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Decani v City of London Magistrates’ Court v Crown Prosecution Service [2017] EWHC 3422 Judgment

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Royal Courts of Justice Wednesday, 25th October 2017




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MR J BENSON QC (instructed by Geoffrey Miller) appeared on behalf of the Claimant.

THE DEFENDANT did not attend and was not represented.

MR J MCGUINNESS QC (instructed by the Crown Prosecution Service Appeals Unit) appeared on behalf of the Interested Party.



  1. In the early hours of the morning on 9th June 2017 the claimant was stopped whilst driving his car by police officers in the west of London. He provided a roadside breath test to them as they suspected that he was driving whilst under the influence of alcohol. That test measured 69 micrograms of alcohol in 100 millilitres of breath.
  2. Following the roadside breath test he was arrested and taken to Belgravia Police Station. There he was re‑tested using the station’s Intoximeter machine and subjected to the process which is recorded in a form known as MGDD/A. During the course of completing that form he indicated that he had regurgitated, or burped, prior to the test being undertaken. The form indicates that if that is the case a period of 20 minutes should elapse before the test occurs. That did not in fact take place and when the Intoximeter was used, he was measured as having 61 micrograms of alcohol in 100 millilitres of breath and subsequently therefore charged with having excess alcohol in his body contrary to s.5(1) of the Road Traffic Act 1988.
  3. The matter proceeded to the magistrates’ court and on 23rd June 2017 the claimant entered a not guilty plea at the first hearing of his case. A form entitled, the “Preparation for Effective Trial” form or PET, identified three issues which were raised by the defence as being pertinent to the charge. Those three issues were as follows: firstly, the reliability of the breath test sample which had been taken in the light of what the claimant himself was proposing to say as to what he had had to drink that evening and when he had drunk it. Secondly, whether or not there had been compliance with the MGDD/A procedure, in particular in respect of the burping or regurgitation which the claimant had advised officers of on the form, in the light of the period of time subsequently elapsing before the test was administered. Thirdly, an issue was raised to say whether or not the lawful requirements for provision of a breath specimen had been fulfilled. The claimant made clear in the PET form that police officers Casalliglla and McNaughton, who were the officers who arrested him at the scene, were required because one of the other matters which was in issue were what the claimant was said to have suggested at the time of his arrest.
  4. Subsequent to this first hearing on 26th June 2017 the claimant’s solicitors wrote to the prosecution putting the certificate from the Intoximeter’s analysis in issue pursuant to s.16(4) of the Road Traffic Offenders Act 1988. That required the attendance of the officer who had operated the Intoximeter machine, Police Sergeant Varotsis.
  5. The relevant provisions of s.16 of the 1988 Act are as follows:
    “16(1) Evidence of the proportion of alcohol or a drug in a specimen of breath, blood or urine may, subject to subsections (3) and (4) below and to section 15(5) and (5A) of this Act, be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say—
    (a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that that the statement relates to a specimen provided by the accused at the date and time shown in the statement, and […]”
    “16(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed.”
  6. In the same letter the claimant’s solicitors also indicated that none of the prosecution witnesses were agreed.
  7. On 28th June 2017 CCTV evidence of the Intoximeter procedure was requested by the claimant’s solicitors. There was then a period from around 6th July 2017 until 21st July 2017 when the claimant’s solicitors removed themselves from the record.
  8. On 21st July 2017 two events occurred. Firstly, the prosecution contend that the claimant was personally served (in the absence of instructions) to his solicitors with evidence which included a s.9 statement from Police Sergeant Varotsis. This is disputed and there is evidence before the court to suggest that that correspondence never arrived with the claimant. Secondly, back on the record, the claimant’s solicitors wrote to the prosecution complaining about the absence of disclosure. On 27th July 2017 the claimant’s solicitors wrote to the prosecution disclosing two s.9 statements from lay witnesses of fact dealing in particular with what they had observed the claimant to be drinking on the night in question. On the following day, 28th July 2017, two further events occurred. Firstly, the prosecution wrote to the claimant, again in person, indicating that there was no undisclosed material available in the case. Secondly, the claimant’s solicitor wrote to the prosecution, firstly serving a voluntary Defence Statement detailing the nature of the defence which the claimant proposed to run, and secondly, enclosing a report from a Dr Mundy who was an expert evidence relied upon by the claimant so as to demonstrate that there must have been some error in the Intoximeter procedure.
  9. The matter came on for trial on 7th August 2017. When the matter was called on Police Sergeant Varotsis was not at court. Not only was he not at court, he had not been warned of the need for his attendance. This drove to the prosecution to apply for an adjournment because it was accepted by the prosecution that they would be unable to prove their case against the claimant without that evidence dealing in particular with the Intoximeter procedure. It had been put in issue by the letter of 26th June 2017 and further by observations in the Defence Statement indicating potential reasons why the Intoximeter might not have been operating correctly. Those matters concerned issues such as whether there was a power spike or other electromagnetic interference with the machine which might explain the findings of the defence evidence that the Intoximeter’s reading was vastly in excess of that which would have been anticipated from the amount of alcohol which the claimant contended he had consumed.
  10. There are various statements before the court as to what happened at the hearing. Suffice to say that the legal adviser having recorded various submissions made on behalf of the claimant resisting the application to adjourn, records the decision of the justices in the following terms:
    “It is in the public interest to adjourn this trial, it is the first listing for trial, the time delay between the date of the alleged offence and today’s date is less than two months: this is not excessive in our view. It is important that the key witness attends to give evidence.”
  11. A fuller statement of the reasons of the justices was provided subsequent to these proceedings arising. The magistrate chairing the bench on that occasion, Mr Nick Tarry JP, provides more detail in relation to both the events which arose during the course of the application for the adjournment but more particularly the reasons which were given as to why the application to adjourn was allowed. The basis of that determination of the application is set out as follows:
    “4. When the court convened, Mr Becker, who appeared for the Crown Prosecution Service, made an application to adjourn. The presence of the officer who had conducted the MGDD/A was required by the defence but he had not been made available that day.
    5. We queried this issue in the light of the approach adopted in Hassani. Mr Lucas (who appeared for Mr Decani), the prosecutor, Mr Becker and our legal adviser were all clear that the right of the defence to require the attendance of the officer who conducted the MGDD/A was set out in primary legislation and could not be overridden.
    6. Mr Lucas, on behalf of Mr Decani, strenuously objected to the application. He provided a detailed summary of the history of the proceedings up until that point, highlighting failures on the part of the Crown Prosecution Service.
    7. Mr Lucas further provided extremely detailed and thorough submissions setting out the approach that the senior judiciary have adopted. We were taken through Picton and ‘the family’ of cases that urge courts to taken (sic) an extremely robust line on applications to adjourn.
    8. Mr Lucas drew our attention to the principle that when considering applications to adjourn, one of the significant factors that must be borne in mind is the projected delay. He inferred from this that the salient factor was the availability of the defence’s expert witness, Dr Mundy, whom he told us could not return to court until late October or November.
    9. Having heard these submissions we rose to make our decision.
    10. We decided to adjourn the proceedings. Notwithstanding the failures on the part of the CPS, in fact only a very short period had elapsed between the date of the alleged offence and the date of the trial: slightly more than eight weeks. All of the significant headline cases that address the issue of delay deal with a significantly greater delay than eight weeks.
    11. Furthermore, despite the defendant’s right to require the officer conducting the MMD/A (sic) to attend, the application of Hassani remains highly relevant to this type of case. Having pursued the PET it appeared that the nature of the issues being raised by Mr Decani’s representative were very closely analogous to those in Hasani (sic) and Christie.
    12. Once we had announced our decision to adjourn, the availability of all witnesses was canvassed. Mr Lucas announced that Dr Mundy could not attend until 1st December 2017. Mr Lucas then renewed his objection to the application to adjourn on the grounds that there would be a long delay.
    13. We could not accept this at all. Clearly any application to adjourn has to be considered in the light of the proposed adjournment. Mr Lucas’s contention was that this must accommodate the defence witness, but what should happen is that both parties should ask the court for the soonest possible date that the listing diary can provide. If the adjournment period is sufficiently close that an adjournment can be justified, the parties should then make efforts to ensure that they can accommodate that date.”
  12. The claimant submits from the record of the magistrates’ court decision that there were a number of errors of law committed by the justices in reaching the conclusion that they arrived at. On behalf of the claimant Mr Benson QC submits that there was not rigorous scrutiny exercised in relation to the application. Further, he submits that it is clear from Mr Tarry’s reasons that irrelevant considerations were taken into account. In particular he relies upon the reference within para.11 to the case of Hassani to which I shall turn in due course, as being irrelevant to the question of whether or not in these circumstances the application to adjourn should have been acceded to. He also draws attention to the reference to delay not being greater than eight weeks and submits that this again was not a relevant factor which should have driven the justices to adjourn the proceedings.
  13. In response Mr McGuinness QC, who appears on behalf of the interested party, contends that the decision which the magistrates reached was both rational and also took into account all of the relevant considerations and left out of account all irrelevant considerations. He submits that in having regard to the fault on the part of the CPS and the delays which would occur not being excessive, these were all factors which were pertinent to the decision which had to be made. Further, he submits in relation to para.11 of the reasoning that Hassani was of some materiality because of the matters which have been raised in the defence statement pertaining to the operation of the Intoximeter machine. The justices, he submits, were entitled to reach the conclusions having properly directed themselves as to the relevant factors in play, to conclude that the adjournment application ought to have been allowed.
  14. The legal principles in relation to an application to adjourn in circumstances of this kind can be derived from a number of authorities. Before embarking on a review of those authorities it is necessary to observe that the decision whether or not to adjourn a trial in these circumstances is highly fact sensitive and the factors which may be pertinent to the exercise of that discretion may well be legion and certainly cannot be exhaustively listed.
  15. The principles upon which the court will approach such an application to adjourn and indeed upon which this court will consider a challenge to that decision were drawn together initially by Mr Justice Jack in the case of CPS and Picton [2006] EWHC 1108 in para.9 of his judgment.
    “[9] In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates’ Court ex parte Rowlands [1998] QB 110, [1997] 2 WLR 854, 161 JP 258 (then as Lord Bingham CJ). The following points emerge:
    (a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.
    (b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.
    (c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the Defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.
    (d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.
    (e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.
    (f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise, if the part opposing the adjournment has been at fault, that will favour an adjournment.
    (g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.
    (h) Lastly, of course the factors to be considered cannot be comprehensively stated but again upon the particular circumstances of each case, and they will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.”
  16. In more recent cases more particular emphasis has been given for the need for the court faced with an application to adjourn to subject that application to rigorous scrutiny. This approach, and in particular the weight to be given to the failure of the prosecution to be ready for trial on the appointed day, was emphasized by Leveson LJ in Balogun v DPP 2010 EWHC 7999 (Admin), 25 to 27.
    “[25] I go back to the test identified by Lord Bingham CJ: has the deputy district judge subjected this application to rigorous scrutiny? In Aravinthan Visvaratnam v Brent Magistrates’ Court [2009] EWHC 3017 (Admin), 174 JP 61 an application for judicial review to challenge a decision to adjourn a trial of driving whilst unfit through drugs was considered by the court in circumstances more egregious than those in this case. In that case no witnesses attended for the prosecution and no explanation was provided for not having served the evidence of the doctor, nor for having been ready in court to give evidence and no explanation was given for not previously having sought an adjournment once it had become clear that the forensic scientist would not attend.
    [26] Giving the judgment of the court, Openshaw J said:
    ’19 I have no doubt that there is a high public interest in trials taking place on the date set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so. The sooner the prosecution understands this ‑ that they cannot rely on their own serious failures properly to warn witnesses ‑ the sooner in the efficiency in the Magistrates’ Court system improves. An improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the Magistrates’ Court will bring about great benefits to victims and to witnesses and huge savings in time and money.’
    I entirely agree with these observations.
    [27] In my judgment there are sufficient and legitimate and proper criticisms of the approach of the deputy district judge to justify the challenge advanced by Mr Lucas that he did not submit the application to adjourn to appropriate rigorous scrutiny. Each of the reasons which the judge provides, if not flawed, is open to challenge.”
  17. This approach was followed and endorsed by this court in the Queen on the application of Jenkins v Hammersmith Magistrates’ Court [2015] EWHC 3961 (Admin). In the light of what was in that case an accumulation of failures by the prosecution to prepare the case, an adjournment application was made by them at trial and granted by the magistrates. In that case this court was satisfied that the application had not been subject to rigorous scrutiny and the note of the reasons which was provided by the deputy district judge did not demonstrate any adequate inquiry being made into the prosecution’s failings. At para.32 Lloyd Jones LJ, as he then was, concluded that the decision to adjourn was as a result of not exercising the magistrates’ discretion in accordance with authority, or in other words, a misdirection, and had also amounted to a decision which was not reasonably open to that deputy district judge. In that case the decision to adjourn was quashed and an acquittal directed.
  18. To similar effect was the case of DPP v Petrie [2015] EWHC 48 (Admin) in which Gross LJ observed as follows, endorsing a magistrate’s decision to refuse an adjournment where the prosecution had failed to produce CCTV of a breathalyser test procedure when requested by the defendant in a timely fashion.
    “Although there are of course instances where the interests of justice require the grant of an adjournment, this should be a course of last rather than first resort ‑ and after other alternatives have been considered. As observed by this court in DPP v Picton (supra), at [9)(b)]:
    ‘Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.’
    It is essential that parties to proceedings in the Magistrates’ court should proceed on the basis of a need to get matters right first time; any suggestion of a culture readily permitting an opportunity to correct failures of preparation should be firmly dispelled.”
  19. This brings me to the case to which I have referred above and which is alluded to in Mr Tarry’s witness statement, namely The Queen on the Application Hassani v West London Magistrates’ Court [2017] EWHC 1270(Admin). In that case, as Irwin LJ observed, in defending that drink drive allegation the claimant raised “every imaginable point”. All points were taken by the defence before the magistrates’ court in circumstances where the claimant himself did not give evidence and essentially advanced a defence which required every conceivable, nitpicking aspect of the prosecution’s case to be put to proof. The claimant was convicted and a judicial review launched with some seven grounds, all of which Irwin LJ concluded were totally without merit.
  20. The observations of the court in rejecting the application for judicial review of the conviction are set out at paras.9 to 15 of Irwin LJ judgment’s.
    “9 The criminal law is not a game to be played in the hope of a lucky outcome, the game to be played as long and in as involved a fashion as the paying client is able or prepared to afford.
    10 District Judge Snow practised firm case management in this case. He was absolutely right to do so. Other courts faced with this kind of approach must do the same, whether the court is constituted by a professional district judge or by lay magistrates. Courts must consider the Criminal Procedure Rules, which are there to be employed actively so as to preclude game‑playing and ensure that the courts only have to address real issues with some substance.
    11 The Criminal Procedure Rules provisions most in question might be thought to be as follows. Each participant in a criminal case, that is to say lawyers as well as parties, must prepare and conduct their case in accordance with the rules: see CPR 1.2(1)(a) and (b). The key objective under the rules is to deal fairly with the case, and that includes dealing with the case efficiently and expeditiously: CPR 1.1(2)(e)). Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party’s lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it.
    12 Each participant in a case has the obligation set out in CPR 1.2(1)(c):
    ‘At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.’
    That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligations is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided ‘efficiently and expeditiously’. If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment, may properly be refused.
    13 Critical rules affecting all parties, including defendants and their representatives, are rules 3.2, 3.3 and 3.11. It is not necessary for me to quote them in full, but the attention of a court dealing with such cases should be drawn to those rules and perhaps in particular to 3.2(2)(a)) ‑ active case management includes the early identification of the real issues; 3.3(1) ‑ each party must(a) actively assist the court in fulfilling its duty under rule 3.2, with, or if necessary without, a direction and (b) apply for a direction if needed to further the overriding objective; 3.3(2) active assistance for the purposes of this rule includes (a) at the beginning of the case communication between the prosecutor and the defendant at the first available opportunity; (c)(ii) what is agreed and what is likely to be disputed(in other words, what is agreed and what is likely to be disputed should be the subject of active assistance and early communication); (c)(iii)) likewise, what information or other material is required by one party of another and why; and (iv) what is to be done, by whom and when. CPR 3.11: in order to manage a trial or an appeal, the court (a) must establish with the active assistance of the parties what are the disputed issues; and (d) may limit(i) the examination, cross‑examination or re‑examination of a witness and (ii) the duration of any stage of the hearing.
    14 In the absence of some specific evidence which indicates that there is a problem with the Intoximeter EC/IR machine, approved in 1998, and with approval, reissued in 2005, extensive exploration of technicalities will normally be a waste of time.
    15 It is perfectly open to a court to ask if a defendant intends to give evidence to the effect that he or she had not been drinking or had drunk so little that the excess alcohol reading cannot properly be explained. If the answer is no, then the court can properly question what may be the evidential basis for a challenge to the reading produced by the testing equipment, provided the proper procedures have been followed.”
  21. Having considered these legal principles and the reasons which have been provided in this case, my conclusions are as follows. Firstly, the essence of the justification for the justices’ decision is set out at paras.10 and 11 of the witness statement from Mr Tarry. It seems that the factors which were taken into account as influencing the exercise of their discretion were the failings of the CPS in this case to get the required witness to court, the short period between the alleged offence and the trial date which was slightly more than eight weeks, and therefore, the fact that the case would not involve significant delay in coming to trial.
  22. Finally, and in the separate para.11, reliance was placed upon the nature of the issues being closely analogous to those which arose in the case of Hassani. Having analysed these reasons, I have come to the conclusion that they were legally flawed. The first concern which I have must be the justices’ reliance in para.11 on the case of Hassani. Clearly, they regarded that as being of relevance to the issue of whether or not proceedings should be adjourned. As will be evident from the observations of Irwin LJ, that case in truth concerned the need for the parties and the court in drink drive cases of this sort to focus on the real issues at stake in the case and the importance of controlling the raising of a plethora of hopeless time‑wasting technical points aimed at frustrating rather than achieving justice in the particular case.
  23. In my view the magistrates were right, as recorded in para.5 of Mr Tarry’s statement, to bear Hassani in mind when querying whether in truth the attendance of Police Sergeant Varotsis was in fact required on the basis of the legal issues that had been raised. As the statement makes clear, all of the lawyers in court before the justices were satisfied that the police sergeant’s attendance was vital. Once the bench had been advised that Police Sergeant Varotsis was legitimately required as part of a defence which was being properly put before the court, the role of the Hassani case in their deliberations was at an end. The strictures it raised were not pertinent to whether the prosecution, having failed to get Police Sergeant Varotsis to court, should be granted an adjournment. Further, it appears to me somewhat unfair to suggest that the issues raised on behalf of this claimant, “[…] were very closely analogous to Hassani”. This claimant was not raising every conceivable point in order to frustrate the administration of justice. The points which were raised on the PET, and which I have set out above, were within a relatively narrow compass and in relation to Police Sergeant Varotsis arose from the claimant raising his statutory right under s.16(4) of the 1988 Act to have a certificate proved. Points in relation to the accuracy of the breath testing machine were supported by the expert evidence of Dr Mundy, based on the claimant’s account. Whilst Mr McGuinness is entitled to point out that there was a lengthy list of further potentially technical issues in relation to the operation of the Intoximeter machine providing a false reading, those are only raised in the context of the preliminary points or the points which lay the ground for those contentions, namely the contentions raised in respect of the amount that the claimant had had to drink and whether that could properly give rise to the Intoximeter reading, an avenue of defence specifically adverted to by Irwin LJ in para.15 of the decision of Hassani. In short, there was no suggestion on any side before the justices that this was a claimant who was playing games. He was pursuing a legitimate defence, supported by evidence. He was making a positive case, not needlessly putting the prosecution to proof. Thus, it is clear in my view that para.11 of the reasons for granting the adjournment betray a clear misdirection by the justices in their reliance on Hassani as a basis for permitting the prosecution a second opportunity to get a witness to court who they had known for some weeks would inevitably be required in order to prove their case at trial.
  24. It is also, in my view, notable that there does not appear in Mr Tarry’s statement to be any close or rigorous examination of the seriousness of the prosecution’s default in this case. In his submissions Mr McGuinness notes that perhaps there was not much more to be said in support of why the prosecution had not got Police Sergeant Varotsis to court other than the fact that it was an error, but it was an error which was at the more serious end of the spectrum since it arose from a complete failure to warn this vital witness that his attendance was required and thereafter to get the witness to court. They had known for a substantial period of time of the need for Police Sergeant Varotsis’ attendance, and after all, the officer was not going to be in principle a difficult witness to get to court.
  25. Furthermore, there is no reference in Mr Tarry’s statement to the defendant’s interest in getting his case heard and an outcome being known. The claimant was ready to proceed. He had brought witnesses to court, including an expert witness and was ready, willing and able to have his trial. This factor, which is one of the matters specifically adverted to in the case of Picton, is not referenced. I do not make these observations in the spirit of seeking to remake the justices’ decision but rather because they appear to me to demonstrate a legitimate concern that the adjournment application in this case was not, as the authorities specifically direct, subjected to the necessary rigorous scrutiny before the decision was taken. Indeed, although there is a reference to the leading case of Picton, there is in truth little evidence from Mr Tarry’s statement that its principles were carefully and thoroughly examined in weighing up the factors at play in the decision to be made. True it is that the reasons which the justices need to provide do not have to be extensive, but even bearing that in mind, when paras.10 and 11 of Mr Tarry’s statement are examined, the absence of fairly rudimentary and significant issues lead in my judgment to the conclusion that rigorous scrutiny was not applied in this case.
  26. As a consequence of these misdirections and the failure to exercise their discretion in accordance with authority, the magistrates’ decision, in my judgment, gives rise to an error of law. It is agreed at the bar that the appropriate disposal in those circumstances is that the decision to adjourn should be quashed and that the matter remitted to the magistrates with a mandatory order that the claimant should be acquitted so as to place him back in the circumstance he would have been in had the decision been made correctly. For all of those reasons, in my judgment, this application should succeed.


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