England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th November 2009

1. MR JUSTICE SIMON: This is the hearing of a case stated by the Isle of Wight Justices for the opinion of the court. Before turning to the questions, it is convenient to set out in summary the facts as they appear from the case stated.
2. On 20th June 2008, the appellant was charged with an offence of driving after consuming such alcohol that the proportion of it in his breath (66 micrograms in 100 millilitres of breath) exceeded the prescribed limit. This gave rise to a charge under section 5(1) of the Road Traffic Act 1988.
3. The appellant appeared before the Magistrates' Court on 11th July and entered a not guilty plea on 25th July. There were then a number of interlocutory hearings and delays due to the perceived need to instruct experts on the use of intoximeters. Letters were also written by the appellant's solicitors, the contents of which I will come to later in this judgment.
4. The trial eventually began on 17th April 2009 and was then adjourned part heard to 5th May, when the appellant was found guilty of the offence and sentenced. The evidence was in three categories: police witnesses, defence witnesses and expert witnesses for each side.
5. The police evidence was that the appellant had been seen driving during the evening of 20th June and had been asked to stop. He appeared slightly unsteady on his feet, his speech was slurred, and his eyes were glazed. There was a strong smell of alcohol. Police Constable Allen carried out a roadside test procedure, and the breath test was positive for the consumption of alcohol. The appellant was arrested at 0210 hours British Summer Time ("BST"). He was taken to the local police station where the arresting officer, Police Constable Hewitt, carried out a standard procedure using an intoximeter. The appellant provided two specimens of breath. The first reading showed 67 micrograms of alcohol in 100 millilitres of breath. This was shown as being taken at 0201 hours. The second reading was 66 micrograms of alcohol in 100 millilitres of breath. This was shown to be taken at 0204 hours. The printouts recorded the times as having been recorded according to BST, although they had in fact been recorded according to GMT. Police Constable Hewitt noted that the machine had conducted its self-calibration test correctly and that it operated within acceptable parameters.
6. When the written procedure was being completed, the appellant told Police Constable Hewitt he had used a blue asthma inhaler since the alleged offence and had been sick in the police van between his arrest and the test. Police Constable Allen obtained a certificate of calibration in respect of the intoximeter machine dated July 2008.
7. As part of the defence case, the appellant described drinking that evening and being stopped. Before taking the roadside breath test he had used his blue inhaler which contained salbutamol. He felt nauseous during the course of the roadside procedure and at the police station, but was able to comply with both procedures. He had not been told by Police Constable Hewitt that it was an offence not to provide a specimen. This evidence gives rise to one of the questions for the opinion of the court.
8. Further evidence was given by a passenger in the appellant's car, and by the appellant's father who had seen him at about 1.15 am and had not smelled any alcohol on his breath or seen any signs of his being affected by drink.
9. It appears that the appellant accepted that he had drunk three shots of rum, although this does not appear as part of his evidence in the case.
10. The expert evidence was given by Dr John Mundy for the defence and in the form of a written report by Professor Ronald Denny for the prosecution. Dr Mundy described the intoximeter and its two separate microprocessors, one of which produces data as to the time and the other as to alcohol analyses. These combine to produce a reading for time and alcohol level. The machine also has a surge protection device which is designed to protect the machine from a power surge.
11. The Hampshire Constabulary keeps the machine as showing the time according to GMT throughout the year. The only way the machine could show BST was by a deliberate action of an engineer during a routine service, or if the machine had become corrupted, for example, by a power surge. The calibration certificate showed the last service as being carried out about six months before 20th June, which was a permissible time for servicing these machines. Dr Mundy could not say whether the wrong heading on the printout record saying BST rather than GMT had affected the analysis, although data corruption could not be ruled out.
12. The inhaler used by the appellant could have contained alcohol as salbutamol is propelled by a small amount of alcohol. This might affect the reading, although he had never tested inhalers and could not say how it could have affected the reading. If the appellant had refluxed this would have had little effect on the reading. The calculated breath/alcohol level for a 12 stone 12 pound man after consuming three 25 millilitre glasses of rum starting at 7.45 on 20th June would have been zero.
13. Professor Denny's report stated that the fact that the machine recorded the time of the test as BST rather than GMT did not necessarily mean that the machine recorded the analysis incorrectly. If the machine had been corrupted, it would have been reflected in the self-calibration test, and if the test reading had been incorrect, the machine would have aborted the test. The engineer who conducted the service on 3rd July 2008 did not record any fault and no parts were replaced. The log included valid tests of the machine and the fact that the log showed a number of tests where the readings were so close, indicated the quality of the machine. The printout was normal apart from the time being recorded in BST. Apart from this error, there was no reason to assume that data corruption had occurred such as to invalidate the analysis of the breath samples.
14. During the course of her closing submissions to the Justices, Miss Calder, who appeared then for the appellant as she does today, submitted that Police Constable Hewitt had not complied with the intoximeter procedure as he failed to give a warning that if the appellant did not provide a specimen, it might render him liable to prosecution as required by section 7(7) of the Road Traffic Act 1988. The Justices took the view that this raised a new issue which had never previously been raised. In paragraph 16 of the case stated, the Justices record this:

"We asked the counsel for the appellant why the defence had not fully complied with Rule 3.2 of the Criminal Procedure Rules 2005 and why, if it was being suggested that the intoximeter procedure had not been complied with there had been no application to exclude the evidence of the breath readings. Counsel for the appellant replied that both the prosecution and the court had been put on notice in correspondence that the prosecution was required to prove their case. She further stated that the defence wanted the breath readings to be put before the court to support the case that the intoximeter machine had been working incorrectly. We then asked the advocate for the respondent whether he wished to recall PC Hewitt so that the issue with regard to the warning could be put to him. The advocate for the respondent declined."

15. The prosecutor submitted that there was no need for Police Constable Hewitt to give the warning since the appellant had been fully compliant with the procedure. This gives rise to the first issue in the case, posed by question (c) in paragraph 21:

"On the appellant's submission that the police had not properly carried out the drink/drive procedure because the defendant had not been given a warning of prosecution pursuant to section 7(7) Road Traffic Act 1988 did we err in law in upholding the respondent's case in finding that it was not necessary for PC Hewitt to give the appellant the warning because the respondent was compliant?"

The answer to the question as posed is clearly "Yes". The justices were in error, since it is clear that section 7(7) is in mandatory terms: see Murray v Director of Public Prosecutions [1993] RTR 209. This is accepted by Mr Kellam who appears for the respondent.

16. However, Mr Kellam submits that there was clear evidence to show that Police Constable Hewitt did in fact give the statutory warning, not once but twice. The evidence comes from the audio part of the video evidence which was played to the Justices but without the sound. During the course of his researches for this case, Mr Kellam came to the conclusion that it was possible to hear the sound track on the video recording. This had not been heard at the trial. In these circumstances, Mr Kellam submits, the Bench should have been directed that Police Constable Hewitt should have been recalled and/or the video with enhanced sound should have been studied. The proper course now was to quash the decision and to remit the case for the prosecution to consider whether it wished to apply for a further trial: see Brett v Director of Public Prosecutions [2009] EWHC 440 (Admin). He submits that the prosecution was ambushed by the new point being taken on section 7(7) during the course of the closing submissions. This was an entirely new point which had not been prefigured before. The prosecution was taken by surprised. It was rushed. It made the wrong decision and the whole process was unfair.
17. For the appellant, Miss Calder submits that her professional client had asked for a video recording with sound in two letters, but these had not been provided. I have been shown, without objection from Mr Kellam, two letters from her instructing solicitors; one on 17th July in which they point out that the CCTV footage provided had very poor sound quality to the point where what is being said cannot be made out. There was a request for that to be provided as soon as possible. On 1st September they wrote again, asking the disclosure officer to check the master copy to see whether there was a problem with the sound. If not, requesting the prosecution to provide a further copy. In the event, the copy with sound was never discovered until Mr Kellam called for it in the course of preparation for the case stated.
18. Miss Calder submits that it would be wrong in these circumstances to remit the case for the prosecution to consider whether it wished to apply for a further trial. No warning by the police officer could be heard on the copy made available to the defence, nor that played in court. This was not a case in which the prosecution was taken by surprise, since the prosecution knew that it would have to prove each element of the case.
19. She submitted that Police Constable Hewitt had been asked twice in cross-examination whether he had given a warning and had said that he had not. I interject at this point to say there is nothing about this in the case stated, nor did Miss Calder make a submission of no case to answer, which would have been open to her upon that evidence being given. What is clear, however, is that the appellant had said in his evidence that he had not been given a warning.
20. She submits that the relevant error was by the prosecution in having persuaded the Justices that a warning was not necessary because the appellant was compliant. If the Justices had been correctly informed of the law they would have acquitted the appellant, since the evidence was that the warning had not been given. The prosecution ought not to be entitled to prosecute again where the conviction is quashed due to the prosecution having made a bad submission of law. She relied on what was said in Hasler v Director of Public Prosecutions [1989] RTR 148 at page 151D on the importance of the prosecution adducing all necessary evidence at trial and that it is not sufficient to say there was evidence which might have been available.
21. She further relied on a line of cases deriving from Reid v The Crown in the Privy Council [1980] AC 343 to support a submission that it would only be in wholly exceptional cases that the court will quash a decision and direct that there be a new trial so as to enable the prosecution to make good deficiencies in its case. She pointed out that in the case of Brett the Divisional Court had not remitted the case with a view to allowing the prosecution to apply for a new trial.

Discussion and conclusion

22. There is now a very clear obligation on the defence to make its defence and the issue it raises clear to the prosecution and to the court at an early stage. This duty is described in Malcolm v Director of Public Prosecutions [2007] EWHC 363. That was a case in which a section 7(7) point was taken for the first time by the defence in closing submissions, and the Justices permitted the prosecution to recall the police officer to prove that he had complied with section 7(7). The Divisional Court said that this was both a permissible and an appropriate course for the court to adopt. In the course of his judgment, Stanley Burnton J (as he then was) said this at paragraphs 31 to 33:

"31 . . . Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates' court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case. In R v Pydar Justices ex parte Foster [1995] 160 JP 87 at 90B Curtis J commented on the submission that a defending advocate was entitled to 'keep his powder dry'. He said:

'Without any doubt whatsoever, it is the duty of a defending advocate properly to lay the ground for a submission, either by cross examination or, if appropriate, by calling evidence.'

32. That was not done in this case. At no time before her final speech did Miss Calder raise any issue as to the police's compliance with section 7(7). Sergeant Webster was not cross-examined on the point. If Miss Calder wished to raise an issue as to whether the warning had been given, that matter should have been addressed in cross-examination. Indeed, Miss Calder's failure went beyond an omission to cross-examine. If there was an issue as to whether the warning required by section 7(7) had been given, and she contended that as a result the officer's evidence of the proportion of alcohol in the appellant's breath was inadmissible, Miss Calder should have objected to the admission of the officer's evidence as to the proportion of alcohol in the appellant's breath. Miss Calder did neither of these things when that evidence was tendered by the prosecution, when she should have done so. In my judgment, in these circumstances she should not have been permitted to raise the issue under section 7(7) in her final speech unless the prosecution was given the opportunity to call evidence to deal with the point.

33. To take the section 7(7) point in the final speech was a classic and improper defence ambush of the prosecution."

23. In the case of Writtle v Director of Public Prosecutions in the Divisional Court, [2009] EWHC 236 (Admin), I said this at paragraph 15:

" . . . the present regime of case management should in general ensure that the issues in the case are identified well before a hearing. There will, of course, be cases where something occurs in the course of a trial which may properly give rise to a new issue, but this was not such a case. The days when the defence can assume that they will be able successfully to ambush the prosecution are over."

The fact that in the present case the defence had indicated to the prosecution no more than that all matters were in issue is a matter of concern. It suggests that the message has still not got through to those who practise in this field and it therefore needs to be repeated.

24. In a letter of 27th October 2008 the appellant's solicitors said this:

"Our client's defence is factual, namely that he did not consume enough alcohol to warrant the reading obtained using the evidential breath testing device at the Police Station. Furthermore, the Crown is required to prove its case. We do not propose to rely on any specific legal argument. As such, we are of the view that a skeleton argument is not required."

I am concerned that there is nothing in the noted evidence which shows that Miss Calder raised the section 7(7) point with the police officer. However, the point was squarely, if not fairly, raised in her closing submissions. At that stage, the prosecution could have recalled Police Constable Hewitt, or could have asked for an adjournment to consider the position. The court, too, should have been alive to the risk that the prosecution had been taken by surprise and should have been aware of its case management powers to ensure that justice was done to both parties. It does appear in fact that the case of Malcolm was referred to by the legal advisor.

25. In such circumstances it will always be open to the court to consider the cost implications of the conduct of the defence and to make an order which fully protects the costs position of the prosecution. What, it seems to me, was impermissible was for the prosecution to make a bad submission of law, fail to call relevant evidence, accept in this court that the decision is, for that reason, flawed, but to contend that the prosecution should nevertheless be allowed to have a new trial on the basis of evidence which could and should have been deployed at the first trial. It seems to me clear that if the defence had taken the point at half-time, the prosecution would have made the same decision.
26. I do not accept that there will never be cases where it is appropriate to order a new trial, or even that such cases will be rare. It seems to me that the exercise of the power which was assumed to exist in Brett will depend on the circumstances of an individual case. It will most often be exercised where there has been some misconduct or infraction of the rules of procedure by the defence which has resulted, or may have resulted, in unfairness or injustice. However, for the reasons I have outlined, this is not such a case.
27. It is not strictly necessary in these circumstances to consider the two other questions which are posed in the case:

"(a) Did the defendant rebut the evidential presumption that the EC/IR machine was working correctly when Dr Mundy testified that the designation of the EC/IR printout was incorrect and inconsistent with the times given, that the intoximeter machine could have been subject to an outside influence such as a power surge and that the corruption of data could not be ruled out and the results of the breath analysis could not be relied upon?

(b) Was the evidence of Professor Denny, as a matter of law and to the criminal standard, sufficient to prove the intoximeter EC/IR machine was working correctly when Dr Mundy said that the designation of BST was inconsistent with the times given on the printout, corruption of data could not be ruled out and the results of the breath analysis could not be relied upon?"

Although expressed as questions of law, I am not persuaded, on proper analysis, that they are.

28. The Magistrates found the following:

"It was accepted evidence that the time on the printout was wrong. However, based on the weight of the technical evidence we found that this would not have contaminated or affected in any way the reading of the alcohol level."

It seems to me that they must have reached that conclusion because they accepted the evidence of Professor Denny "that there was no reason to assume that selective data corruption occurred with respect to any of the values on the printout and the results correctly represented the appellant's breath/alcohol level at the time he was tested".

29. The finding as to the reliability of the intoximeter was a finding of fact. Archbold (2009 Edition) states at paragraph 7-3:

"A finding on an issue of fact would only involve an error of law if perverse; preferring the evidence of one witness to another could not be perverse in this sense. Where the complaint is that the Crown Court was mistaken in its findings of fact, it is futile to dress up a question of fact as a question of law."

The same, of course, applies in the Magistrates' Court.

30. In any event, I accept the submission of Mr Kellam that it is clear that the court is entitled to conclude that the intoximeter can be treated as reliable in respect of the measurement it provides for breath/alcohol even when it has a clock which is showing the wrong time: see Director of Public Prosecutions v McKeown, Director of Public Prosecutions v Jones, House of Lords [1997] 1 Cr.App.R 155.
31. For these reasons, I would answer the question in paragraph 21(c) "Yes" and remit the case to the Magistrates to acquit the appellant. I would answer the questions (a) and (b) by saying that the evaluation of the evidence was for the Justices but that it was open to them to make the findings and reach the conclusions which they did.
32. MISS CALDER: My Lord, I would like to apply for a defendant's costs order.
33. MR JUSTICE SIMON: There are two problems with that. The first is a procedural problem. The court can only make an order for costs out of public funds if it is a Divisional Court. That is a formal problem. The discretionary problem is that it seems to me that your application for costs is wholly without merit.
34. MISS CALDER: My Lord, there is authority on that that if a person is acquitted one cannot go behind the acquittal and the presumption of innocence. I was in a case earlier this year. I do have a copy of it. The case had been appealed from the Magistrates' Court to the Crown Court. The Crown Court Judge in that case found as a fact that --
35. MR JUSTICE SIMON: Show me the case, Miss Calder. Have you shown Mr Kellam?
36. MISS CALDER: No.
37. MR KELLAM: It rings a bell, my Lord, but not for that reason.
38. MISS CALDER: I have a copy. I do not have another copy. I just have the one copy. It is the case of Spiteri v Basildon Crown Court, Richards LJ giving judgment on 19th March 2009. It was a case against the Crown Court. That case was a wrongful prosecution case, which is why I mentioned it. The circuit judge, who was a very experienced circuit judge, found as a fact that the defendant had not been given a warning. The prosecution had said in the court below he had been given a warning. He and the Justices found that he had not been given a warning for various reasons, having heard the evidence of the police officers, but he said he was not going to allow costs because it was unmeritorious. He called it a technicality.
39. MR JUSTICE SIMON: I am not talking about whether the argument is meritorious or not. I have found that it has legal merit. My concern is that all these problems really arose because of your late submission, which was contrary to the rules. It seems to me a gross abuse, in those circumstances, to grant costs in your favour.
40. MISS CALDER: My Lord, if I could address you on that. The prosecution, of course, made a wrong submission of law.
41. MR JUSTICE SIMON: I have already found that.
42. MISS CALDER: Yes. If they had not done that, we would not have had to be in this court. They would have acquitted the defendant there and then and presumably he would have been awarded his costs there and then. Even if he was not, there would have been no reason for us to have to come to this court. It does seem to be wrong in principle not to award the costs to the defendant at least in this court if it was the prosecution's fault that brought us this far. Even if one had that opinion in the Magistrates' Court, it could not apply to this court.
43. Also it is, of course, very late in the day that the prosecution have come out -- we were under the impression that there was no warning. They just come and suddenly say they can hear there was a warning. The fact of the matter is, my Lord, it cannot be right in principle to deprive the appellant of all costs. One wonders whether it is the special nature of these type of cases when there is evidence of what goes on in a police station. When the allegation is that defendants have taken alcohol anyway, and maybe not in the best state to be able to appreciate what was happening --
44. MR JUSTICE SIMON: I am not sure that is a very helpful submission.
45. MISS CALDER: The point is that if they had given us that video, we would not have made that submission. We would not have been saying there was no warning of prosecution if there clearly was. So that was a fault as well in the court below. The whole thing has not, in my submission, come out from the failure of the defence. It is failure of the prosecution. When we had written two letters for the video, and if that been supplied, which obviously was in existence, we would not have been in a position to make that submission in any event.
46. From that point of view, my Lord, and the special nature of the case is that until the police officer -- he did not give evidence that there was a warning. The only indication was that there was not a warning. Until that point we would not have been standing on ceremony. If it was between his word and the defendant's, one would obviously put the defendant's word to the court, but one would not make too much of a fuss if the policeman had said he had given him a warning. But he did not say he had given him a warning. All that one is entitled to do is to say "We want you to go through the procedure", is really what it is. That is not, in my submission, a lot to ask for.
47. I would say the two points are not giving us the video, which caused us to make a point which we would not otherwise have made if we had what was in existence but we were not aware of, and then if we were even in the wrong in the Magistrates' Court we should not be deprived of the costs of this court, my Lord. You say it is not a Divisional Court. I was aware of that a few years ago and I mentioned it to Collins J when he came to a lecture. I said there seems to be a lacuna here --
48. MR JUSTICE SIMON: There is a lacuna, Miss Calder, and in some cases the court will adjourn the question of costs to the Divisional Court.
49. MISS CALDER: Could I ask for that?
50. MR JUSTICE SIMON: You may ask.
51. MISS CALDER: He did not actually seem to have dealt with it.
52. MR JUSTICE SIMON: That is the way in which it is dealt with.
53. MISS CALDER: I think he thought I was saying something different. I think he was not quite aware of what I was trying to say at the time. I would ask that it be sent to the Divisional Court to deal with the costs. Would the prosecution need to attend for that?
54. MR JUSTICE SIMON: I have to make a decision first.
55. MR KELLAM: My Lord, one matter of clarification. The video tape has a soundtrack on it. It is not the case that some separate video exists with a soundtrack. You have to turn the television up to 100, put a pair of headphones on and press the headphones to your head with both hands before you can hear it. It is not the case that somehow a better copy exists which was suppressed. They are all equally bad.
56. MR JUSTICE SIMON: I hope a note was taken of that and I will try and correct it in my judgment to make the matter clearer. What do you say about costs?
57. MR KELLAM: My Lord, there is not an application for costs against the CPS so it is no prejudice to those I represent, however costs are awarded. In general terms, my Lord, if the point my learned friend makes was right that there was no warning, then a letter to the Crown Prosecution Service saying "There is no warning" might have resulted in this case being discontinued before it got to court. A submission at half-time might have led to the case being dropped before it got to verdict, or thrown out by the Magistrates, and an appeal to the Crown Court might have succeeded. Instead, here we are in the Divisional Court.
58. MR JUSTICE SIMON: Do you want to say anything further, Miss Calder?
59. MISS CALDER: I would like to make the application before the Divisional Court, my Lord.
60. MR JUSTICE SIMON: Very well. I am asked to deal with the question of costs. As Miss Calder recognises, I cannot make an order for costs out of central funds as a single judge because only the Divisional Court can do that. She therefore applies that I refer the application to the Divisional Court for that purpose.
61. It seems to me that if there were substantial merit in her application, that would be the proper course. However, there is no advantage in referring the matter to the Divisional Court if the application for the costs is entirely without merit. I find that it is. Despite my overall view, I have concluded that the conduct of the defence, as I have outlined in the course of my judgment, was such that they should not be entitled to the costs. I specifically reject Miss Calder's assertion that there was a right to the video and that it was a failure to provide the sound on the video that has caused this problem. There was no entitlement to the video or to hear the video in the absence of a positive case being advanced. None was, as is clear from the letter of 27th October 2008.
62. Is there anything else?
63. MISS CALDER: My Lord, we did get videos but we did not get the sound.
64. MR JUSTICE SIMON: Thank you for your submissions.