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 WC2
		5th December 2006

1. MR JUSTICE COLLINS: This is a claim for judicial review of the decision of the Harwich Magistrates reached on 7th October 2005, whereby they convicted the claimant of an offence of failing to stop after an accident.
2. The circumstances leading to the decision and to the point that has brought it to this court are as follows. On 4th February 2005 the claimant was involved in a road traffic accident. He ran into the back of a stationary car at a roundabout. In due course he was charged with and pleaded guilty to an offence of driving without due care and attention. He said that he had looked down to light a cigarette at the relevant time and had not appreciated that the car had stopped in front of him. Having collided with the rear of the car, he immediately, according to the driver of that car, reversed and drove around the stationary vehicle with his wheels screeching, apparently in an endeavour to get away from the scene and avoid being apprehended. He was pursued by the other car, which eventually caught up with him. There were words and the police were in due course called. It was that that led to the charge of failing to stop.
3. The claimant's defence appears to have been that he originally drove off in order to find a safe place to stop on the other side of the roundabout because he would have been blocking the road where the accident occurred. When the other driver came up to him he was thoroughly aggressive and it was for that reason that he drove away at the time and intended to report the accident the next morning. The problem for the claimant was that there was an independent witness. That witness had seen what had happened, had taken down the number of the claimant's car, and essentially in her statement confirmed what the other driver had said.
4. Shortly before the hearing date, which was 7th October, the Crown Prosecution Service had obtained and had served upon the defence a further statement from the witness saying that she no longer wished to attend court. She would not be able to attend on the date as she would be in hospital (that in fact was not correct; she had been earlier in hospital), and indicated that she had a long history of depression and panic attacks, and the stress of the case was badly affecting her. She had recently suffered a panic attack and she was trying to avoid having to go back on medication for her nerves, but felt, if forced to give evidence she would need to do so. She identified her doctor and on 4th October a statement was obtained from the doctor, which read as follows:

"The above patient of mine has a past history of a depressive illness with panic attacks. Her recent invite to attend Court as a witness is causing a recurrence of her symptoms and I would suggest that it would be in her best interests if she was able to submit written evidence rather than having to appear in Court."

5. That statement, albeit it is dated 4th October, was apparently not served upon the defence until the morning of the trial. The claimant's representative was informed then that the prosecution were going to seek to persuade the magistrates to admit that statement in accordance with section 116 of the Criminal Justice Act 2003. That section provides, so far as material as follows:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied."

6. The relevant condition is that in subsection (2)(b), which reads:

"... that the relevant person is unfit to be a witness because of his bodily or mental condition;"

7. Authorities on the predecessor to that, which was in identical terms, have established that in order to render such a statement admissible the prosecution must establish to the criminal standard that the witness is indeed unfit because of bodily or mental condition before the statement can be admitted. It was obvious that this statement was of the greatest importance for the prosecution's case because it clearly supported the account given by the other driver against the claimant. Of course it was a matter, if admitted, for the justices to have regard to the fact that there had been no possibility of cross-examination and to give it such weight as they considered appropriate because of that. On the other hand, it must be obvious as a matter of reality that if that statement was given any weight at all it was fatal to the claimant's defence.
8. This provision is of course an important one and it is necessary that statements of witnesses who are indeed unfit to attend trial because of their bodily or mental condition should be able to be given, otherwise crimes may well not be brought home. But it is equally important that there is proper protection for a defendant against the admission of such statements, which may be of considerable importance in the context of proof of the offence against him unless the relevant conditions are indeed satisfied.
9. The problem here, in my judgment, is that the statement by the doctor is hardly very positive. I appreciate, as Mr Livingston submits, that he has indicated that the witness in question has suffered in the past from a depressive illness and panic attacks, and there was evidence in the form of the statement from the witness herself that she was concerned about giving evidence and that had resulted in a panic attack. However, a statement that it would be in her best interests if she was able to submit written evidence is hardly equivalent to proof that she was unfit to attend because of her mental condition. It certainly points in that direction. But to point in that direction rather than to prove that that is the situation is in my judgment not sufficient.
10. I appreciate that the claimant's representative was put into a considerable difficulty by the late service of this statement by the doctor and knowledge that the application was going to be made on the morning of the trial. She did not object to the admissibility of the doctor's statement, and that statement was admitted in accordance with section 114 of the Criminal Justice Act 2003. That was done on the basis of section 114(1)(c), it being assumed that all parties had agreed to it being admissible. The representative did not object to its admissibility and that was construed, it seems, as an agreement to its admissibility. That may be correct, in the sense that it is up to a defendant's representative, or a defendant himself if not represented, to object. But the court also has to consider whether it is in the interests of justice that the statement under section 116 and the statement under section 114 should be admitted.
11. In my judgment, in the circumstances of this case, having regard to the importance of that statement and the lack of entirely positive evidence from the doctor, the justices ought not to have been satisfied that it was indeed in the interests of justice, and fair to the claimant in particular, that this statement should be admitted. It would have been possible to have adjourned to investigate whether there were other means whereby the evidence could be given, for example video link, or whether some sort of counselling or contact with those who assist witnesses might have done the trick. It might have been possible to have obtained more information from the doctor. However if this charge was to be pursued, having regard to the last-minute production of this evidence, it seems to me that those steps at least should in the circumstances have been adopted.
12. Accordingly I am satisfied that the magistrates were wrong as a matter of law to admit this statement in the circumstances that prevailed. Accordingly, I will allow this claim and quash the conviction of the claimant on the charge of failing to stop after an accident. Obviously the conviction of careless driving and the penalty imposed on that remains.
13. Yes?
14. MR COMPTON: My Lord, I would ask for detailed assessment of the defendant's costs in this matter.
15. MR JUSTICE COLLINS: Yes. Anything else you want?
16. MR COMPTON: I do not think so, my Lord.
17. MR JUSTICE COLLINS: Is there not; are you legally aided?
18. MR COMPTON: Yes.
19. MR JUSTICE COLLINS: Do you not have an obligation to apply for costs?
20. MR COMPTON: Yes.
21. MR JUSTICE COLLINS: Not against the prosecution, but out of central funds.
22. MR COMPTON: My Lord, I make such an application.
23. MR JUSTICE COLLINS: It matters Mr Compton which vote pays these funds. As it happens it is the DCA's vote which covers legal aid, and I think I am right in saying that central funds comes from the Home Office. It certainly is a different vote. As I say, those things I am afraid matter. I have no jurisdiction to make an award out of central funds because of I think it I section 16 of the --
24. MR COMPTON: Prosecution of Offences Act.
25. MR JUSTICE COLLINS: -- Prosecution of Offences Act. It can only be a Divisional Court. But there is not any great problem because if I take the view that it is appropriate to make an order, I will discuss the matter with another judge --
26. MR COMPTON: Yes.
27. MR JUSTICE COLLINS: -- and we will constitute ourselves a Divisional Court for that purpose. But I see no reason why in principle you should not have your costs out of central funds.
28. MR COMPTON: I am very grateful, my Lord.
29. Mr Livingston has mentioned to me the question of remission of the case.
30. MR JUSTICE COLLINS: Technically, yes. All I am doing and all I can do is quash the finding. It would be open, no doubt, to the CPS to retry. Whether they will or not, having regard to the lapse of time, is a matter I think for them, not a matter for me.
31. MR LIVINGSTON: I think there is also an ancillary point about sentence, because from what Mr Compton tells me the points were imposed in this case for the failing to stop, whereas --
32. MR JUSTICE COLLINS: Were they? I had not spotted that. I thought they were imposed for both.
33. MR LIVINGSTON: No.
34. MR JUSTICE COLLINS: Have I got a certificate of the conviction somewhere in the papers? I think I have. Let us have a look.
35. MR COMPTON: Yes, it is at pages 12 onwards.
36. MR JUSTICE COLLINS: Let us have a look. For undue care and attention, result.... It says "result 310", which does not perhaps help very much. Fined £40, costs, licence endorsed, yes I see. The other one is 7 penalty points. Yes, you are quite right. The justices ought, ought they not, to have imposed penalty points on the careless driving, it is obligatory is it not?
37. MR COMPTON: I think the general practice is that where you have two offences committed together, namely the careless driving and, as it was then, the failing to stop, points are imposed in respect of one and the licence is simply endorsed in respect of the other.
38. MR JUSTICE COLLINS: I follow.
39. MR COMPTON: It may be that if the case is remitted back to the Magistrates' Court, the Crown can make a decision as to whether or not to --
40. MR JUSTICE COLLINS: To transfer the points. Can I transfer the points?
41. MR COMPTON: I do not think you can, my Lord. It is a point we looked at this morning.
42. MR JUSTICE COLLINS: I do not think I can.
43. MR COMPTON: I do not think your Lordship has power to do so. But if the magistrates become seised of the case as a whole as the result of the remission, it may be the Crown do not pursue the failing to stop. They will at least be then seised of the careless driving to adjust the sentence.
44. MR JUSTICE COLLINS: There ought to be points to be imposed for the careless driving. I cannot remember what the range is for careless driving.
45. MR COMPTON: Three to 11.
46. MR JUSTICE COLLINS: Three to 11. I think the answer is then it ought to go back.
47. MR COMPTON: Yes.
48. MR JUSTICE COLLINS: There will obviously be a decision by the CPS whether they wish to pursue the offence or not. But even if they do not, the magistrates must then, having regard to the fact that the failure to stop has been quashed, decide what penalty points ought to be imposed for the careless driving.
49. MR COMPTON: I am grateful.
50. MR JUSTICE COLLINS: Yes.
51. MR LIVINGSTON: Can I just ask, just to be absolutely clear about it, is that going to form part of your Lordship's order, that the matter be remitted back to the Magistrates' Court?
52. MR JUSTICE COLLINS: I think it had better be, had it not?
53. MR LIVINGSTON: Yes.
54. MR JUSTICE COLLINS: Thank you.