Parker v Bradford Crown Court

Factual and Procedural Background

The Plaintiff was convicted in the Magistrates' Court of offences under section 5 and section 170(4) of the Road Traffic Act 1988, relating respectively to driving with excess alcohol and failure to stop after a road traffic accident. The Plaintiff appealed to the Crown Court, where the appeal was dismissed on 28 February 2006. Subsequently, an application was made to the Crown Court judge to state a case for this court's consideration. The judge refused to state a case, providing reasons in correspondence dated 22 March 2006 and 13 June 2006. The present application seeks permission to apply for judicial review challenging that refusal to state a case.

Legal Issues Presented

1. Whether the refusal to state a case on the issue of non-compliance with the mandatory procedural requirement under section 7(7) of the Road Traffic Act 1988 was lawful, given that the alleged failure to provide the statutory warning was raised late in proceedings.
2. Whether the amendment to section 170 of the Road Traffic Act 1988, extending its application from "road" to "road or other public place" by way of secondary legislation under the European Communities Act 1972, was valid and within the powers conferred by the relevant European Union directive and domestic law.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the breathalyser procedure was flawed because the prosecution did not prove compliance with section 7(7) of the Road Traffic Act 1988, which requires a constable to warn a person that failure to provide a specimen may lead to prosecution.
• The Appellant relied on the authority of R v Aylesbury Crown Court ex parte Lait, asserting that the procedural requirement was mandatory and unproven.
• Regarding the failure to stop offence, the Appellant challenged the validity of the amendment extending the offence to "other public places," arguing that this extension went beyond what was permitted by the relevant EU directive and the powers under the European Communities Act 1972.

Respondent's Arguments

• The Respondent contended that the issue of non-compliance with section 7(7) was raised too late in the Crown Court proceedings, constituting a deliberate ambush and abuse of process, and therefore not properly arguable.
• It was asserted that the procedural requirement under section 7(7) must be proved only when properly put in issue, which was not done in this case.
• Regarding the amendment to section 170, the Respondent implicitly defended its validity, with the court suggesting involvement of the relevant government department to explain the rationale behind the legislative amendment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson [1998] 3 All ER 769	Established that section 7(7) warning is a mandatory procedural requirement.	Court accepted the mandatory nature of the requirement but held it must be properly put in issue to be relevant.
R v Aylesbury Crown Court ex parte Lait [1998] EWHC Admin 319	Addressed procedural requirements under section 69 of the Police and Criminal Evidence Act.	Distinguished from the present case; not directly applicable as the procedural context differed.
Dhaliwal v Wolverhampton Magistrates' Court [2005] EWHC 1284 Admin	Clarified timing for raising procedural objections and evidence requirements.	Supported the view that late objections after prosecution case are generally not acceptable.
R v Stephen Andrew Cook ex parte Director of Public Prosecutions (19 December 2000)	Defence must raise submissions on lack of prima facie case at the close of prosecution evidence.	Used to reject the defence's late submission tactic as an abuse of process.
Cutter v Eagle Star Insurance Company [1998] All ER 417	Interpretation of EU directives and limits on amending primary legislation by secondary legislation.	Supported the arguable basis that the amendment to section 170 may have exceeded the powers under the European Communities Act 1972.

Court's Reasoning and Analysis

The court acknowledged the mandatory nature of the warning requirement under section 7(7) of the Road Traffic Act 1988 but emphasized that such a requirement must be properly put into issue during the trial. The court found that in this case, the issue was raised only at the very end of the Crown Court hearing, constituting a "deliberate ambush" and an abuse of process. Evidence showed that the procedural compliance was not challenged during the evidence stage, and the prosecution had completed the relevant documentation. Consequently, the court held that the claim regarding non-compliance with section 7(7) was not properly arguable and refused permission to apply for judicial review on that ground.

Regarding the failure to stop offence under section 170(4), the court considered the validity of the amendment extending the offence's scope to "other public places" via secondary legislation under the European Communities Act 1972. The court noted that this amendment was intended to comply with EU directives relating to motor vehicle insurance. However, the court found it arguable that the amendment exceeded the powers granted by the directive and the European Communities Act, thus meriting further consideration at a substantive hearing. The court indicated that this issue was sufficiently important to warrant a full hearing and recommended that relevant government departments be allowed to intervene to explain the legislative rationale.

Holding and Implications

The court refused permission to apply for judicial review regarding the refusal to state a case on the section 7(7) procedural issue, concluding that this ground was not properly arguable due to the late and improper raising of the issue.

The court granted permission to apply for judicial review limited to the question of the validity of the amendment to section 170(4) of the Road Traffic Act 1988. This decision allows for a substantive hearing to determine whether the extension of the offence's scope via secondary legislation was lawful under domestic and EU law.

The court emphasized the importance of a thorough consideration of this issue at the appellate level rather than by the lower court simply stating a case. It also directed that the Treasury Solicitor consider permitting intervention by the appropriate Secretary of State to provide authoritative input on the legislative amendment. No new legal precedent was established beyond the immediate effect of allowing judicial review on the section 170(4) issue and rejecting it on the section 7(7) procedural point.