Maher v Director of Public Prosecutions [2006] EWHC 1271 (Admin)

Case No CO/9993/2005[2006] EWHC 1271 (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
MAHERClaimant-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)MISS D GRAHAM (instructed by Langleys) appeared for CLAIMANTMR C J SMITH (instructed by CPS North Yorkshire) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

The

[1]facts of this case are simplicity itself. The law is not quite so straightforward.[2]On 21st November 2004, the appellant had parked her BMW Mini which was light blue in colour, registration number YF51 SYR, in Sainsbury's car park in Monks Cross. Thomas Huddlestone had parked his Vauxhall Astra in the same car park nearby and was shopping with his girlfriend, Nichola McDonough, when Susan and David Dennis (Mr and Mrs Dennis) saw the appellant reverse her Mini into the Astra, get out and look at the damage, and then drive off.[3]Fortunately for Mr Huddlestone, the Dennises were public spirited enough to make a note of the appellant's registration number and their contact details and to leave it on the windscreen of the damaged Astra under the wiper. When Mr Huddlestone and Miss McDonough returned to their damaged Astra they found the note and telephoned the police, reciting the number of the offending vehicle. The police recorded the details in the Police Incident Log.[4]A subsequent DVLA check of that registration number led to the appellant. She was spoken to three days later on 24th November 2004 by Police Constable Forth. In the course of interview under caution, she admitted to being the driver of a BMW Mini, registration number YF51 SYR. She further admitted to being in the car and in the car park at the material time and, whilst accepting that she had reversed out of a space in the car park, denied that she had been involved in a collision. She said that she had only found out that there had been a collision when she had been told earlier on that day by the police.[5]By the time of the trial, the note that had been left on the windscreen was no longer in existence, or, if it was, it could not be found. The Magistrates admitted the Police Incident Log in evidence, despite objection from those advising the appellant, and convicted the appellant of careless driving and failing to stop and report the accident. The issue is whether the log was rightly admitted. It is submitted that as that was the only evidence that fully implicated the appellant, that she should have been acquitted. Her submission is that the evidence was hearsay and should not have been admitted.[6]The admissibility of hearsay evidence is now governed by sections 114 to 136 of the Criminal Justice Act 2003. As the editors of the 2006 edition of Archbold say at paragraph 11.1, the opening words of section 114(1), taken together with section 115, effectively define hearsay as "any representation of fact or opinion made by a person otherwise than in oral evidence in the proceedings in question when tendered as evidence of any matter stated therein". The general rule is that hearsay is inadmissible unless it can be brought within an exception defined in the legislation. There are additional requirements for multiple hearsay to be admitted (see section 121). In the present case, the evidence was not only hearsay but multiple hearsay.[7]Mrs Dennis identified the number of the offending vehicle and wrote it on a piece of paper, putting it under the wiper blade on the windscreen of Mr Huddlestone's car. When Mr Huddlestone and Miss McDonough returned to the car, Miss McDonough took the piece of paper, phoned the police and read the number to someone who recorded the number on the police log. The transmission of the material information (namely, the number of the car) is therefore Mrs Dennis to Miss McDonough via the note (since lost or destroyed) to the clerk in the police station who recorded it in the log.[8]It seems helpful to me to identify first-hand hearsay from the subsequent multiple hearsay which is what was ultimately sought to be admitted. Leaving aside the note on the windscreen, the first-hand hearsay is the owner of the car (which I take as, for present purposes, Miss McDonough) saying that Mrs Dennis said to her that the offending vehicle is the one with the number YF51 SYR.[9]The starting point for the admissibility of simple hearsay is section 114. Multiple hearsay comes in under section 121. Section 114 provides as follows:
"Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any manner stated if, but only if -- (a) any provision of this chapter or any other statutory provision makes it admissible; (b) any rule of law preserved by section 118 makes it admissible; (c) all parties to the proceedings agree to it being admissible; or (d) the court is satisfied that it is in the interests of justice for it to be admissible."
Taking the first-hand hearsay for a moment and focussing on that, it is not, in my view, arguable that there is any route for that to be admitted in this case other than under 114(d), the sweeping up interests of justice test. In that event, the court has to go on to consider a number of matters that have to be taken into consideration under section 114(2), but I shall return to that in due course.[10]It is important, in my judgment, to keep in mind that the thrust of the evidence sought to be admitted is that the vehicle that reversed into the Vauxhall Astra was YF51 SYR. Let us assume for present purposes that there would have been no difficulty in admitting the first-hand hearsay under section 114. I turn on to consider the real issue in this case which is the application of section 121, namely multiple hearsay. I am at this point focussing on the record in the police log which was what all the argument was about. Section 121 provides:
"Additional requirement for admissibility of multiple hearsay (1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless -- (a) either of the statements is admissible under section 117, 119 or 120; (b) all parties to the proceedings so agree; or (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admitted for that purpose. (2) In this section 'hearsay statement' means a statement not made in oral evidence that is relied on as evidence of a matter stated in it."
[11]The Magistrates admitted the evidence (namely, the contents of the police log) under section 117. What they said was this:
"(a) The Police Incident Log was a business document for the purposes of section 117 Criminal Justice Act 2003 and therefore admissible in evidence in that: (i) oral evidence of the matters stated in the log would have been admissible by oral testimony in court. Had Miss McDonough been called to give evidence she could have given oral evidence of what she found and subsequently did on returning to the damaged car. (ii) the said log was created by a person in the course of his or her occupation; (iii) Miss McDonough, who supplied the information to the police from the scene of the incident, had personal knowledge of the information contained in the note; (iv) since the information was relayed directly from a relevant person at the scene of the incident and not through any other person to the police, section 117(2)(c) was not applicable; (v) Miss McDonough could not reasonably be expected to have had any recollection of the actual registration number contained in the Police Incident Log, having regard to the length of time since the information was supplied; (vi) the reliability of the information contained in the log was therefore not undermined in view of the circumstances which we accepted were applicable to this case."
[12]I turn, therefore, to examine in a little detail section 117. It is headed "Business and Other Documents". Subsection (1) reads:
"In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if -- (a) oral evidence given in the proceedings would be admissible as evidence of that matter; (b) the requirements of subsection (2) are satisfied; and (c) the requirements of subsection (5) are satisfied in a case where subsection (4) requires them to be."
There is no difficulty or issue about (a) or (c). The critical focus has been on (b), the requirements of subsection (2). Subsection (4) requires the requirements of subsection (5) to be satisfied because the police log was prepared for the purpose of a criminal investigation.

(b) :

"The relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement having regard to the length of time since he supplied the information and all other circumstances."
I shall return to the relevant person in a moment. He/she is defined in subsection (2) as the person who supplied the information contained in the statement. For the reasons that I shall explain, that person was, in my judgment, in this case, Mrs Dennis.[13]Subsection (2) provides:
"The requirements of this subsection are satisfied if -- (a) the document or the part containing the statement was created or received by a person in the course of a trade or business, profession or other occupation, or as the holder of a paid or unpaid office."
There is no dispute but that this criterion is met.

(b) and (c) provide as follows:

"(b) the person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and (c) each person, if any, through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office."
It is here that the problems arise in this case. I have already read the conclusions of the Magistrates in paragraph 6 of the case. In my judgment, their analysis of this section was in error.[14]Subsection (2)(b) directs the reader to the person who supplied the information contained in the statement. That is how the relevant person is defined. The statement is the registration number of the offending vehicle. The document in which it is contained is the Police Incident Log. Who supplied the information about the registration number? Answer: in my judgment, Mrs Dennis. What happened thereafter was transmission of the supplied information via Miss McDonough and the police clerk to the police log. My view is fortified by subsection (2)(c) which clearly envisages the possibility of the information passing through several individuals from the supplier to its ultimate destination, in this case the police log.[15]Whilst the requirements of section 117(2)(b) are met, in that Mrs Dennis plainly had personal knowledge of the number of the offending vehicle when she recorded it, an insuperable difficulty arises with section 117(2)(c) which provides that each individual in the line along which the information was transmitted must have received it in the course of a trade, business, et cetera. Miss McDonough did not. As Mr Smith for the respondent pointed out, the position would have been entirely different if the information had been given not to Miss McDonough but to the car park attendant. That, in my judgment, is an illustration that the sweeping up provisions with regard to the admissibility of hearsay should be applied with a measure of common sense and realism.[16]In my judgment, the Magistrates were wrong to have admitted the evidence under section 117. Before leaving section 117, however, I do make mention of subsections (6) and (7). Subsection (6) provides:
"A statement is not admissible under this section if the court makes a direction to that effect under subsection (7)."
Subsection (7) provides:
"The court may make a direction under this subsection if satisfied that the statement's reliability as evidence for the purpose for which it is tendered is doubtful in view of -- (a) its contents; (b) the source of the information contained in it; (c) the way in which or the circumstances in which the information was supplied or received; or (d) the way in which or the circumstances in which the document concerned was created or received."
[17]It is, it seems to me, a clear inference from the conclusion that the Magistrates did admit the evidence under section 117 that they did not have any of the concerns to which they would have been directed under subsection (7) that might have caused concern about the reliability of the evidence.[18]I return, then, to section 121. Given that the gateway of section 117 was available, what about sections 119 or 120? In my judgment, neither of these sections even gets to first base. Section 119 is dealing with inconsistent statements, and section 120 with other previous statements of the witness. Mr Smith did seek briefly to suggest that the statement might be admissible under section 120, but I am quite unpersuaded by that argument and Mr Smith did not persist in it. It is unnecessary to go into any further detail.[19]Therefore, because there was no agreement about the admissibility of the evidence, neither the gateways in (a) and (b) of section 121 is a route that could be followed.

(c) :

" . . . the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for the purpose."
[20]It is necessary to go back to the facts of the case. Bearing in mind that the appellant admitted that her car, YF51 SYR, was a blue BMW Mini and was parked in the Sainsbury's car park at the material time, and that she was the driver, and that Mr Huddlestone and Miss McDonough returned to find their car damaged, the only issue could be whether, for some inexplicable reason, Mrs Dennis wrote down the number of the appellant's car in error for some other car, or there had been some misstatement of the number further down the line of communication to the police log.[21]In my judgment, both scenarios are unlikely in the extreme. Mrs Dennis could have been cross-examined about the possibility of an error on her part. The appellant would have been in a much stronger position had she not admitted to the police that she was indeed present and had reversed her car in the car park at the material time. The identification of the number of the offending vehicle appears, on its face, to be very reliable, as does its transmission via Miss McDonough to the Police Incident Log. It would be extraordinary if there was an error in transmission, but the number of the vehicle recorded on the police log just happened to coincide precisely with the number and description of a vehicle that was in the car park at the time and seen by the witness.[22]In my judgment, the Magistrates, having concluded that it was in the interests of justice to have admitted this evidence under section 117, would inevitably have come to the same conclusion had they applied their minds specifically to 114(2) or to 121(1)(c).[23]114(2) is spelt out in somewhat greater detail than 121(1)(c). I shall read it:
"In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and any others it considers relevant) -- (a) how much probative value the statement has (assuming it to be true) in relation to a matter and issue in the proceedings or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been or can be given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given, and if not why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it."
Miss Graham, on behalf of the appellant, has emphasised particularly (d), (e), (f), (g), (h) and (i).[24]In my judgment the provisions about the interests of justice in section 121 should, in the circumstances of this case, have been considered cumulatively with the interests of justice criteria in section 114(2). But, as I have already mentioned, the possibility that there could have been any error in this case are so remote that there was an overwhelming case for evidence to be admitted. In fact, the Magistrates admitted the evidence under section 117. The contrary criteria were matters that they no doubt had in mind under subsection (7). Had their attention been specifically drawn to the provisions to which I have adverted in sections 114(2) and 121(1), it is, in my judgment, inevitable that they would have reached the same conclusion on admissibility. In my judgment, the justices were right to admit the evidence but they did so for the wrong reasons.[25]I would answer the question posed in the stated case which is in these terms: "Whether in the circumstances the Police Incident Log was admissible as hearsay evidence under section 117" in the negative, but I would dismiss the appeal and allow the conviction to stand because, in my judgment, the evidence should have been admitted under the provisions to which I have referred.[26]MR JUSTICE LEVESON: I agree. Although the purpose of the hearsay provisions set out in Chapter 2 of Part 2 of the Criminal Justice Act 2003 was undeniably to relax the previously strict rules against the admission of hearsay, it is important to underline that care must be taken to analyse the precise provisions of the legislation and ensure that any route of admissibility is correctly identified. In any case of multiple hearsay, that should be done in stages so that each link in the multiple chain can be tested.[27]In this case, as Scott Baker LJ has explained, the Magistrates approached the issue of admissibility on an incorrect basis. Based on their reasons for admitting the evidence, however, it is abundantly clear that they would have exercised their discretion in an identical fashion had they been invited to deal with it through the correct statutory route.[28]In the circumstances, although I would also answer the question posed to this court in the negative, in my judgment, this evidence was admissible and would have been admitted under sections 114(1)(c) and 121(1)(c) of the Act. I would therefore also dismiss this appeal.

LORD JUSTICE SCOTT BAKER: Thank you both very much. We are extremely grateful to you for your helpful arguments in this case.

[30]MR SMITH: My Lord, may I just apologise for giving an incorrect time estimate. I suspect I am not the first counsel to do it.

LORD JUSTICE SCOTT BAKER: Do not worry.

Cited in 1 later judgment