West Midlands Probation Board v French [2008] EWHC 2631 (Admin)

[2008] EWHC 2631 (Admin)Case No CO/1194/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/10/2008
Before
THE RIGHT HONOURABLE LORD JUSTICE SCOTT BAKERTHE HONOURABLE MR JUSTICE AIKENS
Between
West Midlands Probation BoardAppellantDarren FrenchRespondent
Naomi Gilchrist (instructed by West Midlands Probation Service) for AppellantRichard Murray (instructed by Millerchip Murray) for RespondentHearing Hearing dates: Thursday 16 th October 2008
Judgment

Aikens J:

[1]This is the judgment of the court to which both judges have contributed.[2]The Justices of the Peace for the West Midlands have stated a case which raises an interesting point on the law of evidence in criminal proceedings. The question arises out of a preliminary ruling made by the justices when sitting as a Magistrates Court at Coventry in the course of a criminal trial on 17 October 2007. A. The Facts.[3]The relevant background facts are these: Darren French, who is now 30 and who is the respondent in this court, had been convicted of an offence for which he was sentenced to a term of imprisonment. We do not know the nature of the offence, nor the precise details of what sentence was originally imposed and when; it probably does not matter. On 30 April 2007 Mr French was released on licence under the terms of section 40A of the Criminal Justice Act 1991 (“the 1991 Act”). We set out its terms below. The release was made by the Governor of HMP Blakenhurst, acting upon behalf of the Secretary of State for the Home Department.[4]Section 40A of the 1991 Act, together with other sections dealing with release of prisoners on licence, has now been repealed by the Criminal Justice Act 2003 and has been replaced by provisions in Chapter 6 of Part 13 of the Criminal Justice Act 2003. However, section 40A remains in force in relation to a prisoner serving a sentence of imprisonment for an offence committed before 4 April 2005. The material parts of section 40A are as follows:
“(1) This section applies (in place of sections 33, 33A, 37(1) and 39 above) where a court passes on a person a sentence of imprisonment which— (a) includes, or consists of an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000; and (b) is for a term of twelve months or less. (2) As soon as the person has served one-half of the sentence, it shall be the duty of the Secretary of State to release him on licence. (3) Where the person is so released, the licence shall remain in force for a period of three months. (4) If the person fails to comply with such conditions as may for the time being be specified in the licence, he shall be liable on summary conviction— (a) to a fine not exceeding level 3 on the standard scale; or (b) to a sentence of imprisonment for a term not exceeding the relevant period, but not liable to be dealt with in any other way. (5) In subsection (4) above “the relevant period” means a period which is equal in length to the period between the date on which the failure occurred or began and the date of the expiry of the licence. (6) As soon as a person has served one-half of a sentence passed under subsection (4) above it shall be the duty of the Secretary of State to release him, subject to the licence if it is still subsisting.” (a) includes, or consists of an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000; and (b) is for a term of twelve months or less. (2) As soon as the person has served one-half of the sentence, it shall be the duty of the Secretary of State to release him on licence. (3) Where the person is so released, the licence shall remain in force for a period of three months. (4) If the person fails to comply with such conditions as may for the time being be specified in the licence, he shall be liable on summary conviction— (a) to a fine not exceeding level 3 on the standard scale; or (b) to a sentence of imprisonment for a term not exceeding the relevant period, but not liable to be dealt with in any other way. (5) In subsection (4) above “the relevant period” means a period which is equal in length to the period between the date on which the failure occurred or began and the date of the expiry of the licence. (6) As soon as a person has served one-half of a sentence passed under subsection (4) above it shall be the duty of the Secretary of State to release him, subject to the licence if it is still subsisting.”
[5]Section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 (“the PCCSA”) gave the court the power to order a prisoner to return to prison when an offence is committed by him during the period when he is on licence during the period of imprisonment imposed for the original offence. It has now been repealed by the Criminal Justice Act 2003.[6]The fact of the release and the conditions upon which it was made were set out in a document dated 30 April 2007, which was signed by a Governor of HMP Blakenhurst and countersigned by Mr French. For the purposes of this judgment and without pre–judging the issue raised by the Case Stated, we will refer to the terms of this document, which, for convenience we will call “the Notice”. It is headed “Notice of 3 Month Supervision”. Then underneath it states:
“Criminal Justice Act 1991”
. Beneath that is “HMP Blakenhurst” and the telephone number of the prison. Underneath that the name of Mr French appears together with various personal details: his date of birth; prison number, CRO No. and so forth. There is then a statement in the following terms:
“Under the provisions of Section 40A of the Criminal Justice Act 1991 you are being released on licence for a period of three months. You will be under the supervision of a probation officer or a social worker of a local authority social services department or members of a Youth Offending Team and must comply with the conditions of this licence. The objectives of this supervision are to (a) protect the public, (b) prevent re-offending and (c) help you to resettle successfully into the community. Your supervision commences on 01/05/2007 and expires on 31/07/2007 unless the licence is previously revoked. On release you must report without delay to: PROBATION OFFR NOELLE HOLTON 70 LITTLE PART STREET COVENTRY WARWICKSHIRE CV1 2UR 024 7663 0555 You must place yourself under the supervision of whichever probation officer or social worker is nominated for this purpose from time to time.”
On release you must report without delay to: PROBATION OFFR NOELLE HOLTON COVENTRY WARWICKSHIRE

CV1 2UR

[7]The Notice then states that “While under supervision” Mr French must do various things. The document then sets out seven conditions, which are the conditions to the grant of the licence. These are of a fairly standard kind. They require the person on licence to keep in touch with his supervising probation officer; to reside permanently at an approved address; to undertake work approved by the probation officer; not to travel outside the UK without prior permission of the probation officer; to be well behaved and not to commit any offence and to report immediately on release on licence to the probation officer.[8]After the conditions, the Notice states that the Secretary of State may vary or cancel any one of those conditions, in accordance with s.37(4) of the CJA 1991. The last two paragraphs of the licence document then state:
“In accordance with the provisions of Section 40A(4) of the Criminal Justice Act 1991, if you do not comply with the requirements in paragraphs 3, 4 and 5 above, you will be liable to prosecution before a court. The court may fine you or recall you to custody. If you are sent back to prison and released before the end of the licence period, you will still be subject to supervision. Your sentence expires on 04/06/07. In accordance with the provisions of Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, you are liable to be returned to custody if you are convicted of a further imprisonable offence committed before your sentence has fully expired. The court dealing with the new offence may add all or part of the outstanding period of the original sentence onto any new sentence it may impose.”
[9]The Notice is signed by someone whose signature is illegible. The advocates appearing before us agreed that this was the signature of one of the Governors of HMP Blakenhurst, but the person could not be identified. There is an entry:
“status” with a manuscript “E” after the signature. Neither advocate could assist on what the “E” signified. The Notice is date stamped 30 April 2007. Underneath the stamp are the words: “This licence has been given to me and its requirements have been explained.”
Then there is a signature which is agreed to be “D French”, viz. that of the respondent. There is a manuscript date of “1/5/07”.[10]On the 23 May 2007 an Information was laid before the Magistrates by the West Midlands Probation Board (“the Board”) against Mr French to the effect that in Coventry on three different dates, 4th May, 11 May and 18 May 2007, he had breached the conditions of the licence, by failing to attend supervision appointments. B. How the present issue arose before the Magistrates Court[11]Before the matter came on for trial, the solicitor advocate representing Mr French, Mr Richard Murray, (who also appeared for Mr French before us) informed the West Midlands Probation Service that, on behalf of Mr French, he challenged the assumptions on which the Information had been laid. In other words, he challenged whether(a) Mr French had been released on licence pursuant to s.40A(2) of the CJA 1991;(b) that the licence properly contained the conditions with which Mr French had to comply;(c) the specific terms of those conditions;(d) whether Mr French was aware of those conditions;(e) that Mr French was instructed to attend supervision appointments in accordance with the licence conditions; and(f) that Mr French had failed to attend those appointments.[12]Mr Murray told the Probation Service that it therefore had to adduce evidence, in an admissible form, which proved the relevant release licence which would have presented the Magistrates with prima facie evidence of all these six matters. It was common ground before us that, for the breach proceedings to have been successful, the Board had to prove, to the necessary criminal standard, the elements we have set out above.[13]Mr Murray requested that a statement be taken from the Governor of HMP Blakenhurst, where Mr French had been a prisoner. He has told us that he made this request for two reasons:(a) so that the licence could be exhibited to the statement and so, once proved in evidence, it would become admissible as evidence in the proceedings; but more importantly,(b) because it would enable him to cross – examine the Governor.[14]As we understand it, Mr Murray’s underlying point was as follows: he had seen the antecedents record of Mr French. This did not show clearly that Mr French had been subject to a return to custody order, which would have demonstrated that Mr French had been the subject of an order under section 116 of the PCCSA, which was itself one of the requirements for imposing a licence under conditions pursuant to section 40A(1)(a) of the 1991 Act. It was thus a possibility (and Mr Murray put it no higher) that Mr French had not been the subject of a return to custody order under section 116 of the PCCSA. If so, Mr French could not have been released on licence under section 40A(1)(a) of the 1991 Act. If Mr French had not been released on licence pursuant to section 40A(1)(a) of the 1991 Act, then, Mr Murray said, there would be argument concerning the imposition of conditions and how any breaches were to be dealt with, although those issues were not explored before us.[15]Thus it will be apparent that Mr Murray’s real target was the lawfulness of the Licence itself. Therefore, proof of the validity of the Licence was fundamental to Mr French’s defence to the breach proceedings against him. We note, however, that at no stage did Mr French challenge directly the basis on which he had been released from prison on 1 May 2007. In our view, if he had wished to challenge either the lawfulness of the Licence under section 40A of the 1991 Act or any of the conditions imposed, the appropriate route would have been by judicial review. Although the point was not argued before us, we think that it is extremely doubtful whether the Justices would have had jurisdiction to go outside the four corners of the Licence (which Mr French had counter – signed) and decide on the validity of the Licence itself or its conditions. Therefore, if the point had been raised before them and the Magistrates had thought that there was some substance in it, the proper course would have been to adjourn the breach hearing to enable Mr French to take proceedings in the High Court for judicial review.[16]The Board decided, doubtless on advice, that it would not obtain a statement from the Governor of HMP Blakenhurst. It took the view that, one way or another, the licence was admissible in evidence without such a statement. We can understand their stance.[17]On 2 October 2007, the Board served on the Magistrates Court and Mr French’s solicitor an intention to introduce hearsay evidence pursuant to s.114 of the Criminal Justice Act 2003 (“the CJA 2003”) and Rule 34.2 of the Criminal Procedure Rules 2005. The “hearsay evidence” was a copy of the Licence dated 30 April 2007. (We were told that the exact whereabouts of the original of the licence is not known but it is presumed to be either in HMP Blakenhurst or in a Home Office file). No point was taken as to whether the notice under the Criminal Procedure Rules was served out of time.[18]Although the Board had requested that the matter be listed before a District Judge, the trial of the complaint was heard by three lay magistrates. The Magistrates received outline arguments from both sides on the question of the admissibility of a copy Licence. They heard legal argument on this point first. C. The arguments before the Magistrates and their rulings.[19]Counsel for the Board accepted before the Magistrates that the facts stated in the Licence were hearsay evidence. But he advanced two arguments in favour of admitting the document as evidence. First, he submitted that the copy licence could be adduced in evidence under the terms of section 117 of the CJA 2003, which permits a statement contained in a document to be admissible as evidence of any matter stated in it under certain conditions. One of these conditions, set out in section 117(4)(a) is that if the document concerned was prepared for the purposes of pending or contemplated criminal proceedings or a criminal investigation, then a document can only be adduced in evidence if the facts fall within particular circumstances defined in section 116(2) of the CJA 2003. The argument on this point revolved around the issue of whether the Licence had been prepared “for the purposes of pending or contemplated criminal proceedings”. It was, we understand, conceded by counsel for the Board before the Magistrates that if the answer to that question was “yes”, then the facts did not fall within any of the particular circumstances set out in section 116(2) of the CJA 2003.[20]The second argument of counsel for the Board was that the copy Licence was admissible in evidence under the terms of section 2 of the Documentary Evidence Act 1868, (“the 1868 Act”) so was admissible under section 114(1)(a) of the CJA 2003. Section 2 of the 1868 Act permits certified copies of any “proclamation, order or regulation issued…by or under the authority of any such department of the government or officer as is mentioned in the first column of the Schedule hereto” to be given in evidence “in all courts of justice and in all legal proceedings whatsoever…”. The argument before the Magistrates on this point concentrated on whether the Licence fell within the term “order” as used in section 2 of the 1868 Act, in the light of the decision of the Court of Appeal (Criminal Division) in R v Clarke [1969] 2 QB 91. In that case, Lord Parker CJ, giving the judgment of the court, stated (at page 97C – D) that the word “order” in section 2 of the 1868 (as amended by section 2 of the Documentary Evidence Act 1882), covered: “…at any rate any executive act of government performed by the bringing into existence of a public document for the purpose of giving effect to an Act of Parliament. This is all the more so when the Acts in question are merely designed to facilitate proof of matters which can be clearly proved otherwise, albeit in a less convenient manner”.[21]Two points were taken by Mr Murray on this issue before the Magistrates. First, he argued that the word “order” in the 1868 Act could not embrace a Licence such as the present. Secondly, he submitted that the Licence was not “a public document for the purpose of giving effect to an Act of Parliament”, as stated in Lord Parker CJ’s judgment in Clarke. Mr Murray accepted that if both conditions were satisfied, then a copy of the licence could be adduced as prima facie evidence of its contents, provided that it was certified in the manner set out in the 1868 and 1882 Acts.[22]After argument the bench retired and produced its decision in writing. We have a copy of the reasons. On the first argument the Magistrates held as follows:
“It is accepted that there is no legal requirement to provide a prisoner with a copy of his licence on release. The only obligation is to release him at the half way point of his sentence and that release may or may not be subject to conditions. We therefore find it very difficult to believe that written notice of these conditions would not be supplied to the prisoner unless the Probation Service were contemplating using it to prove any future breach of those conditions. Therefore one of the purposes of the document is that it would be used in any future criminal proceedings. Therefore, the document is inadmissible hearsay.”
[23]On the second argument the Magistrates held that they were not satisfied that the Licence came within the definition of an “order” within section 2 of the 1868 Act. This was, they held, because in that section “proclamation, order or regulation as these relate, although not exclusively, to statutes, statutory instruments and treaties”.[24]They also stated that, given the ruling of the Court of Appeal in R v Clarke (supra), they were also not satisfied that the Licence was a public document for the purpose of giving effect to an Act of Parliament. They said that this was because its purpose was to inform Mr French of the conditions of his licence and it would not be a document that was available for public consideration.[25]Having accepted the submissions presented on behalf of Mr French, the Probation Service offered no further evidence against him and so the Information was duly dismissed. D. The Case Stated.[26]The questions stated by the Magistrates for this court’s consideration is as follows: “Is a licence issued by the Governor of a prison on behalf of the Secretary of State for the Home Office pursuant to s.40A Criminal Justice Act 2001 a document prepared for the purposes of pending or contemplated criminal proceedings or a criminal investigation within the meaning of s.117(4)(a) Criminal Justice Ac 2003? Is a licence issued by the Governor of a prison on behalf of the Secretary of State for the Home Office pursuant to s.40A Criminal Justice Act 1991 an order within the meaning of s.2 Documentary Evidence Act 1868? E. The arguments before this court.[27]The arguments of Miss Gilchrist, appearing for the Board in this court, were broader than those advanced on behalf of the Board before the Magistrates. Her first submission, not advanced below, is that the rules relating to “hearsay evidence” do not apply at all in this case. She submitted that the Licence could be adduced of evidence of the facts stated in it because Mr French had signed it and had thereby acknowledged its contents and their truth. Her second argument, also not advanced before the Magistrates, was that if Chapter 2 of Part II of the CJA 2003 (headed “Hearsay Evidence”) applied to this case, then the Licence was admissible pursuant to section 114 (1)(d) of that Act. However, if those arguments failed, she submitted that the Licence was admissible in evidence for the reasons that had been put by the Board before the Magistrates.[28]Mr Murray submitted that each of those arguments was wrong.[29]Miss Gilchrist urged on us that this was an important question which could affect frequently affect the conduct of breach proceedings under licences. Therefore we decided to reserve judgment. F. The statutory provisions under the CJA 2003 and under the Documentary Evidence Act 1868[30]Sections 114(1) and (2), 115, 116 (1) and (2), 117 (1), (2), (3), (4)(a) and (5)(a) and section 118 (1) 1 (b) of the CJA 2003 are all relevant to the arguments. It is more convenient to set them out in an Appendix to this judgment and we have done so.[31]It is also convenient to set out the terms of section 2 and the Schedule to the 1868 Act in the same Appendix. G. Analysis of the Issues[32]The first question to ask is: in the light of the stance of Mr Murray for Mr French, what did the West Midlands Probation Board wish to prove by adducing the Licence before the Magistrates at the hearing of the Information against Mr French? In our view it wished to prove the following facts by adducing the Licence:(i) that a Licence had been granted to Mr French pursuant to s.40A of the 1991 Act;(ii) that the Licence contained conditions, as set out in the Licence, which included the condition that he must keep appointments with the probation service as arranged;(iii) that Mr French had counter-signed the Licence, thereby acknowledging that he had been given it and that the requirements had been explained to him.[33]The next question to ask is whether the matters identified in (i) to (iii) above constitute “statements not made in oral evidence [in criminal proceedings]” within the meaning of section 114(1) of the CJA 2003. If they are then the Licence will only be admissible in evidence to prove those matters in criminal proceedings if it satisfies the requirements of one of the paragraphs of section 114(1) (a) to (d).[34]Statements in the Licence are obviously not “made in oral evidence”. To test whether the statements in the Licence constitute evidence of “matters stated” to which Chapter 2 of Part II of the CJA apply, it is necessary to consider the definitions of “statement” and “matter stated” in section 115 of the CJA 2003. Section 115(2) provides that a statement is “any representation of fact or opinion made by a person by whatever means”. Section 115(3) provides that a “matter stated” is one to which Chapter 2 of Part II of the CJA 2003 applies “if and only if” the purpose or one of the purposes of making the statement appears to the court to have been “to cause another person to believe the matter” or “to cause another person…to operate on the basis that the matter is as stated”.[35]It is clear to us that the licence is a representation of fact in respect of the matters we have identified as (i), (ii) and (iii) above. The representation of fact is made by the person who has signed the licence, viz. the Governor of HMP Blakenhurst, on behalf of the Secretary of State.[36]In our view it is also clear that the purpose of making those statements was to cause another person to believe the matters stated and to cause other persons to act on the basis of those matters. This is because the purpose of the statements set out in the licence must have had the purpose of intending Mr French, the prison staff, the Home Office and the West Midlands Probation Service (at the least) to believe the statements in the licence and to act on them accordingly.[37]Therefore the licence falls within the definition of section 114 of the CJA 2003. Section 114, when read with section 118 of the CJA 2003 abolish the common law hearsay rules and create new rules: R v Sukdave Singh [2006] 1 WLR 1565 at paragraph 14 per Rose LJ. Statement which fall within the definition set out in sections 114 and 115 are only admissible in criminal proceedings if and only if can be brought within one of paragraphs (a) to (d) of section 114. It follows that we must reject the first argument of Miss Gilchrist. It is not possible to adduce the Licence as evidence of the facts stated in it (expressly or impliedly) without considering whether it comes within one or more of paragraphs (a) to (d) of section 114(1) of the CJA 2003.[38]On the other arguments presented to us by Miss Gilchrist there are four possible means by which the Licence can be admitted in evidence as proof of the facts stated in it. They are as follows, in the order in which we shall consider them:(a) that there is a rule of the common law under which a public document is admissible in criminal proceedings as evidence of facts stated in it, therefore the Licence can be admitted in evidence by virtue of section 114 (1)(b) and section 118(1) 1(b) of the CJA 2003.(b) There is a statute, viz. section 2 of the 1868 Act, which is to the same effect; therefore the Licence is admissible under section 114(1)(a) of the CJA 2003.(c) The Licence is a document to which section 117 of the CJA 2003 applies; section 117(2) is satisfied and the document is not one that was prepared for the purposes of pending or contemplated criminal proceedings or a criminal investigation within section 117(4)(a), so that the Licence is admissible by virtue of section 114(1)(a) of the CJA 2003.(d) In any event, if the argument at (c) is correct, We say “if the argument at (c) is correct” because in R v O’Hare [2006] EWCA Crim 2512, the Court of Appeal (Crim Div) held that, as a matter of generality, section 114 cannot and should not be used to render section 116 nugatory: see para 30. Therefore, if section 117(4)(a) does apply in this case and the conditions of section 116(2) would bite, that difficulty cannot be circumvented by attempting to admit the Licence using section 114(1)(d). the Licence is admissible under section 114(1)(d) of the CJA 2003, ie. “in the interests of justice”, subject to the provisions of section 114(2). H. Is the Licence admissible by virtue of a “rule of law” under which in criminal proceedings public documents are admissible as evidence of the facts stated in them?[39]There is no doubt that there is a rule of the common law that public documents are admissible in both civil and criminal proceedings as evidence of the truth of their contents. That rule was well established by the middle of the 19th century and was re-affirmed by the House of Lords’ decision in Sturla v Freccia (1880) 5 Appeal Cases 623. As the speech of Lord Blackburn in particular makes clear, (see pages 642 – 4 especially), the document in question must be “public” in three senses. First, the document must be made by a public officer, ie. an officer acting under a public duty when creating the document. Secondly, the document must be public in the sense of it being created for an official, as opposed to a private purpose. Thirdly, it must be a public document in the sense of its purpose; it must be made for the purpose of the public making use of it. Lord Blackburn’s speech makes it clear (at page 643) that in this last respect, “public” does not mean the whole world. It means all those who would have a legitimate interest in the matter that is recorded in the document.[40]We have no doubt that the Licence was a public document within the description given to it by Lord Blackburn and the other law lords in Freccia’s case. This document was produced by a public official, viz. the Governor of HMP Blakenhurst. He produced it under an official duty, first because he was acting on behalf of the Secretary of State and secondly because there must be a duty to record acts taken pursuant to the criminal justice machinery of the land. It was an official, as opposed to a private document. It was produced for a public purpose, ie. to show that a statutory procedure under criminal justice legislation was being carried out on behalf of the Secretary of State.[41]Lastly, the document was something to be seen and acted upon by the “public”, in the sense of all those who are interested in carrying out the licence. The “public” in this case would include not only the prison service; probation service and the police, but also any member of the general public who may legitimately wish to know why this person, who had been sentenced to a period of imprisonment, was on licence for a period of three months.[42]Therefore we would hold that this document comes within sub para (b) of section 118(1) para 1 of the CJA 2003 and thus, by section 114(1)(b) of that Act is admissible as to the truth of its contents. We would add here that the examples given in the brackets of section 118(1) 1 (b) are only examples and are not an exhaustive list, so that it does not matter that a Licence is not identified amongst the examples given. I. Is the Licence admissible by virtue of the terms of section 2 of the Documentary Credits Act 1868[43]The next possible route by which this document might be admissible, under section 114(1)(a), is by virtue of section 2 of the Documentary Evidence Act 1868. We have concluded that the Magistrates erred in their conclusion on this point. It is clear from the judgment of Lord Parker CJ at 97C, in the Court of Appeal decision in R v Clarke [1969] 2 QB 91 that the word “order” in section 2 of the 1868 Act should be given a wide meaning. It covers, he says, “at any rate any executive act of government performed by the bringing into existence of a public document for the purpose of giving effect to an Act of Parliament”. So there are two requirements. First, that the document is “a public document”. For the reasons we have already given the Licence is a public document. The second requirement is that the document had the purpose of giving effect to an Act of Parliament. That is also satisfied. The Licence came into existence for the purpose of giving effect to the terms of section 40A of the 1991 Act in the case of the release on licence of Mr French.[44]There is one minor difficulty with admissibility of this document under the 1868 Act because, as we understand it, the original was not available, and a copy would have to be certified. Provided that was done in the statutory form, the Licence would be admissible. Subject to that proviso, we would answer the second question posed in the Case Stated “yes”. J. Is the Licence admissible by virtue of section 117 of the CJA 2003?[45]The third way in which the Licence might be admissible is that the document falls within section 117 of the CJA 2003. It is conceded by Mr Murray that the requirements of section 117 (1)(a) and section 117(2)(a) and (b) are satisfied in this case. The question is whether this is a document that falls within sub-section (4)(a) of section 117 of the CJA 2003. (It is common ground that section 117(4)(b) is not relevant in this case). As already noted, the Magistrates held that this document was prepared for the purposes of pending or contemplated criminal proceedings within section 117(4)(a). It was common ground that, if that is correct, then the further conditions of section 116(2) could not be fulfilled, so that the Licence would be inadmissible.[46]We cannot agree with the Magistrates’ conclusion. First, the document was not prepared for the purpose of any “pending” criminal proceedings because none that were relevant to the matters contained in the document were pending when it was produced. Secondly, there was no evidence before the Magistrates to suggest that any criminal proceedings were contemplated at the time of the production of the Licence. The document was prepared to show a record of the fact that the offender was being released on licence pursuant to section 40A of the 1991 Act and to provide a record of the terms on which he was to be released.[47]It is correct that the Licence did contain a warning of what was to happen if he did not comply with the terms of the licence. But that is not, in our view, enough to demonstrate that this was a document prepared for the purposes of “contemplated” criminal proceedings. Imagine that a document sets out rules and also a warning of what will happen if the reader breaks the rules. In our view the fact of the warning is hardly evidence that it is contemplated that the reader of the rules will in fact break one or more of them.[48]Our conclusion is consistent with the decision of the Court of Appeal (Criminal Division) in R v Bedi and Bedi (1992) 95Cr App Rep 21. That was a case on section 24(4) of the Criminal Justice Act 1988, which was part of the group of sections in that Act that dealt with the admissibility of hearsay evidence in criminal proceedings. The same phrase is used as in section 117(4)(a) of the CJA 2003, viz. “…for the purposes – (a) of pending or contemplated criminal proceedings…”. The issue before the court in that case was whether a bank’s reports on the loss and theft of credit cards were admissible as proof that credit cards had been lost and stolen, so as to prove that the defendants had engaged in dishonest conduct in using the lost and stolen credit cards in making false sales vouchers. The court upheld the ruling of the trial judge that they were admissible.[49]The trial judge had not specifically ruled on the issue of whether the reports had been produced “for the purposes of pending or contemplated criminal proceedings. Watkins LJ stated (at page 26) that this would normally be a question of fact for the trial tribunal. But as the trial judge had made no findings of fact, it was open to the Court of Appeal to rule on the point. Watkins LJ concluded that if the judge had considered the matter he would have held that the purpose of the reports was not concerned with criminal proceedings. “On the contrary they were reports kept by the bank for the proper conduct of their credit card business”.[50]In the present case the Magistrates had no evidence about the “purpose” of the Licence. There was thus no basis on which they could have found, as a fact, that the purpose of its production was “pending or contemplated criminal proceedings”. Therefore, following the Bedi case, we would answer the first of the questions posed in the Case Stated: “no”. K. Is the Licence admissible under section 114(1)(d) of the CJA 2003?[51]Lastly, we consider Miss Gilchrist’s argument that the Licence is admissible under section 114(1)(d) of the CJA 2003. It would appear that the Magistrates were not invited to consider this paragraph or the factors set out in section 114(2). We think that it was plainly in the interests of justice that a document such as this should be admissible under s 114(1)(d). It is a document produced by a Governor of HMP Blakenhurst, a public servant, on behalf of the Secretary of State. The document declares that a statutory procedure, release on licence pursuant to s 40A of the CJA 1991, which is a mandatory process under that section, is being carried out as part of the criminal justice machinery of England and Wales. It stipulates the terms on which that mandatory process is being carried out.[52]We have not heard any submissions concerning the factors set out in section 114(2) to which the court must have regard before deciding whether a statement not made in oral evidence should be admitted in evidence under section 114(1)(d). On the information that was before us, we think that the answers are likely to be:(a) highly probative;(b) no other evidence had been given and it was not proposed to give any other evidence;(c) the Licence and its terms and the fact that Mr French signed it and acknowledged that its requirements had been explained were important in the context of the case as a whole. As for factor (d), the statement was made in the circumstances set out in the previous paragraph; (e) the maker was very reliable; and (f) the evidence of the making of the Licence was impeccable.[53]On factor (g), no doubt oral evidence of the matters stated in the Licence could have been given, but it seems that the only reason for doing so would have been to challenge whether Mr French had been subject to an order under section 116 of the CJA 1991. That could be investigated by other means. This is not one of the “reluctant witness” types of case with which Hughes LJ was dealing in R v Finch [2007] 1 WLR 1645 at paragraph 23.[54]We are not called upon to make a final decision on whether the Licence should be admitted under section 114(1)(d) of the CJA 2003. We would therefore prefer to say that, at present, we can see no reason why it should not be admitted under that section. L. Conclusions[55]We would answer the two questions posed by the Magistrates “No” and “yes”. For all the reasons we have given, this document is admissible as evidence of its contents in criminal proceedings. We would accordingly remit the matter to the Magistrates for a rehearing of the breach proceedings before a different bench. Appendix to Judgment Criminal Justice Act 2003 Part II Chapter 2 – Hearsay Evidence

Appendix to Judgment

[114]Admissibility of hearsay evidence(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-- (a) any provisions 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.(2) 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 to any others it considers relevant)— (a) how much probative value the statement has (assuming it to be true) in relation to a matter in 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.(3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.[115]Statements and matters stated(1) In this Chapter references to a statement or to a matter stated are to be read as follows.(2) A statement is any representation of fact or opinion made by a person by whatever means and it includes a representation made in a sketch, photofit or other pictorial form.(3) A matter stated in one to which this Chapter applies if (and only if) the purpose, or one of the purposes, making the statement appears to the court to have been— (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated. Principal categories of admissibility (1). In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter. (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2). The conditions are— (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental health condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement and the court given leave for the statement to be given in evidence.[117]Business and other documents(1) 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.(2) 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, business, profession or other occupation, or as the holder of a paid or unpaid office, (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 be person mentioned in paragraph (a) received the information in e courts of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.(4) The additional requirements of subsection (5) must be satisfied if the statement— (a) was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but …(5) The requirements of this subsection are satisfied if— (a) any of the five conditions mentioned in section 116(2) if satisfied (absence of relevant person etc), or … (1). The following rules of law are preserved. Public information etc 1. Any rule of law under which in criminal proceedings— (a) published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them, (b) public documents (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them…. Documentary Evidence Act 1868 Section 2 and the Schedule

Documentary Evidence Act 1868

[2]Mode of proving certain documents (1). By the production of a copy of the Gazette purporting to contain such proclamation, order or regulation. (2). By the production of a copy of such proclamation, order, or regulation, purporting to be printed by the Government printer, or, where the question arises in a court in any British colony or possession, of a copy purporting to be printed under the authority of the legislature of such British colony or possession. (3). By the production, in the case of any proclamation, order, or regulation issued by Her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the clerk or the Privy Council, or by any one of the lords or others of the Privy Council, and, in the case of any proclamation, order or regulation issued by or under the authority of any of the said departments or officers [or office-holders], by the production of a copy of extract purporting to be certified to be true by the person or persons specified in the second column of the said schedule in connection with such department or officer [or office-holder]. Any copy of extract made in pursuance of this Act may be in print or in writing, or partly in print and partly in writing. No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order or regulation. 78. SCHEDULE Column 1 Name of Department or Office Column 2 Names of Certifying Officers The … Treasury Any Commissioner, Secretary or Assistant Secretary of the Treasury The Commissioners for executing the office of Lord High Admiral Any of the Commissioners for executing the office of Lord High Admiral, or either of the Secretaries to the said Commissioners [Any office-holder in the Scottish Administration] [A member of the staff of the Scottish Administration] Secretaries of State Any Secretary or Under-Secretary of State Committee of Privy Council for Trade Any member of the Committee of Pricy Council for Trade, or any Secretary or Assistant Secretary of the said Committee.

Cited in 1 later judgment