Director of Public Prosecutions v Parker [2006] EWHC 1270 (Admin)

Case No CO/9625/2005[2006] EWHC 1270 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 12th May 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE LEVESON
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
PARKERDefendant
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 P FIELD (instructed by CPS Hertfordshire) appeared for CLAIMANTMR A AMER (instructed by Corbetts) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE LEVESON: This is an appeal brought by the Director of Public Prosecutions by way of case stated from a decision of the East Hertfordshire Magistrates whereby on 31st August 2005 a charge brought against the respondent of allowing himself to be carried on a motor vehicle taken without the consent of the owner or other lawful authority, contrary to section 12 of the Theft Act 1968, was dismissed on the basis that there was no case to answer.[2]The facts are summarised in a convenient form in the stated case. At about 18.45 on 16th April 2005 neighbours living in Bury Green Road were in conversation outside their homes as their respective children played nearby. They heard and saw a vehicle being driven into Bury Green Road at too fast a speed. Their estimates as to speed were between 50 and 60 miles an hour. There were two young men in the vehicle. The driver was forced to swerve to avoid a parked car but lost control and hit another vehicle before coming to rest. The two women, although angry at what they had seen, went to the aid of the two men in the car. They noticed that they both smelt of alcoholic drink. There was no dispute that the defendant was the passenger in the vehicle and that "T", then aged 15, was the driver. Both men were detained until the police arrived and they were arrested.[3]When interviewed under caution this defendant said that T had pulled up in the Escort, the subject of the charge, and had asked him if he wanted to go for "a turn" in the car. He got into the car, they drove off but in two minutes they were involved in a collision in Bury Green Road. He went on to say that there was a jerry can of petrol on the back passenger seat of the car which T asked him to remove from the car after the collision, which he did. He accepted that he had known T for about 3 years and knew him to be aged 15 years. Furthermore, he knew that one had to be 17 years of age lawfully to drive a car on the road. He also admitted that it had crossed his mind not to get into the car, but his judgment was affected because he had had a couple of drinks of cider. Finally, he said that it was only after the collision that T had told him the car had been stolen.[4]There was no statement from the owner of the vehicle the subject of the charge, but the prosecution adduced before the Magistrates T's Memorandum of Conviction. It does not appear that there was any objection to the production of that document certified by a designated officer of the same Magistrates' Court, the relevant part of which is in these terms:
"Informant: The Chief Constable. Defendant: T [whose address was stated]. Date of birth: 26th June 1989. On 6th April 2005 at Cheshunt without the consent of the owner or other lawful authority took a mechanically propelled vehicle, namely F127 SMH for the use of yourself or another and after the vehicle was unlawfully taken and before it was recovered, damage was caused to the vehicle contrary to section 12A of the Theft Act 1968."
There were other offences of driving with excess alcohol and driving without insurance, in each of which the location of the driving is identified as Bury Green Road. The Memorandum goes on to record that this defendant pleaded guilty to these offences, being ultimately remanded until he was sentenced on 24th May 2005.[5]At the close of the case for the Crown, it was submitted on behalf of the defendant that there was no case to answer. It was argued that in the absence of a statement from the owner of the vehicle, there was no evidence on which the court could find that the Escort in which the defendant had been travelling was taken without consent. The conviction could only be relied upon as evidence that T had pleaded guilty of the offence, not that he committed the offence. The fact that T had told the respondent that the vehicle was stolen was not evidence of such. On behalf of the Crown, it was submitted that T's Memorandum of Conviction was sufficient evidence that the vehicle had been taken without authority.[6]The Justices preferred the submissions made on behalf of the respondent and ruled that there was no case for the defendant to answer. That generates the posed question for this court in these terms:
"Was the Memorandum of Conviction at Annex A sufficient evidence to raise a prima facie case that the vehicle F127 SMH had, in fact, been taken without consent? In other words, were the Justices right to prefer the submissions made on behalf of the [respondent] to those made by the Crown?"
[7]There is no doubt that the section 74 of the Police and Criminal Evidence Act 1984 specifically provides for the fact that a person other than the accused has been convicted of an offence to be admissible in evidence for the purpose of proving that the person committed that offence where evidence of his having done so is admissible, whether or not any other evidence of his having committed the offence is given. Here, proof that the vehicle was taken without authority was an essential ingredient of the offence and no issue appears to have been taken to the effect that the Memorandum was not admissible.[8]It was argued on paper by Mr Amer for the respondent that no mention was made of section 74 before the Magistrates. But unless objection was taken to the admissibility of the conviction, it would not have been necessary for the court to be taken to the statutory provisions. This was not evidence that necessarily required the exercise of the court's discretion before it could be adduced; absent objection, it could be led without the jurisprudential basis for the evidence having to be explained.[9]As a variant of that argument, Mr Amer submits that it cannot be permissible to argue in this court that evidence should be admitted where that argument was not pursued before the tribunal of fact. With respect, that proposition is equally misconceived. Courts rule upon admissibility only where an issue is raised by or on behalf of a party objecting to the admissibility of specific evidence. No such issue was raised in this case. For my part, in the circumstances of this case, I consider it unarguable that the conviction was not admissible and I am not in the remotest surprised that the contrary was not suggested. Further, I not that it was not the question posed by the stated case which only serves to underline the point.[10]The issue before the Magistrates was the effect of the conviction and, in particular, whether it was sufficient to raise a prima facie case that the vehicle had been taken without consent. In my judgment, it is beyond doubt that the conviction was sufficient to raise such a prima facie: an admission or, indeed, a conviction for the offence of unlawfully taking a vehicle without consent necessarily imports prima facie evidence of that proposition. That is not least because section 74(2) provides that a person proved to have been convicted shall be taken to have committed the offence unless the contrary is proved. Thus, as Mr Amer rightly concedes, a burden shifts to the defendant.[11]Mr Amer argues that it was highly relevant before the Magistrates that the owner of the vehicle had not been called to prove absence of consent and submitted that T, then only 15 years of age, may have pleaded guilty for a number of reasons inconsistent with guilt. I accept, of course, that it would have been open to the Crown to call the owner, but his absence could not have been fatal and there was not the slightest evidence to support the submission that there might have been some reason other than guilt for the guilty plea to have been entered. It was entirely speculative and, by being persuaded to that effect -- and, in particular, by being persuaded that there was not even a case to answer -- the Magistrates erred in law.[12]I have no doubt that the conviction was admissible and raised a strong prima facie case that the vehicle in which the respondent was a passenger had been taken without consent. I would therefore answer the stated questions in that way.

LORD JUSTICE SCOTT BAKER: I agree. Mr Field, what is the future of this case now?

[14]MR FIELD: My application is that the case now be sent back to the Magistrates' Court for a rehearing in front of a fresh bench.[15]MR JUSTICE LEVESON: For a rehearing in front of a fresh bench or for them to continue the hearing? They have embarked upon the hearing, they now have our assistance on the issue as to whether there is prima facie evidence that the vehicle was taken without authority. Why should they not be required to continue with their hearing?[16]MR FIELD: My Lords, it is simply this. This court has two options. One can adopt your Lordship's suggestion that is should be merely a continuation of the hearing. There would be two arguments against that which I will come back to. The second option available to this court is a fresh hearing. I would urge a fresh hearing for two reasons. One because of the passage of time. The last hearing was on 31st August of last year. The court, when they eventually hear it, would have to go back, a slot would have to be found on the list, and so on. Secondly, in any event, to avoid any embarrassment to the Justices who, in effect, having had their decision overturned by this court, then have to go on and deal with the case. It would save any embarrassment in the future.

LORD JUSTICE SCOTT BAKER: I am not sure the embarrassment is a relevant factor. The more important factor is the difficulty in reconstituting the same court.

[18]MR FIELD: That may be a very practical obstacle which had not occurred to me, my Lord, but on which I rely.[19]MR AMER: My Lord, I think it probably would be very difficult to reconstitute the same bench.

LORD JUSTICE SCOTT BAKER: Rehearing.

[21]MR FIELD: My Lord, I am grateful. I have no other applications.

LORD JUSTICE SCOTT BAKER: Thank you both very much.