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
		22nd June 2006

1. MR JUSTICE MITTING: At 2.50 am on 17th September 2005 the respondent failed to slow down at giveway lines when entering the junction with Ladbroke Grove, W11, from Blenheim Road, in his Saab motor car. He caused a marked police car to brake sharply. The policeman in that car pursued and stopped him. He smelt alcohol on his breath and administered a roadside test which proved positive. He arrested him and took him to Notting Hill Police Station where two evidential breath tests were administered. The lower reading was 41 micrograms of alcohol in 100 millilitres of breath. Because the reading was below 50 micrograms of alcohol in 100 millilitres of breath, the police sergeant who conducted the procedure offered him the option of providing a specimen of blood or urine. The respondent elected for blood. Dr. Frazer was summoned and took a blood sample which was divided into two. One phial was given to the respondent and the other sent for analysis.
2. An information was laid on 1st November 2005 that the respondent had committed an offence contrary to section 5(1)(a) of the Road Traffic Act 1988. He was tried at Richmond Magistrates' Court on 23rd January 2006. At trial the prosecution sought to prove the taking of the blood sample by Dr Frazer by a witness statement tendered under section 9 of the Criminal Justice Act 1967, and to prove the proportion of alcohol in the blood specimen by a certificate signed by an authorised analyst under section 16(1)(b) of the Road Traffic Offenders Act 1988. If admitted in evidence, the certificate would have stated that the proportion of alcohol in the specimen of blood was 83 milligrams in 100 millilitres of blood.
3. The respondent contended that the witness statement of Dr Frazer and the certificate were inadmissible. The justices upheld that submission and, there being no evidence of the proportion of alcohol in the specimen of blood, dismissed the case. No objection to the admission of that evidence had been notified to the appellant before the case began, nor was objection taken to its content. Objection was taken and upheld solely on the ground that Dr. Frazer's witness statement and the certificate had not been served under section 16 of the Road Traffic Offenders Act 1988. An application by the appellant to adjourn the proceedings to permit service to be re-effected or to call live evidence from Dr. Frazer and the analyst was rejected.

Three questions are posed for answer in the stated case:

"a) whether we were correct in law to rule that because the statement of Dr. Frazer had not been served by registered post or recorded delivery in accordance with section 16(6) of the Road Traffic Offenders Act were we bound to rule it admissible;

b) whether we were correct in law to rule that because the Certificate of Analysis had not been served by registered post or recorded delivery in accordance with section 16(6) of the Road Traffic Offenders Act we were bound to rule it inadmissible;

c) whether our decision not to grant an adjournment to the prosecution was 'Wednesbury' unreasonable, where the evidence of Dr Frazer and the contents of the Certificate of Analysis were not in dispute and the defence did not require the attendance of Dr Frazer or of the maker of the certificate."

The first two questions concern the means by which the witness statement and the analyst's certificate may be served. The relevant provisions are as follows. Section 16(1) of the Road Traffic Offenders Act:

(1) Evidence of the proportion of alcohol or a drug in a specimen of breath, blood or urine may, subject to subsections (3) and (4) below and to section 15(5) and (5A) of this Act, be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say -

(a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the accused at the date and time shown in the statement, and

(b) a certificate signed by an authorised analyst as to the proportion of alcohol or any drug found in a specimen of blood or urine identified in the certificate.

(2) Subject to subsections (3) and (4) below, evidence that a specimen of blood was taken from the accused with his consent by a medical practitioner or a registered health care professional may be given by the production of a document purporting to certify that fact and to be signed by a medical practitioner or a registered health care professional.

(3) Subject to subsection (4) below -

(a) a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in subsection (1)(a) above is admissible in evidence on behalf of the prosecution in pursuance of this section only if a copy of it either has been handed to the accused when the document was produced or has been served on him not later than seven days before the hearing, and

(b) any other document is so admissible only if a copy of it has been served on the accused not later than seven days before the hearing.

(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed.

(6) A copy of a certificate required by this section to be served on the accused or a notice required by this section to be served on the prosecutor may be served personally or sent by registered post or recorded delivery service."

The relevant provisions of section 9 of the Criminal Justice Act 1967 are (1, (2) and 8(a) and provide:

"(1) In any criminal proceedings, other than committal proceedings, a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The said conditions are -

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;

(c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and

(d) none of the other parties or their solicitors, within seven days from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section.

(8) A document required by this section to be served on any person may be served

(a) by delivering it to him or to his solicitor."

There are further provisions for service of the document by other means.

4. On the facts found by the justices, Dr. Frazer's witness statement and the analyst's certificate were posted by first class post to the respondent's home address on 10th January 2006 but not received by him. A bundle of documents, which included the witness statement and certificate, was served on him on 17th January 2006 -- I infer personally -- six days before the trial. No counter-notice was served under either section 16(4) of the 1988 Act or section 9(2)(c) of the 1967 Act.
5. My answer to the first question is, no. Dr Frazer's witness statement was validly served under section 9(8)(a) of the Criminal Justice Act 1967 on 17th January 2006, as was admitted. Section 16 of the Road Traffic Offenders Act 1988 provides an alternative method of service of a witness statement which complies with the requirements of section 9. Hence the word "may" in section 16(1) and the reference to a statement being admissible "in pursuance of this section" in section 16(3)(a). Section 16 does not purport to exclude service of a section 9 witness statement under that section. Nor does it. Dr. Frazer's witness statement was validly served under section 9(8)(a), and no counter-notice having been served under section 9(2(c), the justices were wrong to refuse to admit it.
6. That was however not enough to prove the prosecution case. The certificate also had to be admitted. It was not in the form of a section 9 statement and so could only be admitted under section 16 of the 1988 Act. Section 16(6) provides exclusively for methods of service: personally or by registered post or by recorded delivery service. The word "may" in this subsection permits any one of those three methods of service to be adopted. It does not permit any other method. No other method is prescribed by any other provision of any other statute or by the common law. The analyst's certificate is only admissible under section 16 of the 1988 Act. Because it was not served by one of the means specified in section 16(6) not later than seven days before the hearing as required by section 16(3)(b), the justices were right to rule it inadmissible. The answer to the second question is therefore yes.
7. I add for the sake of completeness that the certificate could not have been relied on under section 117 of the Criminal Justice Act 2003 because the appellant did not seek to prove that the requirements of section 116(2) were satisfied as required by section 117(4)(a) and (5).
8. The answer to the third question is yes. The test is that stated by Lord Bingham CJ in R v Hereford Magistrates Court, ex parte Rowlands [1998] QB 110, 127H:

"This court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties."

Given the facts already set out and summarised by the justices in question 3, the refusal to grant an adjournment did cause substantial unfairness to the appellant. It was irrational and cannot be upheld. I would therefore allow the appeal, quash the acquittal and remit to a different bench to retry the case.

9. LORD JUSTICE MAURICE KAY: I agree.