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
		15th December 2005

Mr Justice NEWMAN :

1. This is an appeal by way of Case Stated from a decision of Leeds Magistrates' Court. On 31^st January 2005 the West Yorkshire Justices sitting at Leeds Magistrates' Court convicted the appellant of driving a motor vehicle whilst disqualified, failing to provide a specimen of breath for analysis and using a motor vehicle without third party insurance and an MOT test certificate.
2. The facts as they appear from the Case Stated are that on 18^th July 2004 a police officer, PC Long, whilst on mobile patrol in a marked police car, observed a white Isuzu Trooper motor vehicle being driven erratically on Vesper Road, Leeds. He operated the blue lights on his vehicle and indicated for the driver of the Isuzu vehicle should stop. The vehicle carried on for a further 300 yards and then pulled up at an angle. The driver of the vehicle was seen to climb from the driver's seat into the rear passenger seat. A front seat passenger remained where he was. The police officer had not lost sight of the vehicle at any time. On approaching the car he found the vehicle to contain two persons, both of whom smelt of intoxicants. The engine of the car was still running. The officer removed the car keys and asked the person he had seen driving the car to accompany him to the police car. The police officer stated that he had clearly seen the driver of the car,

"with the white T-shirt and shaved head, climb from the front driver's seat between the front driver's and front passenger seat into the back passenger seat of the car".

The person in the rear seat refused to accompany him stating that he was not the driver.

3. After some time PC Smith and PC Markham joined him and the person in the rear seat gave his details as Steven Pattison, born 10^th June 1978. The details were run through the Police National Computer and the records disclosed that a person with the same details was a disqualified driver. Mr Pattison was arrested for driving whilst disqualified and on suspicion of driving whilst unfit through drink. He was taken to Leeds Bridewell. Mr Pattison failed to provide a sample after the procedure had been explained to him.
4. PC Townsley gave more evidence in connection with the breathalyser and blood procedures which had taken place. After the procedure had been explained, there were unsuccessful attempts by Mr Pattison to give a specimen of breath and he was told to blow continuously until he was told to stop, but to that he responded stating that he could not because he had asthma. PC Townsley told the Magistrates that, although he was not convinced that Mr Pattison could not blow into the equipment because of asthma, he accepted that he had a reasonable cause to believe that, for medical reasons, a specimen of breath could not be provided or should not be required, so he requested a specimen of blood after explaining the procedure to him. Mr Pattison refused to provide a specimen stating that he took steroids. He was given a second warning and he stated that:

"No one is sticking any needles in me, its against my religion to give blood".

When he was asked for his religion, he replied "I am a Christian, a Gypsy Christian".

5. In the course of being interviewed on two separate occasions, Mr Pattison denied that he was the driver of the vehicle and he named another person as the driver. When he was asked whether he was a disqualified driver he gave no reply. At the hearing before the Magistrates, the prosecutor handed a certificate of conviction relating to Sonny Steven Pattison, born on 10^th June 1978, and residing at 120 Jack Lane, Hunslet, Leeds, LG10 1DW showing a conviction at Leeds Magistrates' Court on 23^rd October 2003 for driving over the prescribed limit on 15^th October 2003, for which that person was disqualified from driving for a period of twelve months. Mr Pattison did not give evidence and there was no evidence called for the defence and the defence case was closed. No warning was given by the court pursuant to section 35 of the Criminal Justice and Public Order Act 1994 with regard to Mr Pattison's failure to give evidence.
6. Two legal submissions were advanced on behalf of Mr Pattison to the court:

(1) that the memorandum of conviction was not sufficient to show that the defendant was a disqualified driver. Reliance was placed upon cases including R v Derwentside Justices ex parte Heaviside [1996] RTR 384 and the DPP v Olakunori [1998] EWHC Admin 722, 8^th July 1998

(2) it was submitted that, in relation to failing to provide a sample of breath, once the defence of reasonable excuse had been raised by the prosecution's case with evidence from PC Townsley, conceding that for a medical reason Mr Pattison could not provide a sample of breath, it was for the prosecutor to disprove it in accordance with the case of Rowland v Thorpe [1970] 3 All ER 195.

7. The Magistrates found that Mr Pattison was the driver on 18^th July 2004 when PC Long stopped him. There is no appeal against that finding. The Magistrates also stated:

"We were satisfied beyond reasonable doubt that the defendant Sonny Steve/Steven Pattison was the same person listed on the Memorandum of Conviction for the offence of driving whilst over the prescribed limit with a disqualification of 12 months. The reason for this is the uniqueness of both the first and last name, the agreement of the middle name, the date of birth and the address. The defendant in this case has confirmed his details as being identical."

8. As to the charge of failing to provide a specimen of breath, the conclusion was stated:

"We were satisfied the prosecution had proved beyond reasonable doubt that Mr Pattison had failed without a reasonable excuse to provide a specimen for analysis.

He told the police officer that he could not provide a specimen of breath because he was asthmatic, but went on to refuse to provide a specimen of blood because he said, firstly that he was taking steroids and secondly, because of his religious belief as a Gypsy Christian.

No medical evidence of asthma was placed before us and the defendant's response to the request for blood test lead us to the conclusion that he had no intention of providing any form of specimen."

9. The questions for the opinion of the High Court are:

(1) Was there sufficient evidence before the Justices, having regard to R v Derwentside ex parte Heaviside, to prove the defendant was a disqualified driver and properly identified in the memorandum of conviction as a disqualified driver?

(2) Could the Justices, upon the facts and law, properly convict the defendant for the offence of failing to provide specimen or specimens of breath?

10. The court was informed by counsel for the prosecution that the change in the law permitting previous convictions to be put into evidence had increased the occasions upon which proof of conviction, by producing a certificate of conviction to the court, was required. It was suggested that the instant appeal provided the court with opportunity to review the various authorities on this question which had not all been reported and were not thus readily available. There appears to be advantage in this course being adopted and I shall, therefore, endeavour to review the existing authorities and attempt to extract the general principles.

The Legal Principles

11. Section 73(1) of the Police and Criminal Evidence Act 1984 (PACE) provides:

"Where in any proceedings the fact that a person has in the United Kingdom been convicted or acquitted of an offence otherwise than by a Service court is admissible in evidence, it may be proved by producing a certificate of conviction or, as the case may be, of acquittal relating to that offence, and proving that the person named in the certificate as having been convicted or acquitted of the offence is the person whose conviction or acquittal of the offence is to be proved."

12. It is clear that proof according to the provision involves two evidential stages: (1) the production of the certificate of conviction and (2) proof to the criminal standard that the person to whom that certificate relates is the accused. As to (2), the proof contemplated by the subsection is not limited to particular defined methods of proof. For example, proof by an admission by or on behalf of the accused or by the evidence of finger prints or by someone who was present in court at the time the person was convicted and disqualified being present to give evidence. The evidential issue is at large; proof to the criminal standard will be required that the person to whom the certificate relates is the person then and there before the court. Prior to the case of Heaviside there would appear to have been no reason to believe otherwise. But as Mr Waterman, counsel for the respondent has pointed out, the Divisional Court in Heaviside (McCowan LJ and McKinnon J) were not referred to the case of Ellis v Jones [1973] 2 All ER 893. In the latter case, Clive Jones had been charged with making a false declaration that he had not been working in order to obtain sickness benefit under the National Insurance Act 1965. In order to prove that he had been working, a statement from an employer was put in under section 9 of the Criminal Justice Act 1967 saying "I know Clive Jones" and listing dates on which he had worked for him. At the close of the prosecution's case it was submitted for Mr Jones that there had been no positive evidence to identify him with the Clive Jones mentioned in the witness statement and an application for an adjournment to call the employer was refused and the case was dismissed. On appeal by way of Case Stated, the court comprising Lord Widgery CJ, Ashworth and Bridge JJ, it was held the effect of a statement properly put in to court under section 9 of the 1967 Act was the same as if the witness had given it orally from the witness box. Accordingly, in the absence of any suggestion that the Clive Jones in the dock and the Clive Jones referred to in the statement were different people, the matter could only be approached on the footing that it was the same person who was referred to. It followed that there was a case to answer, the appeal would be allowed and the case remitted to the Justices to continue the hearing.
13. It can be seen from the terms of the judgment that the approach of the court in Ellis v Jones was robust. The proposition which the court upheld was stated to be, "really too obvious to be mentioned" and the submission which had been made at the close of the prosecution's case was labelled as

"another example of submissions made by advocates for the defence in circumstances which are wholly inappropriate and which give rise to a great deal of waste of time and money".

One can see from the cases which have followed Heaviside that the terms of the judgment have been read as subject to qualification and the reasoning in Ellis v Jones has been applied.

14. The particular part of the judgment in Heaviside which has given rise to controversy and further consideration can be found where McKinnon J. stated:

"As far as I am aware, it has never been accepted that the mere matching of the personal details, whether the name, address or date of birth of a defendant, with those upon a certificate of conviction is sufficient to establish or identify the defendant as a person earlier convicted. It may have been the defendant: but, to avoid obvious mistakes being made, strict proof is required. That is provided by evidence in one of the three ways I have described."

The three ways to which reference is made are those to which I have referred in paragraph 12 above. By referring to "strict proof" I take it reference was being made to the criminal standard of proof.

15. In R v Derwentside Justices ex parte Swift and R v Sunderland Justices ex parte Bate, a Divisional Court comprising Staughton LJ and Rougier J [1997] RTR 89, it was observed that there had been a crop of applications following the decision of the court in Heaviside, but the court, with the advantage of having been referred to the case of Ellis v Jones, went on to hold, in a case where it was necessary to prove the accused person to be disqualified, that:

(1) the three methods indicated in Heaviside were not exhaustive of the means of establishing identity; and

(2) the section (9) statement which would have been provided by a police constable was sufficient to enable the Justices to be satisfied that the statement was referring to a man whom the deponent knew and that he knew him under the name of Bate, namely the person who was before the court. Confirmation that the proper approach to section 73(1) of PACE was not limited to proof by one of the three ways mentioned in Heaviside next came in the Director of Public Prosecutions v Mooney [1997] RTR 434 where McCowan LJ sitting with Hidden J in the Court of Appeal Criminal Division stated:

"I am quite sure that in Heaviside there was no intention on behalf of the Divisional Court to say that it was the law that only if there was evidence falling into one of those three categories could such a case be proved. It was not said that those three methods of proof were exclusive and, speaking for myself, I was certainly not intending to say by my agreement with the judgment of McKinnon J. that those three methods were exclusive".

16. It follows that I am entirely satisfied that the identity of a person on a memorandum of conviction is capable of being proved by the same multiplicity of ways in which any other essential fact can be proved in a criminal case.
17. The next case of significance to which reference must be made is Olakunori v the Director of Public Prosecution, Wednesday 8^th July 1998. Lord Bingham LCJ with Thomas J (as he then was) considered an appeal against conviction by Magistrates where the evidence which the Magistrates accepted had comprised the following:

(1) the certified extract from the records of South Western Magistrates' Court showing that on a date a man named Olatolkubo Olakunori, born on 25^th July 1974, was disqualified;

(2) the appellant's full name as shown on his birth certificate was Olatunji Olatokunbo Adeola Olakunori and, according to his birth certificate, he was born on 25^th July 1974. His passport also showed he used two of those names;

(3) police officers gave evidence about the appellant driving the car and the names that he gave when stopped and subsequently at the police station and during interview. Thomas J. referred to the judgment in Heaviside to the effect that there were three ways whereby proof could be advanced and observed: "They are merely examples". Reference was made to the judgment of Rougier J. in Derwentside and the judgment of McCowan LJ in Mooney. He went on to state :

"In each case, it is plainly for the prosecution to adduce evidence from which the justices can be sure that the person before the court whose conviction has to be proved is the person named in the certificate of conviction or other document evidencing the conviction also before the court. It is not of course possible to set out what in every case can amount to sufficient evidence".

The judge went on to observe that it may well be the case that there is no available evidence from someone who was present in the court when the person was convicted. That in many cases it might well be difficult to obtain such evidence. The judge observed :

"In such cases the prosecution will at the close of their case usually be able to establish a case to answer by proof of coincidence of the name and date of birth of the person convicted and the name and date of birth of the defendant. This might not always be the position, as for example where the names are very common and where there is some material to indicate the possibility of a mistake.

If the coincidence of names and dates of birth is sufficient to establish a case to answer, and then there is no evidence from the defendant, the justices should be able to take into account the provisions of section 35 of the Criminal Justice and Public Order Act 1994, provided that it is in all the circumstances fair for them to do so. In saying that we, of course, emphasise that silence without more proves nothing. At the conclusion of the evidence the justices are entitled to find – but it is a matter entirely for them on the facts of each case – that the identity has been proved. There will be no danger of an obvious mistake in such a case, as the defendant will have decided not to adduce evidence of the possibility of any such mistake."

18. On the facts in that case Thomas J. found that there were three factors giving rise to a prima facie case:

(a) Although the appellant had used different names and different combinations of first name with his surname, there was a substantial coincidence of names between his actual name and that on the memorandum of conviction.

(b) There was evidence from an officer that he knew the appellant by the name on the memorandum of conviction.

(c) The appellant had told lies about his identity which the Justices had been entitled to take into account provided they had considered the relevant questions. Although not expressly stated, Thomas J. was clearly referring to R v Lucas [1981] 1 QB 720.

19. The principle which emerges from the cases is that it will normally be possible to establish a prima facie case on the basis of consistency of details between the accused and the person named on the memorandum of conviction. If the accused calls no evidence to contradict that prima facie case it will be open to the court to be satisfied that identity has been proved.
20. Bailey v DPP 163 JP 518, 19^th June 1998 (Crown Office List), could be seen as inconsistent with the principle I have extracted from the cases. It was heard shortly before Olakunori. The only evidence adduced to prove the appellant's disqualification was that the appellant's name, date of birth and his sister's address at which he had at one time lived appeared on the memorandum of conviction. It was suggested that few people would have known he was living at his sister's address. Importantly, however, he gave evidence that he knew nothing of this disqualification and he believed that someone else had used his details. The court allowed the appeal of the appellant. In doing so, Simon Brown LJ (as he then was) said:

"… there has to be some evidence which plainly demonstrates that a previous conviction in the defendant's name is not possibly explicable, as the appellant here suggested of this previous conviction, by some other person having given the defendant's details both to the police and to the court in respect of the earlier offence. No such evidence was given here".

The Magistrates had found the appellant's evidence unconvincing, but stated "we preferred the evidence of the respondent". Simon Brown LJ observed that they appeared to have "overlooked the fact there was no inconsistency in the evidence".

21. In my judgment, Bailey does not affect the principle set out above, but I read it rather as an illustration of it. Where there is evidence providing a realistic possible alternative for the fact that the accused's personal details appear on the memorandum of conviction then the prosecution may have to exclude it by evidence other than the consistency of the details on the memorandum of conviction. Where there is no evidence of such a realistic alternative, the court is entitled to conclude, first, that there is a prima facie case and, secondly, that the case is proved.
22. The principle was applied in Whitmarsh v DPP unreported, 1^st March 2000 (Divisional Court). A section 9 statement describing a name, date of birth and address which matched those of the appellant was adduced together with a memorandum of conviction bearing the same details. The appellant had been asked whether he had been disqualified in interview and he gave no reply. He gave no evidence at his trial. The evidence which had been adduced was held sufficient to prove he was the person named on the memorandum of conviction. Astill J, with whom Schieman LJ agreed, said in paragraph 18:

"In my judgment, following Ellis v Jones, that statement in itself provided evidence upon which the Justices could rely to conclude that the appellant and the person disqualified [on the earlier occasion] were one and the same person. It provided sufficient evidence in itself. It certainly provided, therefore, sufficient evidence for the case to go beyond the end of the prosecution evidence. At that stage, the appellant chose not to give evidence. When interviewed he had earlier chosen not to answer any questions. Once there was a case for him to answer, then the Justices were entitled to draw inferences from his failure to give evidence under the provisions of section 35 of the Criminal Justice and Public Order At 1994. They did so and, in my judgment, were entitled to convict the appellant on the evidence before them. But I make it clear that, in my judgment, there was sufficient evidence to convict this appellant without the drawing of inferences. The content of the section 9 statement … provided that evidence".

23. Schieman LJ added at paragraph 20 that, having been served with the prosecution evidence, apparently naming a person sharing his name as having been disqualified, "it is only sensible for him to lead evidence to the court to the effect, if it be true, that he is not that person".
24. The cases of Moran v The Crown Prosecution Service 164 JP 562, R (on the application of Kingsnorth and Denny) v DPP [2003] EWHC 768 (Admin) and R (on the application of Howe) v South Durham Magistrates' Court [2004] EWHC 362 (Admin) cited by the appellant do not assist with either the relevant principles or by way of analogy with the instant facts.
25. A further recent illustration of the principle set out above is West Yorkshire Probation Board v Boulter [2005] EWHC 2342 (Admin). Justices had before them a person alleged to have breached a community rehabilitation order where the Justices had accepted as proof that that person was the same person upon whom the original sentence had been passed, the fact that he had the same name, date of birth and address as the person originally sentenced. The court (Keene LJ) stated in paragraph 27:

"When magistrates have evidence that the person before them has the same name, address and date of birth as the person previously convicted, it is open to them to draw an inference that he is the same person …"

The court added (paragraph 28):

"However, in many cases, where there is such a coincidence of all three factors, one would expect such an inference to be drawn by the Justices in the absence of any further facts which cast doubt on such an inference".

26. In my judgment the following principles can be distilled from the cases:

(a) As with any other essential element of an offence, the prosecution must prove to the criminal standard that the person accused was a disqualified driver.

(b) It can be proved by any admissible means such as an admission (even a non-formal one) by the accused that he was a disqualified driver.

(c) If a certificate of conviction is relied upon pursuant to section 73 of PACE then it is an essential element of the prosecution case that the accused is proved to the criminal standard to be the person named on that certificate.

(d) Three clear ways which this can be proved are the three ways identified in Heaviside.

(e) There is, however, no prescribed way that this must be proved. It too can be proved by any admissible means.

(f) An example of such means is a match between the personal details of the accused on the one hand and the personal details recorded on the certificate of conviction on the other hand.

(g) Even in a case where the personal details such as the name of the accused are not uncommon, a match will be sufficient for a prima facie case.

(h) In the absence of any evidence contradicting this prima facie case the evidence will be sufficient for the court to convict.

(i) The failure of the accused to give any contradictory evidence in rebuttal will be a matter to take into account. If it is proper and fair to do so and a warning has been given, it can additionally give rise to an adverse inference under section 35(2) of the Criminal Justice and Public Order Act 1994.

The facts of this appeal

27. The memorandum of conviction was adduced in admissible form and it contained a name, date of birth and address which were accepted as being identical to those of the appellant.
28. The appellant was confronted with the allegation that he was a disqualified driver and he had ample opportunity to contradict this, but chose not to do so:

(1) When told he was under arrest for disqualified driving, his denial was limited to a denial that he had been driving; it contained no denial of having been disqualified for driving.

(2) When interviewed under caution for the offence of disqualified driving he made no comment save that he presented a pre-prepared statement. That statement contained no denial of having been a disqualified driver. He was specifically asked by the police whether he was a disqualified driver and two separate court orders disqualifying him were put to him and he continued to make no comment.

(3) When further interviewed about the offence of disqualified driving he did reply to the questions from the police but, again, made no denial of having been a disqualified driver.

(4) During a trial at which he was being tried for driving whilst disqualified and in which a memorandum of conviction containing the details of a person with the same name and date of birth as him and recorded as living at the same address as him was adduced in evidence, he chose not to give any evidence. The Justices gave no warning in accordance with section 35(2) of the Criminal Justice and Public Order Act 1994, but the case stated discloses they drew no inference.

29. Further, it can be noted that the appellant was obstructive to the police. From that the Justices could properly have inferred that had he not been disqualified he would have raised it.
30. I am satisfied the Justices were entitled to conclude that there was a prima facie case that the person referred to on the memorandum of conviction was the appellant and, in the absence of evidence from the appellant, that identity had been proved to the criminal standard.
31. It follows that the answer to the first stated question is Yes.

Failure to Provide Specimens of Breath

32. In Rowland v Thorpe [1970] 3 All ER 195 the respondent refused to provide a specimen of breath and thereafter refused to provide a sample for a laboratory test. She gave no reason. The Justices acquitted her of failing to provide a sample of blood or urine, finding that she was distressed as a result of an earlier incident, there was no female officer or doctor present and she was embarrassed. The Divisional Court allowed the prosecution's appeal. Lord Parker CJ said at page 197:

"Of course, once the defence is raised of reasonable excuse, it is for the prosecution in every case to negative it, and really the question one asks oneself in the present case is this: had the prosecution on the evidence negatived the possibility of reasonable excuse? In all the circumstances here, bearing in mind the conduct of the respondent, the fact that she never gave any explanation of her refusal, her behaviour in the police station, the evidence she gave as regards embarrassment, there was nothing, as it seems, to me, sufficient to raise in the court any reasonable doubt; in other words, it inevitably followed that the prosecution had discharged the burden on them of satisfying the court that there was no reasonable excuse.

33. The burden is upon the prosecution, but the court should take account of all of the facts including that which is offered by way of excuse by the accused in deciding whether there was, as a matter of fact, any reasonable excuse.
34. The appellant's case is that since PC Townsley accepted asthma as a medical reason at the time, it was not open to the magistrates to go behind that contemporaneous conclusion. It is said the appellant could have been charged with refusing to supply a specimen of blood.
35. In my judgment, the Justices were entitled to come to the conclusion they did for at least the following reasons:

(i) It is conceded that PC Townsley had endorsed on the pro forma that he had accepted asthma as a medical reason for the failure, that the breath test procedure had not been used because a medical reason had been believed and that he had reasonable cause to believe that, for medical reasons, a specimen of breath could not be provided or should not be required. However, this was based entirely on the word of the appellant at the stage which PC Townsley wrote those endorsements.

(ii) PC Townsley had made these endorsements before the appellant went on to refuse to supply a specimen of blood. The Justices were entitled to consider all of the evidence including the overall behaviour of the appellant. Having done so, they were entitled to conclude that what the appellant had originally told PC Townsley, namely that he had asthma, was incredible.

(iii) PC Townsley gave evidence which the Justices must have accepted that he had not been convinced that the appellant was unable to blow into the Intoxilyser machine, but had accepted his word at the time.

(iv) Given the later behaviour of the appellant and, in particular, his stated reasons for refusing a specimen of blood, the Justices were entitled to conclude that PC Townsley had simply given the appellant the benefit of the doubt and to conclude "… that he had no intention of providing any form of specimen".

36. The answer to the second stated question is Yes.
37. The appeal is dismissed.