Rothon v DPP [2006] EWHC 3330 (Admin)

[2006] EWHC 3330 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Between
DEAN PAUL ROTHONAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondent
The Strand
London
WC2A 2LL
Monday 27 November 2006
B e f o r e:
MR JUSTICE CRANE
B E T W E E N:
_______________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court)_______________MR NIGEL LEY (instructed by Vickers & Co, London W13 9AA)appeared for APPELLANTMR JULIUS CAPON (instructed by CPS Croydon)appeared for RESPONDENT_______________J U D G M E N T(As Approved by the Court)_______________Date 2006-11-27
[1]This appellant appeals by way of case stated against a conviction on 15 November 2005 for an offence of driving a motor vehicle on a road in Kent after consuming alcohol such that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. Collins J ordered that this matter be heard by a single judge. The appellant's counsel, Mr Ley, questioned whether the matter should have gone before a Divisional Court since he submitted that important general questions arose. I took the view that the hearing should continue and in fact it emerges that the result depends on a situation peculiar to this particular case.[2]In the case stated three questions are asked. Questions (b) and (c) both relate to an issue of notice of intended prosecution, but the appellant does not pursue either of those questions. The first question which is live relates to disclosure. The appellant having entered a plea of not guilty, there followed a hearing in three parts: on 1 August, 31 October and 15 November 2005. The stated case indicates in paragraph 1 that on 1 August the magistrates had a hearing as to fact and reached the conclusion that the appellant was the driver of the vehicle at the time of the offence. At the second hearing they heard an application for disclosure pursuant to section 8 of the Criminal Procedure and Investigations Act 1996 and refused it. At the third hearing on 15 November they found, first of all, that the drink/drive procedure was conducted correctly; secondly, that the sergeant who conducted that procedure did not have his personal radio switched on and he was not carrying a mobile telephone; thirdly, that no other people were carrying telephones or radios in the vicinity of the breath machine; and fourthly, that there was no evidence to suggest that the breath machine would have been affected by those instruments even if they had been switched on in the vicinity of the machine. The magistrates continue:
"And we applied the presumption that the machine was functioning correctly."
[3]The application for disclosure related to various intoximeter records in relation to the intoximeter device used in the appellant's case. At that hearing the appellant called an expert witness, Dr Makin, who dealt generally with the workings of intoximeters, but stated that he would need to see certain records in order to advise the appellant and no doubt to express a view also as to the reliability of the machine.[4]It is clear in this case that the relevant records were in the possession of the prosecution. The appellant submitted through counsel that the respondent was required to disclose as part of secondary disclosure anything that could reasonably be expected to assist the defence, that being any material in the prosecution's possession or which came into the prosecution's possession during the case. It was submitted that the records were in the possession of the prosecution, as in fact they were. It was submitted that the appellant was putting the respondent to strict proof that the intoximeter device was "an approved device in accordance with the law." It was submitted that there was a presumption in favour of the respondent that the machine was approved, which placed an evidential burden on the appellant to prove this, and therefore full disclosure of service records and logs of the device was necessary to allow the appellant to investigate the reliability or approval of the machine or otherwise in order to discharge this evidential burden.[5]Section 8 of the Criminal Procedure and Investigations Act 1996 had not at the time been amended by the Criminal Justice Act 2003. Section 8 so far as relevant reads:
"(1) This section applies where the accused gives a defence statement under section 5 or 6 and the prosecutor complies with section 7 or purports to comply with it or fails to comply with it. (2) If the accused has at any time reasonable cause to believe that -- (a) there is prosecution material which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under section 5 or 6, and (b) the material has not been disclosed to the accused, the accused may apply to the court for an order requiring the prosecutor to disclose such material to the accused."
[6]There is in fact no reference to any defence statement but it has been common ground in this hearing that the test that the magistrates were to apply (if they applied section 8) was the test in section 8(2)(a). However, Mr Ley on behalf of the appellant points to Article 6 of the European Convention on Human Rights and in particular to the case of Fitt v The United Kingdom (Application No 29777/96), which was before the European Court of Human Rights on 16 February 2000. At paragraph 44 of its judgment the court said this:
"It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party .... In addition Article 6(1) requires, as indeed does English law .... that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused...."
There is a reference to the earlier case of Edwards v The United Kingdom decided by the Strasbourg Court in 1992. The proposition which Mr Ley relies on is the proposition "that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused."[7]On the face of it, that test appears to be potentially wider than the test under section 8(2). Mr Ley's submission comes to this: that, in the light of the Strasbourg jurisprudence, the court in applying section 8(2) should if necessary read down the provisions of the European Convention relying in effect on section 3(1) of the Human Rights Act 1998 which reads:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights"
. No case has been cited to me by either counsel on the resolution of any difference that may be perceived between section 8(2) in its then form and the law as baldly stated in the case of Fitt.[8]In my judgment it is not necessary, and certainly it is not necessary in this case, to read down the section in that way. It is to be noted that in the case of Fitt the European Court referred to "material evidence" and in my view the conclusion must be that section 8(2) for the purposes of an English court indicates what should be regarded as material on applications for disclosure. There is of course other authority and guidance to which the court may have to have regard.[9]Were there any grounds for requiring the prosecution to disclose the records to which I have referred? I have been referred by Mr Capon on behalf of the respondent, and by Mr Ley, to certain authorities on the relevance of materials in a case of this kind. The relevant cases are Murphy v DPP (DC) [2006] EWHC 1753 (Admin), Scheiner v DPP (DC) [2006] EWHC 1516 (Admin) and DPP v Wood and DPP v McGillicuddy [2006] EWCH 32 (Admin). The effect of each of those cases is that the court should look very carefully at applications for disclosure in the field in which this case lies. As Mitting J in the Scheiner case put it at paragraph 12 of his judgment:
"Evidence is required at least to raise the realistic possibility that the device on the occasion with which the court is concerned may have malfunctioned and produced a false reading."
[10]In my view there was no evidence that pointed in that direction in this case. It appears, though not from the stated case, that the appellant was arguing that he could not have been over the limit. But in my view if that was his argument it did not provide a sufficient basis for raising a question mark about the functioning of the apparatus. Most of those who contest cases say they believe the same in this class of case. In his evidence Dr Makin simply pointed out that he was not able to express a view about the functioning of the machine without seeing the records. But that took the crucial question no further.[11]However, as the stated case makes clear, the prosecution chose to call expert evidence. Paragraph 2 of the stated case says this:
"Dr Rudram on behalf of the respondent stated he had been provided with a series of documents by the respondent relating to the machine at Bromley which included F11 reports and calibration certificates. He was of the opinion that there was nothing in those documents to suggest the machine in question was outside the type approval required by law or to render it unreliable and that the instrument had a self-checking programme."
The respondent submitted, according to the stated case, that the disclosure rules had been complied with and that the respondent had in fact gone further than required in that the records were shown to Dr Rudram.[12]At paragraph 5 the stated case reads:
"We were advised by our legal adviser: (a) that the burden was on the respondent to prove that the machine was an approved device and working correctly but that there was a rebuttable presumption in favour of the respondent that the machine was approved and working correctly. It was for the appellant to rebut that presumption on a balance of probability; (b) in respect of the application for disclosure: (i) that the respondent had complied with their statutory duty under the CPIA 1996 and we had to consider whether the unused material the subject of the application might undermine the respondent's case or may reasonably be expected to assist the appellant and if we were of the later opinion we should order the respondent to disclose the material; ...." 13. "
We were of the opinion that: (a) the machine was an approved device and was working properly at the time of the test. Dr Rudram, an expert on behalf of the respondent, had examined service records from the intoximeter in this case and we accepted his opinion that there was nothing to suggest the machine was not functioning correctly...."[13]The question for the opinion of the High Court is set out in this way in paragraph 8:
"(a) Were we correct in refusing the appellant's application for disclosure under section 8 Criminal Procedure and Investigations Act 1996 given our acceptance of Dr Rudram's opinion that the machine was working correctly and was approved, even though the records the subject of the appellant's application were in the possession of the respondent and not a third party?"
[14]Mr Ley also referred me to the Criminal Procedure Rules 2005 (SI 2005 No 384). It has been confirmed that rule 24.1(1)(g) reproduces rule 3, insofar as it is relevant, of the Magistrates' Courts (Advanced Notice of Expert Evidence) Rules 1997.

(g) reads:

"if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done so or the evidence is the subject of an application for leave to adduce such evidence in accordance with section 41 of the Youth Justice and Criminal Evidence Act 1999 -- (i) furnish the other party or parties and the court with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence, and notify the expert of this disclosure; and (ii) where a request in writing is made to him in that behalf by any other party, provide that party also with a copy of (or if it appears to the party proposing to adduce the evidence to be more practicable, a reasonable opportunity to examine) the record of any observation, test, calculation or other procedure on which such finding or opinion is based and any document or other thing or substance in respect of which any such procedure has been carried out."
Although there is nothing in the stated case specifically recording such a request, it is in my view clear from the stated case that that was in fact what was being asked for, and certainly was being asked for by the time of the application.[15]Rule 24.3 provides as a remedy for failure to disclose a ban on the adducing of the evidence without the leave of the court. Such was never the subject of any application for leave at the time.[16]I turn back to question 8(a) asked for the opinion of the High Court. In my view, given the situation prior to the calling of Dr Rudram, there was no basis for disclosure and the justices would have been perfectly entitled to refuse the application for disclosure. But the implication of question 8(a) is that they were not necessarily of that view until they had heard Dr Rudram, despite the indication elsewhere in the stated case that they were relying on the presumption. If they were going to hear Dr Rudram, it suggests that, but for his evidence, they might not have been satisfied as to the proper working of the machine. That is also a possible implication of paragraph 7(a). Logically they should have ruled on the application for disclosure one way or the other before hearing Dr Rudram. Once they had heard Dr Rudram, it seems to me that natural justice, Article 6 considerations and common sense indicate that they should have acceded to an application for disclosure of the material. Mr Capon on behalf of the respondent submits that it was not strictly in that event a section 8 application. But in my view it was sensibly dealt with as a section 8 application, and indeed the new situation arose in the course of dealing with a section 8 application.[17]Mr Capon also submitted, as indeed is recorded in the stated case, that out of a sense of fairness the prosecution were going further than they needed to go. In one sense that is true. Nevertheless, what eventually happened was that on the application for disclosure the justices relied on expert evidence, without any opportunity for the defence to have the ability to cross-examine that expert. That seems to me on any view to be contrary to principle. If the prosecution had relied on the statutory assumption and had argued that there was no basis either for displacing it or for disclosing the records, they would in my view have been on solid ground. But once Dr Rudram was called, in that unusual situation the magistrates should have acceded to the application for the records to be disclosed. Indeed, in that situation, if the prosecution were going to call Dr Rudram, it is extremely difficult to see why those records were not disclosed. They had them and they could have disclosed them.[18]It follows that, subject to any submissions from counsel on the way in which the remedy should be framed, I shall answer question 8(a) "No", and I shall leave it to my judgment to explain why. As to questions (b) and (c), I would propose to indicate that an answer to those question is no longer requested by the parties.[19]Mr Ley, what do you suggest happens now? MR LEY: Well, your Lordship has allowed the appeal; so therefore the conviction is quashed. I would say that that is all that is needed, my Lord. MR JUSTICE CRANE: I am not sure about that. I am saying that they were not correct in refusing disclosure. I am not sure that that necessarily follows from that. MR LEY: It does, my Lord, because you have said that you cannot be certain that they would reach the same decision if they had not heard Mr Rudram's evidence. If they had taken Mr Rudram's evidence into account they could have come back on the next occasion and said, "Oh, we are taking Mr Rudram's evidence into account. Therefore we will now order disclosure", and because you cannot be certain what decision they would have reached otherwise, your Lordship has, I would submit, to quash the conviction. Of course, this court is different from the Court of Appeal. In the Court of Appeal you originally had a proviso. That has now gone. MR JUSTICE CRANE: Yes, I follow that. MR LEY: We now have the safety of the conviction. But with a case stated, you merely ask a number of questions and, my Lord -- I should have brought the report with me. It is a 1988 or 1990 Road Traffic Report, my Lord. In that case they refused to allow me to cross- examine a witness. What happened in that case, my Lord -- MR JUSTICE CRANE: I think you are going to have to give the usher slightly more information to enable her to find a 1988 case. MR LEY: I am sorry, my Lord. It is either 1988 or 1990. MR JUSTICE CRANE: Let us come back to that in a moment, shall we, if you need to show me a case? You suggest that the conviction must be quashed? MR LEY: Yes, my Lord. What you do after that may be for further argument, but I suggest that in view of your judgment your Lordship has to quash the conviction. MR JUSTICE CRANE: Let us see what Mr Capon has to say. Mr Capon, what is the proper form of order, do you say? MR CAPON: My Lord, with some reluctance I share my learned friend's view that if the appeal by way of case stated is allowed, then the conviction must be quashed. MR JUSTICE CRANE: Very well. I think that must be right. I will quash the conviction. I will answer question 8(a) in the negative for the reasons given in the judgment, and I will indicate that the answers to the other two questions are no longer needed. That will, I think, dispose of the matter. We do not need the 1988 case. Is there anything further? MR LEY: I have no further application, my Lord. MR CAPON: My Lord, my instructions are that those behind me certainly believe that the court would be empowered to remit this matter. MR JUSTICE CRANE: That is what the associate has just mentioned to me. I am aware of that, but what could happen if it was sent back? That is why I asked you. I thought you were agreeing that it should in the circumstances be quashed. MR CAPON: I understood that if the appeal by way of case stated were allowed, the case could not be remitted. If it can be remitted, the remedy I suppose -- MR JUSTICE CRANE: I am in no doubt that I could send this back, saying that that question has been incorrectly answered and for there to be continuation of the opening of the present proceedings, or proceedings before a different bench. That is the kind of order that is often made. But I thought you were agreeing in the circumstances -- I assumed from your answers that you were not asking for that? MR CAPON: It is my mistake, my Lord. It seems to me that the concern in this case would be the amount of time that it has taken already to resolve the case. MR JUSTICE CRANE: This was all in 2005, was it not? MR CAPON: But, in my submission, this is an entirely procedural matter in which there is a straightforward remedy that the material sought could be disclosed. MR JUSTICE CRANE: So, on reflection you are submitting that the conviction should not be quashed? MR CAPON: My Lord, yes. If it can be remitted to the Bromley Magistrates' Court, perhaps the case could be heard by a different bench. In terms of what injustice would be suffered by the appellant, in my submission there would be none. MR JUSTICE CRANE: Except this. The proceedings in the magistrates' court ended just about a year ago. If it went back and there were further proceedings, there would be unlikely to be a final result from a new bench until I would have thought well into next year -- or that could be the position -- and so Mr Rothon could end up convicted in the early part of next year, with all the consequences attached. I am somewhat concerned whether that should be the situation. I agree that on the face of it this is not the most meritorious of cases. There does not seem to be anything still to indicate that there has been a substantial injustice, but I am not sure about further proceedings. MR CAPON: My Lord, that is my concern. There does not seem to have been any injustice in this case. Such concerns in relation to disclosure as there may be can be remedied very quickly and the proceedings recommenced in the magistrates' court extremely quickly if indeed that is appropriate. In my submission, the only reason that it would not be appropriate would be the delay. The delay is not as substantial as the court will have seen in many cases. MR JUSTICE CRANE: It would be three years. Assuming for the moment that it was resolved early next year, it would be three years since the offence -- if there was an offence. MR CAPON: That is right. February 2004 was the date of the arrest. MR JUSTICE CRANE: Yes, it would be three years since the date of the occurrence. MR CAPON: It would be three years, my Lord, but it would seem that the cause of the delay has been the requests made and, sadly, complied with in relation to securing material of limited, if any, evidential significance. MR JUSTICE CRANE: No, I think the lapse of time is too great for that to be the right answer. MR CAPON: So be it. 21. _______________________