Director of Public Prosecutions, R (on the application of) v Chorley Justices & Anor [2006] EWHC 1795 (Admin)

Case No CO/357/2006

[2006] EWHC 1795 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Thursday, 8th June 2006

Strand

London WC2

B E F O R E:

LORD JUSTICE THOMAS

MR JUSTICE MCCOMBE

Between

THE QUEEN ON THE APPLICATION OF THE DIRECTORClaimant

OF PUBLIC PROSECUTIONSClaimant

-v-

Between

CHORLEY JUSTICESDefendant

ANDREW FORRESTDefendant

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MR M WALSH (instructed by CPS, Preston) appeared for CLAIMANT

MR P FIELD QC (instructed by Freeman & Co, Manchester) appeared for SECOND DEFENDANT

J U D G M E N T

LORD JUSTICE THOMAS:

There

[1]is before this court an application against the Chorley Justices in Lancashire to state a case. The circumstances, many of which are not in dispute, can be briefly stated.

[2]On 27th November 2004 Mr Forrest, the second defendant, was driving his car on the M6. He was involved in an accident on that part of the M6 that is in Lancashire. He was taken to the Royal Preston Hospital. A blood specimen was, on the witness statements that have been put before us, taken in accordance with the procedures under sections 7 and 9 of the Road Traffic Act 1988. A certificate of analysis, which we have seen, was subsequently provided which showed that the alcohol content in the blood was 179 milligrams of alcohol in 100 millilitres of blood; this was considerably in excess of the legal limit of 80 milligrams.

[3]On 17th March 2005 (after a delay which is unexplained before us) a summons was issued for an offence under section 5(1)(a) of the Road Traffic Act 1988. It was sent on 22nd March 2003 by post to Mr Forrest at an address, Oak House, Highrigg Lane, Durton Lane, Broughton. That was the address that was set out on the summons itself. The summons required him to appear on 15th April 2005 at the Chorley Magistrates' Court.

[4]It appears that on 15th April Mr Forrest attended court and it appears that the case was adjourned. On 29th April Mr Forrest attended again and a not guilty plea was entered. The case was adjourned until 9th May for a date to be fixed. It is not clear to us why, on 29th April, it was necessary to adjourn the case for a date to be fixed and why the matter could not have been dealt with there and then, in accordance with the procedure that should have been followed.

[5]On 9th May 2003, again for reasons that are unexplained, the case was further adjourned to a case management conference on 12th July 2005. That case management conference duly took place on 12th July 2005. Mr Forrest said that he would not indicate his defence. He was unrepresented at that stage, a point we emphasise. The trial date was fixed for 14th October. Yet again, a considerable delay.

[6]At a time (and it is important to emphasise this) which appears to be shortly before the trial, Mr Forrest had the benefit of legal representation.

[7]When the case was called on for trial, it appears that three police officers gave evidence. We do not know what they said, but we have read their statements. They gave evidence of attendance at the accident, the use of the intoximeter and matters of that kind. We enquired why they were asked to give evidence; no-one who was in front of us in this court could give any explanation.

[8]The prosecution then sought to adduce the evidence of the certificate of analysis to which we have referred. It was the prosecution's case that it had been served by post with the summons. They also contend that it had been handed to Mr Forrest at the case management conference. The defence objected on the basis that service could not be proved. The prosecution produced to the Justices a bundle of documents, including a copy of the summons, a copy of the analyst's certificate and a certificate of the doctor which, they said, were all stapled together and all bore a certificate in the requisite form. They also produced a special delivery slip which they said showed that these documents were all sent in one package to Mr Forrest.

[9]Mr Forrest gave evidence. He accepted he had received the summons and the doctor's certificate, but not the analyst's certificate. The prosecutor did not seek to prove that Mr Forrest had been given the certificate at the case management conference.

[10]The address of Mr Forrest which was on the summons was as we have already set out. The address on the special delivery slip document was given as Oak House, High Rigg Lane, Durton Lane, Broughton; it did not have the word Preston after it, and his address apparently is Oak House, Highrigg Drive, Durton Lane, Broughton, Preston, with the requisite post code, or alternatively, an address, 7, Highrigg Drive, Broughton, Preston, without the requisite post code.

[11]The Justices proceeded to consider a submission of no case to answer on the basis that the prosecution had not served the certificate. They upheld that submission.

[12]After the hearing before the Justices, an application was made to the Justices to state a case. A letter written by Mr Robbie J Overfield, Deputy Justices' Clerk (Legal) for the South West Lancashire Magistrates' Court, declined to state a case, in the following terms:

"I have now had the opportunity to consider the matter in detail and have taken instructions from the Justices who adjudicated and have also spoken to the legal adviser who attended on them. Given that it was accepted in court the envelope addressed to Andrew Forrest was not complete in that it did not contain a postcode and was inaccurate because it failed to identify the correct road, the Justices found as a matter of fact that the envelope was not properly addressed. I am of the firm opinion that this was a simple question of fact for the Magistrates to determine. Furthermore, I am also of the view that their decision was a reasonable one, in all the circumstances, bearing in mind the limited evidence, which was presented to them, on the point, for which they cannot be justifiably criticised."

He went on to inform the Crown Prosecution Service that the Justices refused to state a case on the basis that the application was frivolous.

[13]In the application that was subsequently made to this court, the Assistant District Crown Prosecutor for South West Lancashire stated:

"In subsequent correspondence the justices have given written reasons for the decision of 14 October 2005 as follows..."

And he set out and annexed to his statement a document which reads as follows:

"Decisions (i) We have heard representations from both parties regarding the question of whether the Section 16 certificate was sent by Gillian Sumner on 22 March 2005. We are aware that the stamp on the back of this certificate refers to the phrase 'summons'. Regardless of any definition of this term we are satisfied beyond reasonable doubt that the Section 16 certificate which has the stamp of service on it was sent out by recorded delivery on 22 March 2005. (ii) We have been referred to Section 16 in of the RTOA 1988 and Section 7 of the Interpretation Act 1978. This last section indicates that service is deemed to be effected by properly addressing, pre-paying and posting a letter. Due to the lack of statutory or case law definition of 'properly' we have had regard to the three definitions contained in the Oxford English dictionary as well as the definitions of 'proper'. The address in question is both inaccurate regarding the actual road, and incomplete in that there is no post code. We are of the opinion that this correspondence is not properly addressed under any of the definitions available of the word 'properly'."

[14]Quite rightly in this court, counsel who has appeared on Mr Forrest's behalf says that there is nothing which indicates the provenance of this document as the correspondence is not annexed. We will proceed for the purposes of our decision today on the basis that this represents the reasoning that the Justices gave.

[15]The position in law in relation to the certificate of the analysis is a simple one. The objective of the statutory provisions as to the service of the certificate was to try to ensure a sensible and orderly procedure so that costs were not unnecessarily incurred or the time of valuable forensic or other experts wasted by attendance in court to prove something that was not in dispute. It is essential, when looking at what happened in this case, to bear that in mind.

[16]The scheme of the Act provides under section 16(1) that evidence of the proportion of alcohol in a specimen of blood may, subject to subsections (3) and (4), and to section 15(5) of the Act, be given by the production of a document or documents "purporting to be whichever of the following is appropriate", that is to say a certificate signed by an authorised analyst as to the proportion of alcohol found in the specimen of blood identified in the certificate. Section 16(3) provides that a document in the form of a certificate signed by an analyst as to the proportion of alcohol found in a specimen of blood is admissible "only if a copy of it has been served on the accused not later than seven days before the hearing". Section 16(4) provides that a document purporting to be an analyst's certificate "is not so admissible if the accused, not later than three days before the hearing or within such further time as the Court may in special circumstances allow, has served notice on the Prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed". In the instant case no such notice requiring the attendance of the analyst was served by Mr Forrest on the Crown Prosecution Service.

[17]Section 16(6) provides that "a copy of the certificate required by this section to be served upon the accused or a notice required by this section to be served on the Prosecutor may be served personally or sent by registered post or recorded delivery service".

[18]The provisions of section 7 of the Interpretation Act 1988 are applicable to the meaning of section 16(6). That provides: "Where an Act authorises or requires any document to be served by post (whether the expression 'served' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".

[19]It was the contention of the Crown Prosecution Service in this matter that the certificate had been sent with the summons on 22nd March. If the paragraphs containing the reasons that we have set out correctly represent the decision of the Justices, then there can be no doubt that the Justices accepted that the certificate had actually been sent. It is clear, as we have said, from the evidence of Mr Forrest, to which we have referred, that Mr Forrest accepted receiving the package. Unfortunately, there is no finding by the Justices as to whether the package which was received by Mr Forrest contained the certificate or something different was received by him.

[20]In the absence of that finding, it seems to us that it is not possible for us to follow the procedure set out by this court in SunWorld Limited v London Borough of Hammersmith & Fulham (Tuesday 23rd November 1999) whereby considerable costs could be saved by our dealing with the matter today.

[21]In the circumstances, it seems to us that the interrelationship on the facts of this case of the various statutory provisions to which we have referred and facts as before us plainly give rise to a matter that should be considered by this court; we have no doubt at all that the Justices must be directed to state a case. There is a detailed and helpful skeleton argument before us submitted on behalf of Mr Forrest. The contentions that are raised there will have to be dealt with at the full hearing.

[22]However, I do wish to add some observations in relation to this case and the practice that must be followed by Magistrates' Courts in this sort of case for the future.

[23]As I have said, the object of the provisions in respect of the service of the analyst's certificate is to save the attendance of the analyst at a court and to save the costs that would be incurred by his attendance, if there is no dispute as to the analysis. It is obviously a sensible provision, designed to ensure that the cases in the Magistrates' Courts are dealt with proportionately to what is in issue. There is no point in an expensive expert attending if his conclusions are not in issue.

[24]In April 2005 the Criminal Procedure Rules came into effect. By 15th April they were in force. They have effected a sea change in the way in which cases should be conducted, but it appears from what has happened in this case that not everyone has appreciated the fundamental change to the conduct of cases in the Magistrates' Courts that has been brought about by the rules. The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure, to take any procedural step required by the rules.

[25]Rule 3.2 imposes upon the court a duty to further that overriding objective by actively managing the case.

[26]The pertinent part relevant to what happened in this case is the early identification of the real issues. It is, it seems to us, clear that what should have happened is that at the first hearing of a case of this kind, after the entry of the plea of not guilty, the defendant should have been asked first what was in issue. At that stage and at the first hearing, he should then have been asked what witnesses did he need. Quite apart from the question that has arisen in relation to the analyst's certificate, we simply have no idea why three police officers (who could have been much better employed in protecting the public by being available to do their duty on the beat or elsewhere) were called to court. On what appears before us, their attendance was a complete waste of time and money as the evidence was irrelevant to the issues. Mr Forrest should, thirdly, have been asked what issues were taken by the defence. In our experience, it is very rare in a court, when such a question is asked, that parties do not reply. Most people approach a case on the basis that they want justice done as they wish to be acquitted if they are innocent; it is our experience that the case where a defendant refuses to identify the issue is rare indeed. If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last-minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty.

[27]In this case (and we can comment on this because the Crown Prosecution Service did not pursue it) if, when the point on service was taken, the Crown Prosecution Service had invited the court to ask the defendant if the blood alcohol level was in issue, and secondly, if it was, was an adjournment needed, then the obvious justice of the case would have been that the case should have been adjourned because no defendant can, by seeking to take an ambush point of this kind and failing to co-operate and identify the issues at a early stage, derive any advantage therefrom. The duty of the court is to see that justice is done. That does not involve allowing people to escape on technical points or by attempting, as happened here, an ambush. It involves the courts in looking at the real justice of the case and seeing whether the rules have been complied with by "cards being put on the table" at the outset and the issues being clearly identified.

[28]No criticism can attach in this case to the solicitor for Mr Forrest because it seems to us that he was not present at the earlier hearings, nor was he present at the case management conference; however, for the future, no solicitor should expect that his client will be able to rely on this sort of technical point or this type of ambush. The days for that tactic to succeed are over. If a solicitor is instructed late and the points have not been identified that the defendant wishes to take, then the solicitor has a duty to ensure that they are brought to the attention of the Crown Prosecution Service and the court well in advance of the trial.

[29]What is clear in my mind is that the Crown Prosecution Service, or, if they had failed to do it, the clerk to the justices, should have looked at the reality of what was being done and sought to do justice in the case. We make those comments because it seems to us, and the point has been made by counsel on Mr Forrest's behalf, that the course that should have been followed was to have granted an adjournment. That course was not followed, but, in the circumstances, that cannot influence the way in which the case has subsequently progressed.

[30]Therefore I would direct, subject to my Lord's views, the Justices in this case to produce as soon as is practicable, and within the requisite time limits laid down, a case stated for the opinion of this court on those issues directed to what happened at the hearing and their findings of fact in relation to the sending of the documents and the evidence of Mr Forrest. This court will then determine in relation to the matter the precise way in which the matter should have been decided on the interrelationship of the statutory provisions, without, of course, any reference to the course that should have been followed. The Crown Prosecution Service did not invite an adjournment and that cannot affect the way in which the case should be decided.

MR JUSTICE MCCOMBE: I agree and would only add a few short words.

[32]Two matters to me are inexplicable in this case. The first of these is that it was necessary to have five hearings before the magistrates before this case was disposed of. That seems to me to have been a clear failing by those concerned to exercise the case management duties imposed upon the court under the Criminal Procedure Rules, and it is to be regretted.

[33]The second point I would make is this. When the issue arose as it did following the Justices' decision in the case as to what was the true inter-reaction between the facts as found and the statutory provisions as to service of documents and the production of evidence, nothing could have been clearer than that a point of law arose for the consideration of this court. Indeed, the second paragraph of the letter of 16th November, which is criticised in these proceedings, makes that clear. My Lord has already read it, but it states:

"Given that it was accepted in court that the envelope addressed to Andrew Forrest was not complete in that it did not contain a post code and was inaccurate because it failed to identify the correct road, the Justices found as a matter of fact that the envelope was not properly addressed."

That seems to me to involve a decision as to the correct interpretation of the law on those facts.

[34]Further, the reasons in the refusal to state a case that have been summarised in document 9 before us, which seem to have emanated in some form or other from the Justices, make clear that the inter-reaction of the statutory provisions on the facts was in issue.

[35]I find the refusal to state a case inexplicable. Far from being frivolous, it was a request which should obviously have been acceded to.

[36]For those reasons, I would make the same orders that my Lord has proposed.

[37]MR WALSH: My Lord, there is the issue of costs. The application has been resisted and therefore I am entitled to make an application for costs against the second defendant.

[38]MR FIELD: My learned friend is entitled to make his application.

LORD JUSTICE THOMAS: Of course.

[40]MR FIELD: I am equally entitled to resist it. My Lord, as I hope I made plain in my submissions, there were failings on the part of the claimant in respect of these proceedings; I do not mean the Magistrates' Court proceedings, I mean the part 54 proceedings, and if the claimant had complied with those rules, there would have been a much plainer set of circumstances to set before this court. There is uncertainty as to what the magistrates actually decided and as a result the matter is being remitted to them to state the case. In the circumstances, I submit it would be inappropriate to make an order against Mr Forrest in respect of these proceedings today.

LORD JUSTICE THOMAS: Despite the attractive submissions made to us by counsel on behalf of Mr Forrest, it seems to us this was plainly a case where the Justices should have stated a case. It has been resisted by Mr Forrest. He must pay the full costs of that.