Director of Public Prosecutions v Batsho Nthoi [2025] EWHC 1197 (Admin)

[2025] EWHC 1197 (Admin)

Case No:

AC-2024-LON-002461

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/05/2025

Before

THE HONOURABLE MR JUSTICE SWEETING

Between

DIRECTOR OF PUBLIC PROSECUTIONSAppellant

Batsho NTHOIRespondent

Paul Jarvis (instructed by DPP Appeals and Review Unit) for Appellant

Jeremy Benson KC (instructed by Geoffrey Miller Solicitors) for Respondent

Hearing Hearing dates: 18 th March 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 16.05.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

THE HONOURABLE MR JUSTICE SWEETING

Introduction

[1]This is an appeal by way of case stated brought by the Director of Public Prosecutions against the decision of the Folkestone Magistrates’ Court, made on 11 March 2024, to exclude all of the Prosecution’s evidence in the case of Mr Batsho Nthoi (“the Defendant”). The appeal seeks to set aside Mr Nthoi’s acquittal for the offence of failing to provide a specimen of breath and to remit the matter to the Magistrates’ Court for a fresh trial.

Summary of the Factual Background to the Offence

[2]It is alleged that on Sunday 23rd July 2023, the Defendant, Mr Nthoi, was the driver of a vehicle that collided with a bridge in Dartford, Kent. He was suspected of having driven the vehicle but did not provide a roadside breath sample when requested and was arrested for failing to do so. He was taken to a police station where he failed to provide a specimen of breath, stating that he wished to wait for legal advice before doing so. He was subsequently charged with failing to provide a specimen for analysis, contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

The Procedural Chronology

[3]The Defendant appeared before Medway Magistrates’ Court on 7 September 2023, where he entered a plea of not guilty. Case management directions were made, and the trial was scheduled for the following March at Folkestone Magistrates’ Court. The directions included a requirement for the Prosecution to serve any further evidence and to comply with initial disclosure by 5 October 2023. Directions, in a standard form, then required the Defence to serve any proposed interview edits, medical reports, notices objecting to hearsay or bad character evidence, and any special measures applications by 2 November 2023. The Prosecution was further directed to respond to any defence statement or applications by 30 November 2023.

[4]On 11 October 2023, the Defendant's solicitors contacted the Prosecution, requesting all evidence upon which the Crown sought to rely, together with initial disclosure. They noted that the Crown had been directed to comply with initial disclosure by 5 October 2023 but had failed to do so.

[5]The Defence served an expert report from Dr Michael Gregory on 2 November 2023 and Joanne Caffrey on 20 December 2023, both addressing the question of whether the Defendant should have been seen by a medical practitioner as part of the evidential breath test procedure.

[6]On 6 February 2024 the Defendant's solicitors sent a letter, parts of which are referred to in the case stated and which includes the following:

“The Defendant did not refuse to provide a specimen. He was confused, shaken up, stressed and in pain. The Defendant confirmed that he did not understand why he was required to provide a specimen of breath at the roadside. The Defendant said that he had not more than one glass of wine and not ‘one glass of wine’. The Defendant said that he responded ‘yes’ when he was asked whether he wanted to provide a sample of breath, but that he wanted to get advice first as his welfare was not prioritised given that he had raised chest pains as a reason. The Defendant kept telling the officers that he was in pain. The Defendant also confirmed when asked how he was feeling when he first came into custody, that he was tired and informed the custody officer of his chest pains. When he was asked whether he ever had chest pains before, he said ‘Yes, sometimes I have, but this one is almost just sitting there. It’s permanent, because if, whenever I’ve had chest pains, it’s just, once in a while, but this one is just sitting here.’ When asked how these chest pains impact him in his day to-day life, it is disputed that the Defendant responded that he was ‘not willing’ to answer. The Defendant said that he did not think he was able to answer the question.”

[7]The Prosecution complied with its initial disclosure obligation on 8 February 2024, some four months after the stipulated date. The Defence served a skeleton argument on 27 February 2024.

[8]On 5 March 2024, the Prosecution served an updated bundle. This included statements from Victoria Bricknell, dated 1 October 2023, and the Custody Sergeant, Leanne Stark, with the latter served pursuant to Section 9 of the Criminal Justice Act 1967. The Defence contended Victoria Bricknell's statement was not in fact served until nearly midnight on 6 March 2024.

[9]Victoria Bricknell was a Registered Nurse employed by Kent Police as a Forensic Nurse Practitioner. In this capacity, her role on 23 July 2023 involved the medical examination of Mr Nthoi while he was in the custody suite. Although there was some debate as to her status as a witness it appears to me that she was properly to be regarded as a professional witness providing evidence of fact. She was entitled to give evidence as to her diagnostic assessment and medical conclusions as a nurse but that did not mean that she was to be regarded as an expert witness. However, I do not consider that this dispute had any bearing on the issues raised in the appeal because her evidence was in any event served late (having been obtained months before) and was plainly potentially germane to the issues on which the Defence experts had been asked to express an opinion. Further the Magistrates did not determine the issue as to her status when it was raised before them.

The Hearing before the Magistrates

[10]The trial took place at Folkestone Magistrates’ Court on 11 March 2024. The Defendant was present and represented by Mr Philip Lucas of counsel, while the Crown was represented by Mr Paul Roach. All Prosecution witnesses were in attendance.

[11]It is not easy to establish from the case stated what the precise sequence of events was but neither party suggested that it was sensible to seek clarification at this stage and I am satisfied that the broad outline of what took place is clear enough.

[12]At the outset of the hearing the Defence complained that the late service of evidence was unfair and prejudicial; the thrust of the submission being that the recent service of Victoria Bricknell’s evidence meant that the Defence expert reports had been finalised and submitted without considering this “new” evidence. This deprived their experts of the opportunity to consider the statement in depth and to fully scrutinise and comment upon it.

[13]It was submitted that without sufficient time for their experts to consider the late evidence, the Defence would not be in a position to adequately challenge Nurse Bricknell’s evidence through cross-examination. As to whether there was in fact any potential disagreement with her evidence, it was said that the Defence expert, Dr Gregory, had indicated disagreement with the medical assessment made by the nurse, but had not had the opportunity of fully considering her evidence including the nurse’s notes which had been requested but not provided.

[14]In addition, it was pointed out that the Defence expert witnesses had not been warned to attend Court, as there had been no response to the Section 9 notice served on the Prosecution. They were not there to give evidence or assist with cross-examination and for practical purposes that precluded any attempt to deal with the evidence of Nurse Bricknell at the hearing.

[15]I have described the Defence as having “complained” advisedly, because although statements appear to have been made about the prejudicial effect of the late service of evidence upon preparation for trial, that was not in the context of any specific application to the Bench. The Prosecution acknowledged the late service of Nurse Bricknell's evidence but argued that the Defence should have made any applications earlier. The Prosecution indicated that they were ready for trial and would not be applying for an adjournment.

[16]The findings set out in the case stated describe the position as follows: “The Court accepts it does not have power to make an abstract ruling on whether a trial is fair in the absence of a relevant application. However, representations were made by the Defence regarding the late service and the impact that had had upon the preparation of their case. They further informed the Court that the Crown had never mentioned that the evidence of the Nurse would be called. Her statement was neither included in the PET form nor was it mentioned in the schedule of unused material. Thus, they were not in a position to proceed with the trial as their expert had not had the ability to examine the statement. Having heard representation from both parties, the Court made an observation that it would be unfair for the Defendant if the trial were to proceed. However, this was made with the intention of furthering discussions between the parties to either reach an agreement or for one of the parties to make an application to adjourn. Both parties continued to refuse to make such an application.” (my emphasis)

[17]It would, at the very least, have been wiser for the magistrates not to have made any “observations” in response to Defence “representations”. They were in fact close to doing what they concede they had no power to do in the absence of an application. Indeed, elsewhere in the case stated it is said that the Magistrates “agreed with the Defence submission that, as the evidence stood, it would be unfair for the case to proceed.”

[18]If the ambition had been to allow the parties to reach some agreement as to the way forward, then it was not realised. The case stated recites:

“iv. There was no agreement between the parties in relation to the evidence and the Defence went on to make the submission that, as it is the Crown at fault, it is the Crown that ought to make an application to adjourn. The Defence expressed to the Court that, if the Crown did not apply to adjourn, then the Defence would be making an application to exclude the Crown’s evidence under s.78 PACE. As it was not a Defence defect, they would not be applying to adjourn. v. In response, the Crown accepted the Court’s observation that the Defendant would not have a fair trial if the evidence of Victoria Bricknell was included, but they would not be making an application to adjourn as there was no prior objection from the Defence in relation to the late service of evidence. Furthermore, the Crown informed the Court they would not be opening the case following the Bench’s observation as it would not be appropriate to do so in the face of such an observation. The Crown did submit that the Court could adjourn of its own motion.”

[19]Mr Benson on behalf of the Defendant suggested that the Prosecution was the author of its own misfortune in this case because it had declined to open the case in front of the Magistrates in order to secure a tactical advantage and force a position in which the Magistrates would be obliged to adjourn the case; a decision which was taken in the light, he suggested, of the likelihood that had the Prosecution made an application to adjourn it would have been refused.

[20]I do not consider that I am in a position to impute any such motive to prosecuting counsel nor in fact do I consider that this is a likely explanation of the Prosecution’s position. In the first place it seems unlikely that the Defence would have objected to such an application given the Defence submission that the Prosecution “ought” to make an application to adjourn absent which an application to exclude the Prosecution’s evidence would be made. It would have been illogical for the Defence to have then opposed the adjournment application and unlikely that the Magistrates would have refused it in the absence of Defence objections. Secondly, the Prosecution's position was that even in the absence of the nurse's evidence (and the evidence of the police officer) the case against the respondent was a strong one; the Prosecution was in a position to go ahead even if the nurse's statement was excluded. That was on any view a rational basis for refusing to adjourn. Thirdly, the question of adjournment was being considered in the absence of any ruling by the Magistrates as to whether and if so on what basis the trial could proceed. It does not seem to me to be unusual in those circumstances for the Prosecution to have declined to open the case until the question of the fairness of proceeding and the ambit of the evidence had been determined. Fourthly, the difficulty in which the Defence found itself was being raised on the day of the trial itself in relation to evidence which had been served the week before, albeit extremely late. The Defence position appears to me to be that an adjournment was necessary but that it should be applied for by the Prosecution. As the Criminal Practice Directions provide [at 5.4.3] “It should be rare for applications to adjourn to be made on the day of trial, except in circumstances that could not have been foreseen.”

[21]In the absence of an application to adjourn what was then discussed, at this initial stage in the hearing, was primarily the potential exclusion of the evidence of Victoria Bricknell. However, following the Crown's refusal to seek an adjournment, Mr Lucas made an application pursuant to Section 78 of the Police and Criminal Evidence Act 1984 (PACE) to exclude the entirety of the Prosecution case, explicitly relying on the Court's earlier observation that a fair trial could not occur on that day. It is not clear whether the application was in fact made in two parts beginning with the evidence of the nurse and then expanding to encompass the entirety of the Prosecution case or was a compendious submission from the outset. The Defence argued that:

“...the nurse and the Custody Sergeant may make concessions which are supportive of the Defence case if they were cross-examined with input from the Defence experts and that the Defence should have the opportunity to call evidence in response. This contention was based upon the fact that the nature of the Defence meant that the nurse's evidence was important to their case and without the opportunity of challenging or scrutinising the evidence during cross examination, the Defendant would not be afforded a fair trial.”

[22]After deliberation and discussion, the bench acceded to the application for the exclusion of all of the Prosecution evidence under Section 78 of PACE. The primary reasons given were the significant failings on behalf of the Prosecution to make timely disclosure of evidence ordered by the Court and that:

“...the admission of the Prosecution evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it. This was due to a number of factors- the Defence expert had not had the opportunity to review this evidence when considering his report; the Defence would not be able to appropriately cross examine this evidence with the input of the expert, as the expert had not been warned for trial; the Defence case was intrinsically linked to the evidence of the nurse which limited the ability of the Defence to effectively cross examine the remaining witnesses on the consistency and credibility of the evidence.”

[23]Since, as a result of this decision, all of its evidence had been excluded the Prosecution had no option but to offer no evidence, leading to the Defendant’s acquittal.

[24]The case stated poses four questions for this Court: i) Whether the Court was wrong not to adjourn of its own motion, given the refusal of both parties to make such an application? ii) Following the Court’s observation that a fair trial could not take place, was either party obligated in law to seek an adjournment? iii) Given the late service of the highlighted evidence, whether the Court was entitled to exclude the entirety of the Crown’s case under s.78 PACE 1988? iv) Did the Court err in excluding the entirety of the Crown’s case rather than the evidence of Victoria Bricknell and the Custody Sergeant in isolation?

Discussion and Conclusions

[25]The power of a Magistrates’ Court to adjourn a trial is conferred by section 10 of the Magistrates’ Courts Act 1980. The Criminal Practice Directions 2023, Part 5.4, provide guidance on the exercise of this discretion. It does not depend upon an application by the parties although that will be the usual context in which the exercise of the power arises.

[26]Section 78(1) of PACE provides that a Court may refuse to allow evidence on which the Prosecution proposes to rely to be given if it appears to the Court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it. Evidence excluded under Section 78 is inherently admissible evidence that is excluded because its admission would be unfair. Section 78 applies to both Magistrates’ and Crown Courts although in Magistrates’ Courts, magistrates may hear the evidence, even if they then exclude it due to unfairness and proceed to determine the case without considering the excluded evidence.

[27]I was referred by Mr Jarvis to the observations of the Divisional Court in Halawa v Federation against Copyright Theft

[1995] 1 Cr. App. R 21

at [8], in support of the argument that the preferable course would have been to hear all of the Prosecution's evidence before reaching a decision:

“... in most cases of trial in a Magistrates’ Court, the better course will be for the whole of the Prosecution case to be heard, including the disputed evidence, before any trial within a trial should be held. I say that because the question of exclusion of admissible evidence under Section 78 is to be determined “having regard to all the circumstances” and unless the prosecutor is content that some part of the Prosecution case for this purpose be excluded, fairness to the prosecutor requires that it all be before the Court.”

[28]However, whilst both Halawa and this case involve Section 78 PACE and the concept of fairness in proceedings, the factual and procedural scenarios are significantly different. Halawa, addressed the specific procedural tool of a voir dire in the context of admitting potentially unfair evidence during a trial. The current matter concerns a ruling, made at an early stage, to exclude all evidence due to late disclosure deemed prejudicial to a fair trial. That included the submission that the Defence would be prejudiced in cross examining the Prosecution witnesses. The considerations in Halawa regarding the timing and scope of a Defendant's evidence on admissibility within a voir dire are not directly applicable to a situation where the Court has concluded, based on the late service of evidence, that a fair trial could not proceed at all and has consequently excluded the entire Prosecution case. The issue in the present case is a more fundamental one, namely whether the decision was one that no reasonable bench could have reached, amounting to an error of law (see Chief Constable of Avon and Somerset Constabulary v O’Brien [1987] RTR 182)

[29]As Mr Jarvis observed there is very little indication in the case stated that the Magistrates fully considered what they were being asked to do and why; in particular what the nature of the unfairness was which was being complained of.

[30]Section 78 is an exclusionary provision in relation to evidence which the Prosecution propose to call. Once the application has been made in respect of the evidence concerned and it has been excluded, there is no scope for any further application in respect of that evidence under Section 78. The remedy for unfairness is the power to exclude the evidence and not to stop the trial. The question of what effect the exclusion of the evidence would have on the trial does not arise under Section 78. The statute addresses the potential for unfairness caused by its inclusion.

[31]Although there was no abuse of process application the Magistrates appear to have been invited to assess the impact of the exclusion of the evidence of the nurse and the custody sergeant on the overall fairness of the trial:

“They made further representations that if the evidence of the nurse was excluded it would then have an adversely prejudicial impact upon the evidence, and their case as a whole. The evidence of Victoria Bricknell and the Custody Sergeant may assist the Defence case if sufficient time had been allowed for expert scrutiny. The evidence of the nurse is inextricably linked with the remainder of the Prosecution case so to exclude the evidence of the nurse in isolation would create a disadvantage amounting to an unfairness for the Defence when challenging the rest of the Crown’s evidence.”

[32]This was articulated as a Section 78 application in relation to the remainder of the Prosecution evidence. However, it is plain that this application had nothing to do with any inherent feature of the balance of the evidence since this represented the case that the Defendant had expected to meet and had prepared for until shortly before trial. It did however have everything to do with the late served witness statements:

“The Defence argued that the nurse and the Custody Sergeant may make concessions which are supportive of the Defence case if they were cross-examined with input from the Defence experts and that the Defence should have the opportunity to call evidence in response. This contention was based upon the fact that the nature of the Defence meant that the nurse's evidence was important to their case and without the opportunity of challenging or scrutinising the evidence during cross examination, the Defendant would not be afforded a fair trial.”

[33]This argument appears to have been raised as a counter to the Prosecution's contention that if the evidence of the nurse and the Custody Sergeant was excluded then the trial could nevertheless go ahead. Hence it sought to identify aspects of the evidence that would assist the Defence and required the witnesses’ evidence. Since the witnesses were in attendance there was no practical impediment to their evidence being given other than the view that it would be unfair. Whilst the Defence argument in this respect may not have been merely expedient it does appear, to me at least, to be somewhat speculative given the limited and contingent extent to which the Defence experts had indicated that there was in fact any disagreement.

[34]The key to reconciling the apparent inconsistency in the submission that the evidence which the Prosecution proposed to call was both unfair if admitted but nevertheless important to the Defence case, is that the potential unfairness was predicated on the trial going ahead, on the day. Thus, the unfairness was temporal rather than an intrinsic feature of the evidence and its impact on the proceedings. If, as the Magistrates found, the Defence case “...was inextricably linked to the evidence of the nurse...” then the remedy was to allow that evidence to be given not to exclude it or other evidence. If the Magistrates had concluded that that could only be done when the Defence had had adequate time to prepare then that militated in favour of an adjournment of the case. There was no suggestion that any of the evidence had been improperly obtained and most of it had been served in time. There was equally no abuse argument suggesting that in the circumstances the Defendant could not have a fair trial at all; or that it would be unfair for the Defendant to face trial given the Prosecution’s conduct.

[35]A sense check as to the appropriate course might be found in paragraph 5.4.14 of the CPD which provides a non-exhaustive list of factors the Court should consider when a required witness is absent. That might be regarded as analogous to the situation where the Defence complaint was that there was important evidence that was unavailable. These factors include: the reason for the witness’s absence (in effect a ruling by the Court itself); the relevance of the witness to the case; whether the witness’s statement could be agreed or admitted, in whole or part, as hearsay; whether proper notice had been given of the intention to call that witness; whether an absent witness could be heard later in the trial; and, where other witnesses have attended, considering hearing those present and adjourning the case part-heard if feasible within a reasonable timescale. In the present case, the Magistrates did not explore any of these alternative options, including adjourning in whole or part, before proceeding to the exclusion of the entire Prosecution case.

[36]The Magistrates do not provide any legal basis in their written reasons for why the failure to comply with directions in relation to some evidence rendered all of the evidence unfair having regard to "all the circumstances”. As the appellant argued Section 78 PACE is a tool to ensure the fairness of the trial, not a means to punish the Prosecution for process failures or a mechanism to stay proceedings without hearing an abuse argument. Whilst the exclusion of the statements of the Custody Sergeant and the nurse was open to the Court that should have led either to the case being heard on the basis of the remaining evidence or an adjournment. The exclusion of the entire Prosecution case went well beyond established principles which required the Court to consider whether there was something about the character of the evidence itself which required its exclusion in order to allow a fair trial.

[37]While late disclosure by the Prosecution was a significant failing and a relevant factor to consider under Section 78 PACE, the exclusion of all evidence, in addition to that served late, was disproportionate and wrong in principle. There was no feature of the balance of the evidence which was unfair or would itself have had an adverse effect on the fairness of the proceedings. The purpose of excluding the evidence of the custody sergeant and the nurse was to remove the unfairness which it would cause if the trial proceeded; once that was done the statutory remedy was complete and that evidence had no further part to play in a Section 78 application. The Prosecution would then have proceeded to call evidence. If the fact of the exclusion of the evidence was to be advanced as a reason why the Defendant could not have a fair trial, then that could only have been in the context of an abuse argument. The submission that the excluded evidence was so pivotal to the Defence case that it had to feature in the trial, notwithstanding the application to exclude it, could only logically have led to adjournment either of the case entirely or as a part heard hearing.

[38]I conclude that the Magistrates did not provide a clear legal basis for why the late disclosure rendered all the evidence so unfair that it ought to be excluded, especially in light of the other available evidence. The Court should have considered alternatives to the wholesale exclusion of evidence, such as an adjournment, even if no formal application was made by either party, particularly in light of the overriding objective to deal with cases justly. The complete dismissal of the case without a full consideration of the impact on the fairness to both parties, and the availability of less drastic remedies, constitutes an error in law because it was a decision that no reasonable bench of Magistrates could have come to in the circumstances.

[39]I would answer the questions in the case stated for High Court as follows: i) Whether the Court was wrong not to adjourn of its own motion, given the refusal of both parties to make such an application? No, not as a matter of law, although this may have been the appropriate course given the applications then made under s.78 PACE. ii) Following the Court’s observation that a fair trial could not take place, was either party obligated in law to seek an adjournment? No. iii) Given the late service of the highlighted evidence, whether the Court was entitled to exclude the entirety of the Crown’s case under s.78 PACE 1988? No. iv) Did the Court err in excluding the entirety of the Crown’s case rather than the evidence of Victoria Bricknell and the Custody Sergeant in isolation? Yes.

[40]Accordingly, the appeal is allowed. The decision of the Folkestone Magistrates’ Court to dismiss the case is set aside, and the matter is remitted to the Magistrates’ Court for a fresh trial to take place before a differently constituted bench. END