Dhaliwal, R (on the application of) v Director of Public Prosecutions Rev 1 [2006] EWHC 1149 (Admin)

Case No CO/5817/2005[2006] EWHC 1149 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 16th March 2006
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF DHALIWALClaimant-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)
MR N LEY (instructed by Byrne Frodsham and Company, Widnes, Cheshire WA8 6EB) appeared for CLAIMANTMR A JACOBS (instructed by Crown Prosecution Service, Wolverhampton 5) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE NEWMAN: In this case the prosecution set out to prove that the appellant had driven with excess alcohol in his blood on 18 July 2004. After some delay the case fell to be determined by District Judge Qureshi at the Wolverhampton Magistrates' Court.[2]The prosecution had to establish the following ingredients of the offence to the criminal standard of proof:(1) that the appellant was driving a motorcar on the date in question;(2) that he had consumed alcohol in excess of the limit laid down in the Road Traffic Act.[3]In this court there is no issue as to (1). As to (2), the prosecution called a forensic scientist; one assumes because the certificate from the forensic scientist showing excess alcohol, had been served in the usual way, and that there had been an indication that the certificate was not accepted and therefore the forensic scientist was required to attend.[4]To prove that a driver has excess alcohol in his blood it is obvious that a scientific analysis of a sample of his blood must be carried out. The process being a scientific process and an expert analysis, it has to be carried out by someone qualified to perform the task who follows all the scientific procedures which are necessary to produce a reliable analysis.[5]The result of the analysis, showing an excess over the statutory limit, comprises the evidence in a case without which a prosecution will fail because it will not have proved the second essential ingredient it must prove. The prosecution are not required in every case to produce evidence to the court which details each and every step in the procedures which have been taken by the analyst. That much was accepted by Mr Ley, in response to questions from the court. He accepted that all that an analyst has to do is, in effect, to give evidence as to the result of his or her analysis. It is the result of his or her analysis which amounts to the essential evidence in the case for the prosecution.[6]Mr Ley's submission is that if the defence, by way of cross-examination or by way of evidence called for the defence, takes the matter further and in so doing raises issues to which the evidence of the Crown has not, prior to cross-examination or the defence evidence, addressed itself, it is nevertheless part and parcel of the case that those matters must be considered by the court and taken into account when considering whether or not the prosecution have proved their case.[7]Put in that way Mr Ley's submission is wholly uncontroversial. It is obvious that that is the way in which a criminal case proceeds. What needs to be concentrated upon though, if the evidence from the defence or evidence elicited in cross-examination by the defence is relied upon, and what has to be analysed in every case, is the true nature of the issue which the defence has raised for the court's determination.[8]In the context of this legislation and these proceedings in relation to excess alcohol, it has to be remembered that Parliament has provided a principal statutory safeguard for a driver accused of driving with excess alcohol. The principal statutory safeguard is that he is provided with a copy sample of the blood so that he is able, if he wishes to, to have it subjected to an analyst instructed by him or her. In this regard one can remind oneself of what was said by Roskill LJ in R v Rutter [1976] RTR 105 at page 111, that the defendant who wished to challenge the analysis of a properly taken and analysed part specimen had to challenge it by analysis of his own part specimen. It was open to a defendant who sought to establish that the part specimen analysed on behalf of the prosecution did not come from him, to call evidence establishing that he had nothing to drink or that a mistake was made, but that it was not open to him to attempt, by calling expert evidence, to indulge in hypothetical calculations on uncertain and unproven facts. He held therefore that the judge had correctly ruled that the expert evidence sought to be adduced by the applicant was inadmissible.[9]Much of that has only tangential relevance to this case, but in the light of some of the argument it is pertinent to refer to it because it emphasises the significance of the opportunity, given to a defendant by this legislation, to protect his own interests in connection with any analysis which is going to be carried out to determine the blood alcohol level at the time he was driving. Further, it is always open to the defence, if it wishes to do so, to request disclosure of the working papers and to have copies of the working papers considered by an analyst.[10]Of course, all these things should be done in accordance with best practice, on notice to the prosecution, so that when the case comes on the nature of the challenge which is to be made is known. That will avoid defence by ambush, or opportunities being taken to make selective and partial investigations into areas of fact with a view to creating a sufficient smokescreen to blur the eyes of the magistrates, or magistrate, who have to decide the matter, and who may as a result come out with a decision in favour of a defendant. On this occasion, as it happened, the district judge was not minded to accept the impact of the point that was taken and was not persuaded to acquit this appellant. In this case it can be assumed that the defence had a sample and if it was examined it can be assumed it did not show any different result from that which was shown by the prosecution's evidence. There was no request for any papers or working papers. No notice was given that there would be any challenge to the reliability of the procedures which the analyst had adopted.[11]With that background I now turn to consider what happened at the hearing. The analyst, a lady, gave her evidence. She stated that she was qualified. She was a forensic scientist based at Chorley, an authorised analyst under section 16 of the Road Traffic Act 1988. She was experienced in analysing for alcohol concentration. She gave evidence about the procedure which was adopted at her laboratory, or at least a part of the laboratory which she was in charge of, which received the specimen. From the record she gave a number which had been given to the specimen. She went on to give evidence about the security package or bag in which it was held, and that inside the bag there was a drum containing a vial. She gave none of this evidence as someone who, as I understand the evidence, could speak of events as they affected this appellant. She was giving the evidence in order to explain the procedures which were adopted at the laboratory for the receipt and allocation and preservation of blood samples as they are received.[12]She gave evidence, so far as her own actions were concerned. She examined the sample on 26 July. She checked the defendant's name against the vial and she checked the security number and thus was satisfied in carrying out that check that she was dealing with a sample which was the appellant's sample. In this respect she was relying upon procedures which had been adopted in relation to the reception and numbering and tagging, and so forth, of the sample. She then gave evidence as it recorded in the note from the court:
"Everything matched in this case. I produced a certificate. I recorded signed and dated it. [The certificate] shows the reading."
[13]She gave no evidence about the process which she had adopted in order to produce the reading which she put on the certificate. As may or may not be well-known, it involved some form of gas chromatography and the use of a machine, which means that a sample from the specimen in the vial has to be taken and heated and put into the gas chromatography process. The court is not aware of more detail but that is part of the process which she has to adopt. So far as that is concerned, the prosecution, as is usual, did not require her to state any detail in connection with that process. She went on to record, and this was in chief: "The fact that I issued a certificate meant that I was satisfied that everything matched. The reading was 94 in 100".[14]The case stated, which was ordered by the Divisional Court when permission was granted in this case, is not, as cases stated go, one which either in its form, or in its detail, entirely satisfactory. Nevertheless, in so far as it recites the evidence of the witness, to which I have just referred, it amounts to a summary. On the case stated the following appears:
"In cross-examination the defence asked the scientist questions about preservatives. She answered that before doing the test she had to check there was a preservative present in the blood. If there had been no preservative she would not have done her test and would have notified the police. She looked at the case file and noticed that her assistant had done the test and preservative was present. She then went on to analyse the alcohol in the blood."
[15]According to the note of the cross-examination, reflecting only it would seem obviously the answers, the record shows:
"There was a check for preservatives - 1.37 % fluoride preservative. This was checked by an assistant. I have paperwork about the checks. Without preservative sample would be unreliable. I check assistants' work. They act under my supervision. I have not checked that sample since for preservative. The analyst does not legally need to carry out everything."
In re-examination she said:
"Nothing wrong with the sample. I have a copy of the fluoride analysis and am completely happy properly preserved."
[16]The single point, which arises on this appeal, is derived from that line of cross-examination, adopted not by Mr Ley on this occasion, but by the solicitor for the defence. It can be noted from what I have read that her answer as to preservatives came in two parts. First of all, she said there was a check for preservatives and, secondly, she gave the recorded percentage, namely 1.37 per cent of fluoride preservative. Contrary to the summary in the stated case, she did not say, in terms, that she had to check there was a preservative present in the blood. In her evidence she, in effect, said the opposite. She said that the check for the preservative had been carried out by an assistant; that she checks the assistant's work; that she had the records which recorded what purported to be the result of the check carried out by the assistant; that she was satisfied that a check had been carried out by an assistant; and that she was satisfied, in effect, that the proper procedures, which prevailed in her laboratory, had been followed.[17]The question in this case, which was, as Mr Ley rightly points out, the question which was before the Divisional Court on 9 June 2005 when the court gave leave, is as follows:
" Did the Court err in law in admitting the hearsay evidence of CE Holland the forensic scientist that the sample which she analysed contained a preservative which made the sample reliable?"
The point being that the evidence given by CE Holland was based on the work of an assistant as opposed to her own work.[18]The evidence from her, as I have recited it, was not to the effect that the sample which she analysed contained a preservative. The question she was asked was not whether the sample contained a preservative; she was asked whether there had been a check for a preservative. She answered that by saying that there had been, so far as she could say, a check for the preservative because she had a record, which was with her (a note made by her assistant) which contained the result, or purported to record the result, of such check as had been carried out. The Divisional Court which granted permission, influenced by the terms in which it was considering the leave application and by the nature of the application, made to it for mandamus against the district judge to state a case.[19]As it happens, the question misunderstands the true effect of the evidence which was given. It actually misunderstands the true nature of the issue which was being raised by the defence. The defence did not suggest to the witness that no preservative had been added. The record does not show that an issue was ever raised about the absence of a preservative. The record of the cross-examination merely shows that she was asked whether there had been a check for the preservative.[20]As to that, she was capable of giving an answer not as to whether or not there had been a check, but whether she believed that there had been a check. She had grounds for believing that there had been a check for a preservative because she had a record, as part of the internal records which were kept for proper procedural purposes in the laboratory, which provided her with reasonable grounds for her belief that a check had been carried out for the preservative. There was no issue joined with the 1.37 per cent fluoride preservative figure. That was not in fact an answer to the question. The question could have been answered simply:
"Yes, there was a check for preservatives."
The evidence of 1.37 per cent fluoride preservative was a result of the check as it was recorded. The defence were not interested in the result of the check. They were not interested in challenging that and they had an answer which was that there had been a check.[21]Admittedly, too, it is plain that the absence or otherwise of a preservative could lead to the sample being unreliable, but it was never the defence case that there was no preservative in the sample. It was never fairly and squarely raised as an issue. Thus it is this case is to be distinguished from some of the other cases to which Mr Ley, in his vast experience of the jurisprudence which covers this area of the law, in which most of the cases he himself has been involved, has drawn my attention. It is therefore quite unlike the case of Gregory v DPP [2002] EWHC 385 (Admin), 19 February 2002, where an analyst had given evidence in limited compass as can be seen from paragraphs two and three of the judgment of Forbes J, that nevertheless the defence have called a professor, a toxicologist, who gave expert evidence in relation to what he said were the possible consequences which could have occurred, having regard to the evidence which the prosecution had given. In that instance the possibility arose from the prosecution's own evidence as to what had happened with the sample of blood, once it had been split into two equal portions of 2 millimetres and placed in vials which were capable of taking 6 millimetres. His evidence was that:
"if a smaller amount of blood is placed in the vial then there can be too much preservative for equilibrium to occur when it is heated if the space head space is analysed by gas chromatography the extra fluoride will cause the analytical result to show an alcohol level which is in fact too much, that is higher than what is actually in the blood sample."
[22]Thus it was that although below the crown court had taken the view that this was all hypothetical, Forbes J went on to point out:
"In my view, to the extent that the Crown Court appear to have regarded his evidence as merely theoretical, it fell into error. Professor Forrester's evidence that the prosecution analysis of the appellant's blood sample was not reliable or accurate was based to a significant extent upon the following uncontroversial facts: (1) that the capacity of the sample vials was 6 millimetres; (2) that fluoride was present in the vials as a preservative; (3) that an approximate amount of 2 millimetres of blood had been placed in each sample vial; and (4) that the method of analysis which would have been used to measure the alcohol content of the blood sample was headspace gas chromatography."
Then in paragraph 14:
"It was in respect of the foregoing, uncontroversial facts, all of which had been given in evidence, that Professor Forrester gave unchallenged evidence as to his scientific opinion, namely that, given the amount of blood and fluoride in the sample vial, the headspace gas chromatography method of analysis would give a reading which was about 8 per cent too high."
Keene LJ, paragraph 18, agreed:
"It is open to a defendant when charged with excess alcohol, to call evidence to show that the analysis carried out on behalf of the prosecution was not done properly and that the results therefore cannot be relied on."
[23]Equally, as Mr Ley has, in effect, submitted, it is perfectly proper for the defence to seek, by way of cross-examination, to demonstrate that the analysis has not been done properly. In this instance the only extent to which it was suggested that there may be a question as to whether or not this analysis had been carried out properly was a question which was whether or not there had been a check for preservatives. That answer was given by the forensic scientist not upon the basis that she could actually give evidence that there had been a check, she could not give direct evidence that there had been a check, but her evidence in that regard to prove, as a fact, that a check had been carried out would have been hearsay evidence, impermissible to prove that there had been a check carried out. But the question, which she was capable of answering, was whether according to the record she had and the procedures which she normally adopted, she was satisfied and believed that a check had been carried out. That was all the evidence that she could give which was admissible and that was the evidence which was before the court for the court to consider, whether or not her evidence that she believed a check had been carried out was sufficient to dispel any doubt that the question itself had given rise to.[24]In my judgment, in so far as this case advances upon the basis that it is a matter for the prosecution to prove that there had been a check, or that there has been a quantity of preservative put into a sample in any particular quantity, the submission is misplaced. Indeed, Mr Ley did not press his case on that basis. He pressed his case upon the basis that it was open to the defence to raise the issue.[25]They are entitled to raise any number of issues as they wish as to the reliability of the analysis, but in the end the nature of the evidence which may be required to leave the prosecution's case not in doubt, and the court therefore sure so that it can convict, will vary according to the nature of the issue which has been raised.[26]So one can turn next to the real question which, in my judgment, was before the court on this occasion, namely whether the prosecution had satisfied the court so that it was sure that the appellant had excess alcohol in his blood and whether the court was satisfied so that it could be sure that the analysis, which had been carried out by the forensic scientist, was one which was reliable and which could support the prosecution's case. In essence, that meant whether the person who gave the evidence, and who carried out the analysis, was qualified, and whether or not she had adopted all the correct procedures which were necessary when carrying out the analysis.[27]The reliability of the results of an analysis are capable of being proved by the performance of a proper analysis according to the recognised professional and scientific procedures for which a proper analysis requires. In this case I am satisfied that the Magistrate was entitled, on the evidence he had heard, to conclude that no matter had been placed before him which gave any reasonable doubt that the analysis had been carried out in such a way as to be reliable.[28]That being the conclusion to which the court came, the next question which arises is how does that stand in relation to the question which the case stated asks? Like the court in the case of Gregory, to which I have referred, the wording of the question is, for the reasons I have already given, somewhat unsatisfactory. But, in essence, the issue is that Forbes J stated in paragraph 9 in that case, the question really is whether, at the completion of the case, the state of the evidence was such that the court (in this case the district judge) could properly reach the conclusion that the prosecution had proved its case against the appellant. I therefore approach this question upon the basis that what is really being asked is whether or not, on the evidence which was admissible in this case, the court was entitled to conclude that the prosecution had proved its case.[29]To the extent that the evidence which was given could have been taken to have been evidence that a preservative had been added, in my judgment was inadmissible. The only person who could prove that the additive was present was the person who had either added it, or at a time when the blood was added to the vial, if that is the process, added it to the vial at a time when he or she could say there was a preservative present in the vial. If it was necessary for the prosecution to prove that a preservative had been added, or that it had been added in any particular quantity, then the evidence which was given by the forensic scientist was inadmissible to prove that fact, or those two facts. Therefore, so far as the question is concerned, to the extent that the court admitted the hearsay evidence for the purposes of concluding that there had been preservative added and any quantity the preservative added, the evidence was inadmissible and hearsay evidence and incapable of proving those facts.[30]So far as the prosecution's case is concerned, in my judgment it was not necessary, having regard to the way in which the issue had been raised by the defence, for it to prove that the preservative had been added and in any quantity. The nature of the issue which had been raised by the defence merely went to whether or not the due and proper procedures had been followed at this laboratory for the purposes of the analysis being carried out professionally.[31]So far as that issue is concerned, the court had the evidence of the analysis, the analyst herself, which was to the effect that she believed that all the procedures had been carried out. She had reasonable grounds for so stating and, in my judgment, therefore, the question for this court has to be answered in the terms in which I have endeavoured, in the body of the latter part of this judgment, to answer it. I do not consider it necessary to seek to answer it in any other way than I have done. This appeal by way of case stated is therefore dismissed.[32]MR JACOBS: Would you entertain an application for costs?[33]MR JUSTICE NEWMAN: What is the position, so far as the appellant is concerned? Presumably he is legally aided.[34]MR LEY: No, he is not. I would resist such an order for costs in terms of Thomas LJ who turned down such an application. Can I read the transcript to you? I would submit in this case the Divisional Court's view should be followed. In this case no schedule of costs has been served. If I can start on page 10 halfway down. Do you see, Mr Vollenweider? "MR VOLLENWEIDER: Your Lordships, in the circumstances can I ask for costs? LORD JUSTICE THOMAS: What are they? MR VOLLENWEIDER: There has not been a schedule, but I am reliably informed they are in the region of £2,000. LORD JUSTICE THOMAS: Why not? MR VOLLENWEIDER: I do apologise, I will take instructions on that. LORD JUSTICE THOMAS: Could you. The whole point of the procedure of this court is to avoid these disputes. If you cannot be bothered to produce the schedule, why should we give you your costs? MR VOLLENWEIDER: It is not a question of not being bothered, my Lord-- LORD JUSTICE THOMAS: Yes, it is. You are responsible for the provision of the relevant documents to the court. If people will not learn, there is one way to make them remember. What is the answer? MR VOLLENWEIDER: Well, my Lord, in principle I would be asking that your Lordships grant the application of costs, subject, of course, to a proper schedule being drawn up. LORD JUSTICE THOMAS: You know you are meant to provide that ahead of time, we deal with it quickly, it saves a lot of bother, we can take a view of the case, and it is clear. If people do not follow the rules of this court the only way actually to make them remember them is to apply them. If there is no schedule, no costs. Mr Ley, what do you have to say? MR LEY: I do not think I can say anything further tnan your Lordship has said. MR VOLLENWEIDER: My Lord, it is sometimes difficult for counsel to give an estimate of-- LORD JUSTICE THOMAS: Well, you have a solicitor behind you. This is a case that was estimated for half a day. It was a pretty good estimate, as there are three minutes to go. Therefore, nothing could have taken you by surprise and it really is important people remember to comply with the rules of this court. MR VOLLENWEIDER: I concur with your Lordship in that extent, save to say that, although we knew it was listed for half a day, it was listed for merely, I think, two days in the Crown Court and ended up running to five. LORD JUSTICE THOMAS: We are obviously not disturbing the order below, it is the order in this Court. The rules are clear. MR VOLLENWEIDER: But you appreciate where I am coming from, my Lord, and clearly it is difficult sometimes to estimate costs when it is clear from the court below- LORD JUSTICE THOMAS: You do not seriously think that this court would have allowed this case to go on for more than a day. It could not possibly be right. MR JUSTICE FULFORD: This took five days in the court below? MR VOLLENWEIDER: Four or five days, yes. LORD JUSTICE THOMAS: The court below has no doubt dealt with that, and no doubt a very heavy bill of costs was imposed. In this court our rules are clear, you did not follow them, no order as to costs. MR VOLLENEWEIDER: So be it, my Lord."[35]MR LEY: I will therefore ask you to repeat the words of Thomas LJ to my learned:
"In this case our rules are clear, you did not follow them, no order as to costs"
. I submit you are basically bound by that fact. No schedule has been submitted. The court has made clear their views. It will be wrong for your Lordship to do anything else. After all what are the point of views. Knowing the way it would have to be a detailed taxation, the cost of these taxations -- the money you have to pay per cent -- would properly double the costs they are likely to be, anyway, my Lord. I would submit you may do what Thomas LJ did. I submit the case is exactly on all fours with what has occurred here and that your Lordship should follow the Divisional Court.[36]MR JACOBS: How to follow that I make the application for a contribution to the respondent's costs not for the full amount. I am sure the appellant has a large bill already awaiting him for the service of my learned friend and those who instruct him. There is no schedule, as your Lordship may or may not be aware. Those instructions came to me quite late. That is no excuse. I am not intending today to seek a figure out of the thin air, hence the reason for my initial question, "Would your Lordship entertain an application for a contribution to the respondent's costs?"

MR JUSTICE NEWMAN: You are not going to pluck a figure.

[38]MR JACOBS: I cannot do that.[39]MR JUSTICE NEWMAN: That is no good because that simply means more costs being incurred over the argument as to how much should be incurred.[40]MR JACOBS: If your Lordship could put the case back for five minutes to make a telephone call?

MR JUSTICE NEWMAN: Too late.

[42]MR JACOBS: So be it.[43]MR JUSTICE NEWMAN: Well done, Mr Ley. You have saved your client some costs.[44]MR LEY: Yes, my Lord, your judgment has been very clear. The fact is I was then counsel and I said ‘Was there any preservative in the sample?" and he replied, "I don't know. We did not test it and I have now destroyed the sample. We do not know." Your Lordship's judgment will be very useful in that case.[45]MR JUSTICE NEWMAN: There we are. Thank you.

Cited in 1 later judgment