IN THE HIGH COURT OF JUSTICE CO/1667/2000

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2

Tuesday, 10th October 2000

B e f o r e:

LORD JUSTICE BUXTON

and

MR. JUSTICE PENRY-DAVEY

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THOMAS EDWARD JONES

Appellant

-v-

CHIEF CONSTABLE OF WEST MERCIA POLICE AUTHORITY

Respondent

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MR. M. COOPER (Instructed by Messrs. Hatcher Rogerson & Co., Shrewsbury SY1 1DA) appeared on behalf of the Appellant.

MS. T. LLOYD-NESLING (instructed by the West Mercia Crown Prosecution Service, Shrewsbury SY3 5HJ) appeared on behalf of the Respondent.

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J U D G M E N T

(For re-approval)

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Friday, 3rd March 2000

J U D G M E N T

LORD JUSTICE BUXTON: This is an appeal by way of case stated from a determination of the magistrates for the County of Shropshire, sitting at Oswestry, on 22nd October 1999. The offence of which Mr. Jones, the appellant, was convicted was one of driving a motor vehicle at a speed in excess of the speed limit, the speed measured being between 94 and 101 miles an hour and the speed limit for the road in question being 60 miles an hour. That offence was committed on 23rd April 1999.

Mr. Jones had a bad record of similar offences. He had, in March 1997, been convicted of speeding in respect of which his licence was endorsed with three penalty points. In July of 1998 he was convicted of speeding and again his licence was endorsed with three penalty points. Finally, in September of 1998 -- that is to say, less than two months after his earlier offence -- he was convicted of speeding on a motorway and his licence was endorsed with five points.

The index offence, it will be recalled, took place some seven months after the latter offence. That meant that, when the magistrates came to consider what penalty should be imposed on Mr. Jones, they were faced with a situation where he already had 11 penalty points to be taken into consideration on his licence. The offence of which he had been convicted before them carried a minimum of three points, so that if that offence were taken into consideration under what I will colloquially refer to as the "totting up" provisions, the total would be over the number of 12: in respect of which, if that number were operative in the instant case, the magistrates would be obliged to disqualify Mr. Jones for a minimum period of six months under the provisions of section 35 of the Road Traffic Offenders Act 1988 ("the 1988 Act").

The magistrates were advised, as they say in their case, that they were obliged to consider whether there should be a totting up disqualification, and they acted on that advice and disqualified Mr. Jones for six months. It appears that before the magistrates the only issue raised by those then representing Mr. Jones was whether circumstances of exceptional hardship under section 35(4) of the 1988 Act enabled them to withhold or mitigate the disqualification. Those submissions were not successful. However, Mr. Jones having taken further advice, the matter came into the hands of Mr. Cooper, who has represented him before us today, and, I may say, has advanced vigourous and well-sustained arguments.

The point that Mr. Cooper drew attention to was whether, in the circumstances as they existed before the magistrates, they should have first considered whether to impose a discretionary disqualification for the index offence under section 34 of the 1988 Act. Mr. Cooper having so advised, that issue, in the terms that I will expand on shortly, appears in the case stated for the opinion of this court.

It is necessary to explain, as best I can, how that issue arises. The Road Traffic Act 1991 introduced certain amendments into the regime contained in the 1988 Act. In particular, it made provision concerning the concept of "the penalty points to be taken into account on that occasion", applying both to discretionary disqualification under section 34 of the Act and totting up disqualification under section 35. Section 29 of the 1988 Act, as amended, reads as follows:

"(1) Where a person is convicted of an offence involving obligatory endorsement, the penalty points to be taken into account on that occasion are...

(a) any that are to be attributed to the offence or offences of which he is convicted, disregarding any offence in respect of which an order under section 34 of this Act was made, and

(b) any that were on a previous occasion ordered to be endorsed on the counterpart of any licence held by him, unless the offender has since that occasion and before the conviction been disqualified under section 35 of this Act."

Section 34, as amended, reads as follows: "(2) Where a person is convicted of an offence involving discretionary disqualification, and either--

(a) the penalty points to be taken into account on that occasion number fewer than twelve, or

(b) the offence is not one involving obligatory endorsement,

the court may order him to be disqualified for such a period as the court thinks fit."

Section 35(1)(b) which was not amended in 1991, provides that where a person is convicted of an offence involving disqualification and "the penalty points to be taken into account on that occasion number twelve or more, the court must order him to be disqualified for not less than the minimum period.

The short (or perhaps not so short) point is this. When, as in the present case, the court is faced with an offence that, in the normal process of the court's exercise of its jurisdiction, would or might attract discretionary disqualification under section 34; but also the offence is an offence that carries penalty points which, when added to the outstanding points, would take the accused over the number of 12; should the court apply the totting up provisions, or should it apply the discretionary disqualification provisions? That turns on the wording of the two sections which I have just set out.

We were told that that this is an issue that has troubled Magistrates' Courts for many years and we were shown commentary in Current Law Statutes to the Road Traffic Act 1991 which asserts that there is an unavoidable circularity between section 29(1)(a) that provides that points in respect of an offence in respect of which an order has been made under section 34 are to be disregarded; and section 34(1) and (2), which assumes that attention is given to the points to be taken into account before considering disqualification in respect of such a section 34 offence.

Despite this apparently being a long-standing problem, and one that attracted learned comment some nine years ago, we were assured both by Mr. Cooper and by Miss Lloyd-Nesling that their researches (and I interpose to say that it is clear that Mr. Cooper's researches have been extensive and careful) have revealed no authority whatsoever, of this court or anywhere else, on this issue. We have therefore approached the matter on the basis of first principles.

An important preliminary to consideration of the point is, however, Mr. Cooper's further contention (also included in the case stated) that when considering whether to disqualify for an offence under section 34 of the Act the magistrates should make that decision on the basis of the nature of the offence alone, without reference to any prior endorsements on the man's licence, and therefore without reference to his record. In argument Mr. Cooper suggested that that contention might be varied at least to this extent: that the decision as to disqualification should be taken without reference to prior endorsements, but the magistrates might then look at the licence and the record of points that it contained in deciding on the length of the disqualification.

In my view, both of those contentions are impossible to maintain. Section 31 of the 1988 Act provides that when a person is convicted of an offence involving endorsement the court may, in determining what order to make in pursuance of a conviction, take the endorsements on his licence into consideration; that is to say, take into account previous offences and also the points that have been attributed to them by the earlier court. That, it is true, is a statement only in facultative terms; but it is difficult to see how a court can correctly discharge its function of sentencing in a rational manner if it disregards the previous course of conduct on the part of the offender. Indeed, although we did not look at the case in the course of argument, Mr. Cooper in his skeleton argument very properly drew our attention to the case of Dyson v. Ellison [19751] All E.R. 276, in which this court appears to have taken that view.

A subsidiary aspect of this contention on Mr. Cooper's part, and one that affects the substance of this appeal, was his contention that it was intended that there should be two separate regimes of sentencing and two separate regimes of controlling road traffic behaviour. One was the totting up system, intended for an accumulation of offences, each one of which did not in itself, as committed, justify disqualification. The other was the system of discretionary disqualification outside the totting up system, where the consideration was and should only be whether the instant offence justified disqualification, and if so, for how long.

I cannot accept that the system is intended to operate in such mechanistic terms. The various provisions for disqualification in my judgement run in parallel with each other and are not intended to be mutually exclusive. It would be very surprising if they were, because it would mean that (not in a case such as the present where the offender has 11 points already endorsed, but in a case where he has committed but one previous speeding offence) the court apparently could not consider the terms and the points awarded in respect of that offence in deciding what they should do on the second occasion. Further, it is not right to say, as was submitted, that when Mr. Jones was disqualified on a totting up basis in this case he was being subjected to double punishment, or was being punished in a way that did not fit the crime. That is because Mr. Jones' offence was two-fold and attracted the attention of the courts potentially in two ways: (1) his offence was the actual act of driving at 92 miles an hour, and the circumstances of that offence; (2) his offence was to repeat a category of behaviour that he had committed over the previous two and a half years. The repetition was one aspect of the seriousness of his conduct, looked at overall. The facts of the instant offence were another aspect. Those will be the circumstances of many motoring offences.

That there are such circumstances was a matter that attracted the attention of the Committee on Road Traffic Offences ("the North Committee"), whose report was a precursor to the amendments made to the 1988 Act by the Act of 1991. We were shown extracts from the North Report and from Hansard in an attempt to elucidate what is said to be the ambiguity of the provisions introduced into the 1988 Act. I will come to those provisions in a moment; but it is right to say that one of the ends that the North Committee sought to achieve was to prevent what had previously occurred in practice in a situation such as the present, whereby the two-fold nature of an offender's conduct, to which I have just referred, was met by double disqualification -- disqualification for the instant offence and disqualification on the basis of totting up. The North Committee wished to avoid that circumstance and cause there to be only one disqualification. The provisions introduced into the 1988 Act were, I am prepared to accept, intended to achieve that end.

In addition, the committee was critical of what had been the position before 1991, that any disqualification, not merely for totting up but on a discretionary basis also, achieved what is described as wiping clean the licence; that is to say, all the points disappeared. The North Committee did not think that that was right in a case where somebody had not been disqualified on totting-up grounds. The committee considered that it was important, on grounds of deterrence and warning, that the points should remain extant. Only in the case of totting up would they be removed; and in that case, of course, the existence of a totting up disqualification would remain on the man's licence to be taken into account, as I have already held the court can and should take into account previous behaviour, in considering any further offence.

What, then, is the proper approach of magistrates when faced with a case such as the present where there is (on the surface, at least) a choice before them between a totting up disqualification and a discretionary disqualification? The provisions of the Act are intended primarily, as I have said, to avoid a double disqualification. I am prepared to and do accept that the way that justices should approach such a question is by first considering the exercise of their powers under section 34(2). It follows from the wording of that section, read with section 29(1)(a), that they cannot know whether "the points to be taken into account on that occasion" include the points that would be relevant to the instant offence until they have decided whether that offence is an offence in respect of which, on that occasion, a discretionary disqualification is ordered. I emphasise the words "on that occasion" as demonstrating that these decisions relate to, and the points in question relate to, the offence with which the magistrates are seized on that occasion.

So the first step that they must take is to decide that issue: that is to say, whether they should impose a discretionary disqualification. But (and this is the respect in which I do not follow Mr. Cooper's submissions) they exercise that discretion in the light of the accused's whole record and particularly with the knowledge that, if they think that he should have a longer disqualification because of his totting up record, they can bring that about by not disqualifying him under section 34(2). If they decide not to disqualify him, the points are added to the licence and he then falls under the totting up provisions. If they do disqualify him under section 34(2), his points for that offence are not taken into account in totting up, so the objective of the North Commission is achieved of not also disqualifying him under section 35. If they think that he should be disqualified for the longer period appropriate to his record under the totting up provisions, they achieve that by not disqualifying under section 34(2). They are then free to take the points of the instant offence into account and add them to the points already on his licence.

I recognise that that approach produces what is argued to be an anomaly. There may be cases where the justices think that the instant offence is not sufficiently serious to merit disqualification at all. In those circumstances they will not make an order under section 34(2), but the points will nonetheless count towards the totting-up provisions. That is said to be an anomaly, but in truth it is not, because the offender's offence there is his prolonged record of instances of committing offences that attract penalty points.

The alternative which I understood Mr. Cooper to urge, that the magistrates should always disqualify under section 34(2) in such a circumstance as this, first of all in my view is not what was intended by Parliament and secondly is unacceptable because it involves saying that, even in a case where Parliament has provided sanctions against persistent offenders, the magistrates are precluded as a matter of law from exercising those sanctions. I do not think that that can be right. I would regard it as quite wrong that justices should be precluded by law from giving the length of disqualification appropriate to the totting-up provisions in a case such as the present, of a man who has committed four speeding offences in a period of a little over two years. This approach to the legislation assumes that when Parliament conferred a discretion on the magistrates under section 34(2) it indeed intended them to exercise their discretion. In pursuit of the objectives of the North Committee in avoiding double disqualification, Parliament, in my view, in the terms that it adopted, chose to do that through the exercise of the discretion of magistrates under section 34(2) to decide whether or not a disqualification should be imposed under that section; and provided for a result, caused by that exercise of discretion, in section 29(1)(a) that controls whether or not a totting disqualification is available.

Mr. Cooper said that such an approach is in fact inconsistent with what the North Committee and Parliament sought to achieve. He drew attention to the express desire of the North Committee to retain points on the record: which he said would not be followed through if, in a case such as the present, the outcome was a totting-up disqualification wiped from the record rather than a discretionary disqualification that retained the points on the record. Secondly, it had been the intention of North and of the Government as expressed in Parliamentary debates to encourage the greater use of short periods of disqualification.

The references to that material, which we looked at de bene esse, I fear underline the difficulty of trying to ascertain Parliamentary intentions through preliminary reports and debates, rather than through the words of the statute. It is quite plain to me that neither of those statements of ambition or intention on the part of the North Committee or of the Government that implemented it were addressed to a case such as the present one. The use of short periods of disqualification was certainly pursued by North, but that was because that committee wanted to make it more acceptable to magistrates to apply short periods of disqualification in an appropriate case; and they did that by removing the wiping-out provisions that applied originally to short periods of disqualification. They did not say, nor was it the Government's policy, that in a case where totting up was (if I can put it like this) on the agenda, that that should nonetheless always take second place to a period of disqualification directed at the instant offence only.

If magistrates proceed in the way that I have indicated, they will, as I say, have to make decisions about the appropriateness of, on the one hand, a disqualification limited to the present case and, on the other hand, a disqualification under the totting up provisions. The matter of course is for them in any given case. I for my part think it unlikely that there will be many cases which potentially fall within the totting up provisions where the magistrates do not conclude that those provisions should apply, bearing in mind the intention and the objective of them, which is to impose a reasonably substantial period of disqualification on people who have shown that they persistently offend against the road traffic laws. The statute does not make that compulsory; but simply gives the magistrates a discretion that they ought carefully to exercise in the circumstances of the offender's whole record in deciding which course to take.

I turn to the questions posed for the opinion of this court. The first is this:

"Whether, in sentencing a defendant under the provisions of the Road Traffic Offenders Act 1988 ... for an offence involving discretionary disqualification pursuant to Section 34 of the Act and a potential obligatory disqualification pursuant to Section 35 of the Act where a defendant would be liable for totting disqualification the court is obliged to decide whether to impose a disqualification for the offence pursuant to Section 34 of the Act before it can consider whether the provisions of Section 35 of the Act apply."

I would answer that question "yes", but I would answer it in the context of the judgment that I have just delivered; that is to say, although the magistrates should start with section 34 and consider whether to impose a disqualification for the offence, they are not limited in that consideration to the provisions and requirements of section 34 alone. It is open to them in their discretion to decide not to impose such a disqualification, being conscious of and indeed having the intention that the result will be the imposition of a compulsory disqualification under the totting-up provisions.

The second question is as follows: "If the answer to question (a) is in the affirmative , whether the decision as to the imposition of a disqualification for the offence pursuant to Section 34 of the Act should be made without reference to any prior endorsements."

The answer to that question is "No", for the reasons that I have given.

That leaves the fate of this appeal. Mr. Jones was sentenced to a disqualification under the totting-up provisions in circumstances where the magistrates did not first consider section 34 and were not asked by those appearing for him so to do. My view, as at present advised, is that therefore it would be inappropriate to allow this appeal and send the matter back to the magistrates, first because this point was never taken below, and secondly because I am bound to say that, in the circumstances of the law as I have expounded it in this judgment, I do not see how magistrates, properly directing themselves, would in the circumstances of this case find themselves able to impose a disqualification under section 34, with the result that Mr. Jones did not become liable for the totting-up disqualification that was in fact imposed on him. However, since that point has not been ventilated before us, my view is that we should hear Mr. Cooper on that subject.

I therefore determine this case in the way that I have indicated.

MR. JUSTICE PENRY-DAVEY: I agree.

LORD JUSTICE BUXTON: Do you want to say anything to us, Mr. Cooper, about how this matter should be disposed of?

MR. COOPER: Your Lordships have agreed with part of the appeal -- that they should have turned their attention to section 34 first, and did not. So that extent the appellant has been partially successful. If your Lordships were to return the case to the justices, I would see it as inevitable that they would follow your Lordship's guidance in their approach and would end up with the same result.

LORD JUSTICE BUXTON: Yes.

MR. COOPER: May I take instructions before I conclude my remarks?

LORD JUSTICE BUXTON: Surely. (After a pause):

MR. COOPER: My Lords, in my submission there is nothing to be achieved by remitting the case.

LORD JUSTICE BUXTON: That is very sensible, so that is therefore tantamount to dismissing the appeal, in the sense that we do not send it back, but I will hear anything you want to say about costs.

MR. COOPER: That is an important consideration, my Lord, and Mr. Jones has funded this -- may I call it an important appeal because it will have a profound effect upon day-to-day practice in Magistrates' Courts. I do apply for a defendant's costs order so that his costs will be allowed from public funds, in view of the fact that he has been successful on the fundamental point that there is an obligation to consider section 34 before moving on to section 35.

LORD JUSTICE BUXTON: What do you say about that, Miss Lloyd-Nesling?

MISS LLOYD-NESLING: I think my learned friend is right that this is a matter which needed to be determined by this court, and guidance needed to be given. It is an important point. I concede that. I do not actually make any specific application for costs for the Crown. I do not think I can assist the court further.

LORD JUSTICE BUXTON: We see the points that you make, Mr. Cooper, and Ms. Lloyd-Nesling's very fair observation, but we are not minded to make a defendant's costs order in this case. Mr. Jones lost on the substance of the matter. Although it is true that we said that the magistrates should consider section 34 first, we did not hold that they should consider it in the way that Mr. Jones wished them to consider it, nor of course was the point taken at all below. In our judgment it is not therefore an appropriate case for a defendant's costs order, quite apart from the fact, of course, that in the event the appeal was dismissed. We will, however, not go any further than that. We make no order for costs in this case.

Thank you both for your submissions. Whether we have added to the corpus of wisdom in this area is no doubt something that we will find out over the next months and years.

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