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
		19th March 2008

1. LORD JUSTICE LEVESON: This is an appeal by way of case stated against decisions of the Chester, Ellesmere Port and Neston Justices sitting at Chester on 4th January 2007 and on 3rd April 2007, whereby the appellant was convicted of an offence of failing to provide a specimen of breath for analysis, contrary to section 7(6) of the Road Traffic Act 1988. He was fined £500, disqualified from driving for 12 months and ordered to pay costs.
2. The primary appeal concerns the refusal of the Justices to stay the prosecution as an abuse of process, but following the decision of this court in Sunworld Limited v Blackfriars Crown Court: Sunworld Limited v London Borough of Hammersmith and Fulham [1999] EWHC QB 271, CO/2317/1999, 23rd November 1999, a further application is made to extend the case to require the Justices to deal with a further question, namely whether there was any evidence on which a reasonable bench, properly directing themselves, could have held that Field Hey Lane was a road or other public place for the purposes of the Road Traffic Act 1988. The Justices declined to state a case in relation to this issue on the basis that they considered the application "frivolous".
3. I can deal with the case concerning abuse of process comparatively briefly. The incident the subject of this appeal occurred on 7th June 2006, and seven days later the appellant entered a plea of not guilty. On 19th July there was a pre-trial review which was adjourned, but was followed by a defence statement dated 9th August 2006 in which the appellant disputed that the MG DD/A form used by the sergeant in the police station had been completed in his presence, or that he had been warned as required under section 7(7) of the Road Traffic Act 1988. The appellant then sought disclosure of the custody area video and made application under section 8 of the Criminal Procedure and Investigations Act 1996 for disclosure of that material.
4. It is common ground that CCTV covered the custody area and the Intoxiliser room, although at the time the CCTV in the Intoxiliser room was not functioning properly. The practice was to keep the custody area CCTV for 90 days, unless it was required. Thus, within 90 days of the incident the Crown Prosecution Service had been put on notice that this CCTV was required. Unfortunately, although the defence statement had been served on 9th August 2006, the prosecutor did not review the file until the end of September/beginning of October 2006. At that stage a request was made to the police to retain the CCTV, but it was then too late.
5. Mr Ley, who appeared for the appellant in the court below as he does in this court, contended that its destruction constituted an unanswerable ground for staying the prosecution, on the basis that the appellant was prejudiced in the conduct of his defence in that he was deprived of the evidence of what had transpired in the custody suite.
6. Following the approach identified by this court in Ebrahim v Feltham Magistrates' Court and Mouat v Director of Public Prosecutions [2001] EWHC Admin 130; [2002] RTR 7, the Justices concluded that there had been a clear breach of the requirements of the code of practice in that, having been placed upon notice that the CCTV was required, it had not been retained. Nevertheless, following a study of that decision, they concluded that there was no abuse of process in the circumstances of this case.
7. At that hearing, the officer who conducted the procedure with some four years custody desk experience, gave evidence that he completed the form in the presence of the appellant who had, at his request, initialled a number of the responses. The appellant did not give evidence at the abuse of process hearing, although, when giving evidence at the trial, intimated that he had not seen the form at the time of the procedure and had not been verbally warned that he would be prosecuted. The stated case observes:

"We had sight of the MG DD/A form and noted the initialled responses. In particular the appellant's response at A14, the warning the prosecution required under section 7(7) of the Road Traffic Act 1988 had been initialled. We found Sergeant Williams to be credible and to support the contention that the trial should proceed. We found that, unlike Mouat, the CCTV coverage was never primarily intended to prove the offence and this fact applied to both prosecution and defence."

They then posed the question for this court:

"Was it Wednesbury unreasonable to hold that there was no abuse of process when a video recording of the breathalyser procedure had deliberately and contrary to the codes of practice and a defence request been re-used by the police and which recording would have conclusively proved whether or not the correct procedures had been followed at the police station?"

8. Mr Ley referred to the decision of the Court of Appeal Criminal Division in Lang [1999] EWCA Crim 986 in which that court determined that a record of a radio message from a police officer to control which had been destroyed did render those proceedings an abuse, not least because it was common ground that in that case the defendant had been arrested not for the driving offence for which he was being prosecuted but only for theft, thereby giving rise to a question whether there had been concern about his driving expressed over the tape that had been destroyed. Having said that, in Lang Laws LJ, giving the judgment of the court, did observe:

"We make it clear that nothing is to be inferred from this judgment to the effect that a breach of the mandatory requirements of paragraph 5.1 of the code will generally or even frequently give rise to a state of affairs in which it would be right to stop the prosecution: far from it."

9. Annexed to the papers is the 100 MG DD/A form and Mr Ley argues that the only way of circumventing the evidence of the officer would have been the CCTV. We do not accept that that analysis is accurate. Indeed, the form, which undoubtedly was signed by the appellant and was completed by the officer, contains extensively the precise questions to be asked and the order in which those questions must be asked. It was open to the Justices, having heard the sergeant, to accept that he performed his responsibilities accurately. Equally, it was open to the Justices to accept the evidence of the appellant that this task had not been done in the way the sergeant did it. Although the officer asserted that this procedure had been conducted in the custody area, if that material was not on the tape it would not have established that the procedure was not conducted properly, merely that it was not conducted in the place where it was believed to have been conducted.
10. In my judgment, it was entirely open to the Justices to conclude that this prosecution was not an abuse of process and I would answer the question stated in the negative, ie, it was not Wednesbury unreasonable to hold that there was no abuse of process when the video recording of the breathalyser procedure had deliberately and contrary to the code of practice and a defence request been reused. We do not accept that such a recording would necessarily conclusively have proved whether or not the correct procedure had been followed at the police station.
11. The second aspect of this case concerns a challenge to the finding of the Justices that the road the subject of these proceedings was a road within the meaning of section 192 of the Road Traffic Act 1988. In concluding that the application was frivolous, the Justices provided an insight into a number of propositions that they accepted as true, although not formally finding them as facts. These are:

(a) The appellant lives in Field Hey Lane. It is a circular unadopted road which runs from the main road in a crescent shape and comes out further down on the same road. There was no evidence there were any side roads off Field Hey Lane.

(b) The residents of Field Hey Lane pay for its repair and upkeep.

(c) There was no evidence of usage of the lane by people other than residents or people who had business with the residents.

(d) The evidence of the driving by the appellant as he drove off Field Hey Lane into the driveway of a neighbour. He then reversed back out and drove down the lane and turned into his own driveway where he parked his car.

12. The Justices identified that the appellant put forward neither case authority nor statute to support the proposition that Field Hey Lane was a road within the definition of the Act, which defines a road as "any highway and any other road to which the public has access and includes bridges over which a road passes".
13. Little by way of authority was originally provided in this court, but after Mr Ley sought and obtained some time, a number of decisions have been placed before us. These include Deacon v AT [1976] RTR 244, Director of Public Prosecutions v Cargo Handling Limited [1992] RTR 318, and Clarke v Kato [1997] RTR 264, this last case also considering Oxford v Austin [1981] RTR 416. In Deacon v AT, a 15-year old who drove a motor car on a Council housing estate was charged with offences of driving a vehicle on a road within the meaning of the predecessor provision to section 192 of the Road Traffic Act 1992. The facts proved by the prosecutor were that the road was used by persons who were residents or visitors to the residents on the estate and those persons used the road with the permission of the Council. There was no evidence that a person who was not such a resident or visitor in fact used the road. The Justices acceded to a submission of no case to answer and in dismissing the appeal, May LJ observed at page 248:

"There was not one witness called who said that one single member of the public in a wide sense, that is to say a person who is not a resident or who is not a visitor to a resident on the estate, in fact used the road for this estate. If there had been any such evidence before the justices I think that their conclusion must have been that this particular road was a road within section 196(1) of the Road Traffic Act 1972. However, looking at the case as stated as carefully as I can, I cannot find any finding of the Justices that any member of the public in that general sense used this particular road. Accordingly, though it may very well be that this road can be proved to be a road within the Road Traffic Act 1972, I cannot see that, on the evidence that these Justices had before them or on the facts, they found that they erred in law."

Lord Widgery CJ agreed, proffering advice that the prosecution should be careful to be able to prove their case by filling in the missing feature absent in the present case.

14. In Clarke v Kato, the Court of Appeal observed that unrestricted pedestrian use, with or without use by wheeled traffic, was sufficient to establish an area to which the public had access as a road, for the purposes of section 192(1) of the Road Traffic Act 1988, provided there was sufficient evidence of a definable route. It does not appear that Deacon v AT was cited to them.
15. It seems to me that there is some lack of clarity in these decisions which may repay further investigation. Having said that, in the light of Deacon, it seems to me that it is quite wrong to conclude that the request to state this particular case was frivolous. Justices are, of course, in certain circumstances, entitled to use their own knowledge, but in my judgment this case does require further consideration. Therefore I would remit the case to the Justices and order that they do state a case on this issue. Having done so, it is of critical importance that both parties provide full skeleton arguments and that the matter is then listed before a Divisional Court to provide definitive guidance in this area of the law.
16. MR JUSTICE LLOYD JONES: I agree.
17. LORD JUSTICE LEVESON: Could you please agree the appropriate orders. Thank you.