Director of Public Prosecutions v Agyemang [2009] EWHC 1542 (Admin)

Case No CO/4034/2009[2009] EWHC 1542 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 24 June 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE MADDISON
Between
DIRECTOR OF PUBLIC PROSECUTIONSAppellantv
Between
BOYD OWUSU AGYEMANGRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Patrick Fields (instructed by CPS) appeared for Appellant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE RICHARDS:

[1]This is an appeal by way of case stated from a decision of the Justices for the County of Hertfordshire, sitting at Stevenage Magistrates' Court, dismissing on 28 January 2009 an information against the respondent, Mr Agyemang. The appeal is brought by the Director of Public Prosecutions.[2]The facts are as follows. On 24 January 2008, the respondent was charged with a series of offences arising from a single incident of driving on 1 December 2007. The allegations were:
"(a) Driving a motor vehicle after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit (contrary to section 5(1)(a) of the Road Traffic Act 1988). (b) Driving a motor vehicle whilst disqualified for holding or obtaining a driving licence (contrary to section 103(1)(b) of the Road Traffic Act 1988). (c) Using a motor vehicle when there was not in force in relation to that use a policy of insurance (contrary to section 143(2) of the Road Traffic Act 1988). (d) Wilfully obstructing a police officer in the execution of his duty (contrary to section 89(2) of the Police Act 1996). (e) Using towards Hertfordshire police officers threatening, abusive or insulting words or behaviour with intent to cause that person to believe that immediate unlawful violence would be used (contrary to section 4(1) and (4) of the Public Order Act 1986)."
[3]On 8 February 2008, the respondent attended court. The case was adjourned at his request to seek legal representation. However, he failed to attend the next scheduled appearance and a warrant was issued for his arrest. That warrant was executed, and he appeared before the Magistrates' Court on 8 October 2008, when he denied all the allegations against him. The trial was then listed to take place on 28 January 2009.[4]On 8 December 2008, the Crown gave notice of its intention to rely upon evidence of the respondent's previous bad character. A notice in due form was submitted in relation to that application. The particulars of the bad character evidence sought to be adduced were dealt with by way of a reference to a number of previous convictions, copies of which were attached to the notice. The notice continued:
"The Crown maintain that the matters referred to above show the defendant to have a propensity to commit offences of the type he is charged with, namely driving with alcohol over the prescribed limit."
[5]At the initiative of the Magistrates' Court, the case was listed on 6 January 2009 for the parties to argue as to the admissibility of evidence of the respondent's bad character. No defence statement was served, but the indication at that hearing was that the respondent was disputing that he was the driver on 1 December 2007. After hearing argument, the court ruled against the Crown's application to have the previous convictions admitted as bad character evidence.[6]The listing of the trial for 28 January 2009 was maintained. At that hearing, the respondent changed his pleas to the offences of driving with excess alcohol and driving without insurance. The Crown offered no evidence on the allegations of obstructing a constable in the execution of his duty and threatening behaviour, and those allegations were dismissed. That left only one matter, namely the allegation of driving whilst disqualified, to be tried.[7]The Crown sought to rely, in support of its case on that charge, upon a memorandum of conviction dated 16 August 2007 from the Magistrates' Court showing that, on that date, the respondent had been disqualified from driving for a period of three years. It was submitted for the respondent, however, that since the bad character application had previously been refused, evidence of the respondent's previous convictions could not be admitted, or that such evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984. Accordingly, it was submitted that the prosecution was unable to prove the previous disqualification.[8]The Magistrates' Court acceded to that submission. According to the case stated, the Justices were of the opinion that:
"The [Crown] should not be allowed to adduce the respondent's previous convictions to establish that he was disqualified by an order of the court in August 2007. At the hearing on 6 January 2009 the [Crown's] application to cite previous convictions had been refused. The application applied to all the allegations."
[9]Following that ruling, the Crown accepted that it was impossible to prove the fact of a disqualification, or therefore to make good the charge of driving whilst disqualified, and the court therefore dismissed the information.[10]The question for the opinion of the High Court is:
"Were we correct in refusing to allow [the Crown] to adduce the evidence of disqualification imposed on 16 August 2007 and upon which the [Crown] sought to rely to establish that the respondent had been disqualified from driving by an order of the court?"
[11]In my judgment, the Justices' decision was plainly wrong. First, the Crown sought to adduce the previous conviction not as evidence of bad character pursuant to sections 101 ff of the Criminal Justice Act 2003, but in order to establish an essential ingredient of the offence with which the respondent was charged, namely that he was disqualified from driving at the time of the alleged offence of driving whilst qualified.[12]Section 98 of the 2003 Act, at the very beginning of the chapter concerned with bad character, provides:
"References in this chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which- (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence."
[13]The importance of this provision was underlined in R v Enright and Gray [2006] Cr App R 4, page 62 at paragraph 1(i) of the judgment of the court given by Scott Baker LJ. In that passage, he stated:
"Where the exclusions in section 98 are applicable the evidence will be admissible without more ado."
That is to say, it is not necessary to proceed under the gateways relating to the admission of evidence of bad character.[14]It is obvious that evidence of disqualification has to do with the alleged facts of the offence of driving while disqualified. It is the first example given, and in my view rightly given, in Archbold, 2009 edition, paragraph 13-6, of evidence falling within section 98(a). Thus, the previous bad character ruling was, in my judgment, an irrelevance. The Crown was entitled to admit the evidence of the previous conviction to establish the fact of disqualification, irrespective of that previous ruling in respect of bad character. If the Justices intended to exercise a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence in question, then I can see no reasonable basis for their so acting.[15]All that is sufficient for the purposes of the appeal. I should, however, add that the previous bad character ruling related, as it seems to me, to the admissibility of evidence of previous convictions as showing a propensity to commit offences of driving with excess alcohol. That is clear from the terms of the prosecution notice with which the ruling was concerned. It did not therefore touch on the question of admissibility of the previous convictions in relation to the alleged offence of driving while disqualified.[16]Even if it had so related, it would have been open to the Justices to re-open the previous ruling if there was a sufficiently cogent reason to do so in the interests of justice. I have to say that, by treating the previous ruling as binding in the way that the Justices did in this case, and as thereby precluding the admission into evidence of the fact of the respondent's previous disqualification, the Justices, in my view, created an obvious injustice and absurdity.[17]For all those reasons, I would answer the Justices' question in the negative, allow the appeal, quash the decision to dismiss the information, and remit the matter to the Magistrates' Court with a direction to hear the information in accordance with the law laid down in this judgment.

MR JUSTICE MADDISON: I agree.

[19]MR FIELDS: My Lords, thank you, and thank you for staying on for that. There is one small matter: is the order of the court clear that that can be in front of a fresh bench of Justices? I am only thinking of the practical arrangements.

LORD JUSTICE RICHARDS: Remit to be heard by a fresh bench of justices, yes.

[21]MR FIELDS: My Lords, thank you.

LORD JUSTICE RICHARDS: Thank you very much indeed for your very clear and comprehensive skeleton argument.