England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		6 October 2004

1. LORD JUSTICE KEENE: I shall ask Hallett J to give the first judgment.
2. MRS JUSTICE HALLETT: This is an appeal by way of case stated from the decision of the South East Surrey Justices whereby they convicted the appellant, Christopher Beatrice, of an offence of driving a motor vehicle on the road having consumed alcohol in excess of the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. The justices were directed by this court to state a case, having refused to do so.
3. The matter was fully contested before the justices who heard from police officers who attended the scene of a road traffic accident in which the appellant had been involved. Having refused to take a roadside breath test he was arrested and taken off to New East Surrey Hospital in Redhill for treatment. A PC Cresswell accompanied him. At the hospital PC Cresswell said that he had liaised with the doctor in charge of the appellant's care to ask if it would be all right to have a blood sample taken. PC Cresswell asked the doctor if the police doctor could attend and take a sample and the hospital doctor agreed. According to PC Cresswell when the police surgeon, Dr Howlett, arrived at first the appellant refused to provide a blood sample, but Dr Howlett advised the appellant that refusal would mean an automatic ban where upon he consented. At about 6.10 in the morning the blood sample was taken.
4. In the course of his evidence PC Cresswell referred to what was described as a 'drink drive hospital procedure booklet'. He said that he worked through the questions in the booklet and crossed either 'yes' or 'no' as the appellant replied. It is common ground that the booklet would have contained the statutory warning which the officer is required to give under section 7(7) of the Road Traffic Act 1988. Section 7(7) reads as follows:

"A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."

5. According to PC Cresswell he went through the booklet, signed it and signed, sealed and labelled the blood sample given by the appellant.
6. A PC Kirkwood was also involved. He had followed the officer and the appellant to the hospital. He confirmed that he was present whilst the correct procedure was gone through with the appellant. When the appellant gave evidence he said the officer had told him he was there to take a blood sample. The doctor warned him of the consequence of any failure to do so. He agreed that the officer had a document with him as he went through the procedure. No one seems to have asked him specifically about being warned by the police officer.
7. The prosecution relied upon a certificate of analysis produced pursuant to section 16(1) of the Road Traffic Offenders Act 1988. This was to prove a reading of 155 milligrams of alcohol per 100 millilitres of blood.
8. On behalf of the appellant Miss Calder made a whole series of submissions putting the Crown to strict proof of each and every requirement of the road traffic legislation in relation to drink driving cases. For example, she submitted the Crown could not prove service of the analysist's certificate, could not prove continuity of the blood sample and could not prove proper consultation with the doctor in charge of the appellant's treatment at the hospital.
9. The justices were directed to state a case, to which would have been attached a number of questions, as drafted by Miss Calder on these other issues. The only question that I need to deal with however in this judgment is the question in relation to section 7(7) of the Road Traffic Act 1988. I should say at this stage, although I am not dealing with the other questions for reasons that will become obvious, I found Miss Calder's arguments on paper less than persuasive in relation to them.
10. Turning therefore to the sole question upon which we have heard argument during the course of the day. The question posed for this court was whether or not the court was right to hold that the appellant:

" ... had been given a warning of prosecution on the basis of advice supplied him by doctor Howlett?"

This question unfortunately has never been reformulated or commented upon by the justices when the case stated was prepared.

11. Miss Calder's point is a simple one. According to the terms of the subsection, a constable must warn a suspect of the consequences of failure to provide a specimen in pursuance of the section. A doctor cannot fulfil the function in place of a constable. Thus if the justices acted on the basis that Dr Howlett gave the necessary warning that is simply wrong in law. The requirements of the statutory procedure must be strictly observed and a failure to warn in accordance with subsection (7) would lead to inevitable acquittal.
12. Miss Calder referred us to the authority of Russell v Devine [2003] 1 WLR 118 in which the House of Lords held that the admissibility of evidence as to results of tests carried out under road traffic legislation depends on the procedure prescribed by statute being correctly followed.
13. Miss Calder also referred us to the case of Nugent v Ridley [1987] RTR 412. Nolan J (as he then was) held that in a case where the specimen was required by a doctor and not a constable it had not been required in accordance with a statutory power and therefore evidence of its analysis was inadmissible. Similarly, Miss Calder argues, the warning by a doctor, as opposed to the officer, would not meet the requirements of the statute. Thus in the absence of evidence from PC Cresswell that he, as well as the doctor, warned the appellant of the consequences of failing to provide a specimen the evidence of any subsequent analysis was inadmissible.
14. She further contended that if one looked at the evidence of the police officers in total it is not possible to say that there would have been an inevitable inference from that evidence that PC Cresswell must have given the statutory warning.
15. The magistrates in their findings at paragraph 14 iii said this:

"We accepted the evidence of P.C. Cresswell that the Appellant first refused to provide a sample of blood, Doctor Howett then advised the Appellant, who then consented. We also heard from the Appellant who said that he was warned about the consequences of refusing to provide a sample. We were satisfied beyond reasonable doubt that the required warning had been given."

16. It should be noted that nowhere therefore in the findings, nor in question iii, do the justices refer to the police evidence as to the procedure and the booklet, nowhere do they suggest that they have drawn an inference from all the evidence that PC Cresswell gave the necessary warning. Thus, Miss Calder argues, there is a real possibility the justices have been advised and have acted upon the basis that a warning from the doctor would suffice.
17. Mr Bendall, on behalf of the Director of Public Prosecutions, has agreed that strictly the answer to question iii, "Were we right to hold that the Appellant had been given a warning of prosecution on the basis of advice supplied him by doctor Howlett?" is no. A warning by the doctor alone would not suffice; a warning must be given by the constable.
18. Mr Bendall reminded us, however, of the unchallenged evidence from the police officers that PC Cresswell worked from the questions in the drink driving hospital procedure booklet. PC Cresswell, according to the case stated, said the questions in the book were put to the appellant and were crossed yes or no. Further, in the case statement at paragraph 12(b), PC Cresswell is reported as having said he went through all the questions with the appellant. It is well known that the questions in that booklet refer to the warning when requesting a specimen of blood.
19. Mr Bendall also reminded us that PC Kirkwood had given evidence that the hospital drink driving procedure had been carried out and the procedure explained to the appellant in his presence. Because no questions had been asked by counsel in relation to the statutory warning the book itself was never produced in evidence. It was, however, we are informed, available to defence counsel.
20. Mr Bendall has also reminded us that the appellant himself admitted receiving a warning, albeit, according to the justices' findings, he only mentioned the warning given by the doctor.
21. Mr Bendall has argued, with some considerable force in my judgment, that the decision in Murray v DPP [1993] RTR 209 is directly on point. This was a case in which a police officer gave evidence in a similar drink driving allegation to the effect that she had "completed the standard procedure form". She could not, however, recall the exact words used.
22. In dealing with the justices' response to a submission that this did not fulfil the requirements of the statutory procedure Watkins LJ, giving the judgment of the court, said this at page 221 E:

"However, we feel that we would not have dealt with this appeal fully unless we had expressed our disquiet about the justices' essential finding of fact and the way it was achieved.

As we have already stated, as to the warning, Constable Hook said she

'completed the standard procedure form',

but was unable to recall the exact words used. The standard procedure form is a well known document with which this court is very familiar. We should be surprised to learn that the justices were unfamiliar with it. It contains express provision for the procedure in accordance with the legislation to be followed at a police station when specimens of breath, blood or urine are sought. The procedure includes the giving of the warning in issue here and for the signature of the officer or officers responsible for carrying out this procedure.

There was no cross-examination by Mr Ley on this point. Accordingly, it was not suggested by counsel either to Constable Hook or Sergeant Rustmen that the warning had not been given.

What Mr Ley appears to have done, in addition to not calling the defendant to give evidence, was to submit there was no evidence of the giving of the usual warning. The justices accepted that submission which in the circumstances was, we think, very remiss of them. It was open to accept from what Constable Hook said that the standard procedure had been followed. If they were in doubt as to the step by step contents of any part of that they should have asked the police officers to explain to or remind them of the procedure and if necessary to produce the standard procedure form.

They should have dealt with Mr Ley's submission robustly, for such a response to it was in the circumstances clearly called for.

As things are, we must accept their finding which with reluctance we do. To ensure that what went on in the court below is not repeated in future, prosecutors should ensure that the relevant standard procedure form is produced in breathalyser cases and justices should be alert to see that a submission of the kind made in this case does not succeed where it is permissible as it was here, in our view, for them to allow, if necessary, further evidence to be called. Otherwise they should consider carefully whether a safe inference can be drawn that the usual procedure had been followed. It seems to us that that course was clearly open to the justices on the other facts they had found in the case."

23. Had this matter been addressed properly at the magistrates' court it might well therefore have been open to the justices in this case to find on the evidence before them that the police officer had given the warning required by statute.
24. As Watkins LJ pointed out in the case of Murray if they are in any doubt it would have been perfectly proper for them to allow further evidence on the point. Unfortunately, it seems that although Murray may have been referred to the magistrates in passing, the particular passage to which I have referred was not drawn to their attention. Thus it would be very tempting to follow the route suggested by Mr Bendall. He suggested that this court could answer question iii no, but add that the court would have been not only right but bound to draw the inference that the officer did warn the appellant, given the nature of the evidence to which he has drawn our attention.
25. Here, however, we have the problem that the justices findings do not include any reference to whether or not PC Cresswell gave the appropriate warning. Given the formulation of question iii one would have expected to find such a reference. There is, therefore, the real possibility that they were not satisfied the officer gave the warning and were advised the doctor's warning was sufficient.
26. The justices, had this matter been drawn to their attention properly as I have indicated may well have allowed the prosecution to re-open its case or even make the necessary findings of fact. For my part, try as I might, I cannot say that on the evidence as presented a finding that the officer gave the warning would have been inevitable. If it was inevitable it is somewhat surprising that the justices did not make it. I am, therefore, driven very reluctantly to the conclusion that this conviction must be set aside. I say reluctantly because it seems to me that this is a case where the justices have been ill served by lawyers and where the defence has ambushed the prosecution at every conceivable opportunity in a way that has been deprecated by the courts on a number of occasions. Although therefore it may well have been perfectly appropriate for the justices to have convicted the appellant on this evidence, I am satisfied that it would be wrong in law for this conviction to be allowed to stand where there is a very real possibility that this bench has been misdirected on a fundamental principle of law.
27. Accordingly, for my part, the answer to question iii is a simple no and I would set aside this conviction.
28. LORD JUSTICE KEENE: I agree. Had the justices not placed such emphasis on the requisite warning having been given by the doctor I might have taken the view that on the evidence they could and should have inferred that PC Cresswell had given that warning. The comment by this court in Murray v Director of Public Prosecutions [1993] RTR 209 at page 221 about the significance of undisputed evidence that the statutory procedure had been gone through remains, in my view, good law. But, as I read the case stated, the justices were not satisfied that the constable had given the warning. That is the interpretation which one places on their emphasis on the warning having been given by the doctor, plus the absence of any finding by them that a warning had been given by the constable. A warning by a doctor will not suffice. The section 7(7) warning must be given by a constable.
29. In those circumstances, with a similar reluctance to that expressed by Hallett J, I too consider that this conviction cannot stand. I also would answer question iii in the case stated "no". That is sufficient for this appeal to be allowed. The conviction will therefore be quashed. We will hear counsel as to any further order which is sought.
30. MR BENDALL: My Lord, I took the opportunity in the short adjournment to see if I could ascertain the position in relation to the question raised before your Lordship. I do not know if the court has Wilkinson, but I have a copy.
31. LORD JUSTICE KEENE: Volume 1?
32. MR BENDALL: Volume 1, yes.
33. LORD JUSTICE KEENE: Yes, I have, but I suspect that Hallett J would like a copy.
34. MR BENDALL: May I pass up two bundles containing a page from Wilkinson with the case referred to therein and the current statute in relation to the point they are making in relation to one of its predecessors.
35. LORD JUSTICE KEENE: Thank you.
36. MR BENDALL: My Lord, the relevant pages in Volume 1 are at page 1193.
37. LORD JUSTICE KEENE: Yes.
38. MR BENDALL: And it is the paragraph centre in the page, the first complete paragraph of section 22.3(1).
39. LORD JUSTICE KEENE: "Although cases are frequently remembered".
40. MR BENDALL: My Lord, precisely. And it makes the point there that the court does have power to order a rehearing before a different bench. That is based upon a decision of the House of Lords in Griffith v Jenkins where they were considering section 6 of the Summary Jurisdiction Act 1857, that that was the following year replaced by what is now section 28(a) of the Supreme Court Act 1981, a copy of which I have handed up as well.
41. LORD JUSTICE KEENE: Yes.
42. MR BENDALL: My Lord, the copy of the judgment in Griffith v Jenkins is mainly concerned with whether a previous authority suggesting there was no power to remit for a rehearing was correctly decided or not, and the House held that it was incorrectly decided and reversed it. But at page 71, at paragraph c, they then addressed the issue of whether they should in fact remit and in that particular case concluded that it would not be just to do so because it was a trivial offence and, unsurprisingly, having by then gone to the House of Lords it was rather old, but they gave consideration in that paragraph from c down to f as to the principles to be applied.
43. LORD JUSTICE KEENE: Yes. I am reading what Lord Bridge says just above letter e:

"I recognise that very different considerations may apply to the exercise of discretion to order a rehearing following a successful appeal against conviction by the defendant in circumstances where the error in the proceedings which vitiated the conviction has left the issue of the defendant's guilt or innocence unresolved. In some such cases to order a rehearing may appear inappropriate or oppressive. But this must depend on how the proceedings have been conducted, the nature of the error vitiating the conviction, the gravity of the offence and any other relevant considerations."

44. Yes. And in that instance I notice the rehearing would have taken place more than three years after the date when the offences were alleged to have been committed. Yes.
45. MRS JUSTICE HALLETT: Do you have any submissions, Mr Bendall?
46. MR BENDALL: My Lady, it is plainly a matter for the court's discretion, but then obviously there are those considerations. The offence here of course related to November 2001.
47. LORD JUSTICE KEENE: 2001, so we are nearly three years.
48. MR BENDALL: Not quite as bad, but not far off.
49. LORD JUSTICE KEENE: Yes.
50. MR BENDALL: Perhaps slightly more serious in that it is not fishing but --
51. LORD JUSTICE KEENE: Yes. Thank you for your assistance. Anything you wanted to say?
52. MISS CALDER: I think my lady asked before lunch the sort of situations in which the cases were sent back. The type of occasion where the case was sent back is if there had been a submission of no case which was wrongly refused, for instance, then though they can order it to go back for the case to continue. About a retrial, the type of thing is if, for instance, they wrongly----
53. LORD JUSTICE KEENE: You mean wrongly upheld the no case submission?
54. MISS CALDER: Wrongly excluded some evidence on the basis say that it was not an issue when it clearly was, or the opposite, they can order a rehearing then.
55. LORD JUSTICE KEENE: Yes.
56. MISS CALDER: There are cases -- I do not have any copies, but I have something which I could, it is a privy council case. It is Reid v The Queen [1980] AC and there it was said in certain circumstances:

"To order a new trial would be to give the prosecution a second chance to make good [in relation to] its case - and, if a second chance, why not a third? To do so would, in their Lordships' view, amount to an error of principle of the exercise of power under section 14(2) of the Judicature (Appellate Jurisdiction) Act."

And it goes on to say other things. They think that it is obviously an area of principle to send something back without more----

57. LORD JUSTICE KEENE: Just bear with me one moment.
(The Bench conferred)

I can tell you that we are not minded to send this matter back. We are not going to order a retrial. Do you want to address us further on anything else?

58. MISS CALDER: Yes, I would like to address you on the matter of costs.
59. LORD JUSTICE KEENE: Yes.
60. MISS CALDER: Their Lordships in January -- I made an application for costs and they said they would leave it, it is not actually on the order but they said they would leave it to the outcome of this case. I do not know whether I was meant to ask you for costs.
61. LORD JUSTICE KEENE: What did they order about costs on that occasion?
62. MISS CALDER: Well, they did not. They said they would leave it -- sorry, that cost be reserved to the court hearing the case stated.
63. LORD JUSTICE KEENE: Thank you.
64. MISS CALDER: That is what the order was on the costs.
65. LORD JUSTICE KEENE: That hearing was dated when?
66. MISS CALDER: Sorry, this order, January.
67. LORD JUSTICE KEENE: Sorry. Do not talk at the same time, Miss Calder, it makes it terribly difficult for both of us. What was the date of that hearing to which that order related?
68. MISS CALDER: January 23rd this year.
69. LORD JUSTICE KEENE: Thank you.
70. MRS JUSTICE HALLETT: How are these proceedings funded?
71. MISS CALDER: That was funded by the defendant himself.
72. MRS JUSTICE HALLETT: And today?
73. MISS CALDER: And today is funded by legal aid which was granted for this case, but there was a period before the grant of legal aid when again he was paying his solicitor. So there is a period also in this case where it was privately funded.
74. LORD JUSTICE KEENE: So what order are you asking us to make about costs?
75. MISS CALDER: What I am asking is that there be, I do not think they call it legal aid taxation any more, the appellant's costs where that is applicable. But before the matter of the judicial review, I would ask that there be a defendant's costs order and also for a defendant's costs order in this case until he was granted legal aid.
76. MRS JUSTICE HALLETT: The effect of the defence cost order being?
77. MISS CALDER: Sorry? The costs out of central funds.
78. MRS JUSTICE HALLETT: Are they the same thing?
79. MISS CALDER: I think the shorthand term is defendant's costs order, but it is costs out of central funds. It normally follows the event. But there is, prior to the grant of legal aid in this matter and for the matter of the judicial review----
80. LORD JUSTICE KEENE: Let us just make sure we get down what you are applying for anyway. Forget about legal aid assessment for the moment between yourself or the client and the Legal Services Commission. So far as the inter partes costs are concerned, or any costs order in your client's favour, what are you asking for with dates?
81. MISS CALDER: I am not sure that the grant of legal aid is in the bundle. I have not got it with me. The grant of legal aid was by this court, so is there an order of this court granting legal aid and I do not have a copy with me.
82. LORD JUSTICE KEENE: Was that on 23rd January 2004 then?
83. MISS CALDER: No, that would have been considerably later because it is after the case has been drafted and sent back and then the case has been stated. So it would be after the date of the stating of the case which is here and then after that, 23rd March. It is after 23rd March.
84. LORD JUSTICE KEENE: Have we got a legal aid certificate lodged with the court?
85. MISS CALDER: I do have a lot of loose papers, but I did not bring them with me.
86. LORD JUSTICE KEENE: The associate may be able to help.
87. MISS CALDER: I think so, my Lord.
88. LORD JUSTICE KEENE: Yes.
(The Associate addressed the Bench)
89. MISS CALDER: I believe the court has the original of the grant of legal aid.
90. LORD JUSTICE KEENE: No, the court has the application for legal aid. It has not got anything indicating that legal aid was granted or when it was granted or the certificate itself.
91. MISS CALDER: I do not know whether it was Collins J in this case, but it would have been given.
92. LORD JUSTICE KEENE: All right, well we will have to do it in terms of a formula referring to when legal aid was granted and you can lodge the certificate with the court in due course. But what I am still unclear about is the precise form of the order that you are seeking.
93. MISS CALDER: The order that I am seeking is for costs out of central funds prior to the grant of the legal aid certificate.
94. LORD JUSTICE KEENE: Yes, and presumably you want that to cover, as no doubt it would, but we will make it clear, those costs which were reserved in respect of the hearing of the 23rd January 2004?
95. MISS CALDER: Yes, not just for the hearing though, for the whole of the work done on that case.
96. LORD JUSTICE KEENE: Yes, I understand that. Yes, thank you. Anything further you want to say on that aspect? You want legal aid assessment of course?
97. MISS CALDER: Legal aid assessment, yes.
98. LORD JUSTICE KEENE: All right. Do you want to say anything on this, Mr Bendall?
99. MR BENDALL: No.
100. LORD JUSTICE KEENE: Just bear with us.
(The Bench conferred)
101. Very well. We will order that the appellant is to have his costs out of central funds in so far as they were incurred before the grant of legal aid in this matter.
102. MISS CALDER: And the judicial review.
103. LORD JUSTICE KEENE: I am just about to make that clear. That order is to include those costs which were reserved by the order of this court on 23rd January 2004. We shall also order legal aid assessment in respect of the appellant's legal aid funding.
104. MISS CALDER: I am obliged, my Lord, thank you.
105. LORD JUSTICE KEENE: Thank you very much. We will also direct that that costs order is conditional on the legal aid certificate being lodged within seven days of today.
106. MISS CALDER: Yes.
107. LORD JUSTICE KEENE: Thank you both very much.