England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20th January 2009

1. MR JUSTICE SIMON: This is the hearing of a case stated by the Richmond Justices.
2. The facts can be stated shortly. On 31st December 2006, the appellant was charged at Richmond Police Station with failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988. The prosecution case, which was heard on 25th April 2007, was as follows. The appellant had been stopped at about 1.00am on the A316 by Police Constable Fox and asked for a specimen of breath at the road side. After seven attempts at blowing into the machine she provided a positive sample.
3. The test procedure at the police station had been conducted by Sergeant Nestling. It had begun at about 1.20am and continued for some time. The appellant failed to provide a specimen of breath. During the course of the procedure Sergeant Nestling asked for the appellant to be examined by Dr Banerjee, an experienced forensic medical examiner, in order to see if there was some medical reason why the appellant could not provide a specimen. As far as Dr Banerjee could tell there was none.
4. The court heard from each of these prosecution witness and watched a CCTV recording of the procedure being carried out. The prosecution closed its case and the hearing was adjourned since there was insufficient time to hear the defence case that day and a further hearing was fixed for 4th July. The court understood that they would hear from the appellant; another witness of fact, Ms Goodwin; and an expert witness, Dr Eccles, who was to give evidence that the appellant may not have been able to give a specimen of breath because of her distressed state. The report of Dr Eccles had been served on the prosecution on 29th March 2007 and the evidence in rebuttal from Dr Banerjee on 4th April.
5. It is convenient at this stage to refer to the antecedent procedural history. On 10th January 2007, the appellant appeared at a first hearing when it was indicated that a "not guilty" plea would be entered. On 8th February 2007 the CCTV recording of the testing procedure was served on the defence. On 16th February a "not guilty" plea was entered and the matter was adjourned to a case management hearing. This occurred on 7th March, when the court considered a letter from the appellant's solicitors, Freeman and Company, which confirmed the "not guilty" plea and indicated that no novel or complex issues arose. The defence was said to be factual and the intention was to put the prosecution to proof of its case. It was said that no part of the prosecution evidence could be agreed and that the trial would last a full day. In the event, that was an underestimate.
6. It is now necessary to consider what happened following the adjournment on 25th April. On 6th June, the appellant's solicitor served an additional report on the prosecution from a Dr Trafford. Dr Trafford had looked at the CCTV recording of the testing procedure and was critical of Sergeant Nestling's conduct of it. In his view, Sergeant Nestling had given advice to blow into the device as if it were a balloon and to blow for ten to 15 seconds. He also suggested that the machine user log should be looked at to see if the machine had been recorded as having failed and he suggested that the service history should be requested. In view of the stance that the prosecution took at the resumed hearing, it might have been expected that they would express strong views about the service of such a report at such a stage. In the event, objection was raised at the resumed hearing on 4th July.
7. Save for one point, it is unnecessary to set out the arguments deployed by the defence as to why Dr Trafford's evidence should be admitted and by the prosecution as to why it should not. The point which is material is the submission on the appellant's behalf, recorded in paragraph 4 of the case:

"The appellant had assumed that Sergeant Nestling would accept that he was mistaken in giving instructions to blow like a balloon and also to blow for between ten and fifteen seconds."

This point is repeated in paragraph 11 of Mr Bell's skeleton argument:

"It was anticipated at trial that Sergeant Nestling would have accepted that his instructions as to how to blow into the machine were wrong."

We should say it was not Mr Bell who conducted the hearing before the Magistrates, but Mr Freeman.

8. The Justices, having referred to the Criminal Procedure Rules and two authorities of this court, to which I will come shortly, decided not to admit Dr Trafford's report. In short summary, they concluded that Dr Trafford's report was not relevant to the issues in the case and sought to introduce wholly new issues. In paragraph 6 of the case stated, the court responded to the suggestion that Sergeant Nestling's evidence came as a surprise to the appellant:

"We were satisfied that Sgt Nestling's evidence came as no surprise to the defence and we wondered why the defence had not addressed their concerns over the nature of his evidence, prior to the commencement of the trial on 25th April."

This is a reference to the CCTV recording which had been handed over to the defence in February and which formed the only basis for Dr Trafford's report. As the case stated expresses it:

"Sergeant Nestling gave evidence regarding the questions he put to Ms Writtle and his explanation of the procedure. He had been cross-examined by the defence, who had sight of the CCTV and Sgt Nestling's statement, well in advance of the trial date. We did not feel that the interests of justice would be served by admitting this statement."

9. The question for the opinion of this court is whether the Magistrates were wrong in law to rule that Dr Trafford's evidence was inadmissible. It seems to me that the question might also have been expressed as whether they were justified in refusing to admit it, a question which focuses attention on a matter of discretion. It matters not in the present case, since in my view the answer to the question is the same. The 2005 Criminal Procedure Rules imposed a duty on the parties to comply with the rules and to take the procedural steps required by the rules.
10. It is convenient to set out what was said about these rules by this court in the case of the Director of Public Prosecutions V Chorley Justices [2006] EWHC 1795 (Admin) on 8th June 2006 at paragraph 24 to 26:

"24. In April 2005 the Criminal Procedure Rules came into effect. By 15th April they were in force. They have effected a sea change in the way in which cases should be conducted, but it appears from what has happened in this case that not everyone has appreciated the fundamental change to the conduct of cases in the Magistrates' Courts that has been brought about by the rules. The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure, to take any procedural step required by the rules.

25. Rule 3.2 imposes upon the court a duty to further that overriding objective by actively managing the case.

26. The pertinent part relevant to what happened in this case is the early identification of the real issues. It is, it seems to us, clear that what should have happened is that at the first hearing of a case of this kind, after the entry of the plea of not guilty, the defendant should have been asked first what was in issue. At that stage and at the first hearing, he should then have been asked what witnesses did he need."

11. The importance of the date of this decision, 8th June 2006, is that it was six months before the first hearing in this case. Freeman and Company would have been aware of what the court had said in the Chorley Justices case since they were acting for the defendant in that case too. Rule 24(1) of the Criminal Procedure Rules sets out the requirement to disclose expert evidence as soon as is practicable and rule 24(3) states the party that seeks to adduce expert evidence and failed to comply with rule 24(1) may not adduce the evidence without the leave of the court.
12. The Justices were also referred to the decision of this court in the case of Malcolm v Director of Public Prosecutions [2007] EWHC 363 (Admin) in which Burnton J stated that it is the duty of the defence to make clear to the prosecution and the court at an early stage both the defence and the issues it raises:

In my judgment, Miss Calder's submissions, which emphasised the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates' court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case."

My Lord Lord Justice Maurice Kay agreed with the substance of those remarks.

13. Mr Bell, in the light of his consideration of those cases, submitted that the issue was raised before the end of the prosecution case since it must have been apparent that the defence was not agreeing with the answers given by Sergeant Nestling. It remains the fact that this issue, if such it was, was plainly not raised as a matter of expert evidence.
14. In the present case, either the defence knew the nature of the defence which was later set out in Dr Trafford's opinion and failed to raise it appropriately; or it did not, and contrived the defence after the prosecution case had closed. Mr Bell urges us to conclude that it was the former but in either case the approach is to be deplored. It seems to me that the Justices were right in saying that the evidence was inadmissible since it did not relate to an issue which had been raised at the appropriate stage. The appropriate stage would have been a reasonable time before the cross-examination of Sergeant Nestling so that he and the prosecution had an opportunity to consider it. Equally, it was in my judgment entirely open to the Justices to refuse the application as a matter of discretion. The evidence on which Dr Trafford commented, the CCTV recording, had been disclosed at a very early stage. If the late application to adduce further expert evidence had been allowed, delay would undoubtedly have occurred. The prosecution would have needed to consider whether to call its own expert evidence in answer and whether to recall Sergeant Nestling. Doctor Trafford's opinion also raised possible doubts about the reliability of the equipment used, all of this after the prosecution had closed its case some months before. For all these reasons, I would answer the question posed in the case stated: "no".
15. I would add three further points. First, the present regime of case management should in general ensure that the issues in the case are identified well before a hearing. There will, of course, be cases where something occurs in the course of a trial which may properly give rise to a new issue, but this was not such a case. The days when the defence can assume that they will be able successfully to ambush the prosecution are over. Secondly, if the defence always intended to challenge the way in which Sergeant Nestling conducted a procedure, as appears to be the case, it was inappropriate for Freeman and Company to have indicated to the court on 7th March 2007 that the defence was factual and the intention was to put the prosecution to proof of its case. Thirdly, nothing I have said about the evidence of Dr Turner should be taken to be an acceptance that he was qualified as an expert to give the evidence in his report. It seems to me that the Justices would have had to consider whether he could give admissible opinion evidence on the mechanics of the testing procedure. His qualifications appear to be that of a chemist and his experience of road traffic cases appears to relate to the taking of blood and urine samples.
16. I would dismiss the appeal.
17. LORD JUSTICE MAURICE KAY: I agree.
18. MS CHANTEAU: I am very much obliged. My Lord, alas, I cannot hand forward a schedule of costs in the correct format. All I was able to receive -- those who instruct me had not done it because they received what was sent to chambers and they had seen that the only costs I can rightly ask for, without a schedule today, as evidenced by that fax, is £2,330.
19. LORD JUSTICE MAURICE KAY: From what source are you seeking that?
20. MS CHANTEAU: I had understood that the client was privately paid. I know not.
21. LORD JUSTICE MAURICE KAY: Well, I make the same assumption, not having seen any evidence to the contrary, but do we have authority to order costs against him? I am looking at section 17 of the Prosecution of Offences Act. I am afraid I have a two year old Archbold, but it used to be at paragraph 6-23.
22. MS CHANTEAU: My Lord, I cannot help you.
23. LORD JUSTICE MAURICE KAY: It is a provision which enables us to order that the prosecution's costs in a fixed sum should be paid out of central funds. Section 17 says nothing about an unsuccessful appellant's costs. Section 80 goes on to define the circumstances in which an accused person can be ordered to pay costs but, whereas section 17 refers to proceedings before a Divisional Court of the Queen's Bench division, section 18, I think, does not.
24. MS CHANTEAU: My Lord, I am afraid I am at a disadvantage before you. I do not have the section in front of me and I only received that this morning.
25. MR JUSTICE SIMON: You might say it would be curious if the Court of Appeal could make an award of costs against a defendant but the Divisional Court could not, since this is effectively an appeal.
26. MS CHANTEAU: My Lord, it is, but, in fairness to the appellant, on a point of law it may be, in fairness to the defendant, that he may not understand. (pause)
27. LORD JUSTICE MAURICE KAY: Are either of you in the position to make submissions on section 17 and 18?
28. MR BELL: My Lord, I am not. No, I have been happily sitting there hoping it would not come to me to stand up. I have to say, my learned friend and I have discussed a number of matters relating to this court and my assumption was that costs would follow the event.
29. LORD JUSTICE MAURICE KAY: What we should do about costs is allow you to make submissions in writing, both sides, by Friday of this week.
30. MS CHANTEAU: I am sorry, my Lord?
31. LORD JUSTICE MAURICE KAY: By Friday of this week, as to whether we have the power, and, if so, from where it derives, to make an order against the appellant. The next matter that will arise is that we have been shown a piece of paper quantifying those costs in the sum of £2,330. Speaking for myself, I find that astonishing, because the earlier part of the document tells us that prosecuting counsel's fees are £330 per day, plus £80 per hour preparation, and it then says "to this should be added two thousand pounds re: CPS and police costs for the appeal". Well, the police have not got any costs for the appeal and I am at a loss to understand how the CPS could have occurred more than a modest sum in instructing prosecuting counsel.
32. MR JUSTICE SIMON: Certainly not in attendance today, sitting behind you.
33. MS CHANTEAU: No. Well, my Lord, I will certainly ensure that that is done.
34. LORD JUSTICE MAURICE KAY: Do you want to say anything about the quantum, if we find out that we can order them against you? Again, speaking for myself, if we have the authority to make the order against you, I think we would probably be minded to make it. We would be happy to consider quantification anyway because, if we do not have the power to order against you, it comes out of central funds and under section 17(3) we have to fix the sum. I am pretty sure it is not going be £2,330. Do you want to say anything other than associate yourself with what you have heard from here?
35. MR BELL: All I can say, my Lord, is this: that I am grateful for your Lordship giving us time effectively to resolve this matter. If my learned friend does submit that the court do have power, I will have a look at that and see whether or not I wish to respond or accept it. If I does not, that is the end of the matter. If it comes to quantum, I leave it in your Lordship's hands. It does seems odd that there is an arbitrary sum of £2,000 for preparation of the case which effectively is dealt with by the Magistrates' Court and my learned friend has put before this court. (pause)
36. LORD JUSTICE MAURICE KAY: Well, what we shall do is we shall make an order in the prosecution's favour for £750 but we shall leave open, pending your written submissions, as to whether that is going to be paid by the appellant or whether it is to come out of central funds.
37. MS CHANTEAU: My Lord, I am very much obliged.
38. MR BELL: For completeness sake, my Lord, can I just concede that if the court does have power then I would certainly not be arguing against the court using that power.
39. LORD JUSTICE MAURICE KAY: Well, no, I am pleased to hear it. Thank you both.