Filmer v Director of Public Prosecutions [2006] EWHC 3450 (Admin)

Case No CO/4980/2006[2006] EWHC 3450 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 1st November 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE FULFORD
Between
FILMERClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 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 Geoffrey Miller) appeared for CLAIMANTMISS O LYCOURGOU (instructed by CPS Reading) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE FULFORD: The Proceedings in the Magistrates’ CourtThis is David Filmer's appeal by way of case stated from his conviction by the Justices for the Thames Valley Commission area, acting in and for the Local Justice Area of Reading and sitting at Reading Magistrates' Court on 27th October 2005.[2]On 7th February 2005 the appellant had been charged as follows:
"On Monday 7th February 2005 at Reading in the County of Berkshire drove a motor vehicle, namely a Ford Fiesta F83 SBP on a public place, namely parking area of Humphries, Basingstoke Road, Reading after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit. Contrary to section 5(1)(A) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988."
[3]He was granted bail to attend Reading Magistrates' Court on 18th February 2005. However, he failed to surrender and a warrant for his arrest was issued and executed. Once again, he was granted bail. Lack of cell space appears to have been the reason why he was not remanded in custody but, having been released, he appeared at the Magistrates' Court as ordered on 4th May 2005 and again on 18th May 2005, and on that latter occasion he pleaded guilty to the charge set out above, along with a further charge reflecting his failure to attend at the Magistrates' Court on 18th February. Sentence was adjourned by the Justices for the preparation of reports.[4]When he next appeared at court on 15th June 2005, he was represented by new solicitors, Messrs Geoffrey Miller from Manchester, the representation order having been transferred to that firm. Following submissions, the court granted the appellant's application to vacate his plea to the excess alcohol charge to enable him to contest the matter on the basis that the parking area identified in the charge was not a "public place".[5]The next hearing was a pre-trial review fixed for 13th July 2005. The appellant was excused personal attendance on that occasion but his legal representatives also failed to appear on his behalf. Instead, they sent a letter dated 8th July 2005 in which they stated that all of the prosecution witnesses were required to attend court to give evidence, suggesting thereby that no part of the prosecution case was agreed. By failing to attend on that day, the appellant's solicitors deprived the court of what was undoubtedly the most appropriate opportunity for exploring and clarifying with the parties the nature of the issues that it was anticipated were to arise during the trial.[6]The trial took place on 27th October 2005. As set out at paragraph 6 of the case stated, the Justices made the following findings of fact:
"(a) The defendant drove a Ford Fiesta motor vehicle on the parking area of Humphries Tyres and Exhaust, Basingstoke Road, Reading on 7th February 2005 at about 2.30 am. At the time he was an employee of that firm. (b) He was arrested at the scene having provided a positive breath test. (c) Subsequently, at Reading Police Station he provided two specimens of breath for analysis on an intoximeter machine; both readings indicating 101 micrograms of alcohol in 100 mls of breath -- in excess, therefore, of the legal limit of 35 micrograms. (d) While the parking area of Humphries was private property it was a public place for the purpose of the Road Traffic Act because the public used that area variously to park at night (although none were parked there at the time of the defendant's arrest), to turn vehicles or as pedestrians."
Having set out those conclusions, the Justices highlighted parts of the evidence called before them by the prosecution as follows:
"7. During the prosecution case we heard evidence from, in particular, Acting Sergeant Clevely about the public place aspect of the case. He told us that the car park had an entrance and exit with no barriers and was, outside ordinary trading hours, used as a pedestrian shortcut, a turning circle for vehicles on the Basingstoke Road and for parking by locals during the evening and at night. The pedestrian shortcut was not the using of the car entrance and exit because that route merely ran parallel to the pavement. The route taken by pedestrians was to walk from the car entrance or exit to the far side of the garage and then jump over the wall onto some waste land and vice versa. Some photographs showing the premises were produced in evidence and are annexed marked "
A"."[7]At the close of the prosecution's case, the appellant's counsel, Mr Ley, who has appeared on his behalf to argue this appeal, submitted that there was no case to answer on the basis that the prosecution had failed to establish a prima facie case that the parking area in question was a public place. The Justices rejected that submission, finding there was a case for the appellant to answer. Mr Ley thereon applied for the case to be adjourned in order to enable the appellant to gather more evidence about the parking area. He accused the respondent to this appeal of "prosecution by ambush" on account of the introduction during the trial of the oral testimony of Acting Sergeant Clevely.[8]A statement from Mr Clevely dated 1st July 2005 and included as part of advance disclosure papers served on the defence, which did not include some of the detail given during his evidence of the use the public made of the car park (see above), had been served on the appellant. However, in the first paragraph the officer set out the following: "At 0230 hours on Monday 7th February 2005 I was on duty in full uniform in company with PC4959 Holmes in a marked police vehicle. At this time as we were travelling along the Basingstoke Road towards Reading town centre I saw a white Ford Fiesta registration F83 SBP parked on the forecourt of Humphries Tyre Centre with a male stood nearby having come out of the building itself. The forecourt itself is an open area of tarmac which is accessible to vehicles at two points but which has a brick wall partially across the front. Curious as to this male's actions at this time of the night we parked up next to the vehicle and I got out to speak with the male." [My emphasis].[9]Even allowing for the contents of that paragraph, Mr Ley argued that until Mr Clevely's evidence was given in open court, the appellant was wholly unaware of the foundation for the suggestion that the locus in quo was a public place and that he wished to gather evidence to counter the testimony of Mr Clevely (which, it was additionally alleged, was incorrect). Indeed, Mr Ley contended that there was nothing in the witness statements that even hinted that the evidence given by Mr Clevely in the witness box was to be introduced. The Justices summarised these arguments of the appellant thus:
"As it was never previously suggested that people jumped over the wall or walked in the forecourt or that cars used the forecourt as [a] turning circle or as somewhere to park, it was not reasonable to expect the defendant to guess what public user (if indeed there was any) was going to be adduced and then call witnesses to show that no such user took place."
[10]Before the Justices, Mr Ley relied on the prosecution's obligations of disclosure, and in particular he referred them to the Attorney General's Guidelines on disclosure (issued in December 2005 and in force therefore at the date of trial). In summary, paragraph 57 of those Guidelines requires the prosecution to provide the defendant with all the evidence upon which they intend to rely in a summary trial (in so far as it has not already been provided as advance information where that duty arises) to allow the defendant and his advisors sufficient time to consider the evidence before it is called. Furthermore, he emphasised that paragraph 43 of the Attorney General's Guidelines effectively operates to ensure that disclosure in summary only trials is implemented according to the same principles that are applied to either-way cases and those which can only be tried on indictment.[11]However, as the Justices observed, the prosecution, in purported fulfilment of this obligation, served on the defence copies of the officers’ statements and other relevant documents. Accordingly, the real complaint made in this case must be not that the prosecution failed to address their obligations for pre-trial disclosure at all, but rather that the information provided was insufficient for the purposes of affording the appellant a fair trial. I note in passing that the Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the Magistrates' Courts (for pilot sites from 15th May 2006) was not in force at the relevant time.[12]The prosecution, who were represented in the court below by Miss Paley, opposed the application to adjourn. She submitted that the application was without foundation, particularly given the defendant's plea had been vacated solely so that the issue of whether or not the car park was a public place could be resolved. That single factor had been placed centre stage as the question in the case for both sides to address (against the background of the burden of proof resting throughout with the prosecution). Her submission was that if the defence wished to call evidence to demonstrate the car park was not resorted to or used by the public, whether on foot or in motor vehicles, they should have marshalled that material irrespective of any additional evidence given by Mr Clevely during the case.[13]The Justices' decision on the application was as follows:
"We considered that such applications for adjournments were a matter for us to decide in the interests of justice, balancing the rights of the prosecution and defence. We considered that the defence should have brought such evidence to court on the public place issue as they wished. As Mr Ley had remarked, it was on that very point that the defendant had been allowed to change his plea from guilty to not guilty. On Mr Ley's point that Acting Sergeant Clevely's statement did not include details of his knowledge of the public use of the car park, our Legal Advisor advised us in open court, and we accepted his advice, that it was not necessary for disclosure papers to include every detail of the prosecution case and in this regard it was important not to confuse advance disclosure in summary proceedings on the one hand with trial at Crown Court on the other. At the Crown Court the detailed prosecution case would be set out in full in committal papers and any material served as additional evidence. As far as the case before us was concerned, we noted that the charge itself made it clear that the prosecution proceeded on the basis that it was [a] public place on which the defendant was driving and it was obvious that the prosecution would seek to prove that. We refused the application to adjourn the case."
[14]To complete the history of the proceedings in the court below, the defendant then gave evidence which included his assertion that the car park was not a public place. In particular, he said that customers' cars were removed from the car park overnight to prevent them from being vandalised. No other evidence was introduced, save for material in which it was established that the land was in private ownership. I also observe that in the photographs that were exhibited to the case stated, there are some indications that the wall was of some real height, although it clearly could be surmounted by pedestrians if they were minded to expend a little effort.[15]In convicting the appellant, the Justices' central finding on the matters in dispute was described as follows:
"Having considered the evidence relevant to the element in dispute we find that it was a public place because the evidence given by Acting Sergeant Clevely was that the public used the forecourt of Humphries either to park, as a place to turn a vehicle or as a pedestrian. He said he had personal experience of this as he regularly patrolled the area, both day and night -- we find this evidence wholly convincing."
[16]Two questions have been certified for our consideration, namely:
"(a) Was our refusal of the defence application for an adjournment at the close of the prosecution case a proper exercise of our discretion? (b) Was it "
Wednesbury unreasonable" to accept the police evidence that the park area of Humphries was a public place for the purpose of the Road Traffic Act?" The Arguments on This Appeal The Application to Adjourn[17]Mr Ley has repeated and amplified the points he advanced in the court below. Underpinning his submissions on the law is the central assertion that the evidence of the two arresting officers as served in advance of the trial was essentially identical and "there was nothing in them about the locus was a public place [sic]. They merely described events leading up to the arrest and the arrest itself" (skeleton argument paragraph 9). He complains that at trial unanticipated evidence was given that the car park was used by local residents at night to park their cars, that pedestrians used it as a shortcut and that it was used by motorists as a place to turn. Before us, in oral argument, Mr Ley has emphasised that given the height of the wall, it was unreasonable to expect the appellant to anticipate that it would be said that pedestrians jumped over it as a shortcut.[18]Those complaints found the suggestion that if the appellant had known in advance of those matters "he would have asked a few local residents about those alleged facts and if they had no knowledge thereof he would have used them as witnesses" (skeleton argument paragraph 10). Whether deliberate or otherwise, this was, Mr Ley emphasises, prosecution by ambush because the witness statements failed to reveal the matters rehearsed above.[19]The central submissions on the law developed by Mr Ley can be summarised thus. He has cited authority for two generally accepted propositions which relate to the fundamental preconditions of a fair trial. First, the requirement that criminal proceedings should not proceed by way of ambush (see R (on the application of Hawkes) v Director of Public Prosecutions [2005] EWCA 3046 Crim, particularly at paragraph 17 of the judgment of Newman J), and second, the concomitant requirement that the prosecution must normally serve written versions of the evidence they propose to adduce in sufficient time before the hearing to enable the defendant fairly to deal with it (see R (on the application of Cleary) v Highbury Corner Magistrates' Court [2006] EWHC 1869 Admin at paragraph 23 of the judgment of May LJ).[20]I interpolate to observe that these are no more than some of the basic requirements of natural justice long recognised by our courts which were summarised for the purposes of this context by Lord Widgery CJ in R v Her Majesty's Coroner at Hammersmith ex parte Peach [1980] QB 211 when he stated at page 219:
"It is elementary that if a charge is being made against a person, he must be given a fair chance of meeting it. That often means he must be given documents necessary for the purpose."
[21]The requirements of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is to like effect by virtue of Article 6(3):
"Everyone charged with a criminal offence has the following minimum rights: (a) to be informed . . . in detail of the nature and cause of the accusation against him ... "
[22]Other cases, both domestic and from the European Court of Human Rights, were referred to in Mr Ley's written submissions, but it is unnecessary to summarise or refer to this jurisprudence in any great detail because in the authorities cited, albeit expressed on occasion in slightly different ways, the same underlying principle is emphasised: the obligation to inform the other side in advance and in sufficient detail of the case they have to meet in order to facilitate proper trial preparation. This has been repeatedly referred to in the case law of the European Court of Human Rights as follows: "Article 6(1) requires, as indeed does English Law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused." (Fitt v United Kingdom [2000] 30 EHRR 480 at paragraph 44). Against that background, the appellant submits he was not provided with an adequate or indeed any opportunity to consider and meet the evidence the prosecution relied on as regards public use; he was taken completely by surprise; and he lost a real opportunity of calling rebuttal evidence.[23]That principal argument is supplemented by two criticisms of the Justices' reasons. First, it is argued that the Justices incorrectly suggested that there is a lesser obligation as regards disclosure in summary cases than exists for either-way offences or for cases that are triable on indictment only when, it is contended, no such distinction exists in law. Second, Mr Ley argues the Justices imposed an unreasonable burden upon the appellant of bringing evidence to court in advance of the trial when he did not know in advance of the additional matters that emerged during Mr Clevely's evidence. The Sufficiency of the Evidence[24]Mr Ley complains that the Justices did not explain why they found Mr Clevely convincing or why they apparently dismissed the appellant's evidence that customers' cars were removed from the car park at night. Further, it is suggested that the Justices should have addressed expressly the issues of why motorists would wish to turn in the car park, why pedestrians would choose to jump over a wall to save a walk of a few yards, and why no cars were parked in the car park when the appellant was arrested. In the light of those failures, Mr Ley suggested that it was unreasonable for the court to accept the evidence of Mr Clevely because it was inherently implausible or unlikely. The Respondent's Arguments[25]In answer to those submissions, Miss Lycourgou in her admirably clear and succinct written submissions argues that the appellant had clear prior knowledge of the issues in the case such as to enable him to prepare his case fully for trial, and that the evidence called by the Crown was sufficient to justify a conviction.[26]Before leaving the respondent's arguments, I should note that in the course of her written submissions, Miss Lycourgou has referred to an endorsement made by Miss Paley on the file that she had with her at court. The contents of that note have not been put into statement form, and therefore this entry is no more than her unexplained and unamplified thoughts at the time. It seems to me, in those circumstances, this appeal should be decided on the basis of the Case Stated and the other relevant documents before the court below, and I have ignored Miss Paley's somewhat slight contemporaneous observations about the progress of the case in the Magistrates’ court. My Analysis[27]The first issue to address is the obligation on the prosecution to disclose their case in sufficient detail prior to trial so as to enable proper preparation by the accused of his defence. In this area -- that is to say summary only trials -- the principal foundations of that obligation are to be found in the Attorney General's Guidelines on disclosure and the case law which has been described above. This is not an inflexible or “standard” requirement but rather an obligation which is largely, if not wholly, fact dependent. The extent of the disclosure that is necessary to ensure there is a fair trial will depend on the evidence and the issues in the case.[28]The central complaint by Mr Ley as regards disclosure is that the appellant had received no sufficient notification of the details of the respondent's case that the car park was a public place so as to enable him to anticipate it and to gather evidence in rebuttal. I am unable to accept that argument. The appellant's guilty plea was vacated in order for this very issue to be resolved, and the appellant knew full well that it was the prosecution's submission that this was a public place for the purposes of this legislation.[29]Additionally, contrary to Mr Ley's submission, the Crown, through Mr Clevely's statement which was served in advance of trial, had revealed the essential elements of their case. As I have already set out above, Mr Clevely observed in his statement:
"The forecourt itself is an open area of tarmac which is accessible to vehicles at two points but which has a brick wall partially across the front."
In my judgment, that clearly set out that this was an area that was readily accessible to the public, either on foot or by motor vehicle.[30]As the authorities dealing with this particular statutory context (under this and earlier legislative provisions) reveal, the critical distinction is between private land to which the public have access at the time in question, on the one hand, and private land which is closed to the public at the material time or is only open to particular people, on the other (see Elkins v Cartlidge [1947] 1 AER 829, R v Colinson [1931] 23 Cr.App.R49 and Stanley v Martin [1974] 129 JP 241).[31]Armed with Mr Clevely's statement and an understanding of how the difference between “public” and “private” places has been explained in the case law, the appellant knew that he had to meet a case in which it was suggested that the public had permission, whether express or implied, to gain access to or to use the car park in the early hours of the morning. The additional evidence given by Mr Clevely was no more than the provision by him of examples of how the public, to his knowledge, had utilised this car park. The appellant was fully aware that he had the option of calling witnesses if any could be found who were in a position to rebut the prosecution assertion that this was private land to which the public had access at the time in question.[32]In those circumstances, I reject the suggestion that this was prosecution by ambush or that the appellant did not receive a fair trial because he did not know the detail of the case he had to meet.[33]Whether the trial is in the Crown Court or the Magistrates' Court, the prosecution are not limited in either the questions they ask of their witnesses or the evidence they introduce by the precise wording or content of the disclosed statements, exhibits or other documentation. The requirement on them is to reveal their case in sufficient detail to enable the defendant properly to prepare his defence for trial. Supplementary questions can be asked, and areas can be explored in greater detail than revealed in the disclosed material, so long as the fair-trial and natural -justice requirements of the case are not breached. In my judgment, to hold otherwise would lead to clear injustice because it would mean that every possible question or refinement of the material issues would have to be anticipated and set out in advance of the trial which would be unjustifiably time consuming, to say nothing of the confusion that would be caused because of the many ultimately irrelevant issues that the prosecution in those circumstances would need to anticipate and set out in advance in written form. This additional material from Mr Clevely caused no unfairness: the appellant knew the essential nature of the case he had to meet and if there were witnesses available to assist him in rebutting that case, their potential relevance was not materially enhanced or altered by the further detail Mr Clevely provided.[34]As regards the ancillary attack on the reasoning of the court, I do not accept that there is any material to support the suggestion that the Justices applied an incorrect test as regards pre-trial disclosure. They merely referred to the self-evident differences that exist between trials in Magistrates' Courts and the Crown Court and, that observation aside, there is nothing to suggest they approached the prosecution's obligations on an improper or incorrect basis.[35]Turning to the suggested unreasonable burden that the court placed on the appellant of bringing evidence to court when he was in ignorance of the essential elements of the prosecution case, the analysis I have set out above has dealt with that argument.[36]Finally, I can take the second issue shortly. It needs to be emphasised that: "A Magistrates' Court does not have to state its reasons for convicting a defendant in the form of a judgment reciting the charges, the evidence and all their findings of fact. The essence of the exercise is to inform the defendant why he has been found guilty and this [can] usually be done in a few simple sentences." (See Archbold, 2006 edition, 16-75. See also James Edward Pulham v Crown Prosecution Service CO/3948/99, Monday 17th April 2000, and in particular paragraphs 17 and 20). Additional reasons need only be supplied if an appeal such as this is launched.[37]Turning to the circumstances of this case, Mr Clevely was called by the prosecution and cross-examined by Mr Ley. The Justices summarised his evidence and set out their conclusions as to its veracity and accuracy. They were convinced by that witness and accordingly preferred his evidence on the material issues to that of the appellant. It is not necessary in those circumstances for the Justices in explaining their conclusions in the Case Stated to analyse every evidential issue that had arisen or to explain how they dealt with each of the conflicts between the witnesses, so long as their material findings on the important issues, together with their reasons for those findings, are sufficiently clear and comprehensible. The analysis that Mr Ley argues the Justices should have engaged in is unnecessary and unrealistic and would have resulted in an excessively detailed and complex explanation by the Justices of their findings and conclusions. In my judgment, the reasoning of the court, as explained in the Case Stated, was wholly sufficient and it reveals that the evidence before the Magistrates justified their decision to convict. Put otherwise, as regards each of the elements of the offence, there was clear evidence to sustain a conviction, given the findings of fact by the justices.[38]For those reasons, I would answer the Justices' first question "Yes", and the second question "No", and in consequence I would dismiss this appeal.

LORD JUSTICE LATHAM: I agree. Is there any application, Miss Lycourgou?

[40]MISS LYCOURGOU: My Lord, I have been instructed that if this were an appeal to the Crown Court against conviction, costs in the region of £320 would be sought by the prosecution. That is the only figure I have, so I am trying to give you a round figure as to what it would be.

LORD JUSTICE LATHAM: You are making an application for costs?

[42]MISS LYCOURGOU: I am.

LORD JUSTICE LATHAM: And the figure that you are asking for is £320, based upon that assertion.

[44]MISS LYCOURGOU: Yes.

LORD JUSTICE LATHAM: Mr Ley, what is the position?

[46]MR LEY: I submit, my Lord, if they want their costs they should produce a schedule. May I refer you to the case where this court said if they do not produce schedules they do not get their costs. (Handed).

LORD JUSTICE LATHAM: I am not sure it necessarily follows that they do not get their costs.

[48]MR LEY: This was a breathalyser appeal. Sorry, of course my Lord Fulford J will be very familiar with it. I apologise. I overlooked that.

MR JUSTICE FULFORD: It was a little while ago, Mr Ley.

[50]MR LEY: Thomas LJ had said --

MR JUSTICE FULFORD: Where do we find this?

[52]MR LEY: Page 10, my Lord. The postscript.

LORD JUSTICE LATHAM: "If you cannot be bothered to produce a schedule, why should we give you your costs".

[54]MR LEY: Yes, my Lord.

LORD JUSTICE LATHAM: Mr Ley, could you possibly argue that £300 was too large a sum?

[56]MR LEY: I do not think I could.

LORD JUSTICE LATHAM: No, I did not think you could. Miss Lycourgou, what we propose to do is order that there be an order for costs against the applicant in the sum of £300.

[58]MISS LYCOURGOU: My Lord, I am grateful.[59]MR LEY: My Lord, obviously the matter of the court fine having been imposed, what I would ask is can he pay off the £300 in the same way as he has to pay the Magistrates' Court fine. I am afraid I do not know what it is.

LORD JUSTICE LATHAM: Miss Lycourgou, you have no submissions to make in relation to that?

[61]MISS LYCOURGOU: My Lord, no.

LORD JUSTICE LATHAM: If and in so far as we have power to do it, but I think we do because I think the costs here are dealt with in a different way from the Magistrates, but what we indicate is that the costs should be paid at the same rate as the Magistrates' Court's fine and other orders are to be met, and after those financial obligations have been met.

[63]MR LEY: I am much obliged, my Lord. An order of this court relating to fines, the Magistrates can enforce it --

LORD JUSTICE LATHAM: Well, we have said what we think is an appropriate structure.

[65]MR LEY: I am much obliged, my Lord.[66]MISS LYCOURGOU: My Lord, there is just one matter with regard to the disqualification. I think the disqualification was lifted until this matter was resolved today.

LORD JUSTICE LATHAM: Well, on the dismissal of the application then the stay no longer applies.

[68]MISS LYCOURGOU: I am grateful.

LORD JUSTICE LATHAM: It is effective forthwith. Thank you very much.

Cited in 1 later judgment