Director of Public Prosecutions v Chajed [2013] EWHC 188 (Admin)

Case No CO/6271/2012

[2013] EWHC 188 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Thursday, 17 January 2013

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE HICKINBOTTOM

Between

DIRECTOR OF PUBLIC PROSECUTIONSAppellant

Between

GAUTAM CHAJEDRespondent

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Mr D Lewis (instructed by CPS) appeared for Appellant

Mr N Corre (instructed by Geoffrey Miller & Co) appeared for Respondent

Judgment

MR JUSTICE HICKINBOTTOM:

[2]In what circumstances may a Magistrates’ Court properly reconsider a verdict it has already delivered?

[3]That issue arises in this appeal by way of case stated from the decision of the South Essex Magistrates' Court sitting at Southend-on-Sea on 9 March 2012 by which, having shortly before found the Respondent Dr Gautam Chajed guilty of failing to provide a specimen of breath, they reconsidered their verdict and found him not guilty of that offence.

[4]The facts upon which the charge against the Respondent was brought are set out in the case stated. Briefly, at shortly after 8pm on 18 October 2010, two police officers in a police car saw the Respondent driving a vehicle in a car park off Wickford High Street. When they went up to the vehicle, the Respondent got out. One of the policeman smelled alcohol on his breath and thought he was drunk; and consequently suspected him of committing an offence under section 4 of the Road Traffic Act 1988, i.e. driving or being in charge of a vehicle when under the influence of drink. He called for another police car to bring a breath test device, which duly arrived. The officer asked the Respondent to provide a breath specimen, giving him instructions on how to perform the test and informing him if he did not provide a specimen he would be arrested. The Respondent was given five opportunities to do so. On the first three, he sucked rather than blew into the tube. On the final two attempts, he blew through the tube, but insufficiently to provide a sample.

[5]Following the fifth failed attempt, the officer arrested him and he was conveyed to Basildon Police Station. Police Sergeant Elsegood was the custody sergeant. Police Constable Boorman was put in charge of obtaining the breath specimens from the respondents. The procedures that took place in the custody office at the station were captured on CCTV, and at the trial the Magistrates viewed the footage. They found that the officers displayed immense patience with the respondent, explaining the procedures and telling him to listen to what was being said and also the consequences of not complying; but the Respondent was argumentative, uncooperative, obstructive and prevaricating. So far as he could, he ignored the procedure. When asked questions he prevaricated, and tried to change the subject. He failed to answer questions throughout the procedure, which were consequently slow, difficult and awkward due to his behaviour.

[6]During those procedure the Respondent, a medical doctor, claimed he suffered from undiagnosed schizophrenia and untreated depression. Later that evening, he was examined by a forensic physician to whom he denied saying to the officers that he suffered from schizophrenia. The physician however noted that the Respondent had suffered from depression, and during the examination his eyes were slightly glazed and poorly focused, his gait was unstable and wobbly, and he appeared mildly intoxicated.

[7]To assist with the procedure for the taking of breath specimens, PC Boorman used the framework document form MG DD/A which, over 18 pages, sequentially sets out the steps that should to be taken to satisfy the statutory procedures.

[8]Section A13 of that form requires the officer to ask the suspect whether he has recently engaged in any specified activities which may affect the results of a breath test. For example, on the basis of the form, the suspect is to be asked whether he has smoked within the last five minutes and, if he has, then the officer is told to wait five minutes before conducting the test. The officer is also required to ask the individual whether he has, within the previous 20 minutes, consumed any alcohol, used any mouth spray, mouthwash or medication, eaten, inhaled or taken anything or, in the event that it is intended to use an intoximeter DC/IR device for the test, whether he has brought up anything from his stomach. If the suspect has done any of those things within that period, the form tells the officer to wait for 20 minutes before conducting the test.

[9]Of those questions in section A13, the Respondent only gave PC Boorman answers to two. In answer to the question about use of mouth spray, he replied, "Yes, I have, I can't say I haven't". In respect to the question about smoking, he said that he had never smoked in his life. He did not answer any of the other questions that were put to him. However, it is accepted by the Appellant that PC Boorman did not ask the Respondent whether he had brought anything up from his stomach within the previous 20 minutes, although the officer did intend to use an Intoximeter DC/IR instrument to take the specimens.

[10]That course of events led to the Respondent facing two charges. The first related to his alleged failure to provide a breath specimen to the officers in the car park. However, before the Magistrates, that was abandoned at the end of the prosecution. I need not say anything further about it.

[11]The second charge arose out of the events at the police station. It alleged that, contrary to section 76 of the Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988, having been required to provide a specimen or specimens of breath for analysis in the course of investigation into whether he had committed an offence under section 4 of the Road Traffic Act 1988, the Respondent had without reasonable excuse failed to do so.

[12]At the trial before the magistrates on 9 March 2012, the Respondent did not give evidence; but the trial nevertheless took four days. The Respondent was represented by Counsel, although not Mr Corre who appears on his behalf before us. Amongst other submissions, Counsel before the magistrates contended that the offence was only committed if there was a lawful requirement to provide the specimen; and there was no such requirement in this case because the officer, having obtained a positive answer to the mouth spray question, failed to wait 20 minutes before requiring a breath specimen. As there was no lawful requirement for a specimen, there was no offence when he failed to provide one.

[13]However, the CCTV evidence clearly showed the Respondent at the custody desk for over 20 minutes, during which he was never out of sight of the camera and during which he was never seen to take anything that could have been mouth spray. The magistrates consequently without difficulty found that the Respondent's response to the mouth spray question was untruthful; and, therefore, under the procedure set out in the form, the officer did not have to wait 20 minutes before commencing any test. The Magistrates were also satisfied that the prosecution had disproved that the Respondent had any medical issues that hampered his understanding of the procedure. As a consequence of those findings, they found the Respondent guilty, and gave their verdict and their reasons, as in substance I have outlined.

[14]Immediately following the verdict and reasons, counsel for the Respondent defendant stood up and addressed the bench. The case stated puts it thus:

"We [i.e. the magistrates] were immediately asked by defence counsel what finding we had made as to whether PC Boorman had asked the Respondent at A13 on Form MG D/A whether he had brought anything up from his stomach and had we considered the case of Howard v Hallett [1984] RTR 353. The Appellant [i.e. of course, the prosecution] did not respond to the question that was raised. We retired to consider the question the defence counsel had raised. We did not provide a reason for our retirement."

[15]When the Magistrates retired, not only did they not give a reason for doing so, they did not give the prosecution an opportunity to make submissions in response to those which the Respondent's counsel had briefly raised. They returned after a short retirement, and announced that they would substitute a verdict of not guilty.

[16]Before us today, Mr Corre contended that there may be some inherent power by which a Magistrates’ Court may reopen a verdict. However, the Magistrates' Court is a creature of statute, and its powers are consequently limited to those given to it by the statutory scheme under which it operates: it has no inherent powers as such.

[17]The only possible power upon which the magistrates could have re-opened their decision is to be found in section 142 of the Magistrates' Court Act 1980 which, under the heading "Powers of magistrates' court to re-open cases to rectify mistakes etc", so far as material provides:

"(1) Magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (1A)The power conferred on a magistrates' court by subsection (1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if (a)the Crown Court has determined an appeal against (i)that sentence or order; (ii)the conviction in respect of which that sentence or order was imposed or made; or (iii)any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction…. (2)Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may… so direct…. (3)Where a court gives a direction under subsection (2) above - (a)the conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect…"

. The case stated at paragraph 8(c)-(g) helpfully sets out the magistrates’ thinking, whereby they came to reverse their decision:

"(c) We reminded ourselves that we had found that PC Boorman had not asked the Respondent the question at A13 on Form MG DD/A as to whether he had brought anything up from his stomach when clearly he should have. This question is required to be asked if an Intoximeter EC/IR instrument is to be used. We were satisfied that in omitting to ask this question the officer was not acting mal a fides and noted that whilst this may have had an affect on the validity or admissibility of any intoximeter reading we were not dealing with such a case. Our case involved the alleged failure to produce a specimen and the question for us at this stage was whether there had been a reasonable excuse for failing to provide that specimen. The defence had never contended that reflux had in fact occurred giving rise to a reasonable excuse to not giving the specimen until the requisite time had expired and had the contention been that this omission was fatal to the whole procedure the correct time to raise that would have been after the CPS had closed their case when the CPS conceded the lack of evidence on the charge relating to the roadside specimen. (d) Considering the case of Howard v Hallett [1984] RTR 353, however and the fact that we had concluded that PC Boorman had not complied with the procedural requirements that he was required to comply with, that on a strict interpretation of the case, there had been no lawful requirement to provide a specimen. (e) In the light of this finding we found that it was appropriate and in the interests of justice to re-open our finding and rectify our mistake under the provisions of section 142 of the Magistrates’ Courts Act 1980. We therefore substituted a verdict of not guilty. (f) As we had only in the preceding few moments, announced our finding of guilt, we found no merit in ordering a re-trial as outlined in section 142(2) Magistrates’ Court Act 1980 because we had heard all the evidence and wanted to avoid further delay in these proceedings. (g) We accept it would have been better practise at this stage, before reversing our decision to formally invite the prosecutor to address us on this issue to ensure that we had addressed all relevant facts and case law, we assumed however the Crown were aware of the question that had been raised and did not seek to address us before our further retirement. (h) On retiring, we did not indicate that we were retiring to re-consider our verdicts."

[18]From that helpful section of the case stated, it is very clear why the justices reversed their decision to not guilty, after Mr Corre’s further intervention. The form required a suspect to be asked whether he had had stomach reflux within the preceding 20 minutes. They found that PC Boorman had not asked the Respondent that question – it is now uncontentious that he did not do so. They considered that Howard v Hallett required strict compliance with the procedure, without which there could be no offence of failing to provide a specimen. It is clear that without the constraint that they considered Howard v Hallett imposed upon them, they would have found the Respondent guilty, as they had earlier pronounced.

[19]The Crown now appeal the decision of the magistrates to give a not guilty verdict in those circumstances; and the magistrates have posed the following questions for the opinion of this court, namely:

"1. Were we wrong to reconsider our verdict once the announcement had been made? 2. If we were not wrong in law to reconsider our verdict, were we wrong in law to find the Respondent not guilty, given our finding that there was no lawful requirement to provide a specimen because of procedural irregularity?"

I will deal with the latter question first - because Mr Corre concedes that the magistrates were wrong in law to find the respondent not guilty on their reconsideration. That concession was made, in my view, with both good grace and propriety. Howard v Hallett concerned a charge of driving a vehicle with excess alcohol contrary to section 6(1) of the Road Traffic Act 1972, a predecessor of the 1988 Act. The difficulty in the case arose not from a failure to provide a specimen, but by the fact that the defendant was required to and did provide three specimens rather than two as required by section 8 of that Act. Section 8, so far as relevant, provides:

"1. In the course of an investigation whether a person has committed an offence under section 6 of this Act a constable may… require him - (a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State…. … 6. Of any two specimens of breath provided by person in pursuance of this section that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded…"

. What happened in Howard v Hallett was that the device that was used was designed to take both of the two required specimens of breath effectively as part of a single-test procedure, provided they were taken within a particular time-frame. However, having obtained one perfectly good specimen from the defendant, the police officer delayed in taking the second; and the time for taking it as part of that single procedure elapsed. So the officer started the whole procedure again and took two further specimens, so that he had three valid specimens altogether. In the event, the proportion of breath alcohol was higher in specimen 3 than in specimen 2, and higher in specimen 2 than in specimen 1. In the ensuing criminal trial, purportedly pursuant to section 8(6), specimen 1 was entirely disregarded and the prosecution relied on specimen 2 as the lower of the other two. The Divisional Court found that this approach was wrong in law, primarily because only two specimens could be required of a suspect and the Magistrates’ Court erred in not having regard to specimen 1 with its lowest reading. The justice of that case on its facts is self-evident.

[20]However, as Mr Corre now concedes, Howard v Hallett has no relevance to the appeal before us. Nor did it have any relevance in the criminal proceedings before the magistrates. This case concerns, not an infraction of the statutory provisions, but a failure to follow the step-by-step approach of Form MG DD/A. Whilst no doubt the form provides a helpful guide to the statutory procedures, it does not have any statutory force itself (see Director of Public Prosecutions v Coulter

[2005] EWHC 1533 (Admin)

). In any event, a failure to follow the guidance can only possibly affect the reliability of any specimen in fact provided: it does not have any possible relevance where, as in this case, the charge involves a failure to provide a specimen at all. A failure to follow every step of the form procedure is not a defence to a charge of failing to provide a specimen. The justices in this case were therefore, like those in Coulter (see [12] of that judgment), wholly wrong to regard Howard v Hallett as having any bearing in this case. With respect to counsel who put the point after the initial verdict, it is very unfortunate that he ever raised this legal red herring with the justices at all.

[21]For those reasons, I would answer the second question posed by the case stated, "Yes": the magistrates were wrong in law to find the Respondent not guilty.

[22]In terms of determining this judicial review, that conclusion renders the first question posed by the case stated in some senses redundant: the not guilty verdict must be quashed in any event. However, Mr Corre maintained that, in respect of that first question, on the facts of this case, the magistrates did not act unlawfully by reconsidering their guilty verdict as they did. In deference to those submissions - and because it may possibly bear upon the relief to be granted - I should make it plain that, as contended by the Appellant, I would also answer the first question posed by the case stated, "Yes": the magistrates were wrong to reconsider their verdict once they had pronounced their guilty verdict in the circumstances of this case.

[23]As I have indicated, the only power under which the Magistrates could reconsider their decision was section 142. However, the purpose and scope of the provisions in that section are very limited. In R v Croydon Youth Court ex parte Director of Public Prosecutions

[1997] 2 Cr App R 411

at page 416F-417 A, McCowan LJ, giving the judgment of this court, said this:

"In my judgment the purpose of section 142(2) is accurately described in the heading as a "

Power to rectify mistakes". It is generally and correctly regarded as a slip rule. Miss Markus places great reliance on the fact that those words in the heading are followed by "etc". But in my judgment that cannot extend the power given beyond a situation akin to mistake."

[24]McCowan LJ went on to say that, in his judgment, it would be wholly wrong to employ section 142(2) as a means to obtain a re-hearing as a substitute for an appeal to the Crown Court, a conclusion that could not be circumvented by the words in the section "where it appears to the court to be in the interests of justice to do so". The interests of justice, he said, include the principle of certainty and finality.

[25]That case specifically concerned section 142(2) but the force of those comments, with which I respectfully agree, apply equally to section 142(1), which is the gateway provision empowering magistrates to vary or rescind their own order.

[26]I do not doubt that, where there has been a simple mistake (or something akin to such), section 142 enables a Magistrates' Court to rectify it, if necessary by directing the case be reheard by different justices in accordance with section 142(2), which renders the conviction of no effect (section 142(3)(a)). Within that limited scope, the Magistrates' Court has a wide discretion under the provision. However, in my judgment, once a guilty verdict has been pronounced by magistrates, it does not enable a convicted defendant to make further submissions with a view to persuading the bench to change its mind and substitute a not guilty verdict, as happened in this case; nor does it empower the court to hear such submissions with a view to their mind being turned. Just as it is usually entirely inappropriate for an unsuccessful party to seek further and better reasons from a Magistrates' Court or from a Crown Court on appeal (see R (Aitchison) v Sheffield Crown Court

[2012] EWHC 2844 (Admin)

at paragraph 35(v)), it is even more antagonistic to the principle of finality in justice for a defendant in the face of a pronounced guilty verdict to seek to reargue a point in that way. If the magistrates have got a decision wrong on the merits of the submissions made to them, then the appropriate course for the offended party is to appeal to the Crown Court or by way of case stated to this court.

[27]In this particular case, the magistrates' reconsideration of their verdict on its merits was compounded by their procedural failure – serious, in my view - to give the prosecution an opportunity to respond to the submissions made on behalf of the Respondent defendant. Had that opportunity been given and the prosecution made submissions, then, upon their reconsideration, perhaps the magistrates would not have proceeded to find the Respondent not guilty - a verdict which, the Respondent himself now accepts, was wrong in law.

[28]For those reasons, I would answer the questions posed by the magistrates as I have indicated; and I would allow this appeal.

[29]In terms of disposal, Mr Corre submits that, in the unusual circumstances of this case, having quashed the not guilty verdict, the matter should be remitted to the Magistrates’ Court for retrial. However, I do not agree. I am quite sure that a retrial is unnecessary. The Magistrates found the Respondent guilty of the offence, and only purported to reverse that decision because, as Mr Corre himself put it in his submissions to us, they were thereafter "distracted by extraneous issues". As I have indicated, those issues were raised through his counsel by the Respondent himself, and it is clear that the Magistrates reversed their decision to find him guilty only because they, quite wrongly, considered themselves bound to do so in the light of Howard v Hallett.

[30]The quashing of the not guilty verdict leaves in place the guilty verdict the magistrates pronounced. Consequently, by way of disposal, I would allow this appeal and remit the matter to the same bench of magistrates, unless reconstituting the bench is impracticable, for sentence. That is, in my judgment, clearly the appropriate procedural court. It comes as some comfort that it is, given that the original trial before the magistrates took no less than four days.

LORD JUSTICE LAWS:

[33]I agree that the questions posed in the case should be answered as proposed by my Lord for the reasons given by him. I agree also that it must follow the Respondent's conviction pronounced by the Magistrates' Court must stand. The purported acquittal must be set aside. I would emphasise only that, having delivered their verdict of guilty, the magistrates had no legal power whatever to proceed as they did and substitute a verdict of not guilty. In particular, for the reasons which my Lord has given, no such power was conferred by section 142 of the Magistrates' Courts Act 1980.