Mills v Director of Public Prosecutions

MR JUSTICE PITCHFORD: This is a defendant's appeal by way of case stated from the decision of Preston Crown Court on 7th June 2002. HHJ Mahon, sitting with justices, dismissed his appeal against conviction by Ormskirk Magistrates' Court on 9th January 2002, for an offence of driving a motor vehicle having consumed excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.

This is an appeal in which several points were originally taken. The facts of the case found by the Crown Court were these. On 2nd March 2001, the appellant drove out of the car park of a public house in Chorley. He was followed by Police Constable Cross, who stopped the vehicle in Sandbrook Road. He noticed that the appellant's breath smelled of alcohol. The appellant told the officer that he had had his last drink within the previous few minutes, and Police Constable Cross asked him to provide a roadside breathtest. That test proved to be positive. The appellant was arrested and he was taken to Skelmersdale Police Station. There, he was asked by Police Constable Cross to provide two samples of breath. The appellant made what the officer believed to be a genuine attempt to complete the first breath test, but failed to provide a satisfactory specimen.

Having obtained advice from his sergeant, the officer took the view that the test had not been completed for medical reasons, and therefore required from the appellant a specimen of blood. That specimen was provided, and divided into two samples. Police Constable Cross sealed the samples. He wrote "ERP" in capitals (Evidence Related Property) on both samples, and added the figures "2100". No explanation was given in the evidence of the significance of that numbering, and no finding was made. Police Constable Cross did not give evidence that he placed either of the specimens taken in the refrigerator at Skelmersdale Police Station, and no such finding to that effect was made.

Next, Mr Jennings, a civilian driver for the police, on a date and at a time unspecified in the evidence, took a specimen from the ERP refrigerator at Skelmersdale Police Station. He saw that upon it was the marking "CJ/210/01". That specimen he delivered to the Forensic Science Services in Chorley.

The chain of evidence relating to the sample was completed by the statement of Mrs Slater, an authorised analyst for the purposes of section 16 of the Road Traffic Offenders Act 1988, who had signed a certificate that on 12th March 2001, that is to say ten days after the specimen was taken, she examined the specimen of blood. This was found to contain 90 milligrams in each 100 millilitres of blood. The specimen was in a sealed container with a label on it. The label had the following details:

Miss Calder, in her ground one, on behalf of the appellant, submits that the prosecution failed to establish that the blood sample, the subject of the analyst's certificate admitted under section 16, was the sample taken from the appellant at Skelmersdale Police Station on 2nd March 2001. There was indeed, in my view, a lacuna in the evidence.

In short, according to the case, the evidence established that Police Constable Cross wrote on the specimen, and that he wrote "ERP 2100". At some unspecified later time, Mr Jennings removed from the fridge at the police station a specimen differently labelled, and took it to the Forensic Science Services in Chorley. Ten days later, Mrs Slater examined the sample, which contained a label on which further details had been written. The station at which Mr Mills' sample was taken was not Chorley, as recorded on that label, but Skelmersdale. Otherwise, the details were certainly consistent with the taking of the specimen from the appellant at a police station at 01.53 am on 2nd March 2001.

We are told by Miss Shepherd, who appears for the respondent, that the HO/RT5 certificate of Dr Mia Faza certified the taking of such a sample at that time and date, but regrettably there is no record of any such evidence or finding in the case stated. The Crown Court explained its conclusion on this issue as follows:

Finally, the court explained that it had considered Paterson v DPP [1990] RTR 329, but concluded that the 1972 Road Traffic Act applied to that case, and it had different wording from the Road Traffic Act 1988. Paterson was indeed a decision under the provisions of the Road Traffic Act 1972. The statement of an analyst was admitted under Section 9 of the Criminal Justice Act 1967 to prove the analysis. However, the chain of evidence did not establish how the specimen which was analysed had made its way in an envelope from the police station to the analyst's laboratory. The specimen analysed was labelled Asfordby Street Police Station, when in fact the appellant had given the sample at Charles Street Police Station. The court found that the continuity evidence was incomplete, and could not have survived the standard of proof.

The Crown Court in this appellant's case attempted to distinguish Paterson on the ground that section 16 of the Road Traffic Offenders Act 1988 provides a procedure by which evidence can be given which is deemed to be conclusive. There was, however, in my view no real distinction to be made between this appellant's case and Paterson. If it were so, then proof that the sample analysed was not that of the appellant would be no defence. Once the issue was raised, the prosecution's obligation was to prove the origin of the specimen to the criminal standard. There were, in my view, at least four unsatisfactory aspects of the chain of evidence. First, Police Constable Cross labelled the specimen, but there was no evidence that he placed it in the fridge. Second, his marking of the specimen did not, on the face of the evidence, match the marking on the specimen recovered by the courier from the fridge. Third, the incorrect origin of the specimen was subsequently placed on yet another label. Fourth, there was no evidence as to who the source of the information ultimately written on the label of the specimen analysed was, and no evidence that the specimen labelled was indeed that taken from the appellant.

These circumstances must, in my judgment, raise significant doubt in the mind of tribunal of fact whether the sample analysed was the appellant's. It would have been contrary, of course, if the prosecutor had been in a position to prove that the specimen had been placed by Police Constable Cross, or another officer, in an empty fridge, and that no other such cases were dealt with at Skelmersdale Police Station before Mr Jennings removed the specimen and took it to the laboratory. In the absence of evidence from which the appropriate inference could have been drawn, however, it is my view that the court should not have reached the conclusion that it did.

Miss Calder has advanced in her skeleton argument criticisms of: the court's decision concerning the arrest of the appellant following a roadside test; the police officer's decision to make a request for a specimen of blood, following an inability by the appellant to provide a specimen of breath; and a rejection of an application, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence of the analysis. We have not, in the result, heard argument about those grounds, and I shall not attempt to give a judgment upon them. It suffices to say that, in my view, Miss Calder is right to concentrate on her ground one.

On that ground, I would allow the appeal.

LORD JUSTICE SCOTT BAKER: I agree. I would, therefore, answer the question posed, "Was there evidence upon which a reasonable bench properly directing itself could have held that the blood analysed by Mrs Slater was in fact the Appellant's blood?" in the negative. It seems to me that the matter should be remitted to the Crown Court with the direction to acquit.

MISS CALDER: My Lord, can I mention one point? The claimant is legally aided. I am not certain if he was always legally aid. If there is a period before which he was legally aided, will I be able to have a defendant's costs order for that part? In fact, I think there was an interim period between when the legal aid was granted, and work was done on the matter before that, dealing with the actual case ...

LORD JUSTICE SCOTT BAKER: Do you know when it was?

MISS CALDER: Between the time in the Crown Court and the time that he was granted legal aid in this court, there was a space of time in which work was untaken.

LORD JUSTICE SCOTT BAKER: Have you any details of those costs?

MISS CALDER: No. I do not have details of costs, but I know that I did some work for it, written work that is.

LORD JUSTICE SCOTT BAKER: It seems rather a waste of money to have a detailed assessment in respect of costs over that period. One would have thought that they might be the subject of agreement. What does Miss Shepherd say about this?

MISS CALDER: We are asking for costs from central funds.

LORD JUSTICE SCOTT BAKER: It seems to me that there is no reason why you should not have your costs out of the central funds in respect of such period as you were not covered by the certificate.

MISS CALDER: I am obliged, my Lord, thank you.

LORD JUSTICE SCOTT BAKER: You are to lodge with the court a notification of the dates that period covers, so that the court is clear about it.