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 WC2A 2LL
		3 July 2007

1. LORD JUSTICE HUGHES: In a case of alleged driving with excess alcohol, contrary to Section 5 (1) of the Road Traffic Act 1988, the prosecution proposed in the Magistrates' Court to rely on evidence of analysis of the accused's blood specimen by a forensic toxicologist in service with a private firm of analysts. Although she was, so far as we can tell, an experienced toxicologist with a Master's Degree in biochemistry, she was not an "authorised analyst" within the meaning of Section 16 (7) of the Road Traffic Offences Act 1988. The justices ruled that her evidence was, for that reason, inadmissible.
2. The Crown Prosecution Service has made an application for judicial review in order to challenge the correctness in law of that ruling. The short point of law raised is whether the effect of Section 16 is that evidence of blood analysis can only be given by an authorised analyst or whether what Section 16 means is that it is only where the analyst is authorised that a mere certificate can be relied upon as distinct from the oral or, if accepted, written evidence of the witness. The proceedings in the Magistrates' Court stand adjourned while this application is dealt with.
3. We need to address first the question of whether this court should entertain this application at this stage of the proceedings. In general terms, this court will not entertain, whether by application for judicial review or by way of appeal by case stated, an interlocutory challenge to proceedings in the Magistrates' Court. The classical decision to that effect is R v Rochford Justices ex p Buck (1978) 68 Cr App R 114. In that case the Crown complained that magistrates had wrongly excluded relevant evidence. Lord Widgery CJ, said:

"It is very unsatisfactory in this court be asked on an application for a prerogative order to deal with proceedings in a lower court which have not run their course so that the application is in respect of an interlocutory matter ..... I think that the right course here would have been for the prosecution to go on with their case accepting with good grace the justices decision and then if, at the end, the prosecution failed, they could come here on a case stated and we should have a firm basis of fact on which to decide the issues ..... The obligation of this court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both at summary trial and to committal proceedings."

4. The position is the clearer in an appeal by way of case stated because, on authority, the right to ask for a case to be stated does not arise until the proceedings in the court below have resulted in a final determination: see Loade v Director of Public Prosecutions [1990] 1 QB 1052. The importance of this rule was restated by Kennedy LJ in Hoar-Stevens v Richmond Magistrates' Court [2003] EWHC 2660 Admin That was a strong example because the court approached the issue on the basis that if at all possible it would wish to decide the point raised. Both parties wanted the point decided, and it was a point which urgently needed to be addressed in this court. The particular point there related to the disclosure of the service and maintenance records of intoximeters. The district judge had declined to stay the prosecution as an abuse of process on grounds of non-disclosure. She had yet to consider an application to exclude the intoximeter reading evidence under Section 78 of the Police and Criminal Evidence Act.
5. Kennedy LJ and Royce J concluded that the application for judicial review could not be entertained. At paragraph 18 of the judgment Kennedy LJ said:

"Moreover even today it seems to me that there are powerful reasons for accepting the guidance offered by Buck. It is of the utmost importance that the course of a criminal trial in the Magistrates' Court should not be punctuated by applications for an adjournment to test a ruling in this court, especially when in reality if the case proceeds the ruling may suddenly turn out to be of little or no importance. In the present case the district judge has yet to rule in relation to Section 78. If her ruling were to favour the claimant the prosecution would fail. That may or may not be a realistic possibility, but I am satisfied that even when, as here, there is an important substantive point which arises during a trial this court should not and indeed cannot intervene. The proper course is to proceed to the end of the trial in the lower court and then to test the matter, almost certainly by way of case stated."

It is right to say that this court has sometimes been persuaded to consider a case which is at the interlocutory stage where there is powerful reason for doing so: see, for example, R (Watson) v Dartford Magistrates' Court [2005] EWHC 905 Admin and the discussion in Essen v Director of Public Prosecutions [2005] EWHC 1077 Admin

6. The point as to whether this court should properly intervene at this stage at all was simply not appreciated by the Crown Prosecution Service in launching the present application. It was acutely spotted at the permission stage by Langstaff J.
7. Miss Pitts now submits for the Crown Prosecution Service that we should in this case deal with the application. She says that there are three reasons why we should do so. First, she says we should do so because the issue is straightforward. Second, she says we should do so because there is jurisdiction to grant a prohibitory order and what is sought here is such an order "to prohibit the magistrates from proceeding with the hearing without reconsidering their decision to declare the evidence inadmissible". Third, she submits that we should deal with it because this case is, in effect, one where the proceedings are over because, without the evidence of analysis, the prosecution cannot possibly establish the charge of driving with excess alcohol. If the case proceeds on the present ruling the prosecution is bound to fail.
8. As to those possible bases for proceeding, I have reached these conclusions. First, I agree that the point is a short one. That alone, it needs very clearly to be said, is not enough. Whether the evidence is admissible can straightforwardly be postulated. But, if that were enough virtually any magistrates' court trial could be interrupted for months whilst one side or the other made an expedition to London to complain about a ruling that it did not like.
9. Reliance is placed on some words of Mitting J in Watson. That was a case in which the complaint was that the justices had granted an adjournment to the prosecution when, it is said, there was no possible basis for doing so; particularly, it is said, since there had been no change of circumstance since a previous Bench had refused an identical application. Mitting J, in the course of accepting jurisdiction, said:

"I accept that that [referring to Buck] is the normal rule, but in this, as in some other cases, the prosecution would no doubt say at the conclusion of a trial resulting in a conviction that it was too late for the claimant to complain about an adjournment that should not have been granted before. In a case such as this, where the issue is straightforward and the principle clear, I do not see that there is any fetter on this court intervening."

It may be that it is a good reason to entertain an application for judicial review, that if the case proceeded to its conclusion in the Magistrates' Court it would be too late to come here to complain. But that cannot possibly apply to this case. In Watson it no doubt would have been too late after the end of the trial in the Magistrates' Court to try to upset the conviction on the ground that an adjournment had been wrongly granted to the Crown. Here, in contrast, if the trial proceeded to its conclusion and that conclusion was an acquittal, the Crown Prosecution Service could, if it contended that the acquittal had resulted from the improper exclusion of evidence, appeal by way of case stated. And that is what they ought to do.

10. Nor do I think that the different considerations which may apply to a prohibitory order can be brought to the rescue in this case. The order which Miss Pitts wants in this case is not really a prohibitory order at all. An order prohibiting the magistrates from proceeding with the hearing without reconsidering their decision would be of no help to her at all unless the order of this court extended to dealing with the merits of the admissibility question. What the Crown Prosecution Service really wants here is a decision that the justices were wrong in law to hold that the evidence was inadmissible.
11. It needs to be said, it seems to me, that the general rule as set out in Buck is important. It is necessary in nearly every case to wait until the end result of the trial in the Magistrates' Court is known before anybody can say whether there is a source for complaint or not. That was the position in Hoar-Stevens because other decisions - for example, that under Section 78 of the Police and Criminal Evidence Act - might yet remove any reason for complaint at all. Quite apart from that, it is necessary in nearly every case to wait until the end of the case so that the magistrates can find the facts and they can properly be known for the purposes of decision here. It is for that reason that it is the procedure by way of case stated which is, in nearly every case, the correct manner in which to challenge a decision in the Magistrates' Court. Otherwise the facts may be the subject of dispute in this court.
12. I have no doubt at all that this application for judicial review ought not to have been brought. The prosecution should have behaved as Lord Widgery CJ described in Buck. The issue ought to have been raised by appeal by case stated after the conclusion of the trial.
13. The difficulties in this court are underlined by the fact that we are here presented with an applicant, the Crown Prosecution Service, unsurprisingly no appearance by the respondent magistrates and, in this case, no appearance by the defendant in the court below who cannot get legal aid and is either unwilling or unable himself to fund an expedition to London. Moreover the history shows how time is taken up by an application like this. The justices ruled this evidence inadmissible on 10 July 2006. Time was then wasted trying to get them to change their minds, which they refused to do on 18 September 2006. Only after that was the application for judicial review made. It is now the first week in July 2007.
14. With some hesitation, I am persuaded that the third of Miss Pitts' reasons does justify our hearing this application. I do so because (1) we have the reasons of the justices fully stated in the form of a letter from their clerk; (2) this is not a case in which it is necessary to have the facts found in order for the point authoritatively to be resolved; (3) and importantly, I agree that this ruling was, in effect, a terminating one. If the case were to be sent back, an acquittal would be the inevitable result without any more evidence. It seems to me that it is quite pointless for us to insist on this formalistic process being adopted, then to be followed by appeal in proper form by way of case stated. The result of that would be yet more expense and yet more delay. It is to be observed that proceedings in the court below have already been at an unnecessary standstill for a year.
15. I would like to make it clear that this ought not to be taken as any encouragement to a party to a Magistrates' Court case to embark upon this kind of interlocutory challenge. If this one had been spotted sooner it would have been refused permission. That is what is likely to happen to misconceived applications for judicial review at an interlocutory stage. That is information that ought clearly to be understood by all those undertaking prosecutions and, for that matter, defences, but particularly prosecutions, in the Magistrates' Court.
16. In those circumstances I turn to the merits of the legal question. Section 16 of the Road Traffic Offences Act 1988 states as follows:

"(1) Evidence of the proportion of alcohol or a drug in a specimen of breath, blood or urine may, subject to sub-sections (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."

17. Sub-section (2), which I need not read, then deals with the taking of a blood specimen by either a doctor or a registered health professional. That evidence may also be by certificate.
18. Sub-section (3) states:

"(3) Subject to sub-section (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 sub-section (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 that 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."

19. Sub-section (4) provides for the accused to be entitled to serve a counter notice requiring the attendance of the analyst or doctor, as the case may be.
20. Sub-section (6) provides:

"(6) A copy of a certificate required by this section is 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."

21. Sub-section (7) provides:

"(7) In this section 'authorised analyst' means -

(a) any person possessing the qualifications prescribed by regulations made under [Section 27 of the Food Safety Act 1990] as qualifying persons for appointment as public analysts under those Acts, and

(b) any other person authorised by the Secretary of State to make analyses for the purposes of this section."

22. The justices' reasoning, as appears from the letter from their clerk, was as follows:

"The court does not accept the prosecution submission that because the word 'may' in sub-section (1) of Section 16 Road Traffic Offences Act 1988 is used, an analyst does not have to be authorised as defined by sub-section (7) of the Act.

..... the word 'may' is used in conjunction with the words 'whichever of the following is appropriate' that is to say - (a) and (b)'.

Sub-section (6) says 'a copy of the certificate is required by this section to be served .....'.

The court was referred to page 4.257 Wilkinson Road Traffic Offences which says analyses of blood or urine specimens are required to be made by an authorised analyst ..... "

and it concludes -

"Whether the evidence of the analyst is submitted by certificate as stated in Section 16 (1) (b) and 16 (6), or is by way of a Section 9 statement the court concludes that Section 16 RTOA ..... requires that evidence is signed by an 'authorised analyst' as defined in sub-section (7) ..... "

23. The difficulty with that is that Section 16 (1) is plainly permissive. It does not stipulate the only manner in which evidence of analysis can be given. Rather what it does is to provide for one means by which evidence of analysis be given, namely by mere production of certificate, provided that the analyst is authorised and subject to the right of the accused under sub-section (4) to require the attendance of the analyst. Section 16 can be contrasted with the immediately preceding section, Section 15. Section 15 does lay down restrictive rules about the nature of the evidence which can be relied upon in a case of this kind. For example, Section 15 (4) provides that a specimen of blood "shall be disregarded unless", in effect, it has been taken by a doctor or registered health care professional or under the circumstances provided for by Section 7A of the Road Traffic Act. Similarly Section 15 (5) provides that evidence of analysis of a blood or urine specimen "is not admissible on behalf of the prosecution unless", in effect, part of the specimen was supplied to the defendant at the time when he asked for it.
24. It would be surprising if the effect of Section 16 were to limit evidence of analysis to an authorised analyst because, if it did, the accused himself would be able to have his specimen examined only by such a person. Often, of course, he may do so, but there is no reason why he should not go to a reputable analyst who has not sought authorisation from the Minister.
25. The justices' clerk refers to Section 16 (6) as requiring service. It is not sub-section (6) which requires service. Sub-section (6) prescribes how service is to be accomplished. Service is required, and it is required by sub-section (3). All that means is that if a certificate is what is relied on by Section 16 (1), it must be served so that the accused has the option given by sub-section (4) to require attendance of the analyst. Sub-section (3) gives no help upon whether other means of proof are denied.
26. What happened in this case was that the Crown served the witness statement of the analyst under Section 9 of the Criminal Justice Act 1967 and the Magistrates' Courts (Advanced Notice of Expert Evidence) Rules 1997. The notice which was given provided the accused with notice equivalent to that which must be given in respect of a certificate under Section 16 (3), and it provided it with precisely the same right to require the attendance of the analyst.
27. We are in this case concerned with analysis of a specimen of blood. The relevant part of Section 16 (1) which deals with proof of that kind of analysis by way of certificate is Section 16 (1) (b). The adjacent Section 16 (1) (a) deals with proof by way of certificate of an intoximeter reading. It is clear, on authority, that Section 16 (1) (a) is permissive rather than an exclusive stipulation as to how the evidence can be adduced. In Thom v Director of Public Prosecutions, CO/302/92, in this court on 20 January 1993, it was held that the Act does not prevent evidence of an intoximeter reading being given by a police sergeant who saw the reading appear on the machine, providing of course that the court is satisfied that the sergeant's evidence is reliable, and, secondly, that the calibration of the machine is also proved. In that case the calibration of the machine was similarly proved by the oral evidence of the operating policeman. I have no doubt at all that the reasoning which was applied by this court in that case to Section 16 (1) (a) must apply equally to Section 16 (1) (b) with which we are, in this case, concerned.
28. I conclude that the evidence which the Crown advanced of the professional toxicologist by way of statement tendered under Section 9, with the witness to attend if required by the defence, was evidence which was admissible.
29. It remains of importance that the court has confidence in the analysis put forward. It is open to the defendant in any such case to have his part of the specimen analysed with a view to contesting the accuracy of the Crown's analysis.
30. If, as we are led to believe may be the case, proof of analysis of blood or urine specimens by way of skilled but unauthorised analysts is a practice which is frequently adopted, then, as it seems to us, those who seek to rely on such evidence, whether for the Crown or for the defence, need to be in a position to do two things. First they need to be able to demonstrate the necessary expertise in handling the technique involved, which, it may well be, is substantially the handling of a mechanical method of analysis. Secondly, at least if the evidence is tendered on behalf of the Crown, we would expect prosecutors to be equipped with the judgment in Thom and now the judgment in this case in order to deal with the kind of submission which was made on behalf of the defence in this case and, no doubt, is to be anticipated in other cases also.
31. In every case the court must be satisfied that the evidence being tendered is (a) expert and (b) reliable. Providing that it is, I have no doubt that it is admissible whether it is tendered by certificate of authorised analyst or by evidence of a demonstrated expert.
32. In those circumstances I am satisfied, for my part, that the decision of the justices was wrong. It was not inadmissible on the sole ground that the analyst was not authorised under Section 16 (7). It must be considered by the justices on its merits. For my part, I would so declare, and remit the case to the justices to continue the hearing in the light of this judgment.
33. MR JUSTICE TREACY: I agree. I would only add that it is a great pity that in the context of this case when the Crown invited the justices to reconsider their initial ruling it did not draw the justices' attention to the authority of Thom or, indeed, to the provisions of Section 142 of the Magistrates' Court Act. Had those matters been put clearly before the justices at that stage, the delay and expense of these proceedings might well have been avoided.
34. LORD JUSTICE HUGHES: There is no additional order you seek, is there?
35. MISS PITTS: No.
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