West Yorkshire Probation Board v Townend [2004] EWHC 1953 (Admin)

Case No CO/3674/2005

[2004] EWHC 1953 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Thursday, 28th July 2005

Strand

London WC2

B E F O R E:

LADY JUSTICE SMITH DBE

MR JUSTICE SIMON

Between

WEST YORKSHIRE PROBATION BOARDClaimant

-v-

Between

SIMON TOWNENDDefendant

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MS KATHERINE ROBSON (instructed by No6 Park Square, Leeds) appeared for CLAIMANT

MR JOHN ELVIDGE (instructed by Kingsley Brookes) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE SIMON: This is an appeal by way of Case Stated from a decision of the West Yorkshire Justices, sitting at Huddersfield. The appeal is brought by the West Yorkshire Probation Board and concerns the dismissal of an information laid by the appellant board against the respondent, Simon Townend. On 2nd June 2004, the Huddersfield Magistrates Court had imposed a Community Rehabilitation Order on Mr Townend for a period of 24 months, with an additional requirement to attend the Drink Impaired Drivers' Scheme. The order was imposed for the offence of driving or attempting to drive with excess alcohol and driving while disqualified. On 21st October an information was laid by the appellant board alleging that, on 24th September, he failed to report to a relevant officer in accordance with the order, contrary to Paragraph 4, Schedule 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

[2]The appellants' evidence, taken from paragraph 3 of the case stated, was as follows:

"a) It was alleged that on the 15th September 2004 a letter was sent to the Respondent with an appointment to attend on 24th September 2004 to see Debbie Scott. A copy of the letter was exhibited on the statement of Debbie Scott (TK 5). "b) What purports to be proof of posting is stamped on the back of the letter ie certificate or service, which it was posted first class on 15th September 2004 at 5.00pm. "c) Debbie Scott had seen the Respondent previously during the currency of this order as she had been his case manager throughout. "d) On the 24th September Debbie Scott was on duty and the respondent failed to attend. "e) Debbie Scott went on to state that on the 28th September 2004 she received a telephone call from the Respondent to say he was working in Dewsbury and was unable to keep appointments with her. He was told to provide proof on the next occasion. "f) During cross-examination Debbie Scott was asked if the letter was sent by her. In response she told the court that she dictated the letter. It was then typed for her and a clerical officer posted it."

[3]TK 5 contained the letter of the appointment and, on its reverse, an endorsement in the following terms, heading "Certificate of Service by Post":

"I W Motson of the West Yorkshire Probation Board, 21 St John's Road Hudds, hereby certify that I served the person named overleaf with a copy of the document to which this certificate is attached by sending it by post to him/her in a prepaid letter posted at the Post Office metered mailbox in St John's Road at 5pm on 15th September 2004 and addressed to the person named overleaf at the address overleaf, being his/her last known or usual address."

And then underneath:

"Dated day of postage (as above)"

. The endorsement is then signed.

[4]The hearing took place on 15th February 2005. Mr Townend's solicitor submitted that on this evidence there was no case to answer since the appellant could not prove that the appointment letter, drafted by Ms Scott, was in fact posted by the appellant. Mr Townend's solicitors also submitted that Ms Scott's evidence, that the clerical officer posted the letter, was hearsay and therefore inadmissible and that the appellant should have served a statement from the person who had posted the letter, in accordance with Section 9 of the Criminal Justice Act 1967. In answer to his point, the appellant acknowledged that there might be a gap in its case and requested the Justices to exercise their discretion to allow the appellant to reopen its case. Having considered the matter, the court decided that it was in the overall interest of justice to allow the appellant to reopen its case; and that Mr Townend could not be prejudiced by such a course. The court was entitled to reach that decision in the light of Rule 13 of the Magistrates' Courts Rules 1981. In the event, when the trial was resumed on 15th March, the appellant informed the court that no further evidence would be adduced. The court then heard arguments which were similar to the arguments we heard today and dismissed the case.

[5]Before turning to their reasons, it is convenient to set out the relevant provision which is said to apply here. Rule 67(1) the Magistrates' Court Rules provides:

"The service on any person of a summons, process, notice or document required or authorised to be served in any proceedings before a magistrates' court, and the handwriting or seal of a justice of the peace or other person on any warrant, summons, notice, process or documents issued or made in any such proceedings, may be proved in any legal proceedings by a document purporting to be a solemn declaration in the prescribed form made before a justice of the peace, commissioner for oaths, justices' chief executive for a magistrates' court or registrar of a county court..."

Rule 67(2) provides:

"The service of any process or other document required or authorised to be served may be proved in any proceedings before a magistrates' court by a document purporting to be a certificate signed by the person by who the service was affected"

. Section 24 of the Criminal Justice Act 1988, as amended, is headed "business etc. documents". Subsection 1 reads as follows:

"... a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied -- "(i)the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and "(ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with." "(4) a statement prepared otherwise than in accordance with [various provisions which are not on the material in this case] for the purposes -- "(a) of pending or contemplated criminal proceedings; or "(b) of a criminal investigation, "shall not be admissible by virtue of subsection (1) above unless..." "(iii) the person who made the statement cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement."

[6]The reason why the justices found that there was not a case to answer was set out in paragraph 11 of case. "We were of that opinion that:- "a) The wording of Rule 67 makes it clear that it applies to the service on any person of a summons; process, notice or document required or authorised to be served in any proceedings before a Magistrates' Court. "b) No such proceedings were in place at the time the letter was sent and therefore Rule 67(2) does not cover this document. "c) Section 24 CJA 1988 does not apply in this case because the criteria in that section are not met in this case. "d) The Appellant had not provided any admissible evidence that the Respondent was notified of an appointment. "e) The Appellant had not provided any admissible evidence that the Respondent was placed under an obligation to attend the appointment in question. "f) In all those circumstances there was no case to answer. "g) Accordingly, we dismissed the case."

[7]The questions for the opinion of the court were as follows:

"a) Whether a certificate complying with Rule 67(2) of the Magistrates' Courts Rules 1981 to the effect that a letter requiring an offender to attend his probation appointment is sufficient proof that the letter was posted or can this only be proved by a Section 9 statement to the same effect from the clerical officer who posted the letter. "b) Whether, in any event Section 24 of the Criminal Justice Act 1988 applied to the facts of the case."

[8]For the appellant, Ms Robson submitted:(1) that the community punishment order required Mr Townend to comply with instructions as part of his supervision. Part of the instructions included directions or appointments to attend as part of the order. Such documents are sent out as part of the enforcement in the court's order.

(2) Ms Scott's letter of 15th September was therefore a document which was required or authorised and served within the meaning of Rule 67(2).

(3) The certificate of posting was stamped on a copy of the letter by an administrative assistant responsible for putting letters in envelopes and posting them. Given the volume of letters posted, it was inconceivable that the administrative staff could remember posting individual items and, for this reason, the stamp was used as a contemporaneous "warrant" that the posting had been affected.

(4) Sub-rules 1 and 2 of Rule 67 cover different situations and are not therefore to be read conjunctively. Sub-rule 1 is concerned with documents served "in any proceedings" and sub-rule 2 is concerned with "any process or document".

(5) The respondent's suggestion that the proper way of proving the information contained in the certificate would be by a statement under Section 9 of the Criminal Justice Act 1967 was wrong: (a) it was unnecessary to serve a Section 9 statement since the wording would have been the same as the wording of the certificate; the only difference would have been the addition of a statement of truth which would have added nothing. (b) It would be burdensome both in time and resources to require administrative staff to make a Section 9 statement every time a breach was or might be contested. The maker of such a statement would in any case have to rely on the certificate, which he could hardly be expected to remember posting one letter out of many, months after the event.

(6) In any event, the letter with the certificate stamped on the back was admissible under Section 24 of the Criminal Justice Act 1988.

[9]For Mr Townend, Mr Elvidge submitted(1) that Rule 67 was part of court rules which were intended to provide how court summonses and similar court-related documents, for example adjournment notices, were to be served. Sub-rules 1 and 2 provided different ways of doing this, sub-rule 1 by means of a solemn declaration and sub-rule 2 by a certificate.

(2) The use of the words in sub-rule 2 "any process or document required or authorised to be served" does not extend in the application of Rule 67 to documents other than those served in the course of proceedings. In the present case, the letter was prepared prior to the issue of proceedings. There were no ongoing proceedings in the Magistrates Court at the time that that was written.

(3) So far as Section 24 was concerned, no proper foundation would be made by the appellant for the admission of a statement under that provision. The court should not be satisfied by the documents in the certificate.

(4) The appellant should have provided a Section 9 statement for the clerical officer who had posted the letter.

(5) In any event, Section 24 requires certain conditions precedent, for example that the person supplying the information be reasonably supposed to have the appropriate knowledge and the stamp on the back does not contain that warranty.

[10]The Community Rehabilitation Order made on 2nd June included a requirement that the respondent "comply with the requirements" specified in the Schedule. The Schedule provided that the respondent "shall keep in touch with the probation officer responsible for his supervision in accordance with such instructions as may from time to time be given". Part 4 of Schedule 3 of the Powers of Criminal Court (Sentencing) Act gives the Magistrates' Courts powers where a breach of community orders is shown:

"... if it is proved to the satisfaction of the Magistrates' Court... that he has failed without reasonable excuse to comply with any requirement of the relevant order. The court may deal with them in respect of the failure in any one of the following ways..."

The question is: how does the Probation Service prove a breach of the relevant requirements? In the present case there is no doubt that the letter was written. The relevant question therefore is not whether it was served but whether it was then posted.

[11]Rule 67(2) comes under the general heading "Evidence - General" and the subheading "proof or service, handwriting etc."

[12]In my view, when considering whether Rule 67(2) applies, the question is: was this a document which was required to be served? The answer to that question is, in my judgment, no. What the appellant had to prove was that there had been a non-compliance with the requirement that Mr Townend attend on 24th September. It could do this by pointing to the evidence that the letter of 15th September had been written to him and had been posted. In my view, the way of proving the posting was by means of Section 24. The relevant document was the copy letter endorsed with the certificate of posting. The certificate of posting was the relevant statement. It was a statement in a document within the meaning of the section.

[13]Three questions then arise. First, was the document created by a person in the course of his/her occupation, see section 24(1)(i)? Initially, Mr Elvidge was inclined to agree that it was. On reconsideration, however, he said that for the statement to be admissible, the person concerned would have had to make a statement under Section 9 of the Criminal Justice Act 1967, identifying him or her as the maker of the statement and confirming that the document was created in the course of his or her occupation. However, as my Lady put to Mr Elvidge in the course of his submission, such a course would almost certainly defeat the purpose of Section 24. Here, the maker of the statement has identified herself and signed a statement. She is very unlikely to have any recollection of posting this among many other letters. In my view, the court is entitled to draw common sense inferences from the nature of the document and its contents. This would include, in the present case, the clear inference that the document was made by someone in the course or his/her occupation. Indeed, as I understood Mr Elvidge, he accepted that such evidence could not easily be challenged.

[14]Secondly, was the information contained in the document about posting information of which the maker may reasonably be supposed to have personal knowledge, see Section 24(1)(ii)? Again, it was clear on the facts of this case that it was.

[15]Thirdly, to the extent that the document was prepared for the purposes of contemplating criminal proceedings, could the person who made the statement reasonably be expected to have any recollection of the matters dealt with in the statement, having regard to the time which had elapsed and the number of letters which would be sent by the appellant, see Section 24(4)? Again, the answer here is clearly no.

[16]For these reasons, I would hold the statement that the letter was posted was admissible under the provisions of Section 24. It is not easy to see from the Case Stated the reasons why the Magistrates held that Section 24 did not apply here. The only hint comes from the submissions made on Mr Townend's behalf and identified at paragraph 9. Paragraph viii quotes this:

"This certificate of service is not a document, it is simply a stamp on the back of another document and for S24 to apply, the certificate of service would need itself to be an additional document. "ix) even if that was not the case, the section requires certain conditions precedent to apply, for example, the person supplying the information could be reasonably supposed to have the appropriate personal knowledge and the stamp at the back of a letter does not create such a warranty."

Despite this, Mr Elvidge did not seek to rely on such reasons to the extent they went beyond his submissions today. In the light of that concession, I would simply observe that those paragraphs reveal error. What we are concerned with here is a statement in the document and, for the reasons I have sought to explain, that statement was, on the face of it, admissible under Section 24. Accordingly, I would answer the questions as follows: (a) no, (b) yes, to the extent indicated in this judgment.

LADY JUSTICE SMITH: I agree.

[18]MS ROBSON: My only concern is that the matter be remitted to the Magistrates for their further consideration.

LADY JUSTICE SMITH: Consideration, that is right.

[20]MS ROBSON: I am slightly troubled because an order was made, I believe, for costs against the appellant in the Magistrates proceedings. It appears that would be unlikely to be paid because there is public funding in any event. I would seek that that order be set aside. I do not have a copy of it and there seems to be no written account of it at all. But, in so far as there is an order, I would seek that it would be set aside.

LADY JUSTICE SMITH: What do you say about this, Mr Elvidge. Are you aware of any order for costs?

[22]MR ELVIDGE: I am not aware of any costs order made. I anticipate that costs would be negligible. I am assuming the respondent had public funding. He did not turn up, so--

LADY JUSTICE SMITH: In the light of the judgment of this court, an order for costs would be inappropriate below in any event, so perhaps we should say that, if it should transpire that an order for costs was made by the Magistrates, the same should then be quashed.

[24]MR ELVIDGE: The reason I expressed myself in the way I did is because I am surprised that, in the circumstances, an order would have been made.

LADY JUSTICE SMITH: Yes, indeed. I agree, given that your client was absent and supported by --

[26]MR ELVIDGE: As I understand it.

LADY JUSTICE SMITH: -- public funding.

[28]MS ROBSON: I was surprised when it happened --

LADY JUSTICE SMITH: But it did.

[30]MS ROBSON: A surprising day all round. I was about to argue it at that stage.

LADY JUSTICE SMITH: Very well. This case will be remitted for the Magistrates to reconsider the evidence in the case in the light of the judgments given in this court and to continue with their deliberations. Any order which they may have purported to make, on 15th March, I think it was, is quashed.

[32]MR ELVIDGE: My Lady, I am indebted to your clerk. The associate reminded me that the correct form of wording I should seek in respect of the respondent's costs, which are publicly funded, is a Community Legal Services Assessment of his costs. I do seek such an order.