Director of Public Prosecutions v Leigh [2010] EWHC 345 (Admin)

Case No CO/9608/2009[2010] EWHC 345 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONTHE DIVISIONAL COURTVenue Royal Courts of JusticeStrandLondon WC2A 2LLDate Thursday, 04 February 2010B e f o r e:LORD JUSTICE ELIASandMR JUSTICE CALVERT SMITH
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSClaimantv
Between
DARREN LEIGHDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Fields (instructed by the Crown Prosecution Service, Hertfordshire) appeared for claimantMr M Sylvester (instructed by Motoring Lawyers) appeared for Defendant
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an appeal by way of case stated from District Judge Harrison who in the Watford Magistrates' Court held that the respondent had no case to answer in an alleged breach of section 172(3) of the Road Traffic Act 1988, because the evidence adduced by the Crown to establish breach of that provision was inadmissible hearsay.[2]Section 172(2) of the Road Traffic Act 1988 provides as follows:
"(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies— (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver."
Subsection (3) then provides:
"a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence."
[3]The allegation against the respondent was that he had, with respect to two separate incidents, failed to give information relating to the identity of the driver of a specified vehicle, who is alleged to have been guilty of a speeding offence on two separate occasions. Speeding is a relevant offence within the scope of subsection (2). In each case the chief constable required the information to be provided by a particular date. The allegation was that the defendant had failed to provide it.[4]At the hearing before the District Judge the respondent did not appear. He was represented by Mr Sylvester who acts for him today before us. There were a number of points raised by way of defence. The only one relevant to this appeal arises from the way in which evidence of non-compliance with section 172(3) was provided to the court. Mr Roger Clayton, the Business Support Administrator for Hertfordshire Constabulary, gave evidence with a view to establishing that the information had not been provided as required. He gave detailed information about the way in which the constabulary dealt with responses to requests for this information. They are recorded on a particular record by administrative staff allocated on a rota basis to deal with all incoming mails. He set out, in some detail, the steps taken to ensure that the records are kept accurately. There is no need to go into that detail.[5]He also said that he had personally checked the records held at the Safety Camera Unit and satisfied himself that a reply had not been received from the defendant with respect to either of the requirements for information imposed by the Chief Constable. He was not in fact required to give evidence or be cross-examined, and we are told that he made a statement which was admitted before the court without objection.[6]The defendant submitted that the evidence was inadmissible hearsay and that, since no notice to adduce it had been made in accordance with rule 34 of the Criminal Procedure Rules 2005, it could not be admitted. The judge's attention was drawn to certain cases, namely R v Patel [1981] 73 Cr App R 117 and R v Shone [1982] 76 Cr App R, which authority the judge did not in fact see until after the hearing. The judge concluded that the evidence was hearsay and summarised her reasons as follows:
"Having considered the case of Patel and Sections 115 and 117 Criminal Justice Act 2003 I ruled that Mr Clayton's evidence was hearsay and was satisfied that this case was analogous with that of Patel in so far as the Crown was relying on an absence of an entry to prove an essential element of their case. I was satisfied that the absence of an entry was essentially an extract from a business document which, inter alia, detailed the reference numbers of the NIPs sent to the respondent. I was, however, satisfied that Mr Clayton fell with the definition of an officer 'responsible for the compilation and custody of the records' in the terms of the Patel case."
The judge then gave the Crown an opportunity to make an application for the hearsay to be adduced, but they declined to do so. It followed that there was no case to answer and the case was dismissed.

The judge then posed the following question for the opinion of the court:

"Was I correct in law to find that the evidence of Mr Roger Clayton, as to the absence of any replies which complied s172 RTA 1988 to the s172 requests of 20th November and 20th December 2007, relied upon hearsay evidence in that it was based upon his examination of the business records of the Hertfordshire Safety Camera Unit and the deductions drawn from them which could only be admitted pursuant to the provisions contained in Rule 34 CPR 2005 and section 132 CJA 2003?"
[8]The point is a short one and indeed in the course of the hearing today Mr Sylvester has virtually conceded that the judge did err in the conclusion she reached on that particular question. We will deal with the issue relatively briefly in view of that concession.[9]Since the decisions of Patel and Shone the whole law of hearsay has of course been reformulated by the Criminal Justice Act, section 203. Therefore, it is necessary to start with that legislation. Section 114(1) is as follows:
"(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—"
[10]There are then four exceptions identified in subparagraphs (a) to (d) when the statement is admissible. It follows that a statement is only hearsay if it is evidence of any matter stated. There is a definition of statement in section 115(2), which broadly is that it is a representation of fact or opinion made by a person by whatever means. Section 115(3) then provides as follows:
"(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person 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."
Section 117 deals with business and other documents and it is common ground that the records in this case would fall within that category. Section 117(1) contains, so far as is material:
"(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,"
Then subparagraphs (b) and (c) stipulate certain other requirements that need be satisfied. They are not material to this case.[11]The question posed was whether the evidence of Mr Roger Clayton was hearsay evidence. The reason why the judge said it was, as we have indicated, was that she treated the absence of an entry on the record essentially as an extract from the business document and therefore concluded that this was hearsay evidence which could be admitted if the provisions in section 117 were satisfied, and if the appropriate application had been made.[12]Mr Fields, for the appellant, submits that she was fundamentally in error. The record was not being relied upon for the purpose of establishing a fact or opinion stated in the record. There was nobody who had made a relevant statement who could be called because no statement within the meaning of section 115(2) was being relied upon. Nor was it for the purpose of establishing a “matter stated” so as to fall within section 115(3). That requires that the statement is made to cause someone to believe the matter. That was not the purpose of the entries on the record here.[13]The record is of significance, but the significance lies not in what it says, but in what it does not say i.e. the fact that it says nothing. The entry in the record is demonstrating that someone has asserted that a reply has been given, but it is artificial to suggest that anyone by failing to put anything in the record concerning a particular individual is thereby seeking to assert that no reply has been given by that person. That is not the purpose behind their inaction in not recording a response that has not been made.[14]It is of course legitimate to infer from the absence of an entry that no reply was given, but that does not make the evidence hearsay. Whether the inference can be drawn in any particular case will depend on the evidence with respect to such matters as the reliability of the record, the care of the checker, and so forth. But whatever may legitimately be inferred from inaction is not a matter stated within the meaning of section 115(3). Accordingly nothing in the records in this case was being relied upon and therefore the records were not hearsay evidence. It was what was not in the record that was being relied upon.[15]If the defendant had challenged the evidence - and, as we have said, there was no objection to Mr Clayton's statement being adduced - then of course he could have been cross-examined, and if the defendant wished to have the records produced, then they could have sought to do so. They would not, however, in my view, be doing so in those circumstances because the records were hearsay, but merely because the records are relevant evidence enabling the defence to test the reliability of the evidence given by Mr Clayton.[16]I agree entirely with the submissions made by Mr Fields. The prosecution was not relying on the record for the purpose of establishing the veracity of any matter stated therein. It follows that it was not hearsay evidence at all. Whether or not the Crown should have adduced that evidence depends upon whether they consider they had sufficiently reliable evidence without it, but it is for them to decide whether or not to adduce it. They were not obliged to do so because the evidence of Mr Clayton was itself primary evidence, as Mr Sylvester concedes. He was able to give evidence as to what the records were about (and the judge found that he was an appropriate person to do that) and he was also able to give evidence as to what was not in the record.[17]I should add that even before the reformulation of the hearsay rule in the 2003 Act, it seems to me that there was no question of hearsay here. Both the cases of Patel and Shone indicate that where an appropriate person goes to court to explain the purpose of the records, and can give evidence that there is nothing in the records to demonstrate that a reply has been given, that is not hearsay evidence. Mr Clayton was an appropriate person, as the judge found. However, given I particular that there is now really no challenge to his evidence as being primary evidence, it is not necessary to go into those cases in any detail.[18]It follows, therefore, that I would allow this appeal and I would hold that the answer to the question posed by the court below is that the judge was not correct to find that the evidence of Mr Clayton was hearsay evidence. It follows the case will have to go back to the court because there are a number of other issues that were raised by the defendant that the court did not, in the circumstances, deal with.[19]MR JUSTICE CALVERT SMITH: I agree. Could I just ask whether it is appropriate to order that the case continue from where it left off, or that it start from the beginning?[20]MR FIELDS: I think it is appropriate for a direction to continue with the hearing. I say that because this was a District Judge and I think this case was (inaudible). I see no difficulty in reconvening that Tribunal.[21]MR JUSTICE CALVERT SMITH: There may have to be an application by one side or the other for a witness who has given evidence on paper to be recalled to give evidence live. That was what prompted my question.[22]MR FIELDS: My Lord, that had crossed my mind as well.[23]MR JUSTICE CALVERT SMITH: If it were to start from the beginning again, all bets would be off. You are satisfied with that?

LORD JUSTICE ELIAS: Are you both satisfied with that?

[25]MR SYLVESTER: The judge is obviously concerned about it.[26]MR JUSTICE CALVERT SMITH: I have no problem with her continuing to try the case. The question is whether she starts from scratch, or continues from the where she left off.[27]MR SYLVESTER: At least it keeps the matters in play and she can carry on deciding the matters as the evidence stands.[28]MR FIELDS: My Lords, there is one application: we have an application for costs in this case. I had advised my learned friend, in advance of this hearing that in the event of the appellant succeeding the costs would be £1,875. I ask for an order in that sum.

LORD JUSTICE ELIAS: What do you have to say, Mr Sylvester?

[30]MR SYLVESTER: I cannot. Costs follow the event. I do not argue the point of the claim. I have seen the schedule. It is for your Lordships--

LORD JUSTICE ELIAS: I think costs will have to be awarded in that sum of £1,875.