Byrne, R (on the application of) v Director of Public Prosecutions [2003] EWHC 397 (Admin)

Case No CO/4184/2002[2003] EWHC 397 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 21 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF SIMON DAVID BYRNEClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS RJ CALDER (instructed by Byrne Frodsham & Co, Cheshire WA8 6EB) appeared for CLAIMANTMR N ROWLAND (instructed by CPS Basingstoke, RG21 4AD) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Judgment
[1]MR JUSTICE STANLEY BURNTON: This is an appeal by way of Case Stated from the conviction of the appellant, Simon David Byrne, by District Judge Carling at Basingstoke Magistrates' Court on 10 June 2002 of the offence of driving a motor vehicle after consuming so much alcohol that the proportion of it in his blood exceeded the statutory limit. The offence was alleged to have taken place on 18 January 2002. The facts found by the district judge include the fact that the appellant was driving his Jaguar car in the evening in question. He was followed by two police officers on mobile patrol. They stopped him. When he came out of his car he was unsteady on his feet and smelt strongly of alcohol. He was asked to perform a road side breath test. It was positive. He was arrested, cautioned, made no reply and was then transported to Basingstoke Police Station where one of the officers, Police Constable Stone, conducted an intoximeter test. The police force in question use a proforma booklet or check list referred to as booklet MGDD(B) for the purpose of carrying out the procedure required by the Road Traffic Act 1988 in relation to a person arrested on suspicion of committing the offence in question in the present case.[2]The Case Stated states that that booklet was completed contemporaneously by the officer as the procedure was being carried out. The appellant did not appear to provide a proper specimen at first attempt. He was allowed to speak in private to a duty solicitor who was present at the police station on an unrelated matter. He was then given a further opportunity to provide breath specimens. On this attempt he provided two specimens of breath for analysis. Both of the readings exceeded the statutory limit, but they were discrepant; one reading was of 95 micrograms in 100 millilitres of breath, and the other, 110. The variance in the readings caused the intoximeter to produce an unreliability print-out and Police Constable Stone therefore requested a specimen of blood to be provided. During that procedure too, the proforma booklet was contemporaneously completed by him. When the officer gave evidence, the booklet was made an exhibit despite objection from defence counsel -- it having been used by the officer in giving evidence, presumably to remind him as to what had happened on the occasion in question and what procedures had been carried out. The appellant at the police station was asked whether there was any medical reason why he could not provide a sample of blood; he said "no". A police surgeon, Dr Wells, was called and took a sample of blood from him at 21.40 hours. The facts as found by the district judge are that that sample was taken with the appellant's consent. The appellant vomited after providing the blood sample. In the course of the proceedings a certificate of consent was produced in accordance with section 9 of the Criminal Justice Act 1967. A photocopy of that document is attached to the case stated. That certificate contained a bar code reference consisting of three letters and ten digits. At 21.47 hours part of the specimen was accepted by the appellant and placed in a sealed envelope; the other part of the specimen was placed in the refrigerator and sent off for analysis subsequently. At the hearing the court was shown a video that recorded a conversation between the appellant and the custody sergeant when the blood sample was supplied to the appellant. The custody sergeant was heard to say to the appellant words to the effect that it (ie, his blood sample, if sent for independent analysis) would probably come back three times over the limit and that it would be expensive (that is to say the cost of an independent analysis would be expensive), and no one had ever sent it away before. At the same time the appellant was provided with an instruction booklet which informed him of his rights and how the blood could be sent for analysis by himself. The prosecution sought to prove the analysis of the blood -- that is to say the alcohol content in the sample retained by the police -- by adducing in evidence a statement of Gavin Trotter, pursuant to section 9 of the Criminal Justice Act 1967. That statement is also an exhibit to the Case Stated. That statement showed that a glass blood vial labelled with the same three letter, ten digit reference contained not less than 194 milligrams of alcohol per 100 millilitres of blood. As a result, the appellant was charged with the offence in question on 1 March 2002.[3]The Case Stated sets out the contentions on behalf of the appellant. The first was that there was no evidence that Mr Trotter was an authorised analyst for the purposes of section 16(7) of the Road Traffic Offenders Act 1988. The second was that the only evidence provided by the respondent that the blood analysed was that of the appellant was hearsay evidence as there was no label attached to the sample sent to and subsequently analysed by Mr Trotter. Accordingly, there was no continuity in this evidence. Thirdly, the appellant was discouraged in sending his own sample away for analysis in view of the custody sergeant's comments and, therefore, effectively denied his rights. Fourthly, the certificate of consent for taking blood, produced to the court, was only a photocopy and there was no evidence it was a true copy of the original and therefore the sample was taken without consent. A further submission is referred to, which is not being pursued, as to the denial of rights to a fair trial under section 58 of the Police and Criminal Evidence Act 1984 because of the denial of a further opportunity to consult with a solicitor when the requirement for blood was made. However that issue is not reflected in any of the facts found and it has not been pursued on behalf of the appellant before me, I therefore say no more about it.[4]The opinion of the district

judge was:

"(a) Although on the face of Mr Trotter's statement that there was no evidence that he was an unauthorised analyst, given the evidence of his qualifications and employment, I was satisfied that he was authorised. "(b) The form MGDD(B) contained the same reference code for the sample taken as that analysed by Mr Trotter and accordingly I was satisfied that this sample was the blood of the appellant. "(c) The conversation with the custody sergeant was recorded on the custody suite video and there was a conversation between the sergeant and the appellant regarding issues such as the cost of the procedure and whether the appellant should or should not send his own sample away for analysis. I found as a fact that the appellant was given written instructions with his sample and he was not discouraged at all from sending his sample away for analysis. "(d) The certificate of consent provided by Dr Wells was accepted under section 9 of the Criminal Justice Act 1967 and accordingly I found that the sample was taken with the appellant's consent. "(e) In relation to the submission that the appellant's rights had been denied when the police refused to delay the procedure to allow him to speak to a solicitor . . . "
Then he makes various findings which again I do not need to refer to, and again he recorded that he found the appellant guilty of the offence charged. He was fined £400, ordered to pay costs, and disqualified from driving for 20 months with a 5-month reduction upon successful completion of the drink driving rehabilitation programme -- and doubtless his licence was endorsed.[5]The first question raised in the case stated is whether there was any evidence on which a reasonable bench properly directing itself could have held that Gavin Trotter was an authorised analyst. So far as that is concerned, it is conceded that the answer is no. Mr Trotter was not authorised for the purposes of section 16(1)(b) of the Road Traffic Offenders Act 1988. It follows that a certificate signed by him for the purposes of that section would have been inadmissible in evidence. However, the evidence of the analysis of the blood in this case was not sought to be adduced on the basis of a section 16 certificate, but on the basis of a section 9 (of the Criminal Justice Act 1967) statement. Section 16 is clearly an evidential provision providing a means of evidencing the proportion of alcohol in a specimen of blood or urine. It is not, and does not, purport to be a comprehensive or exclusive means of evidencing that fact. Manifestly, for example, the defence may call an expert analyst who is not authorised by the Home Secretary, whose evidence may be preferred by a court to that of a authorised analyst called by the prosecution where there is live evidence.[6]The statement of Mr Trotter included a statement of his qualifications and experience. It stated that he held an honours degree in chemistry, he was a chartered chemist, a member of the Royal Society of Chemistry, and that he was employed as a forensic toxicologist at the Laboratory of the Government Chemist. He had worked at the laboratory since 1989 and in the Forensic Drugs sections since 1991. Clearly he was an expert in relation to the making of the analysis and the measurement in question, and his evidence was, therefore, admissible as expert evidence in the form of a section 9 of the 1967 Act statement in the same way as his oral evidence would have been.[7]I am confirmed in my opinion that section 16 of the Road Traffic Offenders Act 1988 is an enabling or permissive provision, the effect of which is not to exclude evidence by an appropriate expert who is not authorised, by the judgment of the Divisional Court in Thom v DPP [1994] RTR 11, where Clarke J said in terms referring to section 16.1:
"That subsection is permissive but provides for one method by which the proportion of alcohol in a specimen of breath may be proved. It does not however, either expressly or by implication, prevent any other admissible evidence from being relied on."
[8]I would add this: the witness statement of Mr Trotter had been served on the appellant's solicitors some considerable time before the hearing. They had stated in terms that they did not require Mr Trotter to give oral evidence at the trial. Had there been any issue as to his qualifications to give the evidence he purported to give, or to its contents, notice of that would have had to be given at least to the extent of requiring him to give oral evidence. It follows from what I have said that it is not a requirement that the analysis be conducted by or under the supervision of an authorised analyst where the evidence or the analysis is adduced either by oral evidence or by way of a statement under section 9 of the Criminal Justice Act 1967. It follows that although Mr Trotter was not an authorised analyst, provided the district judge was entitled to be satisfied that the blood he analysed was, in fact, that of the appellant, the fact that Mr Trotter was not authorised gives no ground for an appeal against his conviction.[9]The more difficult point in this case relates to what is referred to as the question of continuity: that is to say, was the evidence such that the district judge was entitled to be satisfied that the blood analysed by Mr Trotter was in fact that of the appellant? Indubitably, the proper course is for the officer or doctor who labels the sample retained by the prosecution to give evidence as to the labelling carried out, and for the analyst to refer to that label in his certificate or in his statement. In the present case, the evidence at what may be referred to as the front end was lacking. The officer gave evidence, and it is reasonably clear that he was not asked in cross-examination any questions relating to the labelling of the sample. Had he done so the matter would have been expressly dealt with. If neither he nor the doctor said that a proper label was fixed with the proper information, the consequence would have been that there would have been a gap in the continuity of evidence relating to the sample. Conversely, first-hand evidence of proper labelling would have been, in the absence of any controversy concerning that evidence, conclusive. The district judge found that there was continuity and was satisfied that the blood analysed was that of the appellant by reason of references to his name and the reference code to which I have referred -- the three letters and ten digits. That code appears above a bar code of the kind read by a laser reader. It appears in three places. First on the proforma booklet MGDD(B) referred to in paragraph 5(b) and paragraph 2(d) of the case stated. Secondly, the bar code and the reference, three letters ten digits, appears on a sticker attached to the doctor's certificate, to which I shall be referring in due course, relating to the taking of the sample. Thirdly, the name of the appellant, Simon Byrne, and the code, three letters, ten digits, was, according to the evidence of Mr Trotter, which was evidence by reason of section 9 of the 1967 Act, on a label on the glass blood vial in which he received the blood which he analysed. The question then is whether that evidence is sufficient to establish continuity.[10]In determining whether that evidence was capable of establishing continuity, in my judgment: (a) the trial court is entitled to make sensible inferences from the evidence before it, and (b), to refer by way of judicial notice to the procedures commonly carried out at police stations in cases such as this, and to the use of bar codes and codes containing letters and digits of the kind to which I have referred. When one does that one sees: (a) that this identifying code was used by the police officer when the procedure for taking the blood was carried out. It was used in the sense that it is the code on the proforma booklet to which I have referred.[11]Ms Calder objects to the reference of the code on that document on the basis that the only use of the document could be to refresh the memory of the officer giving evidence who completed the booklet. In my judgment, that is to mistake the purpose for which reference is made to the booklet. All that is proved by reference to the booklet is that that booklet did have on it this code which, in my judgment, the district judge was entitled to treat as a unique code. He was similarly entitled to infer from the sticker on the doctor's certificate, that it was attached to that by way of identification and to identify the certificate, and therefore the blood specimen taken, with the procedure which had been carried out pursuant to the proforma booklet. When, therefore, the glass blood vial appeared at the laboratory of Mr Trotter with Mr Byrne's name and that code on it, the district judge was entitled to infer that that vial was the one which had been so identified and labelled at the police station by the police officer. A sensible examination of the evidence in this case, in judgment, leads to the conclusion that the district judge was entitled to find continuity. This is not a case such as Patterson v DPP [1990] RTR 329, where there was a discrepancy between any of the evidence and any of the labelling. Had there been such a discrepancy it may be that the district judge would not have been entitled to find continuity. As it is, in my judgment, he was.[12]The next question for the opinion of the High Court relates to the comments made by the custody sergeant when handing the appellant his blood sample. The purpose of the provision of a sample to an accused is to enable him, if he so chooses, to have an independent analysis of that sample as a check on the analysis to be carried out on behalf of the police. Any statement to the accused person to the effect that that sample is not an appropriate sample for analysis could have the effect of depriving him of his right to independent analysis, and could lead to the prosecution analysis being treated as inadmissible. However, in the present case the statutory procedure for the provision of a sample was followed. The fairness of the prosecution would be affected if the accused person was precluded from exercising his right of obtaining independent analysis or possibly persuaded not to exercise that right by something said by or on behalf of the police. However, if the accused person is aware of his right to obtain an independent analysis, and notwithstanding what is said to him by the police, freely chooses not to exercise that right, the fairness of the prosecution and of the trial proceedings is unaffected. Those are questions of fact for the trial judge. Here, the relevant facts found, in addition to the statement by the custody sergeant, included that the appellant was provided with an instruction booklet which informed him of his rights and how the blood could be sent for analysis by himself. The district

judge states as his conclusion the following:

"I found as a fact that the appellant was given written instructions with his sample and he was not discouraged at all from sending his sample away for analysis."
In those circumstances, based on that finding of fact, no question of the unfairness of the prosecution or of the trial arose. The appellant's right to send his sample away for analysis was a real right and he was not discouraged from exercising that right from what the custody sergeant said. I would, therefore, distinguish this case from those to which I was referred by Ms Calder. The question raised by the case stated is inapt for a question such as the present which turns on findings of fact. The district judge was, on the information contained in the case stated, entitled to find as a fact that the appellant had not been dissuaded from exercising his right. That being so, the comments made by the custody sergeant did not lead to any unfairness. I would emphasise, however, that it is inadvisable in the extreme for police officers to give advice of the kind that was given in this case to accused persons even if what is said is true; that is to say, other persons have not exercised the right, the cost is high and the prospects of any helpful information being illicited by the independent analysis, remote. Those are matters for legal advice for which an accused person should refer to his solicitor. On the basis of the findings of fact contained in the case stated, the conversation with the custody sergeant gives rise to no ground to set aside this conviction.[13]The last question posed by the case stated is whether the district judge was right to hold that the appellant's blood was taken with his consent on the basis of a photocopy of what is purported to be a doctor's certificate when there is not evidence that it was a true copy of the original or that it had been served on the appellant. The reference to service arises by virtue of the provisions of section 16 requiring the documents to be tended in evidence by the prosecution under that section to have been served by way of service of a copy on the accused not later than seven days before a hearing. The purpose of that provision is to give an accused person the option of requiring the attendance of the person giving the certificate for the cross-examination. In the present case, that option was not taken. The document which was produced during the course of the hearing was a photocopy. Section 16 requires a copy of certificates and other documents to be served on the accused, but does not render a copy of the original document admissible in evidence. Copies may be adduced in evidence, however, under section 27 of the Criminal Justice Act 1988 which provides:
"Where a statement contained in a document is admissible as evidence in criminal proceedings, it may be proved . . . (b) (whether or not that document is still in existence) by the production of a copy of that document, or of the material part of it, authenticated in such manner as the court may approve . . . "
[14]The issue raised on behalf of the appellant in relation to the doctor's certificate is as to its admissibility in evidence. There were two aspects of the photocopy to be considered: Whether a copy had been served as required by section 16 of the 1988 Act, and the fact that it was a photocopy. Where the admissibility of evidence is challenged, the proper course to be taken by those representing an accused person is to challenge the admissibility of the evidence when it is tendered. That is so whether the objection is because the document is a photocopy or where it is contended that the document is not admissible because it has not been served on the accused person. That was not done in the present case: there was no challenge to the admissibility of the document. The challenge to its admissibility took place only after the conclusion of the evidence.[15]Section 16 provides for a mandatory procedure in relation to the admissibility of certificates and documents of the kind referred to in it; that is to say, they are only admissible if they have been served. The lack of service is a substantive objection which, according to the authority to which I have been referred, is one which cannot be waived. But very different considerations arise where the objection is that it has not been proved that the document was served in circumstances where a copy of the document was in fact duly served as required by section 16. Those are the present circumstances. A copy of the document was served on the appellant's solicitors on 2 April 2002. Its receipt was acknowledged by them on 10 April 2002 and the trial took place on 10 June 2002. Had objection been taken on the ground of non-service when the document was tendered, the prosecution could have cured that. Indeed, I suspect that the objection would not have been pursued once Ms Calder was informed of the correspondence relating to its service and receipt. It is not a pre-requisite of prosecution for the offence now under consideration that the prosecution must give evidence of that service. They are required to do so if the issue is raised, but there is no statutory requirement that they do so. So far as the photocopy is concerned, it is not suggested that the photocopy was not a true copy of the doctor's certificate. Had issue been taken when the document was tendered, either the original would have been produced, or the district judge could have determined how the document should be authenticated. It could, for example, have been authenticated simply by a signature of a representative of the prosecution, confirming it to be a true copy of the doctor's certificate. However, the objection not having been taken to the tender of the document when it was tendered, and it in fact being a true copy, it seems to me that it would be pointless to remit this matter for the district judge to determine what method of authentication he would have approved of. I understand that when the document was tendered Ms Calder did not appreciate that it was a photocopy, and that accounts for her not objecting to it at the time. That is perhaps understandable. Nonetheless it is the responsibility of those acting for defendants in criminal proceedings to acquaint themselves with the documents sought to be put in evidence by the prosecution if at all possible before the hearing begins, but certainly when the documents are tendered, so that any proper objection can be taken. As I indicated during the course of argument, while it is right that the prosecution must prove its case, there are issues which arise in prosecutions such as the present which should and indeed must be taken during the course of the hearing. It is not appropriate, where the admissibility in evidence of a document or oral evidence is concerned, to wait until the completion of the evidence and take the point. Where the objection to the admissibility of the evidence is purely formal, that is likely to lead to an adjournment. But purely formalistic objections to evidence and to facts which should be covered by the prosecution are not to be encouraged.[16]In my judgment, therefore, the district judge was entitled to accept the photocopy of the doctor's certificate. It was a true copy of the original. A true copy had been served on the appellant's solicitors sufficiently in advance of the hearing. That photocopy and the original were evidence in accordance with section 16 that the appellant's blood was taken with his consent, and the answer to question 6(c) therefore, in the case stated, is yes.[17]For the reasons I referred to earlier, it is unnecessary for me to deal with question 6(d). The questions for the opinion of the High Court in the case stated, therefore, are answered by the propositions set out in my judgment, and it follows that this appeal is dismissed.[18]MR ROWLAND: My Lord, the respondent asks for the costs of resisting this appeal.[19]MS CALDER: The defendant is legally aided, my Lord, so I would ask that -- not to be enforced by leave of the court.

MR JUSTICE STANLEY BURNTON: The old football pools order.

[21]MS CALDER: Yes.

MR JUSTICE STANLEY BURNTON: Mr Rowland, what do you say about costs?

[23]MR ROWLAND: My Lord, public money is spent resisting the appeal.[24]MR JUSTICE STANLEY BURNTON: Making it and resisting it I am afraid. Is there a contribution in such cases to costs?[25]MS CALDER: I do not think there is a contribution, no. I have not been instructed that there is a contribution.[26]MR ROWLAND: My Lord, that is a question of looking at the legal aid order.[27]MS CALDER: I thought the (inaudible) contributions had gone, but I could be wrong on that.[28]MR JUSTICE STANLEY BURNTON: Mr Rowland, if he has legal aid community funding then there is not much point in an order for costs is there? I see he is driving a jaguar.[29]MR ROWLAND: Yes.[30]MS CALDER: I thought in the Administrative Court where a defendant is legally aided the court did not make an award of costs against them.

MR JUSTICE STANLEY BURNTON: In civil cases what used to be called a football pools order is made.

[32]MS CALDER: In the Divisional Court they never did make an order against an appellant who had legal aid.[33]MR JUSTICE STANLEY BURNTON: Mr Rowland, I think that is right. Unless you can point me to anything.[34]MR ROWLAND: No, I cannot, save if the appellant has means and he still qualifies for legal aid, the respondent would submit that he can still pay something towards the costs.

MR JUSTICE STANLEY BURNTON: Have you got the White Book?

[36]MR ROWLAND: No.[37]MR JUSTICE STANLEY BURNTON: I have the statement of means and it shows that he has rather modest income. I do not think it is right to give you the figure, but it is below £30,000 a year. He was a soldier, was he not?[38]MR ROWLAND: Yes, sergeant in the Engineers.

MR JUSTICE STANLEY BURNTON: He is not going to have a large income.

[40]MR ROWLAND: My Lord, I am reminded by my instructing solicitors that he has paid £180 costs on the occasion when he appeared before the district judge --

MR JUSTICE STANLEY BURNTON: So why should he not pay costs now; is that what you are saying?

[42]MR ROWLAND: Yes.[43]MS CALDER: My Lord, it has always been the situation in a Magistrates' Court when people are on income support they have an award of costs and then they pay by instalments if they ask, but it has not been the case in this court. It has always been the case when legal aid costs were not awarded. It is only if the person is privately funded that the court awards costs. Could I mention also that £180 in a drink driving case is considered on the low side for costs in a Magistrates' Court. Everybody has to pay costs in the Magistrates' Court.

MR JUSTICE STANLEY BURNTON: You have not got a schedule in any case.

[45]MR ROWLAND: My Lord, no. £180 -- our understanding is that is quite high. Summary trial at £180 is the going rate I am told.[46]MR JUSTICE STANLEY BURNTON: I think I ought to follow what appears to be the general procedure, regrettably, which is not to award costs in cases where the appellant is legally aided.[47]MR ROWLAND: I am obliged, my Lord.