Whyte v Director of Public Prosecutions

MR JUSTICE STANLEY BURNTON: This is an appeal by Jerome Greville Whyte by way of case stated against his conviction at Highgate Magistrates' Court on 13th September 2002 of an offence of driving a motor vehicle on a road after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit.

Most of the facts in the case stated do not matter because the points taken on appeal are in a sense technical points as to whether the evidence before the Magistrates' Court was such as to entitle them to conclude firstly, that the blood specimen that was analysed at the laboratory in question in this case was that of Mr Whyte, and secondly, whether the analyst's certificate as to the proportion of alcohol in the blood was admissible in evidence.

So far as the second point is concerned, it is common ground, and appears from the case stated, that the only evidence that the certificate in question had been served on Mr Whyte before the hearing of the case was when he returned to the police station from which he had been bailed following the taking of the sample on 5th March 2002. The evidence as to the service of the certificate was given by a police officer, namely PS Ward, whose evidence was accepted by the bench. However, PS Ward told the court that he had not been present at the police station on 5th March 2002, the date when, if service took place, it did take place. It is accepted that in those circumstances the only evidence of service was hearsay. Hearsay being inadmissible, in effect there was no admissible evidence before the bench.

Section 16 of the Road Traffic Offenders Act 1988 makes service of the certificate on the accused not later than seven days before the hearing a precondition of its admissibility in evidence. It follows that the magistrates were not entitled to come to the conclusion that the certificate had been served as required by section 16, and it equally follows that the contents of the certificate were not admissible in evidence.

The first question asked by the stated case is:

Objection is taken, and taken understandably, to that question because it does not focus on the precise factual issue now raised on behalf of Mr Whyte as required by the Magistrates' Court Rules. Rule 76(2) provides:

So far as the first question is concerned, it would have been clearer and more specific if the question asked was whether there was any evidence upon which a reasonable bench, properly directing itself, could have found that the certificate had been served on the appellant. The admissibility of the contents of the certificate would have followed from a decision on that factual question. Be that as it may, it seems to me that the question specified in the case stated which, of course, has been formulated on behalf of Mr Whyte, does, albeit not specifically and albeit somewhat indirectly, raise the relevant question. It was appreciated, as appears from the case stated itself, by the bench of magistrates and by the prosecution precisely what the point involved was. The answer to that question must be "no". It follows that the conviction must be set aside.

There is a second question raised by the case stated, which is as follows:

That question arises because, although the certificate correctly identified the time and place when the sample had been taken, the officer in question, the doctor in question and, presumably, the identity of the container in question, all by reference to information contained on the label of the container of blood, there was no evidence before the magistrate as to whether, and if so, what label had been affixed on the sample at the police station. The common sense inference, of course, is that the information on the container matching precisely the evidence as to the taking of the sample came from information applied to a label at the time the sample was taken. However, even that information, coming as it does from a certificate, depends on the admissibility of the certificate itself and, of course, as I have held, the certificate itself was inadmissible before the magistrates.

I am clear in this case (a) that the conviction must be set aside, and (b) that in the circumstances of the present case, where the appellant has already incurred a period of disqualification, where the fault in so far as the gaps in the evidence were concerned were entirely those of the prosecution, it would not be right to remit this matter to the magistrates for them to rehear the prosecution or to continue with it.

I come to that conclusion reluctantly, since the court should have little sympathy with those who do drive with excess alcohol in the blood. They present a danger to themselves and to members of the public, and looking at this matter in a common sense way, if the prosecution had done its job properly, a conviction almost inevitably would have resulted, but nonetheless general principles require me in my judgment not to remit the matter.

I would only add that the proper course must be always for there to be evidence before the magistrates as to the labelling of the blood sample at the police station, so that there is evidence before the magistrates that that label coincides substantially with the information taken from the label when the certificate is made by the laboratory.

For the reasons I have given, the appeal succeeds.

MS CALDER: As I mentioned, the appellant is not publicly funded. I would ask for the defendant's costs order for him and the court below.

MR JUSTICE STANLEY BURNTON: Mr Wild, you cannot resist that.

MR WILD: I cannot resist that.

MR JUSTICE STANLEY BURNTON: So be it.