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
		4th May 2006

1. MR JUSTICE OPENSHAW: This is an appeal by way of case stated against a decision of Bury Magistrates' Court on 27 April last year, by which they stayed proceeding against James Meakin upon a charge of drink driving, contrary to section 5(1)(a) of the Road Traffic Act 1988, on the grounds of abuse of process. It is perhaps most helpful to start with the facts giving rise to the prosecution.
2. Just before 4 o'clock on the morning of 12 December 2004 a Volkswagen Beetle motorcar crashed into a garden wall at Kenmore Road, Whitfield in Manchester. A woman immediately made a 999 call to the police and reported the accident.
3. I pause there and make a comment. It is much to be encouraged that public-spirited persons who see something suspicious should make a prompt report to the police. The detection and suppression of crime depends on such reports being made. Furthermore, persons who make such reports should be treated by the police, by the participants in the trial and by the court with courtesy, care and understanding, and their convenience should be given considerable weight, otherwise they may be discouraged from making such a report in the future.
4. The papers in this case refer to this woman as an "informant". I think this is inappropriate. The word informant suggests someone possibly with underworld contacts and associations, who is in the habit of providing information to the police, usually for money. I think it is better to call her merely "the caller", and I shall do so.
5. The information which the caller provided was passed on to a patrolling officer, Police Constable Graham. He came upon the scene of the accident within a few minutes of it having happened. He saw the damaged car and two men standing by it; one was the defendant, Mr Meakin; the other gave his name as Mr Gonzales; plainly one had been the driver and the other the passenger. The officer sensibly asked who was driving. Mr Meakin admitted that he had been. Furthermore, later enquiries showed that Mr Meakin was the registered keeper of the vehicle. The officer smelled alcohol on his breath. He asked Mr Meakin to submit to a roadside breath test, which proved positive. He was arrested, taken to Bury Police Station, where the familiar procedures were complied with.
6. Mr Meakin gave specimens of breath for analysis. The lower of the two readings showed he had 49 micrograms of alcohol per 100 millilitres of blood, thus making out the drink driving offence. It is perhaps worthy of note that, during this procedure, he did not deny that he was the driver. We observe that this would therefore appear to be a simple and straightforward case with very strong evidence against Mr Meakin.
7. We turn then to the process of the case through the system.
8. PC Graham did make some statement about these matters shortly after the incident, but he was posted abroad just after Christmas to help the authorities in Thailand to deal with the identification of persons killed in the Tsunami disaster, which may have disrupted the proper preparation of the file for trial. In preparing for trial, the police had to deal with the issue of disclosure. There is no suggestion that a witness statement had been taken from the caller. Indeed, in the circumstances, there may have been no need to do so. The prosecution drew up the usual schedule of material which was to be unused by them as evidence. One of the documents disclosed in this way was the so-called Force Wide Incident Report, which, we are told, set out the fact that a report of this incident had been made by a member of the public. The incident gave the time of the call. Whether the caller was the householder into whose garden the car crashed or a neighbour or a passer by is presently unclear. It seems that she did not see the accident happen; she saw only the damaged car after it came to rest in the garden, and two persons standing by it.
9. It is now suggested that she might have heard some conversation that passed either between those men or between Mr Meakin and the police officer. That we do not know. It is therefore entirely unclear whether she can give any useful evidence or not, and still less clear whether she can in any way assist Mr Meakin. It is, however, obvious that, if she was a witness to what passed, her evidence might be capable of undermining the prosecution or assisting the defence, and, if so, then the identity of that witness should have been disclosed. No authority for such a basic proposition is needed.
10. On the incident report, the witness's name, address and telephone number have been blacked out. For many years witnesses have not had to reveal their addresses; they have never had to reveal their telephone numbers, so the redaction of those details was entirely justified. However, it seems to us that the prosecution are now right to concede that, in the absence of exceptional circumstances -- and none have been shown to exist in this case -- the name of the caller should have been disclosed. The defence were, or should have been, alerted to the existence of the caller by the incident report. They made no request for further details, either on receipt of the form or indeed at any stage up to or even during the trial. They made no request to interview this potential witness. They did not apply for the name of the witness. Still less did they apply for a witness summons against her to secure her attendance at the trial.
11. The case came on for trial on 27 April. The defence made clear that they were putting the prosecution to strict proof. They did not pursue the positive case that Mr Gonzales or anyone else was the driver. They did, however, require the prosecution to prove that Mr Meakin was the driver. This is of course a permissible forensic tactic, although Miss Judge, on Mr Meakin's behalf, concedes, as of course she is bound to, that this defence lacks merit.
12. During the course of the trial, the first witness was Police Constable Graham. It became clear during the course of his evidence, as indeed it was, to my judgment, clear from the details in the Force Incident Report, that the police were alerted to this incident by a member of the public, who made this call. This part of the police officer's evidence was used by the solicitor conducting the defence to make a series of complaints. He said that it was unfair that the name of the caller had not been disclosed, and almost at once he threatened to submit that the continuance of the case would be an abuse of the court's process. Police Constable Graham agreed to find out what he could in the time available. He did his best. The enquiries which he made suggested that the caller was unwilling to come to court to give evidence. She had apparently had some previous bad experience within the criminal justice system. Even then, the defence made no application to the court for the name of the caller to be disclosed.
13. For reasons which are not entirely clear to us, but seemingly in an attempt to contest the application to stay the proceedings as an abuse of the process of the court, the prosecution tried to rely on what the caller had said over the telephone over the luncheon adjournment to Police Constable Graham. Since this was technically hearsay evidence, the trial became sidetracked into a dispute as to whether the prosecution should be given leave to adduce this evidence without having given notice of their intention of doing so, which notice is required under Rule 33(2) of the Criminal Procedure Rules 2005. Quite how the prosecution were expected to give notice of an application to call evidence upon an issue which had not been raised until the day is not clear to us.
14. A further side issue was whether the caller was "in fear", thereby crossing one of the thresholds of admissibility under the Hearsay Provisions of the Criminal Justice Act 2003. Again, it is unclear to us that this caller could ever be said to be in fear, however widely the term is used in the Act.
15. In my judgment, all this was really entirely irrelevant. The real issue was whether the caller could give any material evidence. The point was unclear at the time, and so far as we are concerned, remains unclear even now, although the high likelihood is that the caller could not give material evidence and certainly not any material evidence which could assist Mr Meakin. Since the caller is not and never has been a witness on whom the prosecution intended to rely, there is no question of the prosecution being under any duty to secure the attendance of the caller to tender her for cross-examination. That was another distraction to the real issue in the proceedings.
16. The question now -- as indeed it seems to me was the real question at the trial -- is whether the defence intended to call her. If they do, then a witness summons should have been issued by the defence and served by them after they had made proper enquiries as to her name and particulars. The failure to do so is as much their fault in failing to ask for her details as it is of the prosecution in failing to supply those details.
17. Further side issues were then raised. It was claimed that Mr Meakin could not have a fair trial because, if the case had gone ahead, he would have had to have given evidence, thereby depriving him of his right of silence. I do not understand this point because if he did not give evidence, then an adverse inference could, and perhaps should, have been drawn from that fact, pursuant to section 35 of the Criminal Justice and Public Order Act 1994.
18. Since the car was registered to Mr Meakin; since he was present at the scene; and since he had admitted to PC Graham that he had driven the car and had not denied that he was the driver during the intoximeter procedures, unless he gave evidence that he was not driving, his conviction, it seems to me, would be more or less inevitable.
19. Another point was thrown in. It was said that the questions asked by PC Graham at the roadside amounted to an interview which should not have taken place without a contemporaneous recording being made of it. May be that is right; may be that is wrong. But it is an issue which could properly have been dealt with during the trial process. The defence could have sought to exclude it under section 78 of the Police and Criminal Evidence Act 1984. The prosecution could then have submitted that, in all the circumstances, his evidence is reliable and it ought to be admitted, subject to the magistrates determining the weight to be given to those exchanges. It seems to me it is not at all unfair to allow the case to proceed subject to that argument taking place during the trial process.
20. In our adversarial system, the defence, of course, are entitled to exploit adventitious faults and failings by the prosecution. But we are reminded of the helpful observations of Auld LJ in his Report of the Criminal Courts Review, which he himself incorporated into his judgment in the case of Gleeson [2003] EWCA Crim 3357 at paragraph 36, in which he said:

"To the extent that the prosecution may legitimately wish to fill possible holes in its case once issues have been identified by the defence statement, it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."

21. We think that, in this case, the defence took, and were allowed to develop, a series of unmeritorious points which were essentially irrelevant to the case; this perfectly simple case became bedevilled by a series of confusing and unfocused submissions by the defence, which obscured the real points in the case.
22. Eventually, the defence made an even more bold submission that the continuance of the proceedings was an abuse of the process of the court. We need not add to the already extensive judicial learning on the subject of abuse of process. The principles are clear. The imposition of a stay is now wholly exceptional. A stay should not be imposed unless the defendant shows that he will suffer such prejudice that a fair trial is not possible. The defence did not and do not here allege bad faith or serious misconduct. There was no affront to justice in the case proceeding. The highest it can be put is that the prosecution erred in failing to disclose the name of the witness. To my mind, that was at least matched by the defence failure to ask for those particulars.
23. The concept of a fair trial involves fairness to the prosecution and to the public, as well as fairness to the defendant. There is a clear public interest that if persons do crash motorcars when they are driving over the limit, then they should be prosecuted and that the trial should be pursued to determination.
24. In my judgment, there was no unfairness whatsoever to the defence in allowing the trial to proceed, and a considerable unfairness to the public and to the prosecution in staying the proceedings.
25. I turn then to the questions posed. Questions (b), (c) and (d) all deal with the same point. They are as follows:

"(b) Were we wrong to have found that the defendant could not have a fair trial in the circumstances of this case?

(c) In the circumstances of this case were we wrong to have found that there had been an abuse of process?

(d) Were we wrong to have stayed the proceedings as an abuse of process in the circumstances of this case?"

I answer each question in the affirmative.

26. Question (a) is in these terms:

"In the circumstances were we wrong to have refused to give leave for the hearsay evidence to be admitted on the basis that the prosecution had not given notice?"

I am not sure that, strictly, that question arose at all in this trial. But, if it did, and if pressed, I would answer that question in the affirmative as well.

27. Accordingly, I would quash the orders made by the magistrates, and direct that the case is remitted to be tried by a differently constituted bench. Meanwhile, it seems to me that the prosecution should provide details of the caller's name. The defence must decide whether or not to call her, and if they decide to call her, they are responsible for securing her attendance. No doubt, the police would be willing to give such assistance as is necessary in serving any witness summons which the defence issue.
28. I would not wish to conclude this judgment without thanking Miss Fitzpatrick for her submissions, both here and below, and paying compliment to Miss Judge, who has sought valiantly to defend the indefensible.
29. LORD JUSTICE SCOTT BAKER: I agree.
30. I too would answer the second, third and fourth questions in the affirmative, it being my view that the first question is not relevant. In these circumstances, the stay must be removed. The case will be remitted.
31. My Lord referred to the matter being retried by a fresh bench of magistrates. It has just occurred to me that there is a possible alternative of the stay being lifted and the trial continuing before the same bench. But it may not be practical.
32. MISS FITZPATRICK: My Lords, I ask that a re-hearing of the trial afresh is directed by this court. The previous trial date was over a year ago and it is for that reason that I ask for a re-hearing.
33. LORD JUSTICE SCOTT BAKER: That is obviously sensible. Miss Judge?
34. MISS JUDGE: I would agree.
35. LORD JUSTICE SCOTT BAKER: Very well. There will be a re-hearing then.
36. MISS FITZPATRICK: I am grateful.
37. LORD JUSTICE SCOTT BAKER: Anything else that is required in terms of the order?
38. MISS JUDGE: I do not believe so.
39. LORD JUSTICE SCOTT BAKER: Thank you both for your assistance.