QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MACKAY
|VEHICLE AND OPERATOR SERVICES AGENCY||Appellant|
|GEORGE JENKINS TRANSPORT LIMITED||Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M LAPRELL (instructed by Messrs Moose and Blatch, Southampton SO15 2AH) appeared on behalf of the Respondent
Crown Copyright ©
"... a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied—
(i) the document was created or received by a person in the course of a trade, business, profession or other occupation, ... and
(ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.
(2) Subsection (1) above applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it—
(a) in the course of a trade, business, profession or other occupation; ..."
"(1) If, having regard to all the circumstances—
(c) a magistrates' court on a trial of an information,
is of the opinion that in the interests of justice a statement which is admissible by virtue of section ... 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.
(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard—
(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;
(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;
(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them."
"Where a statement which is admissible in criminal proceedings by virtue of section ... 24 above appears to the court to have been prepared, ... for the purposes—
(a) of pending or contemplated criminal proceedings; ...
the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard—
(i) to the contents of the statement;
(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and
(iii) to any other circumstances that appear to the court to be relevant."
"Time sheets for ALL drivers between 01 February 2002 and 30 March 2002."
"The question of which I must be satisfied is can the prosecution show proof of due execution of the documents. Although I may be able to properly infer what the document is, there is no evidence before the court as to who was the maker of the document i.e. was it the individual driver or someone else completing the document from some other source which may have been the driver. Can the document therefore be adduced as admissible evidence?
I have considered s24 CJA 1988 but there is no evidence producing these documents as a business document."
"The prosecution have been sloppy, but the court can use common sense to infer that the probability of them being different documents is so remote as to exclude it."
With that I agree.
"The appellant's counsel makes these observations about these documents; namely that no witness spoke to them nor to the transaction reflected by the document. The documents were not directed to or seen by the appellant. There was no evidence from the creator of the document either as to the purpose for which it was created or that the maker had personal knowledge of the contents or that it was created in the course of a trade or business. There was no evidence as to where the document had been kept, although each document was many years old. Thus cross-examination as to the documents or the transactions they purported to reflect was impossible."
So the question that the Court of Appeal had in front of it, as it saw it, was whether the conditions required by section 24 had been satisfied.
"Section 24 deals with the statements in a document and makes such statements admissible of any fact of which direct oral evidence would be admissible if two conditions are satisfied. The wording of condition (ii) demonstrates that Parliament anticipated that courts would draw inferences as to the personal knowledge of the person supplying the information of the matters dealt with. The purpose of section 24 is to enable the document to speak for itself; the safeguard being the two conditions and the other statutory provisions applicable, for example in the case of a statement made for the purpose of a criminal investigation, one of the requirements of section 23(2) or the requirements of section 23(3) have to be fulfilled."
"With regard to section 24, we would suggest that Parliament's intention would be defeated if oral evidence was to be required in every case from a person who was either the creator or keeper of the document, or the supplier of the information contained in the document."
He then referred to an earlier unreported decision of the Court of Appeal, the case of Dobson on 12th November 1993, on facts which were very close to those that we are considering in this appeal. There the court had dismissed an argument that the original creator of in that case a document from the DVLC had to be called to meet the statutory criteria, as opposed to a police officer who had requested and collected the document.
"There may be circumstances in which a document would have to be explained in evidence before it could be admitted under [section 24(1)]. But the diary was a document found on the counter of the business, containing precisely the sort of entries one would expect to find in a document created by the person in the course of a business and in circumstances where the information would have been supplied by a person who may reasonably be supposed to have had personal knowledge of the matters dealt with. Such a document spoke for itself (see Foxley ...) It was therefore admissible as a business document."
"The nature of the document and the circumstances in which it is found may be such as to afford sufficient evidence to satisfy the judge that conditions (i) and (ii) are fulfilled; and the present case may well be such a case."
If in relation to that observation one substitutes for the word "found" the word "produced", it seems to me that it fits exactly the circumstances of the case which we are considering.