England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th July 2002

1. This is an appeal by way of case stated from Justices of the Oldham Magistrates Court acting in and for the Petty Sessional Division of Oldham in respect of their adjudication as a Magistrates Court sitting at Oldham on 25 July 2001 when they had before them an Information laid by the Respondent, the Crown Prosecution Service, on behalf of the Greater Manchester Police, against the Appellant, Mr Richard Callander.
2. The information alleged that the Appellant, on 25 June 2000, drove a motor vehicle, namely a Vauxhall Astra, Registration Number P26 HKB (“the motor car”) on a road, namely Delph New Road, after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to Section 5(1)(A) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
3. The Justices found the following facts:

(i) The Appellant was the driver of the motor car on 25 June 2000 on Delph New Road.

(ii) The Appellant’s motor car veered across white lines on Delph New Road several times and was stopped by P.C. McGee. The Appellant’s breath smelled strongly of intoxicants to P.C. McGee.

(iii) The Appellant gave a positive roadside breath test to P.C. McGee.

(iv) The Appellant was arrested and taken to Chadderdon Police Station where he provided two specimens of breath on the Intoxyliser 6000 UK to P.W. Sweeney, who operated the machine.

(v) The second and lower reading of 87 mg. alcohol/100 ml breath exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath.

(vi) The Appellant was not displaying any symptoms of illness or inability to comply with P.W. Sweeney’s request to provide two specimens.

(vii) There was no indication on the Lion Intoxilyser 6000 UK that the Appellant’s breath which was tested was as a result of the Appellant refluxing the contents of his stomach into his mouth thereby affecting the test.

(viii) No challenge was made by the Appellant that the Lion Intoxilyser 6000 UK was not working properly, save that it failed to detect mouth alcohol and thereby gave a falsely high reading.

(ix) P.W. Sweeney watched the Appellant during the test. The Appellant was very talkative but did not belch or burp or seem to reflux his stomach contents. We were advised by Dr Eccles, the Appellant’s expert, that reflux is not necessarily discernible to bystanders.

(x) The Respondent had been served with a statement from the Appellant’s expert in January 2001.

(xi) The Respondent obtained a statement from an expert in response and served this statement by facsimile transmission on the Appellant’s Solicitors at approximately 11.00 a.m. on the day before the case was heard. A number of telephone calls were made thereafter by the Respondent’s Solicitor in an attempt to discuss the matter with the Appellant’s Solicitor. The office of the Appellant’s Solicitor advised the Respondent’s Solicitor that the Appellant’s Solicitor was unavailable to return any calls since he was conducting a trial in Suffolk. The Appellant’s Solicitor is a sole practitioner who first had sight of the facsimile message at 5.00 p.m.

4. At the hearing an application was made on behalf of the Respondent that the case should be adjourned to another day in order for the Respondent’s expert witness who was not present to attend the trial. The Appellant strongly opposed this application which the Justices rejected.
5. The Justices next considered whether to allow the Respondent to adduce expert evidence despite the late service of the report of its expert. The Appellant contended that the Respondent should not in the circumstances be permitted to adduce such evidence. In their discretion the Justices decided to allow the Respondent to adduce the evidence and thereafter the Respondent’s expert witness attended to give oral evidence.
6. The Case Stated included the following question for the opinion of the High Court:

“Was it Wednesbury unreasonable to exercise our discretion under Rule 5 of the Magistrates Court (Advance Notice of Expert Evidence) Rules 1997, S1.705, to allow the Crown to adduce expert evidence, details of which were sent by facsimile at 11.00 a.m. and were received by the Solicitor Advocate for the Defence at approximately 5.00 p.m., the day preceding the trial?”

7. The relevant statutory provisions are contained in the Magistrates Courts (Advance Notice of Expert Evidence) Rules 1997. By Rule 3

“(1) Where a Magistrate’s Court proceeds to summary trial in respect of an alleged offence and the person charged with that offence pleads not guilty in respect of it, if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable after the person charged has so pleaded, unless in relation to the evidence in question he has already done so -

(a) furnish the other party or parties with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence; ...”

The Respondent accepted that it was in breach of Rule 3. Rule 5, which is in the following terms, therefore came into play:

“A party who seeks to adduce expert evidence in any proceedings and who fails to comply with Rule 3 above shall not adduce that evidence in those proceedings without the leave of the Court.”

8. The Justices therefore had a discretion whether or not to admit the Respondent’s expert evidence. The sole question on this appeal is whether their decision to admit it was Wednesbury unreasonable, that is that they came to a conclusion that was so unreasonable that no reasonable Justices could ever have come to it on the facts before them.
9. In paragraph 6.3 of the Case Stated the Justices expressed their opinion that they believed they acted reasonably in exercising their discretion to allow the Respondent’s expert witness to give oral evidence because

“(i) Both parties had expert witnesses present to give their opinions on the issues affecting the evidential breath test.

(ii) Both expert witnesses were known to each other and are both familiar with the working of the Lion Intoxilyser 6000 UK.

(iii) Each party was afforded, and took up, the opportunity of cross examining the expert witnesses and, during such cross examination, both Solicitors had the benefit of advice from their own expert witness.

(iv) Both parties’ Solicitors were experienced advocates and the Appellant’s Solicitor was acknowledged as having considerable specialist expertise in cases of this type.

(v) Both expert witnesses had an opportunity to consider the Police factual evidence.

(vi) The expert evidence was not substantial, their statements being seven pages and five pages respectively ...”

10. On 6^th December 2001 Richards J granted, by consent, the Appellant’s application for the case to be remitted to the Justices for them to set out the evidence on which they made the following findings of facts:

(i) The Defence expert was familiar with the workings of the Lion Intoxilyser 6000 UK; and

(ii) The Defence Solicitor was acknowledged as having considerable expertise in cases of this type i.e. involving mouth alcohol and the reliability of the Intoxilyser EC/IR.

On 8^th March 2002, the Justices set out the evidence in the following terms:

“1. The evidence on which the Justices made the findings of facts on the Defence expert:

That during this case the Court heard that both experts were involved with a similar case in the Oldham Court with a mouth alcohol defence.

The Justices therefore took the view that because of the other case, that both experts were familiar with the workings of the Lion Intoxilyser 6000 UK.

The Justices also considered the report made by the Defence expert dated the 03.01.01 in which he indicated that the device used in the Applicant’s case was the Lion Intoxilyser 6000 UK. At no time in that report did the Defence expert indicate that he was not familiar with that device.

2. The Respondent in opening address to the Court informed the Justices that the Defence Solicitor was acknowledged as having considerable expertise in alcohol cases. The Solicitor was also the Defence Solicitor in the other case of similar nature going through the Oldham Court.

The Defence Solicitor did not challenge what the Respondent had said.

The Justices therefore took the view that the Defence Solicitor had considerable expertise in cases of this type.”

11. Mr Ley, appearing on behalf of the Appellant, submitted that the decision of the Justices to allow Dr Hewson, the Respondent’s expert, to give oral evidence, was Wednesbury unreasonable. Mr Ley submitted that when considering the exercise of the discretion under Rule 5 the Justices should have had particular regard to the reason, if any, that the Respondent gave for failing to comply with Rule 3. Here, Mr Ley argued, the Respondent did not give any reason. The correct position, as Mr Ley accepted, is that the case is silent on whether an explanation was given or not.
12. Mr Ley’s principal submission was that the Justices should have accepted the Appellant’s contention that Dr Eccles, the Appellant’s expert witness, and the Appellant’s Solicitor did not have the necessary expertise to understand, cross-examine and challenge Dr Hewson’s testimony. The Justices recorded the contentions made by the Appellant in this regard as follows:

“(3.1) It was contended by the Apellant that Dr Eccles was currently a Police Surgeon who was unfamiliar with the scientific workings of the Lion Intoxilyser 6000 and did not have the necessary qualifications to give evidence about these matters. It was further contended by the Appellant that the defence was disadvantaged because they did not have an appropriately qualified expert to deal with the scientific matters about the workings of the Intoxilyser 6000 and especially about the way it was alleged to be able to detect mouth alcohol.

(3.2) It was contended by the Appellant that although Dr Eccles knew the Respondent’s expert Dr Hewson, he had not previously been involved in arguing this point before. Furthermore, this was the first case before a Court involving the Appellant’s Solicitor and this type of argument in relation to the Intoxilyser 6000."

Mr Ley submitted that it was Wednesbury unreasonable for the Justices to have held that Dr Eccles was an expert on the workings of the Intoxilyser; and further that it was Wednesbury unreasonable for the Justices to have found that the Appellant’s Solicitor was familiar with the technical side of the Intoxilyser.

13. Mr Baker, appearing on behalf of the Respondent, submitted that the Justices exercised their discretion reasonably. There was no proper basis, in his submission, for the Appellant’s contention that the Justices’ decision was Wednesbury unreasonable.
14. In my view it is clear from the police factual evidence that the issue for the experts in this case concerned the operation of the Lion Intoxilyser 6000 UK. In his witness statement dated 3^rd January 2001 Dr Eccles, in giving his expert opinion, said

“4. There is an obvious discrepancy between my observations of Callander’s condition at a given alcohol level and those of the Custody Officer and the Intoxilyser operator. Given this discrepancy, [there is] the possibility that the breath alcohol levels recorded by the Lion Intoxilyser 6000 device on the night of the alleged offence do not truly represent the amount of alcohol in Callander’s body at the time in question.

5. A possible medical reason for this discrepancy could be reflux of alcohol - containing stomach contents into the mouth or back of the throat during or just before the evidential breath testing procedure.

....

13. ..... If Callander was suffering from reflux at the time of the evidential breath testing, the readings obtained by the Lion Intoxilyser may represent alcohol from the stomach as opposed to genuine deep lung alcohol levels.”

If Dr Eccles was not an expert on the workings of the Intoxilyser he presumably would have said so and would not have made this witness statement. In my view the Justices were perfectly entitled to reject the Appellant’s contention that Dr Eccles did not have the necessary expertise to understand and challenge Dr Hewson’s testimony.

15. It is not in dispute that the Appellant’s Solicitor had considerable expertise in alcohol cases. He was instructed by the Appellant to appear on his behalf in the present case because it concerned the workings of the Lion Intoxilyser 6000 UK device and he accepted those instructions. The Justices were perfectly entitled, in my view, to reject the Appellant’s contention that his Solicitor did not have the necessary expertise to deal with this matter.
16. I accept Mr Baker’s submission that if the Appellant considered that he was at a disadvantage in that, as he contended, neither Dr Eccles nor his Solicitor had the necessary expertise to deal with Dr Hewson’s evidence, his remedy was to apply for an adjournment of the hearing. There can be little doubt that in view of the late service of Dr Hewson’s statement the Appellant would have been entitled to an adjournment and to any costs he incurred by reason of the adjournment. However he took a tactical decision not to make such an application. In the premises there was no good reason for excluding the Respondent’s expert evidence.
17. In my judgment the decision of the Justices was plainly not unreasonable. I answer the question set out in the Case Stated in the negative. This appeal will therefore be dismissed.
- - - - - - - - - - - - -

THE DEPUTY JUDGE: I give judgment in accordance with the document handed down.

MISS OKOYE: May it please your Lordship, I appear on behalf of Mr Callander, in place of Mr Ley, who had the brief. I understand that my function today is simply to take down the judgment.

THE DEPUTY JUDGE: Yes.

MISS OKOYE: It would be difficult because I have not had the opportunity of meeting the lay client, but simply helping out, in terms of taking this judgment this morning.

THE DEPUTY JUDGE: Thank you very much, and thank you for your presence.

MR GIFFORD: My Lord, I appear in the stead of Mr Baker of counsel. I have, it appears, instructions to make an application for prosecution's costs. I have handed a copy of the costs to my learned friend and also to your learned associate.

THE DEPUTY JUDGE: Yes, I have that in front of me. In the sum of £2,295?

MR GIFFORD: Exactly so, my Lord. I understand that my learned friend is in some difficulty in giving any idea as to the appellant's means. But, nevertheless, I obviously make the application for the costs.

THE DEPUTY JUDGE: Miss Okoye, it probably follows, from what you said a moment ago, that you are not in a position to deal with the issue of costs, certainly in terms of your client's means?

MISS OKOYE: My Lord, no, indeed not but on a more general note it would seem that the issue was in the lateness of service of the prosecution expert witness, and it would seem that it would have been appropriate for that challenge to have been made, and I have just, a few minutes ago, been given a schedule of costs by the prosecution.

THE DEPUTY JUDGE: Yes.

MISS OKOYE: Although I am not instructed on specifics of the lay client's means, it would seem to me that some of the costs are, in some extent, very excessive; if, for example, one takes the prosecutor's train fares to London, there are, I would argue, London counsel who could quite easily have prepared this case; and advice for one hour; telephone conference; prosecution accommodation fees. Those are the things that leap at me immediately, just looking at this schedule of costs, and I would ask that there be no order as to costs in relation to this particular appeal. It was a justified appeal from reading simply the judgment, and I would urge you, given my particular difficulties as well, not to make an order as to costs.

THE DEPUTY JUDGE: Miss Okoye, so far as the first point is concerned, I appreciate you are fresh to the case and you have not had an opportunity to consider the matter in any detail. As far as the lateness of the prosecution evidence is concerned, that was a point that may have been used by your client for the purposes of obtaining an adjournment below. It does not really go to the issue that was before this court on this case stated. But I will hear from Mr Gifford on that.

MR GIFFORD: My Lord, I am in a similar difficulty as to the actually merits of the case one way or the other. I cannot really add anything other than your Lordship has power to make an order for costs, as your Lordship is undoubtedly aware. It is a matter for your discretion.

THE DEPUTY JUDGE: Yes, I am satisfied as far as the first point is concerned that, in principle, you are entitled to your costs. What do you say as to the second point made by Miss Okoye with regard to the quantum of the costs, and in particular the train fares?

MR GIFFORD: Well, my Lord, I think she does make a very good point, there are a number of barristers in London. So one should perhaps in these circumstances concede prosecutor's accommodation fees and prosecutor's train fare, unless Mr Baker had some special knowledge from prosecuting the case in the magistrates' court, there would not seem to have been any special need for him to have come down to London.

THE DEPUTY JUDGE: Yes. I am encouraged to deal with costs today, I know. But I think in the light of the fact that both of you are fresh to the case, and I do not criticise either of you for that, it would be preferable if certainly Miss Okoye's client and those instructing her had an opportunity to consider the application in more detail. Subject to be hearing further, Miss Okoye, what I am proposing to do is to give you your costs but those costs to be dealt with at a subsequent point in time.

So what order would you invite me to make if I decided to go down that path?

MR GIFFORD: I would invite your Lordship to order that the appellant do pay the respondent's costs subject to taxation.

THE DEPUTY JUDGE: Miss Okoye, you have heard what I have indicated to Mr Gifford, I appreciate you are not in a position to deal with costs yourself, and I think it would be unfair, therefore, for me to order your client to pay these costs as presented. What I am proposing to do is to order that the appellant do pay the respondent's costs subject to taxation. Do you wish to say anything further on that?

MISS OKOYE: My Lord, save this, that the issue of costs has come up, and as I have kindly indicated, I have not been able to take instructions from the lay client on the issue of his means, and I would prefer if the issue was put off altogether for those who were present to deal with the issue of costs, whether or not it should be awarded. I do not know if that is a reasonable request on my part, but it seems that they may have more to argue in terms of the actual principle of the costs order being made?

THE DEPUTY JUDGE: Yes. Mr Gifford?

MR GIFFORD: My Lord, all I can say is that this is before the court and as at all levels of court really, costs follow the event. I would submit that that should be the case here. The only other thing that I can think of that would assist Miss Okoye is that if any order for taxation could also be made subject to a means test by a magistrates' court.

THE DEPUTY JUDGE: I am grateful to you for that suggestion. Miss Okoye, you just have no information as to your clients's means at all?

MISS OKOYE: No, and I am grateful for that suggestion.

THE DEPUTY JUDGE: I am going to order that the appellant do pay the restaurant's costs subject to taxation and subject to a means test in the magistrates' court, if appropriate. Thank you both very much.

MISS OKOYE: I am grateful.