We commented on this case in 2006;
viewtopic.php?f=2&t=3711&view=nexthere's the transcript;
Reading Borough Council v Hussain [2006] EWHC 1198 (Admin) (10 May 2006)
http://www.bailii.org/ew/cases/EWHC/Adm ... /1198.html Neutral Citation Number: [2006] EWHC 1198 (Admin)
CO/6147/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
10th May 2006
B e f o r e :
MR JUSTICE SULLIVAN
____________________
READING BOROUGH COUNCIL Appellant
-v-
ASGHAR HUSSAIN Respondent
MR JUSTICE SULLIVAN: This appeal by way of case stated demonstrates that the wheels of justice do grind exceedingly small. The facts of the matter are set out in the case stated as follows:
"1. On the 16th February 2005 an information was laid by Reading Borough Council summonsing the Respondent under section 54(2) of the Local Government (Miscellaneous Provisions) Act 1976. The information alleged that on the 27th August 2004 at Reading in the County of Berkshire, the Respondent, whilst acting in accordance with a private hire vehicle driver's licence issued by Reading Borough Council in accordance with section 51 of the Local Government (Miscellaneous Provisions) Act 1976 failed to wear his private hire driver's badge in such position and manner as to be plainly and distinctly visible."
Pausing there, so far as relevant section 54 of the 1976 Act is in these terms:
"(1) When granting a driver's licence under section 51 of this Act a district council shall issue a driver's badge in such a form as may from time to time be prescribed by them.
(2)(a) A driver shall at all times when acting in accordance with the driver's licence granted to him wear such badge in such position and manner as to be plainly and distinctly visible.
(b) If any person without reasonable excuse contravenes the provisions of this subsection, he shall be guilty of an offence."
By reason of section 101 of the Magistrates' Courts Act 1980, the onus of proving that there was a reasonable excuse was on the respondent to this appeal.
Returning to the case stated, the justices say:
"2. We heard the information on the 26th May 2005 and found the following facts:-
a) The 27th August 2004 was the summer Bank Holiday weekend and the Reading Rock Festival. As a result, the private hire service was extremely busy.
b) At the time when the Respondent was picking up this particular fare in his private hire vehicle on 27th August 2004 his badge was in the door pocket of the vehicle and not in such a position and manner as to be plainly and distinctly visible.
c) The Respondent had worn his badge earlier that day but had removed it whilst taking a break. He was entitled to a break from duties and decided to use this opportunity to have a prayer break. Furthermore, we found that it is contrary to the Respondent's religion to be adorned with an item showing his photograph during prayers.
d) During this break, the Respondent had been harried by his vehicle controller to resume his duties as it was an extremely busy day.
e) The call received requesting that he resume his duties early was not via his vehicle radio but via the respondent's mobile phone.
f) The Respondent had forgotten to replace his badge upon return to work so as to be plainly and distinctly visible.
g) The Respondent had worked as a taxi driver for approximately 3 to 4 years.
3. Section 54(2)(b) of the Local Government (Miscellaneous Provisions) Act 1976 provides that 'if any person without a reasonable excuse contravenes the provisions of this subsection, he shall be guilty of an offence'.
4. We sought the advice of the legal adviser as to the definition of 'reasonable excuse'. The legal adviser directed us that there was no definition of what could amount to a 'reasonable excuse' and we had to regard ourselves as the arbiters of what was reasonable in all the circumstances of the case. We were to give what weight we thought appropriate to the Respondent's age, his experience as a taxi driver and all the other circumstances of the case we felt relevant. We were to consider what a reasonable man on the Clapham omnibus would have thought of the Respondent's reason for failing to wear his badge namely that he had forgotten to put his badge back on after his prayer break. The legal adviser explained that we could draw analogies with the acceptability or otherwise of the explanations the courts frequently heard in relation to offences such as failing without a reasonable excuse to surrender to court and to failing without a reasonable excuse to supply a specimen of breath for analysis. However, we were not directed by the prosecution to any relevant case law on this point.
5. On the facts of this particular case and in the absence of being referred to any case law, we were of the opinion that the circumstances of this case, including the defendant's age, amounted to a reasonable excuse for the Respondent failing to wear his private hire driver's badge.
6. Accordingly we dismissed the information.
QUESTION
7. The question for the opinion of The High Court is whether on the basis of all the evidence adduced at the trial, a reasonable bench of Magistrates properly directed, would have found the defendant not guilty."
It is well established that whether the facts raised are capable of amounting to a reasonable excuse is a matter of law, and whether they do so amount is a question of fact and degree for the magistrates: see Law v Stephens [1971] RTR 358, a Divisional Court case.
On behalf of the appellant, Mr Blackford submits that on the facts as found by the magistrates this was a case of simple forgetfulness. He further submits that forgetfulness of itself cannot, as a matter of law, amount to a reasonable excuse.
As a subsidiary point, Mr Blackford submits that the magistrates took account of an irrelevant factor, that is to say the defendant's age. It is indeed difficult to see why the magistrates should have thought that the defendant's age was relevant. However the principal question is whether mere forgetfulness --for that is in essence all that was found by the magistrates -- could as a matter of law could amount to a reasonable excuse.
Mr Blackford's researches have not found any authority which deals with reasonable excuse in the context of section 54 of the Local Government (Miscellaneous Provisions) Act 1976. However, he drew attention to the reasonable excuse defence in the context of the offence of having an offensive weapon in a public place. In R v Glidewell [1999] 163 JP 557 a minicab driver had been stopped by a police officer. When the officer spoke with the passenger in the minicab he noticed a piece of wood sticking out from beneath the carpet. On further examination of the vehicle other weapons were found, including a knife. The defence conceded that there were indeed offensive weapons in the car and that the appellant had them in a public place, but the issue raised for the jury was whether the defendant had a reasonable excuse.
The defendant in those proceedings contended that the items had been left in his car by a passenger. He put them in the front of the car, intending to clear them out later but then completely forgot about them. He had no idea who had put the items in his car. His case was that he did not have the items for self-protection, he "had simply forgotten to take the items from the car because he was working late." When summing the matter up, the learned judge said this:
"being forgetful that it is there is not an excuse, never mind a reasonable excuse."
He then repeated that direction:
"I have told you that forgetting is not an excuse in law."
Rose LJ said that counsel on behalf of the appellant in those proceedings and counsel on behalf of the Crown had both sought comfort from an earlier decision of the court, R v McCalla (1988) 87 Cr App R 372, in which there appears the following at page 379:
"'... we are quite satisfied that to have forgotten that one has an offensive weapon in the car that one is driving is not in itself a reasonable excuse under the Act. But when such forgetfulness is coupled with particular circumstances relating to the original acquisition of the article the combination of the original acquisition and the subsequent forgetfulness of possessing it may, given sufficient facts, be a reasonable excuse for having the offensive weapon with one.'
Lord Justice May, who was there giving the judgment of the Court, went on to give an example of the circumstances in which forgetfulness might be pertinent." (emphasis added)
In Glidewell the court went on to consider the circumstances of that particular case. Rose LJ said:
"The question arises whether, in the passages to which we have referred, the learned judge misdirected the jury. In our judgment he did. Depending upon the circumstances of the particular case, forgetfulness may be relevant to whether or not a defendant has a reasonable excuse for possession of an offensive weapon.
The circumstances of the present case, including the fact that it was not the defendant who had introduced the weapons into his car, the fact that the weapons had been in his possession for a comparatively short period of time and the fact that he had given evidence as to how busy he was on the relevant night, which bear on the question of his forgetfulness, all as it seems to us, made the relevance of forgetfulness to the question of whether his excuse for possession was reasonable a matter for the jury."
The appeal was therefore allowed.
Mr Blackford particularly relies upon the passage in the citation from the decision in McCalla that I have underlined. In summary, he submits that, whilst forgetfulness may be a relevant factor, mere forgetfulness of itself cannot amount to a reasonable excuse.
Mr Hussain, who appeared in person before me, submitted a respondent's statement. In that statement he explained the factual background in terms which accord with the magistrates findings of fact. He further submitted that a distinction should be drawn between having a reasonable excuse for possessing an offensive weapon and having a reasonable excuse for failing to wear a hire driver's badge.
I would accept the proposition that when one is considering whether or not there is a reasonable excuse, one has to ask the question: reasonable excuse for what? There are numerous authorities dealing with whether or not there is a reasonable excuse for carrying offensive weapons, and whether or not there is a reasonable excuse for failing to provide a sample of blood or urine in the context of drink-driving cases. Thus, one has to be cautious in applying dicta which are entirely appropriate in one statutory context to a very different statutory context.
Nevertheless, I am satisfied that mere forgetfulness (and this is all that there was on the findings of the magistrates) without more cannot as a matter of law amount to a reasonable excuse for not displaying a badge in accordance with the requirements of the 1976 Act. That is not to say that forgetfulness cannot be a relevant factor in deciding whether, in conjunction with other circumstances (such as, for example, those described in the McCalla and Glidewell cases), there can be a reasonable excuse. But as I say, such circumstances are not in issue in the present case. This was a simple case of forgetfulness. There is no suggestion that the respondent did not have time to put his badge back on after he had taken his prayer break, even though, no doubt, there was a considerable amount of work and he was under pressure from his controller to resume his duties. In truth it would only have taken a moment to put the badge back on. The respondent had time to do that, but he simply forgot to do so.
It follows that the answer to the question posed for the opinion of this court by the justices is "no". However, it is plain that the justices were of the view that there was a reasonable explanation for the defendant's conduct. That conclusion holds good, even if the magistrates were not entitled as a matter of law to conclude that there was a reasonable excuse for the purposes of section 54. Bearing that factor in mind, and bearing in mind also the fact that this offence occurred as long ago as 27th August 2004, I respectfully express the view that when this matter is remitted to the magistrates with a direction to convict, the appropriate penalty would be an absolute discharge. After this length of time in respect of a relatively minor offence, in circumstances where the magistrates concluded that there was good reason for the non-compliance, it would be wholly disproportionate, after this lapse of time, to impose any penalty upon the respondent or to require him to pay any costs.
Having said that, the matter must be remitted to the magistrates with a direction to convict.
Yes?
MR BLACKFORD: My Lord, I have an application for costs.
MR JUSTICE SULLIVAN: Yes.
MR BLACKFORD: I appreciate from what your Lordship has said earlier that your Lordship will be looking at the proportionality of the matter.
MR JUSTICE SULLIVAN: I will.
MR BLACKFORD: May I just say this, that the respondents took the view that the justices had quite clearly gone wrong, as your Lordship has found. They took the view that it was important that the matter be decided in the way that it has. Once that decision has been taken, these kind of costs get incurred. There is really nothing that the respondent can do about that. It follows from what your Lordship has said about proportionality that you will consider to what extent the respondent to the appeal should be responsible for these costs, and I do not propose to say anything more than what I have just said on that subject.
MR JUSTICE SULLIVAN: Thank you very much, Mr Blackford. You will appreciate that I did not say anything in the judgment about the proportionality of bringing these proceedings, except possibly for the initial observation.
MR BLACKFORD: I am grateful.
MR JUSTICE SULLIVAN: So there was no criticism. But I do take the view that sometimes local authorities are apt to elevate decisions of magistrates on particular facts into great issues of principle. It is only a decision of magistrates. It has no precedential effect at all. But anyway, thank you for your submissions on that.
Mr Hussain, I do not need to trouble you because I am not going to award costs in this case, and I am not going to do so for this reason. Whilst it could be said that the magistrates' decision raised an issue of law, the magistrates' decision quite plainly on its fact turned very much, in the magistrates' view, on the particular facts of this case. It does not seem to me that the magistrates were intending to say as a matter of law and principle that mere forgetfulness will serve to amount to a reasonable excuse. It is perhaps surprising, on the face of it, that a prosecution was brought and even more surprising in proportionality terms that an appeal was mounted. I have not expressed those views quite deliberately in my judgment, but they are nevertheless relevant I think when I come to consider the question of costs.
I am quite happy for the council if it wants to to establish points of principle, but I do not see why they should be established at the expense of an unrepresented litigant such as Mr Hussain. So I make no order as to costs.
Remitted back. It is a direction to convict, with an indication from the court that the appropriate penalty will be an absolute discharge.
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