Cummings v Crown Prosecution Service [2016] EWHC 3624 (Admin)

Case No CO/3761/2016[2016] EWHC 3624 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 15 December 2016
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LINDBLOM
MR JUSTICE SOOLE
Between
CUMMINGSAppellantv
Between
CROWN PROSECUTION SERVICERespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr L Webber (instructed by GT Stewart) appeared for AppellantMr S Heptonstall (instructed by CPS Appeal Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE SOOLE: This is an appeal by way of case stated from the decision of the justices sitting at Bexley Magistrates' Court on 27 April 2016 whereby they convicted the Appellant, Davina Caroline Cummings, of three road traffic offences, including failure to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988.[2]The ground of appeal is that the justices wrongly acceded to the prosecution application to allow a police officer, PC Parsons, to refresh her memory pursuant to section 139 of the Criminal Justice Act 2003 from form MG DD/A ("the form") which related to the details of the breath test procedure alleged to have been carried out at the police station. Without the officer's consequential evidence, there would have been no basis to convict for that offence.[3]The justices found as facts that PC Parsons was on duty as a passenger in a marked police vehicle in Lewisham High Street on 2 March 2016 when a Range Rover was spotted driving in the opposite carriageway. The police vehicle executed a U-turn and indicated that the other vehicle should stop. It did not do so and was pursued. At the junction with Ryecroft Road, the Range Rover collided with a garden wall. PC Parsons approached the driver, the Appellant, who refused to provide her details. PC Parsons could smell alcohol on her breath and requested her to perform a breath test procedure at the roadside. The driver failed to do so and was arrested and conveyed to Lewisham police station.[4]The justices' findings of fact continue:
"T. PC Parsons was present throughout the Intoximeter procedure when Sergeant Moreland offered the Appellant the opportunity to provide a specimen of breath and completed the MG DD/A drink/drive proforma (ie. the form). U. PC Parsons observed the entire MG DD/A procedure and heard all of the questions asked by Sergeant Moreland and all of the responses given by the Appellant. PC Parsons signed the form as a witness to the procedure. V. PC Parsons recalled the Sergeant asking the driver to provide a specimen of breath and that the response to the request by the Appellant was no. W. PC Parsons recalled the driver being given a warning about the consequences of failure to provide a specimen for analysis. The driver said, "
No, I'm still not providing". The Appellant gave no medical reason for her refusal to provide a specimen. Prior to being given leave to refresh her memory, PC Parsons' evidence was that the Appellant had refused to undertake the breath test procedure."[5]A separate section of the case stated which begins, "(5) We were of opinion that...", states that in her evidence PC Parsons said that she and Sergeant Moreland completed each page of the form together. The form is not appended to the case stated, but this court gave leave at the outset of the hearing for it to be amended accordingly.[6]By its section A12 under the heading "Breath test requirement", the form sets out the requests for the arrested person to provide two specimens of breath for analysis and the warning that failure to provide either of these specimens will render the person liable to prosecution. In the reply section to each of the two successive questions which follow the warning, namely, "Do you agree to provide two specimens of breath for analysis", the word "no" has been written. These requests and the warning reflect the statutory requirements of section 7(6) and 7 of the Road Traffic Act 1988.[7]Section A25 of the form is headed "Names and signatures of officers and operators witnessing/completing". The table underneath has five columns headed respectively "print name", "W/C", "signature", "date of signature" and "sections". The notes which follow state that, "For column W/C, indicate W for witnessing or C for completing" and "for column headed sections, state all, or if only engaged in or present for part of procedure, specify relevant sections". Under "print name", the first name is D Moreland. The second column is marked "C". The third column contains a signature. The fourth column contains the date 2/3/16 and the time 13.33. The final column states "all". The second name in the first column is PC Parsons. The next column states "W". The signature box is blank. However, the date of signature column states "2/3/16". The final column states "all".[8]The case stated records the submissions on behalf of the Appellant that(a) (A) PC Parsons should not be permitted to use the form to refresh her memory because the form was not completed by her and therefore did not record her recollection of events.(b) (B) The requirement in section 139 of the Criminal Justice Act that the document is verified at an earlier time needed more than just witnessing. (G) The Sergeant who conducted the procedure was not present at the trial as a witness. (H) PC Parsons could not say what someone else said because it amounted to hearsay. PC Parsons played no active part in the procedure and she witnessed someone else conduct the procedure. Bare reference to "the requirement" and being given "the warning" was not sufficient. (I) Accordingly, there was no evidence that a constable had required two specimens of breath or that the statutory warning had been given regarding a failure to provide.[9]The case stated then records the submissions on behalf of the prosecution that (A) the form is a proforma. The Appellant answered questions that are recorded in the form. This did not, therefore, amount to hearsay and the responses were what the Appellant said in response to the questions. PC Parsons heard the Appellant's refusal and there was no prejudice to the Appellant. (J) PC Parsons had given clear evidence in relation to the failure to provide an evidential specimen in that (1) when Sergeant Moreland conducted the breath test procedure, PC Parsons was present, (2) the requirement had been made and the Appellant's refusal was clear and admissible, (3) PC Parsons could tell the court that a warning had been given and therefore that evidence did not amount to hearsay.[10]The justices then record their opinion that:
"(A) The requirements of section 139 of the 2003 Act was satisfied as PC Parsons was present throughout the breath test procedure and recollected both that the Appellant had refused to provide a specimen of breath when required to do so by the Sergeant and that the warning as to the consequences of that failure had been given. (B) The breath test procedure took place on 2 March 2016 and the officer was giving evidence on 27 April 2016. Therefore, PC Parsons' recollection of events was likely to have been significantly better when the form was completed by the Sergeant than when she gave her evidence to the court. (C) The officer's signature on the form when the breath test procedure [sic] was verification of the contents of the document as an accurate record of events. Accordingly, Parsons was entitled to use the form as an aid memoire. In her evidence, PC Parsons said that she and Sergeant Moreland completed each page of the form together."
[11]Section 139(1) provides:
"A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if - (a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and (b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence."
[12]The common law rule was more strict in that it provided that a witness may refresh his memory by reference to any writing made or verified by himself concerning the facts to which he testifies when those facts were still fresh in his memory: Attorney General's Reference No.3 of 1979 69 Cr.App.R 411 per Widgery LJ at 414. By contrast, the statutory provision is in respect of a document "made or verified" at an earlier time. However, that potential distinction does not arise in the present case since the form was completed on the day in question. However, the common law authorities on the meaning of the words "made or verified" continue to be relevant.[13]On behalf of the Appellant, Mr Webber renews the submission that PC Parsons did not make or verify the document and that the document did not record her recollection of the matter at an earlier time. The justices' finding that she had signed the form is untenable in the face of the document. PC Parsons did not make the document, nor did the justices so find. As to verification, that means attesting to the truth of something. All that PC Parsons did was to witness the procedure. The form was completed by Sergeant Moreland and was signed by him alone.[14]In written submissions, Mr Webber also points to section A24 of the form, which is headed "Additional notes" and contains manuscript details of a discussion with the Appellant at the police station. These, it is submitted, are PS Moreland's observations alone. The Appellant submits the overall effect of the grant of permission under section 139 was to allow PC Parsons to give the evidence that could only be given by the officer who had conducted the procedure, PS Moreland.[15]In my judgment, these submissions are defeated by the combination of the common law authorities on the meaning of verification and the findings of fact made by the justices and notwithstanding the absence of a signature from PC Parsons in the appropriate box on the form.[16]In R v Kelsey [1982] 74 Cr.App.R 213, this court stated that:
"What must be shown is that witness A has verified in the sense of satisfying himself whilst the matters are fresh in his mind, (1) that a record has been made, and (2) that it is accurate."
Per Taylor J, as he then was, at page 217.[17]In that case, it was sufficient that the maker of the contemporaneous record, B, had read it back to the witness, A, and that A was thereupon satisfied as to its accuracy. This followed the earlier case of R v Mills and Rose [1946] Cr App R 336 where it was held to be sufficient that A contemporaneously read and adopted as accurate B's record of his, A's, information. By contrast, there was no such verification in a case where there was no evidence that A had in any way considered the accuracy of B's record of what he, A, had witnessed: R v Eleftheriou, Court of Appeal, transcript 18 February 1993.[18]Adapting those authorities to section 139, verification involves a question of fact as to whether witness A has at the earlier time satisfied himself that a record of his recollection has been made and that it is accurate. Evidence of verification may typically include A's signature to the relevant document, but that is simply one form of evidence. Mr Webber in oral submissions did not disagree with the latter proposition.[19]In the present case, the justices made findings of fact that PC Parsons was present throughout the whole procedure and heard all the questions and answers. They also record, and as Mr Webber expressly accepted in argument, that they must be taken implicitly to have accepted PC Parsons' evidence that she and PS Moreland completed each page of the form together. Having completed the form together with Moreland, Parsons must be taken to have been entirely satisfied as to the accuracy of its contents. That is the essence of verification, as the authorities demonstrate.[20]The evident purpose of the form is to provide a contemporaneous documentary record that the request for specimens was made and refused and the necessary warning was given, hence the terms of the questions in section A12 of the form.[21]Section A25 records that PC Parsons was a witness to all sections of the procedure. True it is that the signature box is blank. However, the combination of the other entries in A25 and PC Parsons' evidence, as accepted by the justices, can leave, in my judgment, no doubt that PC Parsons had verified the form as an accurate record of what she saw and heard in the course of the breath test procedure. For the same reasons, the form records her recollection on that day of what she had witnessed. This was not hearsay evidence, but her direct evidence.[22]Given the blank signature box, it is not clear how the justices concluded that PC Parsons had signed the form. It may have been the combination of her name in the column "print name" and the date in the column headed "date of signature". However, given the evidence which they did accept, in my judgment, they were bound to reach the same conclusion even without the signature.[23]For all these reasons, I do not accept the Appellant's core submission that PC Parsons was simply giving the evidence that only PS Moreland could have given. On contrary, she was giving her evidence of what she had witnessed and was properly entitled to refresh her memory for that purpose.[24]In reaching this conclusion, I also note that in Kelsey Taylor J pointed out the value of refreshing the memory: "on a point of precision. A witness may refresh his memory as to such a fact or figure which easily escapes or eludes human memory. Thus, for example, a date or time or an address, the exact words of a remark, a car or telephone number, are properly matters upon which a witness is entitled to refresh his memory. They are the precise details which sharpen and point his general evidence, and are to be distinguished from the narrative of events itself which the witness gives from his recollection." [217][25]The case stated records that before being given leave to refresh her memory, PC Parsons gave evidence that the Appellant had refused to undertake the breath test procedure. She evidently needed to refresh her memory from the form in order to recall the precise details of the procedure and what was said by PS Moreland and the Appellant. That is just the sort of point of precision which justifies resort to section 139.[26]On the basis of the justices' implicit acceptance of PC Parsons' evidence that she and PS Moreland had completed each page of the form together, I also consider that they would have been entitled to conclude that she had jointly made the form within the meaning of section 139. However, since the justices did not so conclude, I would limit this decision to the issue of verification.[27]For these reasons, I would dismiss the appeal.

LORD JUSTICE LINDBLOM: I agree.

[29]MR HEPTONSTALL: My Lords --

LORD JUSTICE LINDBLOM: Yes.

[31]MR HEPTONSTALL: -- two matters. First, for the formal recording of the answer to the questions posed by the justices --

LORD JUSTICE LINDBLOM: Yes.

[33]MR HEPTONSTALL: -- might I suggest that all three are answered in the affirmative?

LORD JUSTICE LINDBLOM: Yes, it being conceded that the second question should be answered in the affirmative and we having held that the first and third should also be answered in the negative.

[35]MR HEPTONSTALL: I am grateful. Affirmative.

MR JUSTICE SOOLE: Affirmative.

LORD JUSTICE LINDBLOM: In the affirmative, forgive me. Yes.

[38]MR HEPTONSTALL: Can I pass forward a document to assist in the second matter. That is an application for costs on behalf of the Crown. My learned friend has been provided with a copy of it already.

LORD JUSTICE LINDBLOM: Thank you. (Pause)

[40]Yes. Has this been shared with the Appellant?[41]MR HEPTONSTALL: My Lord, yes, yesterday. The Appellant is legally aided, so there are forms of words in the White Book. Commonly in these types of cases, the court has followed the route of summarily assessing in a particular amount, then saying, "Not to be enforced without the leave of this court".

LORD JUSTICE LINDBLOM: That is right, yes.

[43]MR HEPTONSTALL: Detailed assessment for --

LORD JUSTICE LINDBLOM:

[44]So what you seek is summary assessment of the Respondent's costs in the total sum of £738.50. Is that right?[45]MR HEPTONSTALL: Yes, please, my Lord.

LORD JUSTICE LINDBLOM: Not to be enforced without leave of the court. That is your application.

[47]MR HEPTONSTALL: That is my application.

LORD JUSTICE LINDBLOM: Is that application resisted, Mr Webber?

[49]MR WEBBER: No, it is not, my Lords.

LORD JUSTICE LINDBLOM: Thank you.

[51]MR WEBBER: Thank you.

LORD JUSTICE LINDBLOM: Well, then we shall so order.

[53]MR HEPTONSTALL: I am grateful.

LORD JUSTICE LINDBLOM: Is there anything else?

[55]MR HEPTONSTALL: My learned friend will need detailed assessment, perhaps, of the legal services.

LORD JUSTICE LINDBLOM: He will, yes.

[57]MR WEBBER: Yes. If that was not part of the order, I would ask my Lords to make that.

LORD JUSTICE LINDBLOM: Yes. You seek an order to that effect.

[59]MR WEBBER: Yes, I would.

LORD JUSTICE LINDBLOM: We accede to that application too.

[61]MR WEBBER: I am grateful, my Lords.

LORD JUSTICE LINDBLOM: Thank you. Thank you very much.

[63]MR WEBBER: Thank you.

LORD JUSTICE LINDBLOM: All that remains the, there being nothing else, is for us to thank both of you for your very clear and succinct submissions. We are indebted to both of you. Thank you.

[65]MR WEBBER: Thank you.

Cited in 2 later judgments