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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kirk, R (on the application of) v Bristol Crown Court & Ors [2001] EWHC Admin 176 (13th March, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/176.html Cite as: [2001] EWHC Admin 176

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Regina on the application of MAURICE JOHN KIRK v. BRISTOL CROWN COURT BARRY MAGISTRATES COURT BRIDGEND MAGISTRATES COURT VALE OF GLAMORGAN MAGISTRATES COURT CARDIFF MAGISTRATES COURT [2001] EWHC Admin 176 (13th March, 2001)

Case No: CO/2012/2000, CO/2013/2000

CO/1924/2000 CO 3422/2000 & CO/357/1999

Neutral Citation Number: [2001] EWHC ADMIN 176

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday 13th March 2001

MR JUSTICE MORISON :

1. There are five applications before the Court.

2. In the first, CO/2012/2000, Mr Kirk, a veterinary surgeon who practises in Barry, in the Principality of Wales, renews his application for permission to challenge the decision of the Stipendiary Magistrate on 27th March 2000 refusing an order for the disclosure of custody records. Mr Kirk says that these records are relevant to one of the outstanding charges against him, namely that he failed to provide a specimen of breath when required to do so at the roadside on 1st December 1999. He contends that he was stopped by the police not because they genuinely suspected that he had committed a relevant offence, but because the police were harassing him, and have been harassing him for some time. When he was arrested and taken to the police station he provided further specimens of breath which showed a nil reading. He relies upon this evidence to show that the demand for a roadside specimen was made maliciously. He also contends that the police are acting maliciously in prosecuting him for his failure to provide a specimen at the roadside.

3. In her decision the Magistrate dealt with Mr Kirk's various requests in this way. He asked that the police disclose the Custody Record relating to his detention at the police station. She expressed confidence that the police would arrange for the Crown to comply with its disclosure duty and was confident that there would be no difficult in relation to this record. As to video tapes and audio tapes, if they were extant she could see no difficulty in Mr Kirk viewing them. The witness statements would provide the relevant identities of police officers. As to his application for the custody notes in respect of some previous 18 occasions when he had been arrested, the Magistrate was not prepared to make any order because as things stood she was not persuaded that they would be relevant to the proceedings. She continued:

"If I am wrong, then Mr Kirk may in due course seek to persuade this court of their relevance in order to obtain witness summonses against those persons who may be able to produce them, whoever they may be."

4. As for his application for statistical evidence showing how many people with a zero reading from a breath test are asked to give a blood sample, the good faith of the police approach to the whole incident could be tested by cross-examination and Mr Kirk could "air" this issue during such examination.

5. I have to say that I do not consider that the Magistrate has erred in her approach to the various applications. Indeed, in my view she has handled them all correctly. The absence of any material evidence which it may have been the prosecution's duty to retain [for example the video evidence] can be drawn to the Court's attention together with a copy of this court's ruling in the case of Mouat [reference CO/4001/2000 handed down 21st February 2001].

6. I would refuse permission for this matter to proceed because I cannot detect any arguable point of law.

7. The second application listed is CO/2013/2000 relates to `court records' which Mr Kirk was refused access to by the Clerk to the Magistrates at Bridgend Magistrates Court on 22nd March 1997. It seems to me that this application does not raise any arguable point of law. Interlocutory or procedural applications in advance of hearings may often prove a waste of time since they can be made during the course of proceedings when the Court is in a better position to assess their merits. I would refuse permission to apply for judicial review as did the single judge, on paper.

8. The third application CO/1924/2000 is a renewed application for permission. The applicant was convicted by Magistrates sitting in the Vale of Glamorgan Court. This application relates to what is called the Cowbridge Show incident or incidents. The history of the matter is set out in the judgment of Latham J in proceedings listed as CO/4199/99. Mr Kirk says that the prosecution authorities have behaved improperly in relation to proceedings which led to his convictions for various offences on 7th January 1999. Having been convicted by the Magistrates he then made an application to the Crown Court alleging that the proceedings before the lower court had been an abuse of the court's process. That application was heard by HHJ Gaskell, who after a lengthy hearing concluded that, ultimately, Mr Kirk had not been unfairly convicted by the Magistrates' Court, although there was force in much of what Mr Kirk had submitted. Mr Kirk's application for judicial review of both his conviction and of the refusal by the Crown Court to stay the proceedings as an abuse of process were both refused by Latham J. Following rejection of these applications the appeal against conviction was heard and was dismissed.

9. The application before the Court relates to a rehearsal of what the Crown Court had already rejected. Mr Kirk says that the Prosecution were ordered to provide documents to him and what they produced were altered and there was a conspiracy between the clerk to the Magistrates and the prosecutor on 7th January and he relies on a memorandum prepared by the clerk which shows, says Mr Kirk, an improper and biased approach to the prosecution. He says that he was denied the chance to plead guilty to an offence of causing a breach of the peace and instead the charges were uprated and `bounced' on him. He says that he has fresh evidence to assist his application.

10. Again, it seems to me that all the issues which Mr Kirk now wishes to raise have been fully and properly considered by the courts at various stages, as the transcripts show. Something obviously went wrong with the way the prosecution was conducted but not such, in the view of the Crown Court, as to deny Mr Kirk his right to a fair trial. I can see no basis for these judicial review proceedings. This Court has a limited supervisory jurisdiction over the Crown Court, which itself is a court of record. I am satisfied that there are no arguable grounds for granting permission and I would refuse it.

11. I turn to the next application for permission in proceedings CO/3422/2000. This application relates to the decision of the Cardiff Magistrates Court on 18th September 2000. Mr Kirk was arrested on 5th April for a number of offences, including failure to provide a breath test and no insurance. He appeared before the Court on 11 April and pleaded guilty to all the 5 charges. He said that he became aware after he had pleaded guilty that his failure to give a breath test was taped and videoed. He said that the film would show that the police smashed their way into his car as he was stuck in a stationary queue of traffic. The circumstances in which a person may change his plea are limited and I am bound to say that I can see no grounds for believing that the Magistrates erred in the exercise of their powers to permit a change of plea. There is no basis for suggesting that the original plea was either equivocal or confused. It was a deliberate decision from an experienced litigant. I refuse the application as it has no merit in law.

12. I turn to the last application: CO/357/1999. Mr Kirk complains that Mr Justice Scott Baker, sitting at Bristol Crown Court wrongly `countermanded' an order previously made by HHJ Ticehurst. The proceedings involve a Mr Ebbs whom Mr Kirk is alleged to have assaulted on 9th January 1997. Mr Kirk was convicted of assault on 12th September 1997 by the Bristol Magistrates. He unsuccessfully sought permission to commence judicial review proceedings against that conviction on the grounds that the police had withheld details of prosecution witnesses and of the complainant's medical records. That application was dismissed on paper by the single judge and by the court when it was renewed. There was then an appeal against conviction before the Crown Court and at a pre-trial hearing before Ticehurst J on 28th October 1998, the applicant believed that a disclosure order had been made in his favour. He says that when he sought an order from Scott Baker J in January 1999 the Judge reversed the order. The appeal was heard and dismissed on 18th July 2000, before these proceedings had been completed. His application for permission was refused and this is his renewed application for permission. When the matter had come before the Court on 16th November 1999 it was observed that there were no documents evidencing the orders made either by the Circuit Judge or the High Court Judge. It appears from the records referred to by Mr Kirk in these proceedings that Judge Ticehurst ordered relevant medical records to be produced if Mr Ebbs gave his consent [which was refused]. Mr Justice Scott Baker said that the Court had no power to order these records to be disclosed. I am not satisfied that Mr Kirk has made out a good arguable case for saying that he was entitled to an order for disclosure of private medical records which the prosecution themselves did not have. Mr Kirk was able to cross examine Mr Ebbs about his medical condition as the note of the proceedings provided by the court demonstrates. I would refuse leave.

LORD JUSTICE BROOKE

13. I agree.