QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE GARNHAM
|THE QUEEN ON THE APPLICATION OF HASSANI||Claimant|
|WEST LONDON MAGISTRATES' COURT||Defendant|
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"At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective."
That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided "efficiently and expeditiously". If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.
"The only real issue in this case was whether the evidential breath testing machine was working correctly. As [Counsel] chose not to cross-examine Sgt Pullen on this point, the time taken by prosecution evidence on the central matter for the court to decide was minimal. Despite that, the prosecution case alone lasted almost two days. A trial that could have been conducted in less than a day took over three full days (spread over five). This is not consistent with proper case management, and I recognize the argument that the court should not have allowed it.
1. Disclosure. The first hour or so of the hearing was taken by [Counsel] arguing about disclosure. The argument was rarefied and ultimately pointless. The crown had long since purported to comply with its disclosure obligations. Had [Counsel] been in a position to argue for further disclosure (and eventually he conceded that he wasn't) then the matter should have been brought back to court by way of a s8 application before the day of trial.
2. Evidence of calibration. [Counsel] continued to argue that there was no evidence of calibration from Sgt Pullen, despite being told by me, orally and in writing, that there was. He appears to accept that he did not cross-examine about calibration. What happened was that Sgt Pullen said the machine calibrated regularly. Ms Weiss then appeared about to put a document to the witness when she was interrupted by [Counsel], and there was an exchange between them. It was not addressed to me. [Counsel] did not observe the usual professional courtesy of standing and making his objection (if such it was) to me. The evidence stands and was not challenged. After it had been made abundantly clear to the defence that the court had heard and admitted evidence about calibration, the defence opposed an application to recall the sergeant, and therefore deliberately failed to take the opportunity to clarify what had been meant by the evidence he gave, or to challenge it. Instead he attempted to question the evidence in two impermissible ways, related to the reason why Sgt Pullen was satisfied that the machine was operating properly (for which, incidentally, see Haggis  EWHC 2481). Firstly he appeared to give evidence about it himself. Secondly he asked his expert witness about evidence the witness had not heard, and from notes that were not part of any official record (see below). This was an extraordinary approach, and I commented to that effect to [Counsel] at the time. It may be that what was meant by "calibrated regularly" was not clear, but the opportunity to clarify it was deliberately lost. In fact, it was not, in my view, essential to the prosecution case, as I will set out later.
[Counsel] relies heavily on a series of cases, including Owen v Chesters; Morgan v Lee; Denneny v Harding; Mayon v DPP and Hasler v DPP for his assertion that it is essential for the prosecution to establish that the device was properly calibrated. All these cases go back to the early days of the first generation machines and involve situations where either the test record was not served on the motorist, or no print out was produced, or the machine registered "abort" or the bench wrongly admitted the print out in evidence. This did not happen in this case. In Greenaway v DPP the officer stated that at the time of the test all the readings showed the machine was working properly. This was sufficient. In Haggis and Sneyd, both cases from this century, the position where the machine was working properly was analysed, and these are the cases that are relevant to the facts that I am dealing with.
3. Record of the hearing. A magistrates' court is not a court of record. Ultimately the parties must accept the decision of the court as to what evidence was and was not given. It helps if the proceedings are not unnecessarily protracted, as they were here. If an expert is to be asked about evidence given by prosecution witnesses, the normal and better approach is for that expert to attend and hear the evidence directly. To proceed, as here, by putting an incomplete and potentially inaccurate statement to the expert witness is of little or no value to the court. It is usually unhelpful for an advocate to attempt to introduce into the evidence his notes, or other people's notes, where he knows the court has a different understanding of the evidence (unless invited to do so by the court). For the record, [Counsel]'s own note of the proceedings, as summarized in his further skeleton argument, is inaccurate and cannot be relied on in any further proceedings. Where, unusually, written reasons are given for a finding of a case to answer, the court is not assisted by argument immediately afterwards expressly intended to change the judge's mind – there are other remedies. Moreover, if there is later argument around the reasons given it is best to set out those reasons rather than paraphrase in a way that could be considered misleading. An advocate's first duty is to the court, and if a challenge as to what was said is unavoidable, then scrupulous accuracy is required.
4. Calling the experts. At the case management hearing, the court made it clear that if the defence relied on expert evidence then the witnesses must be called. No application was made for witness summonses. Despite the hearing date being fixed well in advance, the experts were not present when Sgt Pullen gave evidence and were not, as far as I was aware, present at court at all. Instead, [Counsel] made and repeated an application for the statements to be read. The matter is simple and covered by the Criminal Procedure Rules, and the Criminal Practice Direction part 19A.2. The practice of serving expert evidence on the Crown, and arguing that this by-passes the Rules and PD, is unacceptable. (Indeed I add that the serving s9 statements of a witness likely to be contentious, and relying on no reply to avoid calling the witness is regrettable.) It should not have been argued at trial, and certainly not more than once. In a case of this nature, if the issue is the reliability of the evidential breath machine, then the defence must make arrangements for their witnesses to be present during the relevant part of the prosecution case, and should proceed on the basis that any court will want to hear from the witnesses, unless otherwise agreed by the court in advance.
5. No case to answer. On Day 2 of the trial, that is the day after Sgt Pullen gave evidence, [Counsel] made a submission of no case to answer. He did so, apparently without prior warning to the prosecutor and without producing his authorities in advance to her. Often in a summary trial this is inevitable. In this case it was not. This is not the place to set out the difficulties caused for the rest of the trial by what was clearly an ambush. It was made worse by the fact that the authorities produced were old, and did not include two from this century – Haggis and Sneyd - that on any account are relevant and in my view are against the defence. For example, Haggis makes it clear that Mayon is distinguishable because the machine registered "abort" and therefore there was evidence that there might have been a problem with the machine. Similarly in Denneny v Harding the defendant had not been served with the printout and the officer called to give evidence did not appear to have been trained upon the use of the device. As the court pointed out "there is a danger in construing dicta in a particular case as though it were a requirement in a statutory instrument." Similarly, failure to draw to the attention of the bench the passage from Cracknell v Willis  AC 450; RTR 1 highlighted above is disappointing in an advocate as familiar with the authorities as is [Counsel]. I must ask that when in future cases this point arises then [Counsel] not neglect his professional duties to cite these authorities.
6. What needs to be proved? I have set out my findings of fact and reasons above. However, given the reliance of [Counsel] on passages from judgments, that do not directly apply and given the way that this case was conducted over a number of days, I believe the following points need to be made.
a. There is a presumption that the EBM is working accurately. That was so at the time of Cracknell v Willis and is indeed a common law principle. The cases [Counsel] quotes from took place in the early days of the breath testing machines. Since then a second generation of machines has been introduced. They have been in operation every day for many years. They have gained an enviable reputation for accuracy. They self-calibrate (or more accurately they check calibration) so that the operator can see if a fault has developed, and the motorist is given a copy of the print out so it can be checked by his own experts, as happened here.
b. The common law presumption and the statutory assumption are both rebuttable. They can be rebutted by evidence of consumption by the defendant.
c. The defence can also directly challenge the reliability of the reading produced by the machine. In this case the print-out was provided to the defendant and was available to the experts and at the time of trial. The officer could have been cross-examined about the reliability of the machine, calibration or indeed any other matter of concern. I am suggesting that it is appropriate for the experts to be present in court during this cross-examination. The experts can later be called to say why the machine was unreliable, normally after the defendant has given evidence of consumption or other relevant issues. Without a challenge to the prosecution witness, the presumption that the machine works will on this point take the case beyond "no case", and indeed may lead to the question of admissibility of the defence expert, as not relevant to an issue raised.
d. In this case there was express evidence that the evidential breath machine was working and reliable, and there was evidence of calibration. My decision takes those into account. However, absent an express challenge to the machine, direct evidence of reliability and calibration is unnecessary. The presumption and assumption will suffice. The defendant's protection is that he can challenge reliability, operator competence, and calibration by clear and direct cross examination (and advance notice in the case management form) so that these matters can be properly and fully considered by the trial court.
e. There is no principle of law that the Crown must adduce evidence of calibration. This may or may not be necessary when the machine has aborted (as in Mayon). In Haggis Sullivan J said"In simple terms, there was evidence in that case that there was or might have been a problem with the machine. There was no such evidence in the present case. There was nothing to gainsay PC Fagin's evidence that it was "working properly"Mr Ley accepts that had that been the sum total of her evidence it might have been reasonable to infer that a machine that was "working properly" was correctly calibrating itself. He submits that PC Fagin's answer in cross-examination that she did not know the calibration limits of the machine means that she could not have know whether it had correctly calibrated itself and therefore could not have known whether it was working properly.As I have indicated, when considering the answer to question 2, beyond eliciting the fact that PC Fagin did not know the correct calibration limits of the machine, there was no attempt to challenge her evidence that the machine was working properly, that it had produced a print out and that the readings at least appeared to PC Fagin (accepting that she did not know the calibration limits) to be appropriate and that the lowest reading was 43 microgrammes in 10 millilitres of breath.The appellant had been provided with a copy of the print out. If there was anything in the print out (which was not produced to the judge) to indicate that the machine was not working properly that could, and no doubt would, have been put to PC Fagin in cross examination. In these circumstances, and each case will turn very much upon its own particular facts, the judge was entitled to conclude:"That there was no evidence at all which would have raised any doubt about the question as to whether the machine was operating correctly".Since it is "well known" that the machine tests itself, I do not accept that the prosecution have to prove that this is characteristic of the machine on each and every occasion. It may be taken that the device does test itself unless there is something to indicate that it might not have done so in the particular circumstances of the case. Pausing there, there was evidence in this case that this machine did test itself, that is to say that it was self calibrating. Although the operator's knowledge was imperfect, her evidence was, nevertheless, that the machine in her view was working properly and nothing was put to her suggest that her evidence in this respect was or might have been wrong".As Sullivan J said in Haggis (at paragraph 9) "there is a danger in construing dicta in particular case as though it was a requirement in a statutory instrument".
f. The Criminal Procedure Rules have effected a sea change to the way cases are to be conducted. The parties are required to abide by the Rules. This case, where almost everything was challenged or put to proof (even the identity of the driver), has an antique air about it.
g. In future, drink driving cases cannot be conducted in the way that this one was. All parties, including the court, have an obligation to ensure that only relevant and contested issues require evidence. Here, this court acknowledges its own failings. It should have ensured that the precise nature of the challenge to the MGDDA procedure was spelt out at the case management stage. Similarly, the "reliability of breath alcohol readings" was insufficient to identify the matter in dispute. If it was radio, then that should have been made clear. Similarly, if the question was calibration then that should have been made clear. If the issue was that the operator failed to detect an error on the face of the print out, then that should have been made clear.
h. Where the Crown is put to proof, for example as to the identity of the driver, then it might have been more appropriate for that evidence to be given in statement form, rather than requiring a witness to attend when his evidence on this point was not in dispute. Indeed, while it remains the case that a defendant can put the Crown to proof generally, the practice of single issue "putting to proof" may well be inconsistent with the Criminal Procedure Rules.
i. I told [Counsel] during the course of the trial that I struggled to understand his approach to the evidence. I am concerned that colleagues, especially those not trained in the law, should not be faced with the type of arguments that have been put before me. Drink drive cases should be far simpler than this. If the issue is that the defendant's consumption of alcohol shows that the machine is unreliable, then that is a straightforward matter of fact and does not need to be accompanied by a large number of law reports of early cases. If the issue is that the statutory warning has not been given, then this should be spelled out in the case management form and dealt with in cross examination. If the issue is that the machine was not properly calibrated, then again this should be spelled out in advance and dealt with directly by cross examination and possibly expert evidence. If the issue is operator error, so that the operator should have noticed that the machine had not properly completed its cycle and produced a certificate then I venture to suggest this can be dealt with very early on by producing the relevant printout to the Crown Prosecution Service and demonstrating the error. In those circumstances I doubt that a trial would be necessary.
j. It is essential that the bench has and retains confidence in the advocates who appear before it. In those circumstances I trust [Counsel] to bring the above comments (from at least page 13 onwards) to the attention of a bench trying cases such as these. He can of course point out why he disagrees, and it is clear that these comments are not a binding authority. However, it is in the interests of all that summary trials concentrate on the real contested issues, and do not descend into a game of smoke and mirrors."
Note 1 “Lord Griffiths: I am myself hopeful that the good sense of the magistrates and that the realisation by the motoring public that approved breath testing machines are proving reliable will combine to ensure that few defendants will seek to challenge a breath analysis by spurious evidence of their consumption of alcohol. The magistrates will remember that the presumption in law is that the machine is reliable.” p20
Note 1 “Lord Griffiths: I am myself hopeful that the good sense of the magistrates and that the realisation by the motoring public that approved breath testing machines are proving reliable will combine to ensure that few defendants will seek to challenge a breath analysis by spurious evidence of their consumption of alcohol. The magistrates will remember that the presumption in law is that the machine is reliable.” p20 [Back]