The Divisional Court had no jurisdiction to entertain an application for judicial review of a decision of Richmond Upon-Thames Magistrates' Court to refuse to stay proceedings because the proceedings in the magistrates' court had not been concluded.Application for judicial review of the decision of Richmond Magistrates' Court on 12 June 2003 to refuse an application by the claimant ('H') to stay proceedings against him for allegedly driving a motor vehicle whilst the level of alcohol in his blood exceeded the prescribed limit. H had provided a roadside breath sample that was positive. A further breath test at the police station was conducted using a EC/IR Evidential Breath Testing Instrument ('the instrument'), which test also had a positive result. H pleaded not guilty and, raising the issue of the reliability of the instrument, on 24 May 2002 sought disclosure concerning modifications and or corrections that had been made to EC/IR instruments. Disclosure orders were made and were complied with in part. In response to one of the orders, the prosecution disclosed a printout showing edited "F11" settings for the instrument. H considered that changes to the F11 settings would affect the performance of the instrument and could cause it to perform unreliably. Accordingly, H later sought and obtained an order for the disclosure of an unedited version of the F11 settings together with engineers reports and calibration and service sheets. The prosecution subsequently faxed a letter to H from the manufacturer of the instrument which stated that in their opinion there was nothing in the unedited F11 printout or the engineers checklist that would undermine the prosecution case or assist the defence. The later disclosure order was not complied with prior to trial. On 2 June 2003, at the close of the prosecution case H contended that the proceedings should be stayed as an abuse of process due to non-disclosure. H also applied to exclude the printout of his breath test from the instrument. The magistrates' court reserved its ruling until 12 June 2003 when the application for a stay was refused and an indication was given that a ruling would be made on the application to exclude the printout at the conclusion of the evidence. Because the issues raised were relevant to a number of pending cases, the magistrates' court invited H to appeal his judgment by way of judicial review. On the present application the preliminary issue arose as to whether the court had jurisdiction to hear the judicial review application given the stage in the proceedings at the magistrates' court.HELD: (1) There was jurisdiction to hear applications for judicial review in respect of questions as to whether proceedings should go ahead at all (R v Telford Justices, ex parte Badham (1991) 2 WLR 866 considered. (2) However, there was a distinction between that type of case and the type of case where the Divisional Court was being asked to examine, during the course of a trial, the way in which a magistrates' court had in fact proceeded. In such a case there was no jurisdiction for the court to intervene and the decision in R v Rochford Justices, ex parte Buck (1978) 68 Cr App R 114 that the court was under an obligation to keep out of the way until the magistrates' had finished their determination was still good law. (3) The present case fell into the latter category. There had been no determination on the application to exclude the printout and accordingly an important part of the trial had yet to be determined. H was required to wait until the end of the trial and then, if necessary, he could test the magistrates' court's decision, which test would almost certainly be by way of case stated. (4) In those circumstances, since the court did not have jurisdiction, it would make neither a quashing order nor a declaration.Application refused.

[2003] EWHC 2660 (Admin)

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