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
		13 November 2007

1. MRS JUSTICE DOBBS: This is an appeal by way of case stated against the decision of the North Somerset Magistrates to admit hearsay evidence, as a consequence of which the appellant was convicted of driving whilst unfit. The question for the determination of the court is:

"Having refused the Crown's application to vacate the trial on the 4th August due to the unavailability of their witness Dr Richard Neil Bowley to attend on that date, were the Magistrates correct to allow the Crown's application to permit his evidence to be read in statement form?"

2. The background to the appeal is as follows. In the early hours of Wednesday 10 May 2006 police followed and stopped the appellant, who was driving a car in Weston-super-Mare. They were not satisfied with the standards of his driving and asked him to undertake a roadside breath test. The appellant is a Polish national. He failed to provide a breath sample, and was arrested and taken to the police station, having been arrested on suspicion of driving whilst unfit through drink or drugs. At the police station he appeared to agree to give a breath sample, but no recording was recorded by the machine, and after a number of attempts the police officer asked him to provide a blood sample. He refused and was charged with failing to provide a sample for analysis.
3. Dr Richard Bowley was called by the police to examine him to see whether or not he was fit to detain. He did so at 05.25 hours and examined the appellant. The appellant told him that he had consumed some alcohol prior to his arrest and was taking prescriptions for low back pain, specifically paracetamol and a tablet he called "Apap", which he had obtained in Poland. Dr Bowley went on to say in his witness statement:

"On direct questioning he told me he had consumed one glass of wine with a meal last night. On examination I noticed ethanol on his breath and he displayed evidence of intoxication and impaired reaction time. Specifically he was unable to complete the Romberg's test (of balance with eyes closed); he showed dis-coordination on finger-nose, heel-toe, and alternate knee raise tests. He failed [cognitive] memory tests and was unable to perform seven subtraction tests. Physical examination was otherwise unremarkable.

My conclusion was that he displayed evidence of intoxication and impaired reaction time."

4. The appellant was bought before the Magistrates' Court later that morning and the court granted an adjournment in order that those representing him might consider the law relating to his arrest and charge. He pleaded not guilty on 1 June 2006 to the charge of failing to provide a sample. On 20 July 2006 at the pretrial review hearing there was an application by the Crown to add a further charge of driving whilst unfit through drink as an alternative. The application was granted and the trial of the matter was listed for 4 August.
5. On 3 August the prosecutor asked for the case to be mentioned in order that an application to vacate the trial might be made. That was because Dr Bowley was unable to attend court on the following day because he could not arrange locum cover for his surgery. That application was opposed by the solicitor acting for the appellant, who had recognised that without the evidence of Dr Bowley the prosecution might be unlikely to succeed. The magistrates refused to adjourn the trial.
6. The prosecutor then sought to adduce the evidence of Dr Bowley by reading his statement in accordance with the provisions of the Criminal Justice Act 2003. That application was heard in the afternoon by a different bench of magistrates. The defence solicitor opposed the application, relying upon the provisions of section 116 of the Criminal Justice Act 2003. The magistrates granted the application.
7. On the following day, the day of trial, the prosecutor sought to amend the charge against the appellant by inserting the words "or drugs" in the second charge. This was due to the appearance in Dr Bowley's statement to the reference to medication being taken by the appellant. The first charge of failing to provide a specimen was dismissed by the magistrates, and the appellant was convicted of the second charge of driving whilst unfit, fined £400 and disqualified for 12 months.
8. Counsel for the appellant relies on the case of McEwan v the DPP [2007] EWHC 740 (Admin), a case decided after this instant case was heard in the Magistrates' Court, in which Gross J, when giving the judgment of the court, said this at paragraph 18 in relation to section 114(d) of the Criminal Justice Act 2003:

"For my part, the safety valve is there to prevent injustice. It would have to be an exceptional case for it to be relied upon ... to rescue the prosecution from the consequences of its own failures."

9. The appellant makes the following submissions. The prosecution had applied to vacate the case only a day before on the basis that an important witness was not available. Originally it was asserted that the prosecution should have known a long time ago that the witness was not available. That has now been withdrawn today and no criticism is made of the Crown in relation to that. But further, it is submitted that the evidence of the doctor went to the core of the charge faced by the appellant. The appellant was under a significant disability due to his poor command of English, and the credibility of the doctor's evidence relied not upon his standing as a witness, but upon his assessment of the appellant's ability to understand the questions put to him and the tasks asked of him. It was very important that the defence had the opportunity to cross-examine the witness. It was clear to the justices in their mind that the evidence of the doctor was of substantial probative value which they found outweighed the prejudicial value. Just as in the case of McEwan, the application under section 114 was made directly as a consequence of the earlier court having refused the prosecutor's application to adjourn. Mr Goodman, who appears today in front of the court, argues this with some force because in effect it is said, first of all, there must have been good reason for the earlier bench refusing the application for the adjournment, and relying on section 116, it is submitted that in effect the Crown were getting around the section 106 conditions. It is pointed out that section 116 imposes a high burden on the Crown to prove the conditions of admissibility before a statement can be read, namely the criminal standard, whereas section 114 does not impose the same test.
10. At one stage Mr Goodman seemed to be saying that, if a case could not come within the confines of section 116 and its conditions, then that should be the end of it if the witness is unavailable. He modified his approach by submitting that in effect section 114 can only be for a very narrow range of cases which cannot be dealt with under section 116, but that it should not be used routinely for avoiding the expense of an adjournment.
11. It is also submitted that the justices failed to give sufficient weight to the prejudice suffered by the appellant in their balancing act, and finally that the justices should not have made reference to the evidence given by the appellant during the trial in front of a different bench as it is irrelevant to their decision on the previous day.
12. The respondent, in brief submissions, contends that the decision of the magistrates was one within their discretion, provided that they have carefully considered the factors set out in section 114, and it is submitted that, looking at the case stated, the magistrates clearly did. The court had the statement of a professional witness, who was unable to attend for reasons which fell outside section 116. There was no reason to doubt the reliability of the witness or the making of the statement, and the respondent takes issue with the submission that the appellant was under a severe disability regarding his command of English and the appellant's ability to understand the questions put to him by the doctor. The evidence, it is submitted, was important but not crucial, and there is no reason why it should not have been admitted under section 114. Had it been the only evidence in the case, then perhaps different considerations would apply.
13. Counsel for the respondent distinguishes the case of McEwan on the basis that, on the facts, it is very different from the present one, and that there had been a catalogue of failures by the prosecution, and it was inevitable that the court would be sceptical of an application to salvage something by means of section 114. But it is submitted that that is not the case here.
14. The law can be found in sections 114 and 116 of the Criminal Justice Act 2003. They provide as follows:

"114. Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.

(3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.

...

116. Cases where a witness is unavailable (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.

(2) The conditions are—

(a) that the relevant person is dead;

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a) to the statement's contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and

(d) to any other relevant circumstances.

(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a) by the person in support of whose case it is sought to give the statement in evidence, or

(b) by a person acting on his behalf,

in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement)."

15. We turn to the authorities that have been cited in argument. The issue in the case of Taylor [2006] EWCA Crim 260 was as follows. The applicant was convicted of GBH with intent. An application was made by the defence under section 14 of the Criminal Justice Act to exclude references to the applicant's name in video recorded interviews, which was to constitute the evidence-in-chief of two prosecution witnesses, on the basis that the witnesses named the applicant as being a participant in the attack after they had been told his name by someone else. The basis of the application was that this constituted inadmissible hearsay. The Crown submitted that the evidence should be admitted on the grounds that it was in the interests of justice so to do. The judge refused the defence application. We need not rehearse the details of the judge's findings and the evidence in this case because the facts are of no assistance to this court. However, when giving the judgment of the court, Rose LJ, the Vice-President of the Court of Appeal, said this with regard to the procedure to be followed under section 114(2):

"39. As it seems to us, the first and crucial issue raised by this appeal is as to what is meant in section 114(2) by the words 'the court must have regard to the following factors'. If Mr Sinclair is correct and those words denote an obligation on a trial judge to embark on an investigation, resulting in some cases in the hearing of evidence, in order that he may reach a conclusion established by reference to each of the nine factors, it is apparent that trials are likely to be considerably elongated. Proper investigation of each of those factors, if carried out in that way, may well be a very lengthy process.

40. But do the words in the section require that course to be followed? In our judgment, they do not. They do not impose an obligation on the judge to reach a conclusion. What is required of him is the exercise of judgment, in the light of the factors identified in the subsection. What is required of him is to give consideration to those factors. There is nothing in the wording of the statute to require him to reach a specific conclusion in relation to each or any of them. He must give consideration to those identified factors and any others which he considers relevant, (as expressed in section 114(2) before the nine factors are listed). It is then his task to assess the significance of those factors, both in relation to each other and having regard to such weight as, in his judgment, they bear individually and in relation to each other. Having approached the matter in that way, he will be able, as it seems to us, in accordance with the words of the statute, to reach a proper conclusion as to whether or not the oral evidence should be admitted. That is a process which, as it seems to us, the trial judge followed in this case. He followed it in the exercise of his discretion, in a way which, in our judgment, cannot be effectively challenged."

16. The appellant appealed by way of case stated against his conviction for criminal damage. The Crown relied on the evidence of a minor who stated in a witness statement that he had seen the appellant scratch the complainant's car with a beer can. C (the minor) identified the appellant from photographs. A medical report was submitted in respect of C indicating that he suffered from a serious bowel condition which might worsen through the stress of giving evidence. The DPP sought an adjournment in order to ascertain if C were so ill that he could not attend court. The adjournment was refused, but the magistrates allowed the application, which was made without notice, for the evidence to be admitted under sections 114(1)(d) and 114(2). The magistrates held that it was in the interests of justice for the statement to be admitted as the DPP could not have known that the adjournment application would be refused and that it was of crucial importance to the Crown, C being the only eyewitness. They took the view that the probative value outweighed the prejudicial effect.
17. The Divisional Court held that the magistrates had acted unreasonably in the exercise of their discretion under section 114 as they failed to give any or any sufficient weight to the prejudicial effect that the inability to challenge C's evidence would have on the defence, and that they had focused unduly on the probative value and failed to address the fact that this evidence was the crux of the Crown's case. The findings of the magistrate, that if he were compelled to give evidence the stress would have exacerbated his medical condition, was wrong as this conclusion was not merited on the evidence in front of him. It is important to note that the court found that there had been a lamentable history to this case with many adjournments, all of which were attributable to the prosecution, that the appellant and his witnesses had had to attend court on several occasions, and that there were many failures by the Crown to put in place special measures to clarify the condition of the witness, to investigate other evidence and to give no notice of the application to adduce the evidence under the section.
18. Turning to the instant case, it is to be noted that none of the criticisms that the court levelled at the prosecution in the case of McEwan can be found in this case. It has been conceded that the Crown could not have known earlier that the witness was not available. No doubt, the doctor had used his best endeavours to obtain services of a locum and was unsuccessful at the last moment. Moreover, in this case proper application was made by way of notice, and hence the reason the case was heard by a different bench in the afternoon. It should be noted that the defence can no longer assume, as in the practice of the old days, that a prosecution's unsuccessful application for an adjournment to secure the attendance of an important witness will necessarily mean that the case will not proceed if the witness is an important one. Such considerations should influence the approach of the defence when considering whether to impose any such application.
19. The case stated by the justices is as follows:

"6. We were of the opinion that:

6.1 We heard no argument about the validity of the hearsay application under Rule 34 of the Criminal Procedure Rules;

6.2 We heard no argument that the statement ought to be admitted under section 116 [of the] Criminal Justice Act 2003;

6.3 We applied the criteria set out in section 114(2)(a)-(i) [of the] Criminal Justice Act 2003 and the case of R v Taylor [2006] EWCA Crim 260 and came to the conclusion that it was in the interests of justice to allow the application;

6.4 Dr Bowley had attended the Police Station in a professional capacity as a medical practitioner to take a sample of blood, however his statement was of a factual nature rather than an expert one;

6.5 Dr Bowley was the only witness acting independently of the Police and was a medical professional therefore his statement could be regarded as important and reliable;

6.6 As a result of the findings in points 6.4 and 6.5 the statement of Dr Bowley would have substantial probative value;

6.7 The appellant would not have the opportunity to cross-examine and therefore challenge the doctor on his evidence;

6.8 The appellant would have the opportunity to make it clear to the Court at the trial in his closing submissions the effect of not being able to cross-examine Dr Bowley and of any potential prejudice;

6.9 The Justices would be able to give Dr Bowley's statement the appropriate weight it deserved in the context of the trial and the fact it had not been tested in cross-examination;

6.10 As a result of the findings in points 6.7-6.9 the appellant could be prejudiced in putting forward his case were the application allowed;

6.11 The probative value of the statement did outweigh its prejudicial effect because of the considerations outlined in points 6.4-6.9; and accordingly

6.12 The application would be allowed in the interests of justice and Dr Bowley's statement would be read at the trial."

20. Although there is some divergence of opinion in academic circles as to whether or not the interests of justice provision under section 114 is a limited inclusionary discretion to be used only exceptionally, Professor Ormerod, amongst others, argues that there is nothing in the section which suggests such a narrow approach. I agree. Nevertheless, the section must not be lightly applied.
21. As has been noted in the case of Taylor, the court is required to exercise its judgment having considered the relevant factors. The question is: did the justices give proper considerations to the factors set out in section 114 and any other relevant factors? Whilst reference to the findings of the bench which heard the case should be discouraged, it is clear that this did not form part of the reasoning for the case stated. The bench was aware of the previous application, the reasons for it and the result. This was not a failed section 116 application and therefore not a case of the prosecution getting around those provisions.
22. With regard to prejudice to the appellant, the issues in the case could be dealt with in a number of ways: firstly, by the appellant giving evidence himself of what took place during the examination by the doctor. This would give the bench the opportunity to assess his alleged language problems, both in respect of comprehension and ability to communicate; also by cross-examination of the police officers as to how he was able to communicate and to comprehend at the time, which evidence, if favourable to the appellant, would in turn have a knock-on effect in relation to the weight to be given to the doctor's evidence, and finally by way of submissions by pointing out to the bench any difficulties involved in trying to controvert such parts of the evidence which were in dispute, and its impact on the presentation of the defence.
23. In my judgment, the justices did consider the relevant issues and came to a decision that was open to them. The question posed for the court's consideration, therefore, is answered in the positive.
24. LORD JUSTICE THOMAS: I agree. I only wish to add a few words in the light of the way in which the observations of Gross J at paragraph 18 of McEwan v DPP [2007] EWHC 740 Admin, to which my Lady has referred, have been used in this case, and the use that may be made of those observations in other cases, particularly in Magistrates' Courts.
25. In my view, the observations must be seen as observations made in the context of that case, where the prosecution had made many mistakes and been guilty of many failures. It is not, in my view, an observation of general application. It is applicable solely to the facts of that case. Indeed, Gross J refers further in his judgment, for example at paragraph 20, to the discretion under section 14 being freestanding; it is plain that he must have intended his remarks to be seen in the context of the specific case.
26. Section 114 sets out the way in which the court may exercise the power to admit hearsay evidence, and in my view no general gloss, such as describing it as "a safety valve" or any other such term, is appropriate. The section is part of a chapter. It must be read in its entirety in the context of that chapter; no further gloss is necessary.
27. MR GOODMAN: My Lord, thank you. May I raise one matter simply for the transcript? My Lady referred in the background, quoting I think from Mr Barker's summary of the background of the case, to the defence having opposed the application relying on the provisions of section 116.
28. MRS JUSTICE DOBBS: That is what the summary said, yes.
29. MR GOODMAN: It is a misprint. It clearly was 114, as my instructions show and as logic perhaps --
30. MRS JUSTICE DOBBS: Well, no, the defence were relying on section 116 by saying that the prosecution were circumventing section 116, so they were relying on section 116.
31. MR GOODMAN: Yes. As I understand it from my instructions, they did submit that it ought not be submitted under section 114 as it did not meet the interests of justice case. I read it as a misprint, but it is matter of course for the court.
32. MR VAITILINGHAM: I am instructed to make an application for costs in the sum of £1,124.
33. LORD JUSTICE THOMAS: Do you have any observations?
34. MR GOODMAN: The defendant has the benefit of a legal aid order, and normally in those circumstances --
35. LORD JUSTICE THOMAS: Is there any point in us making such an order?
36. MR VAITILINGHAM: I have no idea about Mr Sak's impecuniosity or lack of if. He is working in Weston-super-Mare at the time he was arrested, and we have no instructions at all as to what his means are.
37. LORD JUSTICE THOMAS: There seems little point in making an order if there is no prospect of enforcing it.
38. MR VAITILINGHAM: Of course that is right.
39. LORD JUSTICE THOMAS: Would those behind you wish to instruct you?
40. MR VAITILINGHAM: Would your Lordships give me a moment?
41. LORD JUSTICE THOMAS: Of course. (pause)
42. MR VAITILINGHAM: I withdraw my application.
43. LORD JUSTICE THOMAS: Thank you both very much. I am particularly indebted to you, Mr Goodman, for your argument in this case, taking it on and having the courage to abandon one or two points that were unarguable. Thank you very much.