Wooldridge, R (on the application of) v Director of Public Prosecutions

1. MR JUSTICE JACKSON: This judgment is in four parts: part one, introduction; part two, was the medical certificate admissible; part three, questions (ii) and (iii) of the stated case; part four, conclusion.

Part one: Introduction

2. This is an appeal by way of case stated. The facts giving rise to this appeal are as follows. On 18th August 2001, the appellant was driving her motorcar on a public road at Stonnall in Staffordshire. At approximately 8.00 pm, the appellant was stopped by Police Constable Howell, who smelt alcohol on her breath and required her to provide a roadside breath test. The appellant provided a positive breath sample, and was arrested and taken to Tamworth Police Station. The appellant consented to provide breath samples but the Lion Intoximeter had a machine malfunction and was not operating reliably. In circumstances which have given rise to dispute, a specimen of blood was obtained from the appellant. A sample of that blood was sent in a sealed container to the Forensic Science Service. It was examined by Mrs Slater, an authorised analyst, and found to contain not less than 142 milligrammes of alcohol in 100 millilitres of blood.

3. On 17th October 2001, an information was laid by the respondent, the Director of the Public Prosecutions, against the appellant. The information alleged that on 18th August 2001, at Stonnall in the county of Staffordshire, the appellant drove a motorcar, namely a Lexus IS200 registered number Y548 TRD, on a road, namely Wall Heath Lane, after consuming so much alcohol that the proportion of it in her blood exceeded the prescribed limit, contrary to 5(1)(a) of the Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988.

4. This matter came on for trial at Burton upon Trent Magistrates' Court on 6th February 2001. Mr Young, the prosecuting solicitor, opened his case, and then handed up to the magistrates a bundle of documents. This bundle comprised: witness statements, tendered pursuant to section 9 of the Criminal Justice Act 1967; an analyst's certificate, tendered pursuant to section 16(1)(a) of the Road Traffic Offenders Act 1988; and a medical practitioner's certificate, tendered pursuant to section 16(2) of the Road Traffic Offenders Act 1988. The medical practitioner's certificate was signed by Dr Robin Apta. The certificate stated that Dr Apta, a police surgeon, took a specimen of blood from the appellant with her consent at 9.59 pm on 18th August 2001. Mr Young proceeded to read out the two certificates. He then embarked upon a reading of the witness statements. After he had read out the first witness statement, Mr Freeman, the appellant's solicitor, got to his feet and raised an objection. Mr Freeman said that none of the documents in the bundle had been received in his office. Mr Freeman accepted that the witness statement and the analyst's certificate had previously been supplied to him informally. He maintained, however, that he had never received Dr Apta's certificate. The first he knew about that certificate was when he heard Mr Young reading it out a minute or two previously. Mr Freeman accordingly objected to the admissibility of Dr Apta's certificate at the hearing. The magistrates, acting in accordance with advice from their clerk, ruled that Dr Apta's certificate was admissible. The trial then proceeded.

5. At the end of the hearing, the magistrates convicted the appellant of the offence charged. The magistrates imposed the following penalty: a fine of £600, an order that the appellant's driving licence be endorsed, an order for disqualification from driving for a period of 18 months, and an order that appellant do pay costs of £375.

6. As soon as this sentence had been passed, Mr Freeman gave notice of the appellant's intention to appeal by case stated. Mr Freeman wrote out in manuscript and handed up to the magistrates a request to state a case for the opinion of the High Court on two questions: namely, one, was the doctor's certificate admissible in evidence? And two, is an unsigned statement admissible in evidence under section 9 of the Criminal Justice Act 1967?

7. It should, at this point, be explained that the second question was a reference to a witness statement made by Police Constable Trow, which did not have his signature at the end but did have his signature following the declaration at the top of his statement. Not only did Mr Freeman pass up these two questions with a request that the magistrates state a case, but he also asked that the penalties imposed be suspended pending the outcome of the appellant's appeal. The magistrates duly made an order as requested, suspending the penalty. The disqualification was not to take effect and the payment of the fine was not to be required until the outcome of the present appeal was known.

8. The magistrates, in due course, stated a case. After narrating the factual background, the magistrates stated as follows, in paragraphs 4 and 5 of the case:

"4. It was contended by the defence solicitor that no statements had been received at his office but he agreed during the hearing that the statements should be tendered in evidence. No issue was taken by the defence during the trial in respect of Dr Apta's certificate until after it was admitted and we are now asked to state a case as to its admissibility.

"5. We were of opinion that:

(a) The doctor's certificate signed by Doctor Robin Apta dated the 18 August 2001 stating that the specimen of blood was taken from the appellant with her consent was admissible in evidence under section 16(2) of the Road Traffic Offenders Act 1988. There was no objection that section 16(3) of the Road Traffic Offenders Act 1988 had not been complied with prior to the certificate being admitted. A notice under section 16(4) of the Road Traffic Offenders Act 1988 had not been served by the defence on the prosecution. Because there was no objection by the defence that section 16(3) of the Road Traffic Offenders Act 1988 had not been complied with, the defendant had waived the requirement of strict proof of service and the document was therefore correctly admitted.

(b) Police Constable Trow's failure to sign his statement was a matter of form not substance in that he had signed the declaration at the top of his statement, which showed that he had read his statement and approved it as true and had simply omitted to sign again at the end of the statement. Objection was taken to the statement of Police Constable Trow being admitted in evidence, but we found it was properly admitted.

(c) If we had determined that the statement of Police Constable Trow dated 19 August 2001 was inadmissible under section 9 Criminal Justice Act 1967 because his signature at the end of the statement had been omitted, his evidence that he handed a sample of blood to Woman Police Constable Richardson was in any event covered by the statement of Woman Police Constable Richardson dated 20 August 2001, correctly signed, that she received a blood sample from Police Constable Trow. There was also evidence from Police Constable Whiteley of handing the sample to Police Constable Trow.

The phraseology of paragraph 4 and 5(a) of the stated case is somewhat convoluted. It has, however, become clear that the point which the magistrates were making is this. The appellant's solicitor first raised his objection to the admissibility of Dr Apta's certificate a couple of minutes after Mr Young had read out the contents of that certificate.

9. At the end of the stated case, the magistrates set out three questions for the opinion of the High Court. They are as follows:

"(i)Were we correct to admit the certificate of Dr Robin Apta in evidence under section 16(2) of the Road Traffic Offenders Act 1988, given that no prior objection was taken to it by the defence under section 16(3) or section 16(4) of that Act?

"(ii)Were we correct to admit the statement of Police constable Trow in evidence under section 9 of the Criminal Justice Act 1967, even though it had not been signed at the end?

"(iii)Were we correct to convict, given the High Court's answers to the above questions?"

10. The appellant's appeal comes on for hearing today. Mr Nigel Ley represents the appellant. Mr Nicholas Tatlow represents the respondent, the Director of Public Prosecutions. Mr Young, who appeared as advocate for the prosecution in the Magistrates' Court, is present at this court as Mr Tatlow's instructing solicitor. Mr Young, through counsel, has assisted my understanding of the case stated by the magistrates. I am grateful for the assistance of both counsel and their instructing solicitors.

Part two: Was the medical certificate admissible?

11. Section 16 of the Road Traffic Offenders Act 1968 provides, so far as material, as follows:

"(2)Subject to subsections (3) and (4) below, evidence that a specimen of blood was taken from the accused with his consent by a medical practitioner may be given by the production of a document purporting to certify that fact and to be signed by a medical practitioner.

"(3)Subject to subsection (4) below —

(a)a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in subsection (1)(a) above is admissible in evidence on behalf of the prosecution in pursuance of this section only if a copy of it either has been handed to the accused when the document was produced or has been served on him not later than seven days before the hearing, and

(b)any other document is so admissible only if a copy of it has been served on the accused not later than seven days before the hearing.

"(4)A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed."

If the medical certificate referred to in section 16(2) of the Road Traffic Offenders Act 1988 is not served on the accused at least seven days before the hearing, that is a bar to its reception in evidence. The absence of service is a defect which cannot be waived by the defendant or his advisers: see Tobi v Nicholas [1988] RTR 344, at 353 to 354 per Glidewell LJ, and 358 per McNeill J; McCormack v Director of Public Prosecutions [2002] EWHC 173 Admin, at paragraphs 37 to 38 per Maurice Kay J. On the other hand, it is possible for the defendant to waive the requirement that service be formally proved: see Lewis v DPP [1998] RTR 354.

12. The magistrates took the view that in the present case the appellant had waived the requirement of proof of service. I am unable to divine from the stated case what words or conduct by the appellant or her solicitor gave rise to such a waiver. Mr Tatlow, after taking instructions, told me that the magistrates can only be referring to the fact that Mr Freeman waited for a minute or two after the certificate was read out before making his objection. I am bound to say that a pause of that length of time cannot possibly give rise to a waiver. Mr Freeman was taken by surprise when the certificate was read out. He had never seen it before and was previously unaware of its existence. When a new point arises at a trial, the advocate will need a minute or two to reflect upon it and to consider the relevant statutory provisions. It is not a good idea to leap to one's feet immediately, and make the first submission that springs to mind. That minute or two, whilst Mr Freeman was reflecting, was not in any sense a wastage of court time: Mr Young got on with reading out the first of the witness statements. In argument today, Mr Tatlow, upon reflection, very sensibly conceded that the conduct in question cannot give rise to a waiver.

13. Let me turn now to the first question as formulated by the magistrates. The first question includes the following phrase, in the last line and a half:

"... given that no prior objection was taken to it by the defence under section 16(3) or section 16(4) of that Act."

This is a somewhat odd comment. No prior objection could be taken to the certificate, since neither the appellant nor her solicitor was in possession of it until the trial at the Magistrates' Court was in progress. Also, the reference to section 16(4) of the Road Traffic Offenders Act 1988 reads somewhat oddly. Section 16(4) refers to the service of a counter notice, which is generally required three days before the hearing. At that stage, namely three days before the hearing, neither the appellant nor her solicitor was in possession of the certificate.

14. At one point in his argument, Mr Tatlow submitted that the magistrates had by implication found that the medical certificate was, in fact, served seven days before the hearing. There are, to my mind, two objections to that submission. One, there is no finding to that effect set out in the case stated. A finding as crucial as this, if actually made by the magistrates, would be stated clearly and expressly. Two, if the magistrates found as a fact that the certificate was served on time, it is difficult to see why the case stated focuses exclusively upon the matter of waiver. For all these reasons, I have come to the conclusion that the medical certificate was not served at the appropriate time. There was no relevant waiver by the appellant or her solicitor, and that certificate was inadmissible in evidence.

Part three: Questions (ii) and (iii) of the stated case

15. Mr Ley very sensibly did not make any submissions about question (ii). In my view, the statement of PC Trow was correctly received in evidence for the reasons given by the magistrates. In relation to question (iii), Mr Ley submitted that the conviction cannot stand. Mr Tatlow, however, points out that there might have been other evidence which was before the magistrates and which established that, at 9.59 pm, Dr Apta took a specimen of blood from the appellant with her consent. On the other hand, Mr Tatlow concedes that no such evidence appears in the stated case.

16. This court cannot uphold a conviction on the basis of speculation about what other evidence, not mentioned in the stated case, might show. Furthermore, if such speculation were permissible, I would come to the opposite conclusion. My reason for saying that is as follows. In relation to question (ii), the magistrates went on to say that even if PC Trow's evidence was inadmissible, there was evidence of other witnesses that covered the same ground, and so the exclusion of PC Trow's evidence would not matter. In relation to question (i), however, there is no similar assertion by the magistrates. The magistrates in relation to question (i) do not go on to say that the absence of Dr Apta's certificate is unimportant because some other named witness covers the same matters.

17. For all these reasons, my conclusion is that the conviction of the appellant cannot stand.

Part four: Conclusion

18. My answers to the questions posed in the stated case are as follows: question (i), no; question (ii), yes; question (iii), no. Accordingly, this appeal is allowed and the appellant's conviction is quashed.

19. MR LEY: My Lord, I ask for costs. Normally, I would ask for costs out of central funds but Parliament has not vested that power in a single judge; it is only vested in a Divisional Court. Therefore, I would ask for costs against the respondent.

20. MR JUSTICE JACKSON: What do you say, Mr Tatlow?

21. MR TATLOW: I cannot say very much, my Lord. It seems unfortunate that your Lordship is not empowered to make an order for costs out of central funds, since with such an order (inaudible) and your Lordship is sitting under a Divisional Court.

22. MR JUSTICE JACKSON: Yes.

23. MR TATLOW: But there we are. We recognise that the overriding principle must be that a successful appellant ought not to be disadvantaged, so I cannot oppose the making of such an order.

24. MR JUSTICE JACKSON: I am grateful for that concession. In the circumstances, I do order the respondent to pay the appellant's costs. It is unfortunate that the order has to be made against the prosecution rather than against, if that is the right preposition, public funds. However, ultimately, one way or another, the costs must be borne by the taxpayer.

25. MR TATLOW: My Lord, I am grateful for that acknowledgment.

26. MR LEY: Maybe it is a reason in the future why these appeals should be heard by a Divisional Court, as they always were until about a year ago.

27. MR JUSTICE JACKSON: I am not sure about that, Mr Ley. The cost of tying up two judges would be an additional burden on public funds.

28. MR LEY: As your Lordship says, at the end of the day it all comes out of public funds.