Brett v Director of Public Prosecutions [2009] EWHC 440 (Admin)

[2009] EWHC 440 (Admin)Case No CO/4492/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/03/2009
Before
THE RT. HON LORD JUSTICE LEVESONTHE HON MR JUSTICE SWEENEY
Between
PETER BRETTAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Renee Calder (instructed by Geoffrey Miller, Manchester) for AppellantBen Mills (instructed by Crown Prosecution Service, Shropshire) for RespondentHearing Hearing dates: 27 th February 2009
Judgment
[1]As long ago as 21st March 2006, this appellant was charged with driving a motor vehicle on the A458 Claverley to Bridgnorth Road after consuming so much alcohol that the proportion of it in his blood, namely 96 mgm in 100 ml of blood exceeded the prescribed limit, contrary to s. 5(2)(a) of the Road Traffic Act 2006. The matter first came before the court on 4th April 2006 and after no fewer than 10 appearances (a feature to which I shall return), a trial was fixed for 13th August 2007 with a pre-trial hearing on 7th August. At that hearing, in circumstances which are the subject of some dispute, the CPS made application for the evidence of Jayne Boardman who had analysed the sample of blood which the appellant had provided to be given under the hearsay provisions on the basis that she was then living in Bulgaria, had not been warned and whose attendance it was not reasonably practicable to secure. The justices acceded to that application but, at the request of the appellant, have stated a case as to the propriety of doing so.[2]Meanwhile, the matter proceeded but, on 13th August, the trial was ineffective. It eventually took place on 3rd December 2007 before Deputy District Judge Kainth, who had himself held a further pre-trial review on 24th September. At the trial (and, as I understand it, foreshadowed at the pre-trial review), Miss Calder, for the appellant, wished to challenge the admissibility of the hearsay statement of the analyst; the Deputy District Judge, however, considered himself bound by the earlier pre-trial ruling of the justices and refused to hear further argument on the issue. The appellant was convicted.[3]Thereafter, the appellant applied to the Court for a case to be stated. The question posed was in the following terms – “Was the Court right to admit in evidence a certificate of analysis of a blood specimen served under s.16 of the Road Traffic Offenders Act 1988 when notice had been given pursuant to s.16(4) of the Act, requiring the attendance at the hearing of the analyst”. This question did not make clear whether it was aimed at the original decision by the justices to admit the evidence, or at the decision by the Deputy District Judge that he was bound by the justices ruling, or both. Unsurprisingly, therefore, it was the Court (justices) who made the initial ruling who signed a Case Stated. The appellant then made clear that he was seeking to challenge the Deputy District Judge’s decision, and thus pursuant to an order of Latham LJ and Underhill J in November 2008, the Deputy District Judge stated a draft case which was later amended (with the consent of all parties including the Deputy District Judge) to include the objection to admissibility and the conclusion that he was bound by the previous decision of the bench. The questions which now fall for this court to decide thus concern the original application to admit the statement as hearsay, and the subsequent decision of the Deputy District Judge to refuse to permit the issue to be ventilated further.

The Original Application

[4]The facts explicitly found by the justices to be proved are as follows: i) Throughout the period from 4th April 2006 to the hearing on 7th August 2007, the solicitors and counsel acting for the appellant had failed to identify the matters in issue by failing to indicate precisely their challenges to the analyst’s evidence and the police station procedure. ii) That the [appellant] had failed to comply with the directions of the court made on 1st June 2007 for the [appellant] to notify the court and the prosecution within 14 days what aspects were in issue in respect of the blood analysis and/or the taking of the blood procedure at teh police station. iii) That the appellant had, therefore, failed to identify sufficiently the issues relating to Jayne Boardman’s evidence as being in dispute. iv) That, because of that failure, the prosecution blood analyst, Jayne Boardman, had not been warned to attend the trial hearing set for the 13th August. v) That Jayne Boardman had gone to live in Bulgaria and that(a) oral evidence given in the proceedings by Jayne Boardman would be admissible as evidence of that matter;(b) Jayne Boardman was identified to the court’s satisfaction; and(c) that it was not reasonably practicable to secure her attendance at trial.[5]It was on that basis that the justices concluded that the analyst’s evidence by certificate should be admitted under the hearsay provisions because the witness was now living abroad and the issues relating to her evidence had not been identified as being issues in dispute.[6]Miss Calder contends that a number of these findings of fact are not borne out by a study of what had been said at earlier pre-trial hearings and further challenges the evidential basis for a number of the conclusions (in particular the conclusion that Jayne Boardman was living in Bulgaria which she said was no more than an assertion). For my part, however, I am not prepared to go behind the specific findings of fact: if Miss Calder had wished to challenge them, the time to do so was before the case was finally stated: it is not suggested that she was not given the required opportunity to do so.[7]The further basis upon which it was contended that it was not open to admit this evidence relates to the terms of section 16 of the Road Traffic Offenders Act 1988 (“RTOA”). This provides:
“(1) Evidence of the proportion of alcohol in a specimen of breath, blood or urine may, subject to subsections (3) and (4) below … of this Act, be given by the production of a document … purporting to be … (b) … a certificate signed by an authorised analyst as to the proportion of alcohol or any drug found in a specimen of blood or urine identified in the certificate. … (3) Subject to subsection (4) below - … (b) any other document is so admissible only if a copy of it has been served on the accused not later than seven days before the hearing. (4) A document purporting to a certificate … is not so admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed.”
[8]It is important to underline that this provision was in advance of the general power to admit hearsay evidence now to be found in section 116 of the Criminal Justice Act 2003 (“CJA”). The relevant part of that section provides:(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— … (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; … (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—(a)by the person in support of whose case it is sought to give the statement in evidence, or(b)by a person acting on his behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).” (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. (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; …[9]Miss Calder argues that once notice has been given that the attendance of the analyst is required, it is simply not open to the prosecution to seek to rely on any other provision for admitting that evidence. In support of that proposition, she cites D.P.P. v. Stephens [2006] EWHC 1860 (Admin) in which this court was concerned with the failure to serve the analyst’s certificate by one of the mechanisms prescribed by section 16(6) of RTOA, relying particularly upon the observation of Mitting J that because the certificate was not in the form of a statement made under section 9 (Criminal Justice Act 1967) it “could only be admitted under s. 16 of [RTOA]” and was “only admissible” pursuant to that provision. It is quite clear, however, that the court was not then excluding the possibility of admissibility under section 116 of the CJA because Mitting J went on:
“I add for the sake of completeness that the certificate could not have been relied on under section 117 [CJA] because the appellant did not seek to prove that the requirements of s 116(2) were satisfied as required by s 117(4)(a) and (5).”
It is quite clear that the Divisional Court were not then excluding the possibility of admissibility of the certificate under those provisions if (as is this case on the facts found by the justices) the criteria required by these provisions of the CJA were met.[10]The possibility that the certificate might be admitted through some other route is underlined by the words of section 16(1) of ROTA which emphasises that “[e]vidence of the proportion of alcohol in a specimen of breath, blood or urine may … be given” which is permissive rather than obligatory and section 16(4) which does no more than provide that, if appropriate notice is given that the analyst is required, the “certificate … is not so admissible” that is to say not admissible by this route: in each case the emphasis in the provision is mine. I am reinforced in that view by the subsequent decision of this court in Crown Prosecution Service v. Sedgmoor Justices [2007] EWHC 1803 (Admin) in which Hughes LJ (with whom Treacy J agreed) said:
“… Section 16 (1) [RTOA] is plainly permissive. It does not stipulate the only manner in which evidence of analysis can be given. Rather what it does is to provide for one means by which evidence of analysis be given, namely by mere production of certificate, provided that the analyst is authorised and subject to the right of the accused under sub-section (4) to require the attendance of the analyst. Section 16 can be contrasted with the immediately preceding section, Section 15. Section 15 does lay down restrictive rules about the nature of the evidence which can be relied upon in a case of this kind. For example, Section 15 (4) provides that a specimen of blood "shall be disregarded unless", in effect, it has been taken by a doctor or registered health care professional or under the circumstances provided for by Section 7A of the Road Traffic Act. Similarly Section 15 (5) provides that evidence of analysis of a blood or urine specimen "is not admissible on behalf of the prosecution unless", in effect, part of the specimen was supplied to the defendant at the time when he asked for it. ”
[11]In the circumstances, I would reject the contention that section 16 of the RTOA provides an exhaustive process for the proof of the proportion of alcohol in a specimen of breath, blood or urine. To prevent the possible proof of this evidence through the mechanism set out in section 116 of the CJA would be to use what was intended as a liberalising provision as a means of elevating this type of evidence above other types for which there is no argument but that section 116 is available. Further, the fact that in relation to blood and urine the defendant has been given an identical sample which he or she is in a position to have analysed demonstrates that the prejudice potentially suffered is reduced if not extinguished sufficient to distinguish those authorities which raise issues under Article 6(3)(d) of the European Convention on Human Rights and Fundamental Freedoms. I would thus answer the question posed in the first case by confirming that the justices were entitled to admit evidence of the certificate of analysis of the blood specimen through the mechanism provided by the CJA 2003 notwithstanding that notice had been given court pursuant to s. 16(4) of the RTOA requiring the analyst to attend.

Admissibility in the Adjourned Trial

[12]I pass to the question raised in the second case which turns upon the extent to which the Deputy District Judge was bound by the earlier decision of the justices to the effect that the prosecution could rely on the analyst’s certificate through the section 116 CJA route on the basis that the witness, Jayne Boardman, was outside the United Kingdom and that it was not reasonably practicable to secure her attendance. In that regard, it must be emphasised that although section 8A of the Magistrates Courts Act 1980 (“MCA”) provides that a pre-trial ruling is binding, that is the case unless there has been a material change of circumstances since the ruling was made (section 8B(5) MCA) such that after hearing evidence and the parties the court concludes that it is in the interests of justice to discharge or vary the earlier ruling (section 8B(3) MCA).[13]It is therefore important to return to the provisions of the legislation. Assuming that the witness was still resident in Bulgaria (which does not seem to have been a question that was addressed), section 116(2)(c) also required the court to be satisfied that it was not reasonably practicable to secure her attendance. Further, by section 116(4), leave could only be given if the court considered that the statement ought to be admitted in the interests of justice having regard, among other features “(d) to any other relevant circumstances”. The exercise of discretion is therefore entirely dependent on the precise circumstances obtaining at the time of the trial.[14]What was the position in this case? When the case came before the justices, the trial (by then the twelfth attendance before the court) was due to take place six days later. The justices found that the appellant had failed to comply with the directions of the court and failed sufficiently to identify the issues relating to the analyst’s evidence. It would be readily understandable that there was simply insufficient time to make those enquiries and to consider arrangements for the attendance of the analyst in the time available before the trial was due to take place and equally understandable that the justices would not wish further to adjourn the trial. After that trial had been adjourned, however, the position was different and it is unarguable that there was a material change of circumstances. A period of some months were available when it was open to the prosecution to make enquiries of the analyst, to ascertain whether there was any time in the proximate future when she might otherwise be in, or could come to, the UK or otherwise discover what could be done to secure the evidence other than by the use of section 116.[15]What is clear from this analysis, therefore, is that for the trial in December 2007, very different considerations arose from those which obtained in August 2007. For my part, there is no question of the decision of August binding the Deputy District Judge in relation to a trial in December and no basis upon which he should have prevented Miss Calder from arguing the question of admissibility: on the contrary, one of the purposes of the pre-trial hearing on 24th September should have been to review the decisions made in relation to the earlier trial date and to ensure that they were still appropriate for the later trial date in December and section 8B(5) MCA specifically permitted her to do so.[16]The question posed for the opinion of the High Court is the same as in relation to the original hearing:
“Was the court right to admit evidence of a certificate of analysis of a blood specimen sent under section 16 of the Road Traffic Offenders Act 1988 when notice had been given pursuant to section 16(4) of that Act requiring the attendance of the analyst at the hearing?”
In fact, that subdivides into two questions both of which have been ventilated in the case namely, (a) was the court entitled to do so? And (b) was the court bound by the earlier decision and entitled to refuse to admit argument at the time of the later trial? As to the first question, I would answer, as before, in the affirmative. As to the second question, however, I would answer in the negative. Further, given that I cannot say what necessary evidence would have been placed before the Deputy District Judge had he permitted argument on the subject, it is quite impossible to speculate upon how he might have dealt with the issue. In the circumstances, having answered the questions as I have, I would quash the conviction.

Disposal

[17]In the event that the court decided that the Deputy District Judge had been wrong to exercise his discretion in relation to the question whether Miss Calder could re-open the admissibility of the hearsay statement of the blood analyst, contrary to Miss Calder’s recollection as reflected in her further skeleton argument, Mr Mills applied for the case to be remitted to the Magistrates Court for re-trial. Miss Calder argued that the allegation dated back some three years, that the delay had not been attributable to fault on the part of the appellant (whose first solicitors had been responsible for the numerous appearances prior to the present solicitors becoming involved shortly before May 2007) and that he had been particularly worried about the outcome and so had suffered sufficiently. Further, although he had not completed the period of disqualification, he had been disqualified for some five weeks prior to suspension of period pending appeal. Finally, she suggested that memories would be dimmed by the passage of time. She also pointed to a change of approach by the appellant’s employers who, prior to December 2007, would have allowed him to retain his employment (which did not involve driving) but had since changed their policy. Further, she argued that, having been involved in many Case Stated appeals, when she had succeeded, no case had ever been remitted for re-trial: for my part, if that is accurate, I find the position remarkable.[18]I am unimpressed with the argument that the delay should impact on the question of retrial; neither am I impressed with the suggestion that any subsequent disqualification would have to start again. Without commenting on the delay in the pre-trial process prior to May 2007, it was open to the appellant to appeal this conviction to the Crown Court at which time the question of the admissibility of the analyst’s statement would have fallen to be considered afresh: an answer would have been forthcoming very much more quickly than these proceedings have taken and the problems of additional possible disqualification would not arise. If the purpose of appealing by way of case stated is to improve the prospect of the case not being tried at all (which Miss Calder asserts is the effect of her experience), the sooner that those advising defendants are disabused of the merit of such an approach the better. The default position in almost every case should be to remit any prosecution that remains viable back to the originating court for re-trial before a differently constituted bench. Once those advising defendants have understood this approach, it would be incumbent upon them to ensure that their clients were very aware of that risk so that, even if successful, they did not assume or even believe that the case would come to an end. If, in relation to Magistrates Court cases, the result is greater use of the appeal by way of re-hearing in the Crown Court rather than appeal to this court by way of case stated, for my part, I would consider that outcome desirable.[19]Each case must, of course, be considered on its merits. Although, initially, I was minded to remit the case, leaving it for the Crown Prosecution Service to decide whether or not to pursue a further trial, I am just persuaded that such course is not appropriate because of the particular circumstances of this appellant. As to the costs, I would award Miss Calder the costs of the second case stated (by the Deputy District Judge) out of central funds but make no order for costs in relation to the work undertaken covering the first case stated (in respect of which the appellant did not succeed).

The Overriding Objective

[20]I return to the horrifying number of interlocutory hearings in this case. In The Queen on the Application of the Director of Public Prosecutions v. Chorley Justices and Andrew Forrest [2006] EWHC 1795 (Admin), decided as long ago as 8th June 2006, Thomas LJ (with whom McCombe J agreed) said “24. In April 2005 the Criminal Procedure Rules came into effect. By 15th April they were in force. They have effected a sea change in the way in which cases should be conducted, but it appears from what has happened in this case that not everyone has appreciated the fundamental change to the conduct of cases in the Magistrates' Courts that has been brought about by the rules. The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure, to take any procedural step required by the rules.25. Rule 3.2 imposes upon the court a duty to further that overriding objective by actively managing the case.26. The pertinent part relevant to what happened in this case is the early identification of the real issues. It is, it seems to us, clear that what should have happened is that at the first hearing of a case of this kind, after the entry of the plea of not guilty, the defendant should have been asked first what was in issue. At that stage and at the first hearing, he should then have been asked what witnesses did he need. Quite apart from the question that has arisen in relation to the analyst's certificate, we simply have no idea why three police officers (who could have been much better employed in protecting the public by being available to do their duty on the beat or elsewhere) were called to court. On what appears before us, their attendance was a complete waste of time and money as the evidence was irrelevant to the issues. Mr Forrest should, thirdly, have been asked what issues were taken by the defence. In our experience, it is very rare in a court, when such a question is asked, that parties do not reply. Most people approach a case on the basis that they want justice done as they wish to be acquitted if they are innocent; it is our experience that the case where a defendant refuses to identify the issue is rare indeed. If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last-minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty.”[21]Without analysing precisely why this case required no fewer than twelve hearings or where the responsibility lies (although there is the suggestion in the papers that the appellant’s first solicitors positively refused to identify the issues in the case), it is abundantly clear that it is utterly unacceptable: the requirements of the Criminal Procedure Rules have been more honoured in the breach than in their observance. Both sides have a duty to the court to ensure that only the minimum time is taken in the resolution of criminal trials and, to such extent as they or either of them fail to do so, the court should not be slow to impose sanctions in the form of adverse orders for costs, if necessary against legal representatives. This also is another lesson to be learned from the case.[22]I agree.

Cited in 3 later judgments