to the use of the copy as a breach of the "best evidence" rule. The officer gave evidence that the relevant equipment was in proper working order and that the statutory requirement of two successive samples of breath had been taken. The lower reading was 57 micrograms per 100 millilitres of breath. We are to hold in mind that the legal limit is 35 micrograms per 100 millilitres. This was not a marginal case: the lower reading here exceeded the limit by 24 micrograms or 68 per cent. Mr Hassani never claimed that he had not been drinking; he never claimed that he was not the driver; as I have said, he never gave evidence.

8. Not only was every imaginable point taken below, but Mr Lucas settled grounds of appeal with seven grounds. Upon a reading of the papers, it appears to me that they are, and were, all without foundation.

9. The criminal law is not a game to be played in the hope of a lucky outcome, a game to be played as long and in as involved a fashion as the paying client is able or prepared to afford.

10. District Judge Snow practised firm case management in this case. He was absolutely right to do so. Other courts faced with this kind of approach must do the same, whether the court is constituted by a professional district judge or by lay magistrates. Courts must consider the Criminal Procedure Rules, which are there to be employed actively so as to preclude game-playing and ensure that the courts only have to address real issues with some substance.

11. The Criminal Procedure Rules provisions most in question might be thought to be as follows. Each participant in a criminal case, that is to say lawyers as well as parties, must prepare and conduct their care in accordance with the rules: see CPR 1.2(1)(a) and (b). The key objective under the rules is to deal fairly with the case, and that includes dealing with the case efficiently and expeditiously: CPR 1.1(2)(e). Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party's lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it.

12. Each participant in a case has the obligation set out in CPR 1.2(1)(c): "At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective." That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided "efficiently and expeditiously". If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.

13. Critical rules affecting all parties, including defendants and their representatives, are rules 3.2, 3.3 and 3.11. It is not necessary for me to quote them in full, but the attention of a court dealing with such cases should be drawn to those rules and perhaps in particular to 3.2(2)(a) - active case management includes the early identification of the real issues; 3.3(1) - each party must (a) actively assist the court in fulfilling its duty under rule 3.2, with, or if necessary without, a direction and (b) apply for a direction if needed to further the overriding objective; 3.3(2) active assistance for the purposes of this rule includes (a) at the beginning of the case communication between the prosecutor and the defendant at the first available opportunity; (c)(ii) what is agreed and what is likely to be disputed (in other words, what is agreed and what is likely to be disputed should be the subject of active assistance and early communication); (c) (iii) likewise, what information or other material is required by one party of another and why; and (iv) what is to be done, by whom and when. CPR 3.11: in order to manage a trial or an appeal, the court (a) must establish with the active assistance of the parties what are the disputed issues; and (d) may limit (i) the examination, cross-examination or re-examination of a witness and (ii) the duration of any stage of the hearing.

14. In the absence of some specific evidence which indicates that there is a problem with the Intoximeter EC/IR machine, approved in 1998 and, with approval, reissued in 2005, extensive exploration of technicalities will normally be a waste of time.

15. It is perfectly open to a court to ask if a defendant intends to give evidence to the effect that he or she had not been drinking or had drunk so little that the excess alcohol reading cannot properly be explained. If the answer is no, then the court can properly question what may be the evidential basis for a challenge to the reading produced by the testing equipment, provided the proper procedures have been followed.

16. Lawyers advising defendants on the conduct of such a case as this should routinely remind clients that these cases are criminal proceedings, that their evidence will be given on oath or following affirmation, and that lying in such evidence will be perjury.

17. On 24 June 2016, Senior District Judge Riddle, as he then was, gave a decision in R v Cipriani . He was sitting in the Westminster Magistrates' Court on 24 June 2016. It was a case of a similar nature. His written judgment deals authoritatively with many aspects of such litigation as this and will be helpful for those addressing such cases. Annexed to this ruling are passages from that decision. Those passages from the decision by SDJ Riddle may be read in conjunction with this ruling.

18. This judgment is an intentional reminder to criminal courts that active case management using the Criminal Procedure Rules is their duty. Increased rigour and firmness is needed. This judgment can be cited pursuant to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 . Counsel and solicitors acting in motoring cases, for the prosecution or defence, should cite this judgment when appropriate. Indeed it will be the professional obligation of those with the conduct of such cases, to cite this judgment when issues of adjournment or case management arise. Likewise, legal advisers to magistrates should draw this judgment to the attention of the Court and the parties when applications arise. I direct that a copy of this judgment and the annex be sent to Mr Lucas of counsel, for his attention and future citation.

19. This application having been withdrawn, permission to appeal is refused.

20. Once again, we are grateful to Mr Benson QC for his attendance.

21. MR JUSTICE GARNHAM: I agree.