CO/6027/03 
Neutral Citation Number: [2004] EWHC 870 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 2 April 2004
 
B E F O R E:

MR JUSTICE OWEN 

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THE QUEEN ON THE APPLICATION OF WAYNE HUNTLEY
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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(Official Shorthand Writers to the Court)
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MR NEIL CORRE (Solicitor Advocate) appeared on behalf of the CLAIMANT
THE DEFENDANT WAS NOT REPRESENTED AND DID NOT ATTEND 
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J U D G M E N T 
Judgment 
1.	MR JUSTICE OWEN:  The appellant, Wayne Huntley, appeals by way of case stated against his conviction by the Haringey Justices on 9 June 2003 for an offence of driving a motor vehicle, having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.  
2.	The relevant facts are succinctly summarised in the case stated by the justices:  
"(2) At the start of the trial the representative for the appellant, Mr Bennett, indicated to both the Prosecution and ourselves that no issue was to be taken with the Prosecution evidence up until the appellant arrived at Hornsey Police Station where the breath test procedure was to be conducted.  
 (3) Accordingly, the Prosecution read the statement of Police Constable Barry Macinnes, an officer present at the time of the appellant's arrest.  The statement was read out in accordance with the provisions of section 9 of the Criminal Justice Act 1967 and is attached as Annex 1.  
 (4) The Prosecution then called Sergeant Simmons who was present when the drink drive procedure at the police station was performed.  Sergeant Simmons indicated that the lowest reading in breath was 47 micrograms in 100 millilitres of breath.  Sergeant Simmons then gave evidence on the statutory blood/urine procedure which is not the subject of the questions posed by the appellant and he was not cross-examined by the appellant's representative.  
 (5) The final witness for the Prosecution was Sergeant Lee who had dealt with the drink drive procedure and again dealt with issues that are not subject to the questions posed by the appellant.  The Prosecution then closed its case.  
 (6) Mr Bennett, the representative of the appellant, then made a submission of no case to answer on the basis that there had been no evidence adduced by the Prosecution that the appellant had been driving the motor vehicle.  We were advised by our legal adviser, Mr Jansen, that the Prosecution had adduced such evidence by virtue of the appellant accepting the Prosecution's evidence in its entirety up to the procedure at the police station.  The Prosecution then considered seeking leave to recall one of the officers but chose not to taking the view that sufficient evidence had been adduced to prove the appellant had been driving the vehicle.  
 (7) We rejected the appellant's submission and directed that there was a case to answer.  
 (8) Mr Bennett chose not to call the appellant and made the same submission as set out in paragraph 6 above ... 
 (10) The sole disputed fact for us to consider was whether there had been any evidence adduced that the appellant had been driving the vehicle.  We gave the following reasons: 
   'The submission that was put before us was that there had been no evidence placed before the court today which proved that Mr Huntley was the driver of the vehicle on 9 June.  
    Having considered the Prosecution evidence, in particular the agreed section 9 statement of PC Macinnes, we find that it stated that PS Simmons had arrested Mr Huntley on suspicion of driving whilst having had too much to drink and not simply that he was arrested on suspicion of having had too much to drink'.  
 (11) We therefore found the appellant guilty of driving with excess alcohol as charged."  
3.	The relevant parts of the witness statement from Police Constable Macinnes are in the following terms:  
"ESD arrived and I then explained to Huntley that he was required to provide a specimen of breath as it was believed he was driving while having had too much to drink ...  
He then provided me with a specimen of breath in the presence of PS Simmons and PC Moore.  The test was positive and I was then made aware that PS Simmons had arrested the now accused on suspicion of driving whilst having had too much to drink and for providing a positive breath test." 
4.	The conviction is challenged on the basis that the evidence before the justices did not, and could not have proved to the requisite standard that the appellant had in fact been driving at the material time.  The justices' reasoning is clear from the case statement.  They found the appellant guilty because he had been arrested on suspicion of driving whilst having had too much to drink.  The question is, therefore, whether the fact of the arrest on suspicion of driving proved to the requisite standard that he had been driving.  That question has to be answered in the negative given the specific finding by the justices that the arrest was on suspicion of driving.  Suspicion that the appellant was driving does not amount to evidence proving that he was.  There was no other evidence to the effect that he was driving.  
5.	It is also to be noted that the evidence of Police Constable Macinnes with regard to the critical matters was in fact hearsay.  But be that as it may, there was simply no basis upon which the justices could properly have come to the conclusion that the case had been proved against the appellant.  In those circumstances, this appeal is allowed and the conviction will be set aside.
6.	MR CORRE:  Would your Lordship consider an application for public funding assessment?
7.	MR JUSTICE OWEN:  Yes, certainly.  Is there anything more that you want to say to me in support of it? 
8.	MR CORRE:  My Lord, the way that I understand it is done now, since the changes to the legal aid system, is that if your Lordship just certifies that it is suitable for such assessment.  We would then submit our file for taxation.  
9.	MR JUSTICE OWEN:  So what order do I have to make to enable that to be done?  Do I have to direct that there be public funding of this? 
10.	MR CORRE:  The order has been granted, although I see your associate has a puzzled look on her face.  Perhaps she might be able to assist.  
11.	MR JUSTICE OWEN:  I am reminded that Collins J granted a representation order in this case.  Is it necessary for me to do anything more in that case? 
12.	MR CORRE:  My Lord, having regard to the fact that the respondents are not represented then probably not.  Perhaps it is my instinct to jump up and ask for costs when it is not necessary.
13.	MR JUSTICE OWEN:  It is a very necessary instinct, Mr Corre.  I do not think it is necessary in this case.  I am grateful for your assistance.