CO/841/2006, CO/1450/2006 CO/3212/2006
Neutral Citation Number: [2006] EWHC 2081 (Admin)
IN THE HIGH COURT OF JUSTICE                        
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 6 July 2006
 
B E F O R E:

LORD JUSTICE MAY 
MR JUSTICE FORBES
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF CUNLIFFE
(CLAIMANT) 
‑v‑ 

WEST LONDON MAGISTRATES' COURT
(DEFENDANT) 
THE QUEEN ON THE APPLICATION OF CUNLIFFE  
(CLAIMANT) 
‑v‑ 
EALING MAGISTRATES' COURT 
(DEFENDANT) 
THE QUEEN ON THE APPLICATION OF CUNLIFFE 
(DEFENDANT) 
‑v‑ 
HASTINGS MAGISTRATES' COURT  
(CLAIMANT)
- - - - - - -
Computer‑Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR J MCGUINNESS QC AND MR J SMITH (instructed by Ashfords ) appeared on behalf of the CLAIMANT
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
- - - - - - -
J U D G M E N T 
1.	LORD JUSTICE MAY:  Forbes J will give the first judgment. 
2.	MR JUSTICE FORBES:  The claimant in these applications for judicial review is the general manager of Intoximeters UK Limited, a subsidiary of Intoximeters Inc of St Louis Missouri, USA.  Intoximeter Inc is the sole owner and sole director of Intoximeters UK Limited (the Company).  The Company provides breath alcohol testing instruments to police forces in the United Kingdom.  The Company's instrument is known at the intoximeter EC/IR.  The Company provides approximately 50 per cent of the breath testing instruments in the United Kingdom, approximately 320 instruments altogether.  The claimant's contract of employment contains a confidentiality clause prohibiting disclosure of any material considered by the parent company to be commercially confidential.  
3.	In these three linked sets of proceedings the claimant seeks appropriate relief by way of judicial review (in particular, quashing orders) of various decisions to issue a witness summons pursuant to section 97 of the Magistrates' Courts Act 1980 (as amended) requiring his attendance at the appropriate Magistrates' Court as follows:  
"(1) that of Deputy District Judge Cooper dated 11 January 2006, in respect of a hearing at Hasting Magistrates' Court on 27 February 2006 (CO/3212/2006: hereafter "the Hastings case");   
(2) that of the Justices sitting at West London Magistrates' Court on 28 October 2005 in respect of a hearing on 9 January 2006 (CO/841/2006: hereafter "the West London case");  and 
(3)  those of District Judge Barnes and District Judge Browning made on 15 September 2005 and 6 December 2005 respectively with regard to hearings at Ealing Magistrates' Court on 6 and 19 December 2005 (CO/1456/2006: hereafter "the Ealing case").   
4.	 The first point addressed by Mr McGuiness  QC, on behalf of the claimant, in his very helpful written submissions, concerned the jurisdiction of this court to hear and determine these applications.  Mr McGuinness accepted that there is a line of authority to the effect that the Administrative Court has no jurisdiction to consider judicial review of interlocutory decisions of a Magistrates' Court.  The relevant principles are set out in the judgment of Kennedy LJ in Hoar‑Stevens v Richmond Magistrates' Court [2003] EWHC 266O Admin at paragraph 2 in the following terms: 
"Normally this court will not entertain an application for a quashing order in relation to a decision made in a magistrates' court where the proceedings in that court are not complete.  In R v Rochford Justices ex‑parte Buck (1978) 68 Cr App R 114 it was said that there is no jurisdiction to do so, and a distinction was drawn between an order to direct a magistrate to hear and determine a matter, which can be obtained if he refuses to do so, and an order, as Cockburn CJ put it in Carden (1879) 5 QBD 1 at 5, "to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject." Such control, it was said, could only be exercised when the case was at an end.  In Buck the prosecution had sought to introduce certain evidence which the justices ruled inadmissible.  The matter was then adjourned to enable the prosecution to test the ruling in the Divisional Court.  When giving the judgment in this court Lord Widgery CJ said that the decision to adjourn was wrong.  The prosecution were asking this court to do what Cockburn CJ had said could not be done, that is to say to exercise a measure of control over the way the magistrates try the case.   At page 118 he said: 
    "The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings.  
    Accordingly, I would be prepared to dispose of this matter on the first argued point, namely, that there was no jurisdiction in this Court to interfere with the justices' decision, that not having been reached by termination of the proceedings below." 
5.	However, Mr McGuinness submitted that there are a number of authorities which illustrate that judicial review proceedings can be used during the course of Magistrates'  Court and Crown Court proceedings in order to quash witness summonses issued pursuant to section 97 of the Magistrates' Courts Act 1980.  Those authorities include Hove Justices ex‑parte Donne [1967] 2 All ER 1253, R v Skegness Magistrates' Court ex‑parte Cardy [1985] RTR 49, Streames v Copping (1985) QB 920, R v Derby Magistrates' Court ex‑parte B [1996] AC 487 and Howe v South Durham Magistrates' Court [2004] EWHC 362.  Examination of those authorities shows that Mr McGuinness' submission is plainly correct.
6.	Mr McGuinness therefore contended that the issue of a witness summons is in a somewhat different category to other  interlocutory decisions of the Magistrates' Court and that there is jurisdiction for the witness summonses to be challenged in such cases by way of judicial review.  Mr McGuinness suggested that this is particularly so since the claimant is not a party to the proceedings in the court below and would have no other means of appealing a ruling  that was erroneous.  I agree with that submission and I am satisfied that this court does have jurisdiction to hear and determine the present applications.   
7.	I now turn to summarise the relevant legal principles that apply in each of these cases.  
8.	Each of the summonses against the claimant was issued under section 97(1) of the Magistrates' Court 1980, as amended by section 169(2) of the Serious Organised Crime and Police Act 2005.  Section 97(1), as amended, provides as follows: 
"(1) Where a justice of the peace is satisfied that‑ 
 (a) any person in England or Wales is likely to be able to give material evidence, or produce any  document or thing likely to be material evidence, at the summary trial of an information or hearing of a complaint… by a magistrates' court, and 
 (b) it is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing,
the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing." 
9.	Mr McGuinness therefore submitted that the test to be applied by the Magistrates' Court, both in relation to a witness giving evidence and in relation to documents, is whether (1) the person is likely to be able to give "material evidence" or the document is likely to be "material evidence" and, in either case, (2) it is in the interests of justice to issue the summons.  I agree with that submission and would stress the importance of both limbs being satisfied before any summons is issued.  
10.	Mr McGuinness pointed out that the meaning of the term "material evidence" in section 97(1) of the 1980 Act has been considered in a number of authorities and a number of principles have been established.  In particular, he referred to the case of R v Reading Justices ex‑parte Berkshire County Council [1996] 1 Cr App R 239 in which the Divisional Court considered the test of materiality in relation to documents.  In the course of his judgment in that case Simon Brown LJ, as he then was, summarised the relevant principles as follows (see paragraph F, page 93):  
"The central principles to be derived from those authorities are as follows: 
 (i)	 to be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence; 
(ii)	 documents which are desired merely for the purpose of possible cross‑examination are not admissible in evidence and, thus, are not material for the purposes of section 97;
(iii)	 whoever seeks production of documents must satisfy the Justices with some material that the documents are 'likely to be material' in the sense indicated, likelihood for this purpose involving a real possibility, although not necessarily a probability;  
(iv)	 it is not sufficient that the applicant merely wants to find out whether or not the third party has such material documents.  This procedure must not be used as a disguised attempt to obtain discovery."
11.	The materiality of documents relating to breath testing was specifically considered by the Divisional Court in R v Tower Bridge Magistrates' Court, ex‑parte DPP [1988] Crim LR 759.  In that case a witness summons issued by a Stipendiary Magistrate compelling a police officer to produce the service record and log of a breath‑testing instrument was quashed on the basis that it was a "fishing expedition." Furthermore in R v Skegness Magistrates' Court ex‑parte Cardy a summons issued to compel the manufacturer of a breath‑testing machine to produce documents relating to the functioning and design of the breath‑testing instrument was quashed as a "fishing expedition" and because the documents were not admissible per se because they would need an expert witness to interpret them.    
12.	With those principles in mind, I turn to consider the facts of the individual cases.  
13.	The Hastings case concerned a Mr Gilbert Scott.  On 5 April 2004, Mr Scott was driving his Toyota Avensis motor vehicle when it was involved in an accident.  He was taken to a local hospital by ambulance.  At 22.28 that evening the police attended the hospital and required a sample of breath which was positive.  Mr Scott stated "I've had too much.  I put my hands up." He was arrested and taken to Hastings Police station.  After caution he stated "Yes, I've been getting away with it for years." At the police station he provided two specimens of breath for analysis using an intoximeter EC/IR machine.   The two readings were 107 and 111 micrograms in 100 millilitres of breath.  
14.	On 6 April 2004 Mr Scott was interviewed under caution.  He accepted being the driver of the car.  He also accepted having lost control of the car and that he had been drinking on the day in question. He estimated having consumed about a bottle of wine and two pints of beer in a period about eight hours before the accident.  He described driving his vehicle as a "stupid mistake". He accepted that he had not used any mouth spray, mouthwash or medication nor had he eaten, inhaled or taken anything since the accident.  He also accepted that he had not drunk any further alcohol between the crash and attending Hastings Police Station.  In due course he was charged with an offence of driving with excess alcohol, contrary to section 5 of the Road Traffic Act 1988.
15.	Mr Scott has objected in writing to the use or possession by the claimant of the defence statement filed in his case, which is dated 18 July 2004. However, it appears that the defence statement was properly disclosed to the claimant by the defendant court.  It is plainly a relevant document in those proceedings and I can see no reason why the claimant should not be able to refer to its contents.
16.	Mr Scott's defence statement purports to raise two defences: (1) that the instrument had lost type approval due to modifications and (2) that the amount of alcohol consumed by Mr Scott prior to the accident would not have been sufficient to produce a reading over the legal limit.  Mr Scott's defence statement is in almost identical terms to that in the Ealing case, which concerns Mr Alexander Shawo.  The defence statement does not assert how much Mr Scott had to drink on the day in question, nor how he provided a positive initial breath test before blowing into the "unreliable" intoximeter EC/IR instrument.  Moreover, the defence statement did not address the issue of Mr Scott's admissions, which (as I have already indicated) included one that he had drunk a bottle of wine and two pints of beer in the eight hours before the accident.  
17.	Mr McGuinness submitted (correctly, in my view) that in order to be "material evidence" the document required to be produced by the summons had to be relevant to a defence in Mr Scott's case.  The material relating to the breath‑testing instrument that was sought pursuant to the summonses in the Hasting case comprised the following (1) complete unedited F11 settings, (2) the engineer's reports and calibration/service sheets (as to which no period was specified); and (3) the engineer's  standing operating procedures.  
18.	The summons in question was issued without the claimant being present and when he was given no opportunity to make representations.  On 2 June 2006, the Hastings Magistrates' Court filed an acknowledgment of service in these proceedings.  Section C of the acknowledgment of service was completed in terms which included the following:  
"Mr Lucas explained to the Deputy District Judge that the documents, reports and service sheets were necessary to his defence and were needed by his experts to enable them to prepare their reports.  The Deputy District Judge asked the Crown if they had any objections to this application.  There was no opposition to the application she was considering and it was never suggested by the Crown that the items, documents, exhibits, service sheets etc were not necessary and essential to the defence in the criminal case.  Accordingly the Witness Summons ...was issued." 
19.	As it seems to me, the entry in section C of the acknowledgment of service in the Hastings case is not put forward as a basis for contesting the claim so much as a narrative of what occurred in the Magistrates' Court.  
20.	Mr McGuinness submitted that the deputy district judge  erred in law when issuing the witness summons against the claimant in the Hastings case, because not all the elements of the test required by section 97(1) of the 1980 Act were  taken into account in making the decision to issue that summons.  The only record that the Hastings Magistrates' Court has of the decision in question are the court clerk's notes.  Those notes indicate that, when deciding to issue the summons, the deputy district judge applied no particular test of law.  As it seems to me, this is also apparent from the narrative in section C of the acknowledgment of service, to which I earlier referred.  
21.	It would therefore appear that, once the deputy district judge was informed that the material was "necessary to the defence and needed by the experts" and after hearing that the application was, in effect, unopposed, the witness summons was then issued without any further inquiry as to why the evidence was relevant or as to its materiality.  
22.	In all the circumstances, I am satisfied that the deputy district judge failed to give full and proper consideration to the terms of section 97(1) of the 1980 Act.  Had she done so, she would have concluded that the documents sought did not satisfy the materiality test required by section 97(1)(a).  
23.	As Mr McGuinness submitted, it is for the party seeking production of the documents to "satisfy the Justices with some material that the documents are likely to be material": see the judgment of Simon Brown LJ in R v Reading Justices ex‑parte Berkshire County Council quoted above.  In the Hastings case there is nothing in Mr Scott's defence statement which demonstrates the materiality of the documents to any purported defence that he considered that he had.  Furthermore, in my view, the documents requested were not material evidence because they were inadmissible without interpretation by expert witnesses, and were thus not admissible evidence per se: see R v Derby Magistrates' Court ex‑parte B (supra).   
24.	Mr McGuinness also pointed out that in the recent case of DPP v Wood and DPP v McGillicuddy [2006] EWHC 32 (Admin) consideration was given to the question whether the Crown was under an obligation to disclose to the defence precisely the type of documents that were referred to in the witness summons in the Hastings case, that is to say full F11 settings and engineer's reports.
25.	The defence solicitors in Wood and McGillicuddy were the same solicitors as those in the Hastings case and the defence statements served in that case were in similar terms to the defence statement in this case.  In giving the first judgment, Ouseley J confirmed that the documents in question should not have been ordered to be disclosed under section 8 of the Criminal Procedure and Investigations Act 1996, which poses a less restrictive test with regard to disclosure than that posed under section 97 of the 1980 Act with regard to admissibility and materiality.  
26.	In paragraphs 29 to 37 of his judgment Ouseley J confirmed that a defence statement, that was silent as to whether the defendant was the driver or had consumed sufficient alcohol to be in excess of the prescribed limit, did not raise an issue to which the reliability or type approval of the breath‑testing instrument was relevant.  Further, in relation to the possibility of a party using section 97(1) of the 1980 Act, Ouseley J confirmed, at paragraph 62 of his judgment, that the district judge would have to compare the significance of the material withheld by the third party with a proper appreciation of the defence, consider other evidence as to the reliability of the device in question and take into account the legal position about arguments over type approval.  Ouseley J expressly envisaged the situation as one where the third party would be permitted to raise before the district judge issues such as confidentiality and the true materiality of the documents.   
27.	Mr McGuinness submitted (correctly, in my view) that the disclosure test under section 8 of the 1996 Act is broader than the specific admissibility of evidence test under section 97 of the 1980 Act.   I also agree that if the documents in question do not fall to be disclosed as a matter of law under section 8 of the 1996 Act they do not satisfy the admissibility provisions of section 97 of the 1980 Act.
28.	I also accept Mr McGuinness' submission that the application for a summons by the defence was, by reference to the issues in the case identified in Mr Scott's defence statement, no more than a fishing expedition.  If, as is apparent from the case of Wood and McGillicuddy there could have been no order against the Crown for disclosure of the material sought, then equally there was no proper basis for admission of the material in evidence through the means of a summons issued pursuant to section 97 of the 1980 Act.  Accordingly, for those reasons, I am satisfied that the application in the Hastings case succeeds and that an appropriate quashing order should be made.
29.	I turn briefly to consider the West London case.  It now appears that the interested party in those proceedings,  Mr Christopher Kirkby, has pleaded guilty to the offence charged.  In those circumstances Mr McGuinness confirmed that the claimant no longer seeks any remedy or ruling in respect of the decision to issue the witness summons in question.  
30.	I therefore now turn to consider the facts relating to the Ealing case, which concerned Mr Alexander Shawo.  On 1 October 2003, Mr Shawo was seen driving a motorcycle at speed by two police officers.  He saw the police, drove to a garage and removed his motorcycle helmet. He was spoken to by the officers who noticed that he smelt of alcohol.  He was required to provide a sample of breath at the roadside which was positive.  He was arrested and taken to Ealing police stattion.  
31.	At the police station he provided two specimens of breath for analysis using an intoximeter EC/IR machine.  The two readings were 64 and 65 micrograms in 100 millilitres of breath.  Mr Shawo was duly charged with an offence contrary to section 5 of the Road Traffic Act 1988.
32.	On 1 February 2004 and 13 September 2005, two defence statements were filed on Mr Shawo's behalf.  Those defence statements raised the following four defences: (1) that Mr Shawo had not consumed sufficient alcohol to produce a reading over the legal limit, (2) that the specific machine on which he had provided his specimens had lost type approval due to subsequent modifications, (3) that the reading produced by the device was unreliable and a number of reasons which "could have caused" the unreliable reading were suggested and (4) the device in question had not been manufactured by Intoximeters but by another company, Alkotek Inc.  The defence statement did not assert how much Mr Shawo claimed he had to drink, nor did it state how the measured excess above the legal limit had or must have arisen.
33.	Again the material sought pursuant to the summons comprised of: (1) F11 printouts of the device in question and (2) the engineer's calibration/service sheet relating to the device in question for the period June 2002 to January 2005.  The summons issued on 15 September 2005 was issued without the claimant being present and when he was given no opportunity to make representations.  The summons issued on 6 December 2005, when the claimant was present but not represented, was identical to the first summons.  In fact it appears that the first summons was merely redated by the second district judge.
34.	Mr McGuinness submitted that the district judge on each occasion had erred in law when issuing the witness summons against the claimant because not all the elements of the test required by section 97(1) of the 1980 Act were considered when making the decision to issue the summons in question.  
35.	Mr McGuinness pointed out that the Magistrates' Court does not have an approved note of the reasons for issuing the summonses and the district judge who issued the first summons has apparently indicated that she no longer has any independent recollection of her reasons for having done so.  However the court clerk's notes of the hearing on 15 September 2005 have been provided.  It is clear from those notes that two cases were being discussed at the time, namely the present case, involving Mr Shawo, and another case involving somebody called Bailey.  There is no note by the  court clerk of any representations regarding whether the documents sought were material evidence.  The only notes of the test applied were as follows: 
"Bench MCA 80 application for W summons can be made, interests of justice."  
and then: 
"W summons ‑ interestsof justice." 
36.	Mr McGuinness submitted that, in the absence of any formal ruling by the district judge showing that the materiality test had been considered and in the absence of any mention in the clerk's note that the materiality test was even raised, it can be properly inferred that the only factor that was taken into account by the district judge, before issuing the summons in question on 15 September 2005, was the interests of justice test of section 97(1)(b) of the 1980 Act and not the full test as required by the entire section.  I agree with that submission.
37.	In respect of the summons issued on 6 December, the second district judge merely replicated the terms of the first summons and again there appears to be no notes available.  I am satisfied that it is clear from the material available that neither district judge gave full and proper consideration to the requirements of section 97(1) of the 1980 Act.  Had that been done it would have been apparent that the materiality test in section 97 was not satisfied and the summonses would not have been issued.  
38.	I agree with Mr McGuinness that there is nothing in the two defence statements in the Ealing case that established the materiality of the documents sought to any purported defence.  Again, as in the Hastings case, the documents requested could not be "material evidence" as they were not admissible without interpretation by other expert witnesses and would not have constituted evidence in the case per se:  see R v Derby magistrates ex‑parte B (supra)  
39.	I therefore agree with Mr McGuinness that the applications for summonses in this case were, by reference to the issues in the case as identified in the defence statements, no more than a fishing expedition.  Accordingly, the summonses should not have been issued.  
40.	For those reasons I am satisfied that the application for judicial review in these proceedings also succeeds.
41.	In the circumstances of this case it does not seem to me to be either desirable or appropriate to go on and consider the other matter raised by Mr McGuinness in his addendum skeleton argument in which he had proposed to invite the court to comment upon the means by which the claimant might challenge any future witness summonses issued in similar circumstances.  During the course of submissions Mr McGuinness accepted that, absent any representations made by an appropriate party to deal with the issues he would seek to raise, it would not be appropriate for this court to go on and consider the matter in any detail.  Accordingly, and for those reasons, I would allow these applications.  
42.	LORD JUSTICE MAY:  I agree.  There will be quashing orders in the case of the Hastings magistrates and Ealing magistrates.  For the reasons which my Lord has explained, there will be no order in the case of West London.  The number for West London is CO/41.  
43.	LORD JUSTICE MAY:  Mr McGuinness, the third way of dealing with West London is for it to be withdrawn.  Are you happy with that? 
44.	MR MCGUINESS QC:  I am, yes. 
45.	LORD JUSTICE MAY:  In that case that will happen. 
46.	MR MCGUINESS QC:  I have no application to make. When my Lord comes to approve the judgment he has given in in the draft might I suggest he make two minor alterations?  His references to paragraphs 26 to 37 of the judgment of Ouseley J in the case of McGillicuddy, I think should be 29 to 37, and the reference to paragraph 64 in the same judgment should be a reference to paragraph 62.  I apologise because those errors appears in our skeleton.  
47.	LORD JUSTICE MAY:  We are grateful to you and Mr Smith and anybody else who has contributed.