Fernie v Chief Constable of Humberside Police [2009] EWHC 528 (Admin)

Case No CO/9896/2007[2009] EWHC 528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 27 February 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE SWEENEY
Between
DARREN FERNIEClaimantv
Between
CHIEF CONSTABLE OF HUMBERSIDE POLICEDefendant
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)
for The Claimant did not appear and was not representedMiss G Kent (instructed by Humberside Police Legal Services Unit) appeared for Defendant
J U D G M E N T

LORD JUSTICE LEVESON:

[1]By summons dated 18th March 2005 Darren Fernie, the appellant, was required to appear before the Magistrates at Hull to answer allegations that on 2nd October 2004 he drove a motor vehicle, registration number W202 NGU, at a speed in excess of 40 mph, the then speed limit for the road, and also that on 25th November 2004 having been required by or on behalf of the Chief Officer of Police to give information which it was in his power to give and which might have led to the identification of the driver of the vehicle, W202 NGU, who was alleged to have been guilty of the offence of speeding failed to do so.[2]That summons eventually came on for trial before the Magistrates on 9th August 2005. Having been convicted the appellant then appealed to the Crown Court. The appeal was heard by His Honour Judge Barber and two Justices in the Crown Court at Hull between 23rd and 25th January 2007. It was dismissed.[3]On 15th February 2007, out of time, the judge was asked to state a case. He agreed to do so, approved both his judgment and provided answers to the specific questions posed by the solicitors on 15th March 2007.[4]The appeal was fixed for hearing before a Divisional Court for 1st May 2008. Following a request dated 21st April 2008 the appeal was adjourned at the request of the appellant in order that he might seek fresh legal representation. It was fixed again for 24th November 2008. Thereafter on 20th November 2008, that is to say four days before the appeal was due to be heard, a further application was made to adjourn on the basis that the appellant had not been able to obtain fresh legal representation as he had been unable to obtain his papers. Latham LJ granted that adjournment but directed that any further adjourned application would not be looked upon favourably by the court.[5]On 5th January 2009 solicitors for the respondents wrote to the appellant referring to the listing for today, 27th February 2009, asking whether in the light of the appellant's letter of 11th November 2008 he was intending to pursue the appeal. This appears to be a reference to the comment made by the appellant that if he did not receive the papers by 5th December he would abandon the appeal. This court has seen no response to that letter or indeed a subsequent letter dated 29th January seeking a bundle of documents. In particular, there was no suggestion that the appellant had ever asked for or been refused copies of the important documents in the case from the respondent.[6]On 17th February 2009 the appellant wrote to this court seeking a further adjournment, saying that without papers from his solicitors he was not able to instruct solicitors or prepare the case himself. He sought the adjournment for a further two months, recognising that this repeated request "probably beggers belief." He asserted that he had now secured the papers which thus must include the case stated and the judgment. It is to be observed that the case stated covers some three-and-a-half pages and the judgment some six pages.[7]The respondents to the appeal resisted the application to adjourn, arguing that costs have continually been incurred instructing counsel for a succession of hearings, which position had not been assisted "by the appellant's complete failure to respond to correspondence from the respondent or to advise the respondent directly of what he claimed to be his continuing difficulties in obtaining papers."[8]The application to adjourn was placed before me administratively and I declined it. The appellant wrote complaining about the way in which his application to adjourn had been met, whereupon I considered that the matter should be viewed by the Divisional Court as presently constituted. The court considered all the documentation which the appellant had placed before it, including his response to my initial refusal further to adjourn the appeal, and determined to consider the application afresh. It was however again refused and the court dispatched the short analysis which I have just recited, observing:
"We have considered this application afresh but have no doubt that more than enough time has elapsed for the facts surrounded this case to be mastered and for this appeal to be heard. The application to adjourn is refused for these reasons."
[9]The appellant wrote again, making it clear that he would seek to ventilate his concerns before the European Court. He was invited to attend this morning and renew the application if he wished to do so. He has declined that invitation. In his email, he observed that he would "end up making myself look a fool as it is simply not my arena of experience if the court rejects the oral application". He argued that a two month delay did not cause increased cost or cause the respondent to the court any undue distress, but it did give him the right to a fair hearing upon equal terms which he did not consider an unreasonable request now the file papers are in his possession. This email was considered by the court and submissions were made upon it by counsel for the respondent who attended and resisted any further application to adjourn. She made the point with considerable force that this case concerns an allegation of exceeding the speed limit some four-and-a-half years ago and that the amount of judicial time and expense that had been incurred was far in excess of that which was a fair share of the resources of the court for such a case.[10]In the circumstances, we have proceeded with the hearing of the appeal. In order to do the appeal as much justice as we could, however, we invited Miss Kent, counsel for the Chief Constable, in the best and highest tradition of the Bar to articulate the case that could best be put had counsel appeared to argue the case stated in accordance with the terms stated by the judge. She assisted us by reference to a skeleton argument which was originally filed on behalf of the appellant and made such other points as she felt she could. We now embark upon a consideration of the case.[11]The first feature which must be identified in relation to this case is that it is not in standard form. Far from asking specific questions or identifying specific points of law, the case sought by solicitors then acting for the appellant took the form of a series of grounds of appeal. They are as follows: 1. The learned judge had not been provided with copies of the reports of the appellant's experts in advance of the hearing despite their having been submitted to the Court on 8th and 22nd January 2007. After the reports were submitted during the hearing, no indication was given at any stage that they or any of them had been read and considered by the learned judge and magistrates. 2. The appellant's expert, Dr Michael Clark, was not allowed to present or refer to his final report, even though the investigation/tests giving rise to that report had been specifically ordered by His Honour Judge Mettyear at an earlier, preliminary, hearing of this case. In particular, the court refused to accept evidence from Dr Clark about the subject of 'slip', as irrelevant, whereas the respondent's expert, Mr Garrett, was allowed to address the issue and gave evidence that it does not happen. Further, the respondent used and referred to the DVD produced by Dr Clark when examining Mr Garrett in chief, despite the learned judge having ruled it irrelevant. Then the applicant was given no opportunity to address that issue. 3. The learned judge improperly accepted the report and evidence of the respondent's expert, Mr Garrett, even though it was shown by his own evidence relating to his qualifications and experience that Mr Garrett was not and could not be regarded as a person able to provide 'independent assistance by way of objective, unbiased, opinion in relation to matters within his expertise...' R v Bowman [2006] All ER 20. 4. The application was not allowed to call evidence from a second expert, Richard Bentley, about one issue in the case, that of the white lines in the road and their spacing and dimensions, because the respondent informed the court that they were not relying on that aspect of the case. However, Mr Bentley's report was before the court, and one of the magistrates asked the respondent's witness, Mr Garrett, about the white lines. As a result, the court only heard Mr Garrett's views about them - the applicant was given no further opportunity to address that issue. 5. The applicant, appearing in person, was not allowed to cross-examine the respondent's expert, Mr Garrett or the police officer. Instead, the learned judge required the applicant's expert, Dr Clark, to conduct the cross-examination, when Dr Clark was given no warning or time to prepare, and was not and cannot be versed or qualified in the skills required for that aspect of advocacy.[12]For my part I would have declined to deal with this request to state a case on the basis that it does not identify in clear terms points of law for the decision of this court. His Honour Judge Barber, however, did not take that course but, as I have indicated, in addition to providing a copy of his judgment, which we have read, essentially provided a response to each of the points that have been made in the case stated. We deal with them seriatim.[13]As to the provision of copies of the reports, His Honour Judge Barber observed that the case had initially been listed before the Recorder of Hull but was transferred to his court at 11.17 on 22nd January. Thereafter he adjourned it to the following day specifically so that he and his colleagues could read the working bundle. In my judgment that provides a complete and definitive answer to that complaint.[14]The second complaint concerned the issue of 'slip' and the fact that Mr Garrett was allowed to address the issue although the appellant was not. The learned

judge observed:

"Dr Clark carried out various tests at an adjacent aerodrome to enhance his argument that slippage occurred if the device was improperly calibrated or misaligned. The issue before the court was had this happened on the day in question? I suggested that Dr Clark cross-examine on behalf of the appellant, who was representing himself, the witnesses called for the respondent and that then the appellant if he wished could ask any further questions he wished. The appellant agreed with that course. The DVD produced of what occurred at the airfield did not assist save to help the court's understanding of what took place on the day in question about which there was a video. The applicant was at no point stopped in taking whatever issue he wanted."
We add to that response, by reference to the learned judge's judgment in which he emphasised that although the case had been wide-ranging and every aspect of the use of the equipment used to assess the appellant's speed had either been referred to or analysed in detail, at the end of the day what was in issue was not the machine itself but its operational use by the relevant police officer. The learned judge went on to record the finding of fact that when the device left the police station it was properly set up. He also accepted that he and his colleagues were sure that the necessary checks for re-alignment had been carried out.[15]Here again, whatever the appellant might believe as to what occurred, the learned judge has made it very clear that he was not prevented from taking whatever issue he wished to take. That is the decision of fact contained within the case. We shall return to the use of the expert as a vehicle for cross-examining shortly.[16]The third complaint concerned the acceptance of the report and evidence of the respondent's expert, even though it was shown that he could not be considered to provide independent assistance by way of objective and biased opinion. The learned

judge responded:

"It was for the court to evaluate the evidence of Dr Clark and the evidence of Mr Garrett. Dr Clark as professional adviser and Mr Garrett as the maker of the device in question. Both were experts. The court evaluated the evidence accordingly. It did not find either person to be biased and they decided accordingly."
The reference to independence in this regard is the subject of elaboration in the skeleton argument advanced at an earlier stage in the proceedings on behalf of the appellant, it being suggested that Mr Garrett had a financial interest in denying any potential for inaccuracy in the device which his company had manufactured.[17]There is no doubt that Mr Garrett was not within that group of persons who could be said to be biased as a consequence of their relationship with one of the parties to the litigation. This particular allegation of bias concerns his likely views as to the validity of the equipment. It is not at all uncommon for those who devise new techniques for the detection of crime to be called upon to explain both their technique and its operation in court and it is desirable that any such explanation should be capable of being subject to the forensic process of analysis and review. To deprive the court of the benefit of such expertise would be foolish indeed and I for my part do not read the case law on the subject of bias as depriving the court of that opportunity. Neither did the learned judge. There is nothing in this point.[18]The fourth concern reflected the white lines in the road and their space and dimensions. The learned

judge observed:

"Mr Bentley was to give evidence about road signs, road markings, the sighting of street lamps and the like. The court suggested that this had nothing to do with the issues in the case and both sides concurred. The appellant was given every opportunity to demur. He did not."
That again is a clear finding of fact as to what happened at the Crown Court and cannot now be challenged in this court.[19]Finally the learned judge dealt with the allegation that the applicant was not allowed to cross-examine the respondent's expert Mr Garrett or the police officer. The learned judge observed:
"This suggestion is false. Dr Clark and the applicant were the principal witnesses. The court suggested that Dr Clark be the expert who cross-examined, but that the appellant be allowed to ask thereafter that which he wished. The appellant agreed and on that basis the case proceeded. This case was not one that concerned the efficacy of the 'gun' itself. It was concerned with its use which the court could not fault."
In this response the judge further undermined the basis of the complaint which the appellant makes. But we recognise that in the skeleton argument to which we have referred counsel seeks to develop the argument in this way. He suggests that by allowing the defence expert to cross-examine he caused him to be seen as a participant in the trial as opposed to an independent expert.[20]The way in which Miss Kent, on behalf of the respondent, puts the matter is that Dr Clark was in a better position to challenge the evidence of Dr Garrett and that this did not compromise Dr Clark's position as an expert witness. There is no indication that the court considered that Dr Clark's evidence was undermined because he asked questions of the prosecution witnesses. Neither was there any evidence that the appellant was prevented from adducing all the evidence that he wanted to produce or indeed, we add, from asking whatever questions he wanted to ask. Indeed the response of the learned judge identifies that the appellant agreed that this was an appropriate basis upon which the case could proceed.[21]It is quite clear from all that I have read that the appellant was anxious to take advantage of the use of the expert evidence that had been amassed on his behalf in the course of the case. In those circumstances, as anybody with forensic experience will readily acknowledge, the cross-examination of an expert is a most difficult exercise to undertake unless the cross-examiner is entirely familiar with every aspect of the expert evidence and the expertise which is being placed before the court. In that regard, with the consent of the appellant the learned judge allowed the defence expert to put questions to elucidate that which the prosecution expert wished to advance in order to assist him in explaining the position when he came to give evidence.[22]In the circumstances, the defence expert was not invited to act as an advocate but merely to assist the exploration of the evidence which otherwise could only have been done by the defence expert writing each question down in turn for the appellant to ask. In my view this approach was perfectly sensible, provided of course the judge did not misunderstand the role which the defence expert was undertaking. There is nothing in the case to suggest that the learned judge in any sense misunderstood the position.[23]In my judgment there is nothing in the grounds upon which this case was requested to be stated and I would dismiss this appeal.

MR JUSTICE SWEENEY: For the same reasons as provided by Leveson LJ, so would I.

LORD JUSTICE LEVESON: In the circumstances the appeal is dismissed. The respondent having sought the costs of this appeal, we make that order.