QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SONNY STEVE PATTISON
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
ADRIAN WATERMAN (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 4th November 2005
Crown Copyright ©
Mr Justice NEWMAN :
"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.
"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".
(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  RTR 384 and the DPP v Olakunori  EWHC Admin 722, 8th 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  3 All ER 195.
"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."
"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."
(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?
The Legal Principles
"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."
"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.
"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.
(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  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".
(1) the certified extract from the records of South Western Magistrates' Court showing that on a date a man named Olatolkubo Olakunori, born on 25th 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 25th 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."
(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  1 QB 720.
"… 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".
"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".
"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".
(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
(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.
Failure to Provide Specimens of Breath
"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.
(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".