Cherpion v Director of Public Prosecutions [2013] EWHC 615 (Admin)

Case No CO/13322/2012

[2013] EWHC 615 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 5 February 2013

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE GOLDRING

MR JUSTICE FULFORD

Between

ERIC CHERPIONAppellant

Between

DIRECTOR OF PUBLIC PROSECUTIONSRespondent

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

Mr N Ley (instructed via Direct Access) appeared for Appellant

Mr S Heptonstall (instructed by Crown Prosecution Service) appeared for Respondent

J U D G M E N T

LORD JUSTICE GOLDRING:

[1]On 9 October 2011, the appellant was driving a van on Bath Road, Chiswick. He was involved in an accident. He was taken to hospital. A specimen of blood was taken from him there. It contained no less than 170 milligrams of alcohol in 100 millilitres of blood. The central issue for the purpose of this appeal is said in the stated case to be whether Dr Kropelnicki was "the medical practitioner in immediate charge of the appellant's case." For by section 9(1) of the Road Traffic Act 1998:

"While a person is at a hospital as a patient he shall not be required to provide ... a specimen for a laboratory test unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement; and- (a) if the requirement is then made, it shall be for a provision of a specimen at hospital, but (b)if the medical practitioner objects on the ground specified in subsection (2) below, the requirement shall not be made."

[2]The grounds specified in that requirement are that it would be prejudicial to the proper care and treatment of the patient.

[3]Mr Ley, on behalf of the appellant, who appeared below, now makes two complainants. First, he submits that the magistrates should have acceded to his submission to adjourn the case to enable Dr Kropelnicki to be called to give evidence. The prosecution had inadvertently failed to warn her to attend. Second, evidence to the effect that she was the doctor in charge amounted to hearsay and was insufficient.

[4]This case has a lamentable history. The issues continually changed. It was listed many times. The CPS manifested inefficiency. I am afraid that it reflects the worst characteristics of so many hearings before the Magistrates' Court.

[5]On 26 November 2011, the case was first listed. The appellant pleaded not guilty. The case management form was completed. The issues were identified as the lawfulness of the arrest and the procedure by which blood was taken. The court was told that the sole witness to be called to testify for the prosecution was PC Shaw. Statements from PS Suddick, Dr Hakki (the police forensic examiner), PS Hall and a witness called Siobhan Kirk were to be read. The appellant and his wife proposed to give evidence in support of the defence case.

[6]On 25 November 2011, directions were made for the prosecution to complete initial disclosure by 16 December. The appellant was to serve his expert's report by 20 January 2012. A case management hearing was to take place on 1 February 2012 and the trial, listed for a day, was set for 7 March 2012.

[7]Disclosure did not take place as it should have done.

[8]Following, first, an application by the appellant on 6 March and thereafter a joint application by the prosecution and the defence, the trial date of 7 March was adjourned. I need not go into the reasons.

[9]There was a case management hearing on 21 March. At that, it was indicated that PC Shaw, PS Suddick, as well as Dr Hakki, and Dr Kirk were to be called to give evidence for the prosecution. PS Hall’s evidence was to be read. It was anticipated for the defence that the appellant and an expert, Dr Jenkins, were likely to give evidence. The issue now identified was that of uninformed consent. The defendant indicated that a defence statement was not to be served, although it originally was going to be. The trial was listed for 15 May before a District Judge.

[10]On 3 May 2012, the prosecution applied to adjourn the trial because Dr Hakki had examinations on that date. That application was, in the event, unopposed.

[11]On that date, there was a further case management hearing. The District Judge identified as issues the following:(a) whether the warning given at the time the specimen was required was given;

(b) whether the appellant was offered part of the specimen;

(d) whether the consent of the doctor was validly obtained for the specimen that was taken by the police.

[12]It was noted by the District Judge that the alcohol level, undisputedly, exceeded the limit. Furthermore, it was not to be argued that the treatment the appellant received following the accident had adversely affected the readings. PC Shaw, PS Suddick and Dr. Hakki were to be called by the prosecution, Dr Jenkins on behalf of the defendant, as well as the accused himself.

[13]The defence was served with certain medical reports towards the end of May 2012. There was some discussion between the parties in relation to that on 30 May 2012.

[14]The appellant thereafter asked for the case to be listed on 5 July 2012 for an argument to exclude hearsay evidence which it was said was in the statement of PS Suddick. Dr Kropelnicki had told the Sergeant, according to the Sergeant, that she was the doctor in charge. The application was not pursued. The prosecution indicated that Dr Kropelnicki would be called. I observe, why this issue could not have been dealt with simply by asking Dr Kropelnicki, without requiring her to come to court, I do not know.

[15]On 12 July 2012 (the adjourned date of trial), the prosecution was unable to begin at 10.00 am. The three witnesses it had indicated would attend on 15 May who were to be called had not appeared at court, although they had correctly been warned. After an initial delay, the defence opposed the prosecution's request for further time and asked the court to proceed in the absence of the witness. Thereafter, it became clear that the witness would come. They had been told to go to the wrong court. The defence then applied for an adjournment. Dr Kropelnicki had not come. She had not been asked to, notwithstanding the prosecution's indication at the beginning of July that she would be called.

[16]The prosecution submitted there was no reason to adjourn. Any hearsay in the evidence of PS Suddick would be excluded.

[17]The magistrates refused to adjourn. They set out why in their case. In short, and I summarise, the reasons were: 1. The already lengthy history. 2. The other witnesses had come and were ready to give evidence. 3. The fact that Mr Ley had originally asked for the case to proceed, amongst other things, citing delay, only changing his mind when it was clear the other prosecution witnesses would attend. 4. The prosecution agreed not to rely upon what was said to be the hearsay evidence in PS Suddick's statement. 5. Dr Kropelnicki had not been identified as a witness needed to attend until 30 May 2012. The defence had not served a witness summons on her. Service of the objection to the hearsay evidence was late. 6. No defence statement had been served. 7. The defence could have called Dr Kropelnicki. 8. The relevant provisions of the Criminal Procedure Rules were considered. So too was the summary of those Rules promulgated by Leveson LJ as Senior Presiding Judge in 2009. They also referred to the well-known case of CPS v Picton

[2006] EWHC 1108

[18]The following was said in open court:

"We were satisfied that it would not be in the interests of justice for the trial to be adjourned and gave the following reasons in court: We wish to proceed with the case. We have heard that the Crown are ready to proceed and the defence are objecting on the basis that Dr Kropelnicki is not present, when the prosecution had indicated on 5th July 2012 that Dr Kropelnicki would attend and the defence withdrew their application to exclude hearsay. Today we have heard that two police officers and Dr Hakki (the police forensic medical examiner) are present as witnesses. The prosecution have assured the bench that it would not adduce any anonymous hearsay evidence as referred to by Mr Ley in the case of Fox. The prosecution stated that they would bring out key relevant evidence as evidence in chief. Given the history of the case and in the interests of justice we have decided to proceed with the case."

[19]As relevant to the present issues the magistrates, having heard the evidence, found (and again I summarise from their case): 1. PC Shaw was with the appellant from the time of attending the accident to his admission to the hospital. At the hospital PC Shaw handed the appellant over to Dr Kropelnicki. He described Dr Kropelnicki as "the doctor in charge of Mr Cherpian's welfare". She agreed to a blood test as long as the police forensic medical examiner took the samples. PC Shaw identified Dr Kropelnicki to PS Suddick as the person responsible for the appellant's welfare. 2. PS Suddick went through the drink/drive procedure. He on the pro forma filled out Dr Kropelnicki as the doctor in charge. He said he recalled that she said that she was the doctor in charge, although in chief, as he put it in cross-examination, he inadvertently referred to Dr Kropelnicki as a man. 3. Dr Hakki (the forensic medical examiner) took the blood sample. She said the police definitely obtained consent. She could not remember from which doctor. She said they worked as a team on Accident and Emergency. 4. The appellant said that Dr Kropelnicki took care of his leg and sent him for x-ray. 5. As the magistrates put it in the case:

"We found that Dr Kropelnicki was in immediate charge of [the appellant] ... even though she was an orthopaedic surgeon."

[20]Mr Ley makes a number of submissions. They are set out in his lengthy skeleton argument. He expanded upon them before us this morning. We bear them all in mind. We shall only refer to a limited number.

[21]On the adjournment issue he submits that much of the delay was the prosecution's fault. The appellant should not therefore have been prejudiced.

[22]The fact that the other witnesses for the prosecution were present should not have affected the decision.

[23]It was irrelevant that the defence could have called the doctor. There was no reason for the defence to summon her. The prosecution had said that it would call her. We agree.

[24]The appellant had a legitimate expectation that she would be called. Not to call her amounted to a breach of the appellant's Article 6 rights. The Crown should be held to its word.

[25]The fact that the appellant had not identified the doctor earlier was not his fault. It was the prosecution's. There was late service of material.

[26]The appellant could not contradict what was said between police officers in his absence. His defence was, in consequence, irretrievably compromised.

[27]On the second issue, as to whether the court could have been satisfied on the evidence that Dr Kropelnicki was in charge, the essential submission is that it could not. The prosecution was driven to rely upon the hearsay evidence of the police officers. It was not entitled to. It was not enough that the police believed the doctor was in charge. Albeit the doctor had been with the appellant virtually from admission to the hospital to the time he was sent for x-ray, there could have been another doctor in charge. Somebody must have administered the drugs which were undoubtedly taken. In short, there was insufficient evidence to conclude that the requirement within the Road Traffic Act had been complied with. Conclusions The adjournment

[28]Having said they would do so, the prosecution were plainly at fault in not requesting Dr Kropelnicki to attend. That said, the magistrates had to deal with the position as it was before them. I have no doubt they were entitled to refuse to adjourn. The case had already taken far too long. Although not spelled out as such in their reasons, the magistrates plainly thought that this delayed request for the doctor to attend was no more than a speculative attempt to see whether the appellant might avoid the consequences of his admitted driving with excess alcohol. No reliance was to be placed on the suggested hearsay evidence.

[29]I see nothing in the submissions made by Mr Ley on this aspect of the case. It was entirely a matter for the discretion of the magistrates. They reached a conclusion which they were entitled to reach. I have no doubt that I too in their position would have reached a similar conclusion. The finding that Dr Kropelnicki was in charge

[30]The magistrates, as it seems plain to me they did, were entitled to look at the evidence on this aspect as a whole and draw common sense conclusions from it.

[31]The police officer, PC Shaw, delivered the appellant to Dr Kropelnicki. He described her as the doctor in charge of Mr Cherpian's welfare. The appellant appears to bear that out. She it was who, according to him, examined his leg. She it was who sent him for x-ray. She it was who permitted the blood test to take place.

[32]On that evidence the magistrates were entitled to conclude she was the doctor in charge.

[33]Turning to paragraph 9 of the case and the questions posed by the magistrates. In relation to the first, namely question (a) "Were we wrong to refuse the adjournment on 12 July 2012?", I would answer no. In answer to question (b), namely "On the evidence before us were we correct to convict the appellant?", I would answer yes.

[34]In those circumstances, this appeal is therefore dismissed.

MR JUSTICE FULFORD: I agree.

[36]MR HEPTONSTALL: My Lord, there is an application for costs for the Crown. My learned friend has already been provided with a schedule, and I pass forward two copies to my Lords. My Lords, can I invite one amendment, and that would be to item 3, my fee for today. As we will not now be going beyond the luncheon adjournment, that should be halved to £165.

LORD JUSTICE GOLDRING: So you are asking in all for £1,108?

[38]MR HEPTONSTALL: Less £165.

LORD JUSTICE GOLDRING: Less £165.

[40]MR HEPTONSTALL: My Lord, yes. So that would be £943.

LORD JUSTICE GOLDRING: Mr Ley?

[42]MR LEY: I would submit that the justice would be no order as to costs. I say that because they brought this hearing, if you like, on themselves. They gave an undertaking to the court to do something, they failed to do it and therefore the best way of justice would be to make no order as to costs. If you are against me on that, I would address you on the amount.

LORD JUSTICE GOLDRING: You had better address us on the amount.

[44]MR LEY: Yes, my Lord. If my client had been acquitted, he would have got his costs out of central funds. Central funds are now legal aid rates.

LORD JUSTICE GOLDRING: You mean he would not have got sufficient to pay your fees had you succeeded. That is what it comes to, is it not?

[46]MR LEY: I make no comment, my Lord. Also, I did not hand it in before because it is only this morning I received his bill. My Lord, if I can hand it in. It starts at question 6, it is a case of Ricketts v Pembrokeshire County Council, and what it says in that case, he was saying that the bench mark is that the prosecution fees should be the same as legal aid. Under the present legal aid regime, a hearing of an appeal is, I think, £150. At least it was but it has gone down since then. Therefore, you should not award the Crown more than the costs that they would have been ordered to pay if they had lost, which would have been little bits of the legal aid.

LORD JUSTICE GOLDRING: I would, speaking for myself, be very surprised indeed if these costs were in excess of what the legal aid costs are. They do not seem to me to be a very great amount of costs.

MR JUSTICE FULFORD: Mr Heptonstall is not very expensive, is he, Mr Ley?

[49]MR LEY: No, my Lord, but if my client had won, he would have only been entitled to recover legal aid rates. The real justice of the case would be no order as to costs or reduction of costs because they brought it upon themselves.

LORD JUSTICE GOLDRING: Thank you, Mr Ley.

[51]I would make the order sought, namely a costs order in the sum of £943, to be paid by the appellant to the prosecution.

MR JUSTICE FULFORD: I agree.

LORD JUSTICE GOLDRING: So just to help the drawing up of the order, because it is quite straightforward and I can indicate it straightaway, the appeal is dismissed and the appellant is ordered to pay £943 costs to the prosecution.