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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Marsh v Director of Public Prosecutions [2006] EWHC 559 (Admin) (08 March 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/559.html
Cite as: [2006] EWHC 559 (Admin)
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Strand London WC2A 2LL |
||
B e f o r e :
____________________
| IAN MARSH | ||
| - v - | ||
| DIRECTOR OF PUBLIC PROSECUTIONS |
____________________
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
appeared on behalf of THE APPELLANT
MR KERRY BARKER (instructed by Crown Prosecution Service, Bristol)
appeared on behalf of THE RESPONDENT
____________________
Crown Copyright ©
- I have listed before me an appeal by way of case stated from the Justices for the Commission area of Avon and Somerset, acting in and for the Petty Sessional Division of Bristol in respect of their adjudication as a magistrates' court sitting at Bristol on 18 and 19 January 2005. As a result of those proceedings before the justices the present appellant, Mr Ian Marsh, was convicted of two offences: driving with excess alcohol and driving without appropriate insurance.
- The principal issue arising from the case stated in its present form is whether a witness, in particular a Mr Longstaff, and possibly a second witness, a Miss Bailey, correctly identified the appellant as the driver of the vehicle concerned.
- As presently stated, the case raises a short, interesting point as to the application of Code D under the Police and Criminal Evidence Act 1984. To the reader of the case, it appears that all the justices were concerned with was a trial in which Mr Longstaff and Miss Bailey gave evidence for the prosecution and the appellant and witnesses called on his behalf gave evidence for the defence.
- I have been informed, helpfully, this morning by both counsel, Mr Morgan for the appellant and Mr Barker for the respondent, that that simple reading of the case is not accurate. It appears that a procedural decision was made at an earlier stage before the trial, with the agreement of both sides, that the proceedings should be more compendious than that. It appears that, apart from the appellant, the other potential suspect as being the driver of the vehicle concerned was a Mr Hanson, whose name is not even mentioned in the case stated. It appears that he pleaded guilty to an offence of failing to provide a specimen of breath, but denied being the driver, and that a Newton hearing was envisaged to determine the question of whether or not he was the driver. It appears to have been agreed between all the parties that the Newton hearing and the trial of the appellant should be run together. Concerns have arisen before me as to whether that was a correct course. It appears to have been an agreed course. Whether it was correct or not, I make no comment. It appears that that combined hearing was duly held and resulted in the conviction against which the appellant now appeals.
- On reading the case stated in its present form, not a glimmer of that expanded procedure appears. There is not a word of mention of the Newton hearing run coterminously with the trial of the appellant. A doubt has even arisen as to whether the appellant did indeed give evidence, as the present case stated would indicate. Nothing is said about the evidence of Mr Hanson.
- In the face of those circumstances, Mr Morgan for the appellant submits that I should adjourn this appeal to enable the procedural history of this case to be more closely investigated and, so far as necessary, for the justices to be invited to provide a supplementary case dealing with the procedural history of the matter and how, in fact, the two trials were conducted.
- Mr Barker for the respondent submits that in the case of the appellant there is only the one short issue under Code D and section 78 of the 1984 Act to resolve; that it is a short matter; that at the end of the day it will be the one that has to be resolved; and that I should proceed to hear the appeal on the present material.
- I would have liked to have taken the course advanced by Mr Barker. No doubt at the end of the day the main question will be whether the identification evidence was properly admitted before the justices. However, I feel unhappy about attempting to resolve a question involving the admissibility of evidence without knowing the full and accurate procedural history of what happened before the justices. It seems to me from what I have been told this morning that the procedural history of the case, and the procedural history of the trial which the justices conducted, is inadequately set out in the present case and that there are dangers of perpetrating an injustice if it is not known precisely what it was that the justices were determining on that occasion and what evidence was before them.
- In the circumstances, and with reluctance, I must adjourn this appeal. I direct that the justices must supplement their case and explain to the court the procedural history of the cases against the appellant and the co-defendant Hanson, and the course of the combined trial which it appears they heard on 18 and 19 January 2005. I will order accordingly and invite counsel's help as to the appropriate order that I should make.
- MR BARKER: I would ask your Lordship to include a transcript of the clerk's notes of evidence. They are quite detailed and very helpful.
- MR JUSTICE McCOMBE: Yes, certainly.
- MR MORGAN: I would certainly endorse that, my Lord.
- MR JUSTICE McCOMBE: Mr Morgan, Mr Barker, could you retire, think out the appropriate directions and draft something for me to look at?
- MR MORGAN: Yes, my Lord.
- MR JUSTICE McCOMBE: I will be in the building and can be called on at five minutes' notice.
- MR BARKER: My Lord, thank you for coming back. (Draft order handed to his Lordship)
- MR JUSTICE McCOMBE: "Justices to amend the case stated to include the procedural history of the case against Mr Marsh".
- MR MORGAN: My Lord, whilst you were out, and having further looked at the folder in which the Crown Prosecution Service's papers are kept, it came to my attention that Mr Hanson was also summoned for using a vehicle without insurance, to which he pleaded not guilty. So there may have been a joint trial. It may have been a combination of joint trial and a Newton hearing.
- MR JUSTICE McCOMBE: One way or the other, I think we need to find out for the reasons I explained in the short judgment that I delivered. Would you please help the associate with the order because there is a lot of shorthand in it? I am happy with those heads of terms. A transcript should be prepared of the short judgment I gave, first, for the purposes of being sent to the justices to see what my concerns were, and, secondly, so that it can go on the file here so that the judge who inherits this knows what has happened and why.
- MR MORGAN: I am grateful, my Lord.
- MR JUSTICE McCOMBE: So be it. Thank you very much for your assistance. When the order is prepared in that form, I will duly sign it.
Wednesday, 8 March 2006
MR JUSTICE McCOMBE:
(The court adjourned until later in the morning)