Vehicle and Operator Services Agency v George Jenkins Transport Ltd.

J U D G M E N T

1. LORD JUSTICE KENNEDY: Mr Justice Mackay will give the first judgment.

2. MR JUSTICE MACKAY: This is an appeal by way of case stated against a decision of the Isle of Wight Magistrates' Court (District Judge Morgan) dated 22nd April 2003. It is brought by the prosecutor, the Vehicle and Operator Services Agency ("VOSA"), against her decision to rule as inadmissible certain documents which the prosecutor wished to put in evidence.

3. The prosecutor had preferred some 201 informations against the respondent company, George Jenkins Transport Ltd, and related charges against some 29 individual drivers who were its employees or former employees. Some idea of the prolixity of these informations can be seen from the fact that they cover 82 A4 pages of the case stated in single-space type.

4. Two categories of charge featured in this prosecution. The first was under section 97(1)(a)(iii) of the Transport Act 1968, alleging that vehicles had been used to which the section applied in which recording equipment was not used as provided by certain regulations; in that the driver had not used a tachograph sheet to record all his periods of work. In plainer English, it was alleging driving off tachograph for some portions of particular journeys or days. Secondly, there were charges under section 99 of the same Act, which alleged that drivers had driven their vehicles to which other regulations applied for hours which exceeded permitted hours and/or without the prescribed rest periods or breaks.

5. Therefore, in all the charges the prosecutor faced the task of proving, in relation to several hundred journeys and days of work, the hours for which individual drivers had actually worked, as well as the journeys they had covered, and then had to go on to prove that these were not properly recorded in accordance with the requirements of the Act and the regulations under it.

6. To discharge this burden, the prosecutor sought to put in evidence a number of drivers' time sheets. This was crucial evidence, without which the prosecutor had no case. The District Judge was asked to rule on the admissibility of these as a preliminary point. She ruled them inadmissible, and such was their importance that the prosecutor in consequence offered no evidence and all the charges against all defendants were dismissed.

7. This appeal by the prosecutor centres on the provisions of section 24 of the Criminal Justice Act 1988, which I should set out together with the two sections which follow it, so far as relevant. Section 24 reads:

"... a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied—

(i) the document was created or received by a person in the course of a trade, business, profession or other occupation, ... and

(ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

(2) Subsection (1) above applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it—

(a) in the course of a trade, business, profession or other occupation; ..."

8. Section 25, in its relevant parts, reads:

"(1) If, having regard to all the circumstances—

...

(c) a magistrates' court on a trial of an information,

is of the opinion that in the interests of justice a statement which is admissible by virtue of section ... 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.

(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard—

(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them."

9. Finally section 26 should be set out, so far as is relevant:

"Where a statement which is admissible in criminal proceedings by virtue of section ... 24 above appears to the court to have been prepared, ... for the purposes—

(a) of pending or contemplated criminal proceedings; ...

the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard—

(i) to the contents of the statement;

(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and

(iii) to any other circumstances that appear to the court to be relevant."

10. Returning then to section 24, that raises at once in a case such as this two questions, so-called criteria or gateway provisions, which have to be satisfied before there is any question of admitting in evidence such documents as are involved in this appeal. Firstly, each time sheet must have been created or received by a person in the course of a trade or business; and secondly, the information contained in the document must have been supplied by a person, whether or not the maker, who had or might reasonably be supposed to have had personal knowledge of the matters dealt with. Both are matters which the prosecutor would need to prove to the criminal standard.

11. As to the first, having looked at an example of one of these documents, it seems to me to be plain that it is what it purports to be on its face; that is to say, a weekly record of some sort, purporting to record the hours driven by a particular driver on a particular vehicle, the trips he made, the mileages at which he refuelled and the amount of fuel he took on and, more particularly, the hours to which he worked each day.

12. As to the second criterion, the prosecutor argued below (and argues before us) that there was a plain and obvious inference that this criterion was met.

13. The way the case has been formulated for this court is not entirely satisfactory. It appears as though evidence was considered by the District Judge in the process of deciding this preliminary issue, in the sense that the disclosed prosecution evidence was treated for the purposes of the issue as having been given and having been correctly given. She records in the case that the time sheets were delivered to VOSA as a result of a request made to the respondent company under section 99(1) of the Transport Act 1968. Pursuant to that request, documents were provided by the respondents' solicitors. That was not the subject of any formal agreement, and therefore must have come from her perusal of the evidence.

14. It was indeed the case, from that evidence, that VOSA had exercised the powers that it had under section 99(1)(c) of the Transport Act 1968 by a request dated 25th July 2002, which demanded from the respondents, among other things:

"Time sheets for ALL drivers between 01 February 2002 and 30 March 2002."

15. There was evidence from a witness that these were received on 8th August 2002 and that, as this court can see for itself from a specimen sheet, each sheet bore the name of the driver of the vehicle, the defendant company and its address, the days of the week, the start and finish times of the driver and details of his refuelling and mileage.

16. In each case, again in pursuance of a request under section 99(1), a tachograph disc had also been provided by the respondent. Unlike the time sheets, section 97B of the 1968 Act states that such tachograph discs are evidence of the matters appearing on them. A comparison was made of the time sheets and tachograph discs and the evidence was, or would have been, that there was in each case a match between the time sheet and the relevant tachograph.

17. The respondent argued below and argues before this court that a pre-requisite of a document's admission as documentary hearsay under section 24 is that in each case each document must be produced and spoken to by a witness capable of proving it, and of proving the two necessary matters set out in section 24, including the personal knowledge of the maker or person supplying the information contained in it. In her decision, the District Judge resolved the argument in a way that is not entirely clear, but which I will set out in full. She said this:

"The question of which I must be satisfied is can the prosecution show proof of due execution of the documents. Although I may be able to properly infer what the document is, there is no evidence before the court as to who was the maker of the document i.e. was it the individual driver or someone else completing the document from some other source which may have been the driver. Can the document therefore be adduced as admissible evidence?

I have considered s24 CJA 1988 but there is no evidence producing these documents as a business document."

18. It is not immediately clear to me whether only the last sentence of the passage I have quoted constitutes the entirety of the District Judge's decision on this preliminary point, or whether the whole passage is her decision with possibly the omission of the first sentence. I will assume the latter, which appears to me to be the more generous construction to be placed on this part of the decision.

19. Before returning to that question, I should deal with a second and separate point. The respondent had also argued below that the prosecution could not prove and had not proved by evidence continuity of the time sheets produced, namely who had received them, who had held them, where they had been kept, between the time when they were produced, which on the evidence was 8th August 2002, and their purported introduction at the hearing.

20. The District Judge ruled against that. She said that it would be an extraordinary coincidence if, after having requested specific documents, documents of the same character referring to the same company, driver and vehicle on the same date were later received and were not in fact the authentic documents. As she put it:

"The prosecution have been sloppy, but the court can use common sense to infer that the probability of them being different documents is so remote as to exclude it."

With that I agree.

21. Today, on behalf of the respondent, Mr Laprell argues a further or different point that there might have been omissions, in the sense that the prosecutor might have lost some of the time sheets with which it had been supplied in that intervening period, and therefore the picture was incomplete and unreliable. For my part, I would favour applying the same common sense about the matter that the District Judge brought to bear on the argument in this respect as presented to her. There seems to me therefore to be nothing in this separate point. I return to the essential point, as to whether some form of direct evidence by way of proof of the documents under section 24 is a precondition to their admission.

22. In the case of the R v Foxley [1995] 2 Cr App R 523, there would appear to be binding authority of the Court of Appeal, Criminal Division, on this point. That case involved allegations of corruption against a government official whose job included the placing of contracts for the supply of ammunition. It was said against him that three foreign suppliers made payments into three intermediary banks, in which were numbered accounts, and that these payments corresponded to corrupt contracts. It was also said that the appellant was the beneficiary under those accounts.

23. The prosecution case was almost entirely based on documentary evidence which had been obtained through "lettre rogatoires". None of the documents were the appellant's own, nor had they even been through his hands or passed in front of him at any stage. The appellant argued that no witness had been called to speak to the documents and as to their purpose or the personal knowledge of the maker, nor their provenance, nor their continuity. The appellant's argument was recorded by Roch LJ at page 535 in this way:

"The appellant's counsel makes these observations about these documents; namely that no witness spoke to them nor to the transaction reflected by the document. The documents were not directed to or seen by the appellant. There was no evidence from the creator of the document either as to the purpose for which it was created or that the maker had personal knowledge of the contents or that it was created in the course of a trade or business. There was no evidence as to where the document had been kept, although each document was many years old. Thus cross-examination as to the documents or the transactions they purported to reflect was impossible."

So the question that the Court of Appeal had in front of it, as it saw it, was whether the conditions required by section 24 had been satisfied.

24. Having set out that question, the learned Lord Justice went on as follows:

"Section 24 deals with the statements in a document and makes such statements admissible of any fact of which direct oral evidence would be admissible if two conditions are satisfied. The wording of condition (ii) demonstrates that Parliament anticipated that courts would draw inferences as to the personal knowledge of the person supplying the information of the matters dealt with. The purpose of section 24 is to enable the document to speak for itself; the safeguard being the two conditions and the other statutory provisions applicable, for example in the case of a statement made for the purpose of a criminal investigation, one of the requirements of section 23(2) or the requirements of section 23(3) have to be fulfilled."

25. He continued later:

"With regard to section 24, we would suggest that Parliament's intention would be defeated if oral evidence was to be required in every case from a person who was either the creator or keeper of the document, or the supplier of the information contained in the document."

He then referred to an earlier unreported decision of the Court of Appeal, the case of Dobson on 12th November 1993, on facts which were very close to those that we are considering in this appeal. There the court had dismissed an argument that the original creator of in that case a document from the DVLC had to be called to meet the statutory criteria, as opposed to a police officer who had requested and collected the document.

26. I find the reasoning of the court in Foxley compelling. The passage of section 24(1(b)(ii) referred to plainly envisages a process of judgment by inference as being potentially one of the methods to be used by the court in its decision. Furthermore, section 25(2)(d) again plainly envisages circumstances in which the maker of the document may not attend court to give evidence. There are many circumstances -- and this case stands in my judgment as an example -- in which the construction contended for by the respondent below and in this court would administer at the very least a serious setback to Parliament's evident intention to widen the court's powers to admit documentary hearsay, subject to proper safeguards for the accused.

27. Mr Laprell to support his argument has referred us to the case of Case [1991] Crim LR 192. This, it has to be noted, was a decision under section 23(1) and (2) not section 24, and was to the effect that where there existed a statement by a witness who was said to be overseas, and therefore said to meet the criterion at section 23(2)(b)(i), and the prosecutor sought to introduce that statement to prove the criterion to the court's satisfaction, the contents of the statement could not themselves be used as evidence of fact to prove that the requirement was met. This case was, we note, cited in Foxley, in which the Court of Appeal was clearly minded to distinguish between the methods by which the criterion might be met under the two different sections.

28. Subsequently, Foxley has plainly been followed by another constitution of the Court of Appeal in R v Ilyas and Knight [1996] Crim LR 810. In that case at issue was the admission under section 24 of a diary found in certain commercial premises. The court said this:

"There may be circumstances in which a document would have to be explained in evidence before it could be admitted under [section 24(1)]. But the diary was a document found on the counter of the business, containing precisely the sort of entries one would expect to find in a document created by the person in the course of a business and in circumstances where the information would have been supplied by a person who may reasonably be supposed to have had personal knowledge of the matters dealt with. Such a document spoke for itself (see Foxley ...) It was therefore admissible as a business document."

29. In my judgment, the court is plainly entitled, and in an appropriate case bound, to look at the face of the document which it is being asked to allow into evidence under section 24 to answer both of the qualifying conditions. If that is done in this case, only one conclusion can follow from the circumstances in which these documents were obtained by the prosecutor, and from their appearance on their face, without at this stage having to treat as true the statements which they contained. The very look of them answers, in my judgment, both questions and the fit with other documents which are admissible and self-proving in evidence.

30. These were plainly documents, in my judgment, which met both section 24 criteria. The question posed in the case stated therefore should be answered in the negative.

31. That only leaves as an issue whether this matter should go back to the court below for a continued hearing. If they are admitted, the terms of section 25(2) (which I have set out above) will give full scope to the defendant to test the strength and reliability or other factors that are there mentioned relating to the document, and will impose a duty on the court to have regard to anything which may result in unfairness to the accused. Mr Laprell argues that the court is bound, by virtue of Article 6 of the European Convention, to look with the greatest of care at any provision which admits evidence which may well be decisive, or at all events highly influential, on a hearsay basis which will by definition reduce the ability and power of the defendant to test that evidence and meet it. He cites Luca v Italy36 EHRR 46 as authority for the proposition that where what amounts to the only evidence against an accused person is introduced on a hearsay basis, such a provision will be or may be breached.

32. This question was addressed in the Court of Appeal, Criminal Division, in R v M[2003] 2 Cr App R 322, where it was held that there was no invariable rule that a conviction might be based solely or even to a decisive degree on the statement of a witness that the accused had no opportunity to examine, either during the investigation or during the trial itself. In that case the vital witness evidence had been introduced under section 23, the witness saying he was in fear.

33. These are, I should remind myself, documents emanating from the respondent itself, not from some outside source. To the extent that they are or may be unreliable or open to challenge, the respondent of all people will be in the best position to do that. I say nothing as to how that discretion should be exercised by the court when it reconsiders this matter, and it should be left to that court's judgment when it approaches its task afresh.

34. LORD JUSTICE KENNEDY: I agree. Professor Smith was critical of the decision in Foxley in the note which he wrote in the Criminal Law Review, on the grounds that he considered that the documents which were in issue in that case were admissible without reference to section 24(1). But in a note which he wrote in the same publication in relation to Ilyas and Knight he said, at [1996] Crim LR 812:

"The nature of the document and the circumstances in which it is found may be such as to afford sufficient evidence to satisfy the judge that conditions (i) and (ii) are fulfilled; and the present case may well be such a case."

If in relation to that observation one substitutes for the word "found" the word "produced", it seems to me that it fits exactly the circumstances of the case which we are considering.

35. I would also wish to underline what has been said by my Lord about the desirability of a case stated being properly set out, even when it relates to a preliminary ruling. I make four points. First, the case stated does not need to set out the details of informations where, for the purposes of the ruling, nothing turns on the differences between them. The details of one or two informations will suffice.

36. Secondly, it should set out the facts as found or accepted for the purposes of the ruling with reference to any relevant documents, such as in the present case the request for the time sheets and the response thereto.

37. Thirdly, it should then set out in summary form the submissions made on each side.

38. Finally, fourthly, it should set out the court's conclusion on the matters in issue and the question for the consideration of this court.

39. If that is done, this court has a sure foundation from which to proceed. Where advocates appear in the Magistrates' Court, there is no reason why the court, if minded to state a case, should not invite the advocates for the parties to submit a first draft, indicating any areas of disagreement. But one way or another it is important that by the time that the case stated is signed it is in a satisfactory form.

40. MR NESBITT: My Lords, the prosecution has therefore won the appeal and we would therefore apply for the costs of this appeal against the defendant as well as the costs of the hearing below.

41. LORD JUSTICE KENNEDY: I do not see how you can resist either leg of that application, can you Mr Laprell?

42. MR LAPRELL: My Lord, the only way in which I can resist that is in this way. As in one of the cases -- and I can not remember which one it is -- it was effectively said there: "To a degree the prosecution have brought this on themselves by the way in which the case was presented in the lower courts," and the appropriate way of dealing with it is to say that the costs should either be each party should bear their own or alternatively that they be dealt with -- and I appreciate probably the latter -- dealt with by the judge at the end of the day when she makes her ultimate findings as to whether this defendant is acquitted or convicted.

43. LORD JUSTICE KENNEDY: You may have your order as sought. Thank you both for attending. Thank you both for your attendance.

44. MR NESBITT: My Lord's indication in relation to costs --

45. LORD JUSTICE KENNEDY: I said as you sought. In other words, you may have your costs here and below.

46. MR LAPRELL: I am just checking that that is for this hearing and the hearing below?

47. LORD JUSTICE KENNEDY: And below. In relation of course to this issue, not in relation to what may happen hereafter. Thank you very much.

______________________________