Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE MITCHELL
THE QUEEN ON THE APPLICATION OF BRIAN KINGSNORTH AND MARK DENNY
(CLAIMANTS)
-v-
THE DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT)
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MR S EVANS appeared on behalf of the CLAIMANT, KINGSNORTH
MR S YEUNG appeared on behalf of the CLAIMANT, DENNY
MR M JOYCE appeared on behalf of the DEFENDANT
J U D G M E N T
Monday, 17th March 2003
MR JUSTICE MITCHELL: Before the court are two appeals by way of case stated against, in the first case, a decision of the Magistrates sitting in Corby, and in the second case, the decision of the Daventry Magistrates sitting at Northampton, each court being a Petty Sessional Division in the county of Northampton. Each case raises the same point in relation to the proof of one of the ingredients of the offence of driving while disqualified contrary to section 103(1)(b) of the Road Traffic Act 1988, namely that the accused at the time of the relevant driving was a disqualified driver.
The first appeal is that of Brian Kingsnorth. The short facts are that on April 30th 2001, the appellant drove a Renault van F234 DEW at Sowerleys Road and Dunedin Road. He had been disqualified from driving for 12 months by the Northampton Combined Youth Court on 22nd August 2000. He was, accordingly, on April 30th 2001, a disqualified driver, in the sense that he was disqualified for holding or obtaining a driving licence.
The case was heard by the Corby Magistrates on 30th August 2001. The point taken at the trial is identified in paragraph 3 and thereafter in the case. Paragraph 3 reads:
"It was contended by the appellant at the close of the prosecution case, and again after our rejection of his submission and his election not to give evidence himself, that there was no evidence legitimately before the court that the defendant was in fact disqualified. It was asserted that although the prosecutor had stated that the defendant had been disqualified for 12 months on 22nd August 2000 no certified extract or printout of the relevant disqualification had been produced in evidence".
Paragraph 4:
"It was contended by the respondent that the defendant was in fact disqualified at the relevant time and that he had been proved beyond a reasonable doubt to have been the driver and was therefore guilty of the offence".
Paragraph 5:
"We were not referred to any cases but were advised by our clerk who had in turn sought the advice of the Clerk to the Justices for the County that our own records available by computer link in court showed the conviction referred to and that we could be taken to have knowledge of the court decisions of our own area, analogous to judicial notice".
Paragraph 6:
"We were of the opinion that the respondent had proved beyond reasonable doubt that the appellant was driving the vehicle on the 30th day of April 2001, and that we as a court were aware of our own decisions in having convicted him on 22nd August 2000 and disqualified him for holding or obtaining a licence for 12 months and accordingly we convicted the appellant and sentenced him to a total of three months' custody in a Young Offender Institution and disqualified him for holding or obtaining a driving licence for a further 12 months".
Paragraph 7 is the question:
"The question for the opinion of the High Court is whether we were correct to take the view that valid convictions within our own jurisdiction could be deemed to be within our knowledge and not require formal proof by any party".
Before moving to the second case, it is necessary to say something about the delay in this case. The case stated was signed by the Clerk to the Justices on December 18th 2002. On September 20th 2001, the Magistrates had sentenced this appellant to a short term of detention and imposed a further period of disqualification.
The following day, September 21st, application was made by the appellant's solicitors to the Justices to state a case. The delay of some 15 months before the case was settled is explained in the statement of delay made pursuant to rule 79(1) of the Magistrates' Courts Rules 1981. The explanation has the single merit of frankness. It accepts that the delay was entirely the fault of the office at the Magistrates' Court. More particularly, it is said, and I quote:
" . . . that at a busy time in view of the fact that the appellant had been granted bail the case was not prioritised. Thereafter it was overlooked despite periodic reminders from the appellant's solicitor".
The appellant may have been on bail. It remained the fact, however, that he continued to have hanging over him until his appeal was determined the prospect of serving a custodial sentence. The point of law raised in the case could not have been shorter or more straightforward in terms of the drafting of the case. Steps by now should have been taken to ensure that this sort of thing never happens again.
I turn next to the second case, the appeal of Mark Denny. The appellant had been disqualified from driving by the Northampton Magistrates on 22nd November 2001. On February 21st 2002, he drove a Vespa scooter S105 RNK along Spratton Road. He was charged on February 22nd 2002 with contravening section 103(1)(b) of the Road Traffic Act 1988.
On October 14th 2002, the case came before the Magistrates. The relevant paragraphs in the case stated, also signed on December 18th 2002, are in these terms. Paragraph 3:
"It was contended by the appellant:
i) That there was no evidence called which showed the appellant was disqualified.
ii) There was no evidence that the person disqualified in November 2001 and the person before us was one and the same.
And that therefore the appellant ought properly to be acquitted".
Paragraph 4:
"It was contended by the respondent that the appellant was in fact disqualified at the relevant time and that he had been proved beyond a reasonable doubt to have been the driver and was therefore guilty of the offence".
Paragraph 5:
"We were referred to DPP v Malony and ex parte Heaviside as authorities for the appellant's propositions. We were advised by our clerk who had in turn sought the advice of the Clerk to the Justices for the County that our own records available by computer link in court showed the conviction and information referred to and that we could be taken to have knowledge of the court decisions of our own area, analogous to judicial notice. It was a legal duty to maintain a court record, authenticated by clerks for its accuracy, and in the absence of sound evidence to suggest there was a mistake, the record was to be relied upon. For us to hold otherwise would render the court registers and records meaningless".
Paragraph 6:
"We were of the opinion that the respondent had proved beyond reasonable doubt that the appellant was driving the vehicle on the 21st day of February 2002, and that we as a court were aware of our own decisions in having convicted him on 22nd November 2001 and disqualified him for holding or obtaining a licence for 12 months and accordingly we convicted the appellant and sentenced him to a total of 20 weeks' custody in a Young Offender Institution and disqualified him for holding or obtaining a driving licence for a further 12 months".
Then paragraph 7, the question:
"The question for the opinion of the High Court is whether we were correct to take the view (a) that valid convictions within our own jurisdiction could be deemed to be within our knowledge and not require formal proof by any party, and if so (b)that in the absence of any evidential challenge to the accuracy of the court record it was legitimate to conclude that a conviction against a person identified to the court as sharing the same surname, first names, date of birth and address as the person before us was indeed a conviction against the person before us".
Mr Joyce, who appears for the respondent in each of these appeals, does not seek to uphold either of these convictions. This court is accordingly invited by each appellant and by the respondent to remit each case to the relevant court with a direction to acquit.
The point raised in each case is whether, where a court is trying a defendant for a contravention of section 103(1)(b) of the Road Traffic Act 1988, if the prosecution fails to adduce evidence as part of its case that the accused was at the material time a disqualified driver, the Justices can, through their Clerk, consult computerised court records and, having found a person of the same name, date of birth and address was disqualified on the date put forward, pronounce themselves satisfied that an essential ingredient of the offence had been proved.
The short answer is they cannot. It is, to say the least, somewhat surprising to hear that all these Magistrates and their Clerks believed that they could. Quite apart from the fact that the mode of proof of a previous conviction is provided for by the statute, and is a topic considered in a number of authorities, it is disconcerting to find that any Bench of Magistrates consider that it is appropriate for them to descend into the arena and, through their Clerk, provide information which is intended to prove an ingredient of the very offence which the prosecution allege was committed by the accused whom those Magistrates are trying.
Reliance on the accuracy of court records, and upon principles relating to judicial notice to justify this device, is entirely misconceived; nor is there any relevant analogy which can properly justify what happened in each of these cases.
Prior to being furnished with the information provided to their Clerk by the computer, the Justices had no knowledge whatsoever of the facts of the relevant disqualification. There was not even any printout. Even if there had been, it would have required formal production in evidence.
In truth, the evidence these Justices acted upon was unsworn, inadmissible hearsay. Evidence of facts obtained from computer records can only be adduced in an admissible form, notwithstanding the repeal of section 69 the Police and Criminal Evidence Act 1984 by the Youth Justice and Criminal Evidence Act 1999, section 60.
What, then, is the proper approach?
First and foremost, it is the prosecution's responsibility, and no one else's, to provide _prima facie_ evidence of each ingredient of the offence it is alleged a defendant committed. It is the duty of the court in the event of a submission of no case being made to decide whether there is _prima facie_ evidence of each ingredient of the offence. If there is not, ordinarily it will dismiss the case.
The relevant statutory provision for the proof of convictions and acquittals is section 73 of the Police and Criminal Evidence Act 1984. Subsection (1) of section 73 is to this effect:
"Where in any proceedings the fact that a person has in the United Kingdom been convicted or acquitted of an offence otherwise than by a Service court is admissible in evidence, it may be proved by producing a certificate of conviction or, as the case may be, of acquittal relating to that offence, and proving that the person named in the certificate as having been convicted or acquitted of the offence is the person whose conviction or acquittal of the offence is to be proved".
Subsection 2:
"For the purposes of this section a certificate of conviction or of acquittal --
. . .
(b) shall, as regards a conviction or acquittal on a summary trial, consist of a copy of the conviction or of the dismissal of the information, signed by the proper officer of the court where the conviction or acquittal took place or by the proper officer of the court, if any, to which a memorandum of the conviction or acquittal was sent;
and a document purporting to be a duly signed certificate of conviction or acquittal under this section shall be taken to be such a certificate unless the contrary is proved".
Subsection (3):
"In subsection (2) 'proper officer' means --
(a) in relation to a magistrates' court in England and Wales, the justices' chief executive for the court".
Subsection (4):
"The method of proving a conviction or acquittal authorised by this section shall be in addition to and not to the exclusion of any other authorised manner of proving a conviction or acquittal".
Rule 68 of the Magistrates' Courts Rules makes provision for proof of proceedings in these terms:
"The register of a magistrates' court, or any document purporting to be an extract from the register and to be certified by the clerk as a true extract, shall be admissible in any legal proceedings as evidence of the proceedings of the court entered in the register".
Many of the authorities are concerned with the question of what amounts to proof or sufficient proof that the person named in the certificate of conviction is the person whose conviction of the offence is to be proved. In R v Derwentside Magistrates' Court ex parte Heaviside [1996] RTR 384, this court held that the mere matching of the personal details of the defendant with those on the certificate of conviction is insufficient to identify the defendant as the person earlier convicted. Strict proof is required. A glance at the judgment of McKinnon J reveals what happened there:
"The sole witness for the prosecution was PC Ellis, who gave evidence that on February 12th 1994 . . . he saw the applicant, whom he knew to be a disqualified driver, driving a car. He pursued the applicant but was unable to apprehend him on that day. He saw the applicant two or three days later. He then spoke to the applicant about the incident on February 12th 1994. The applicant did not wish to be interviewed. He denied that he had driven on February 12th. When cross-examined PC Ellis accepted that he had not been present in court when the applicant was disqualified from driving.
Subject to it being accepted that the applicant was a disqualified driver at the material time, the prosecution indicated that it would close its case. That elicited no response from the applicant's solicitor, who appeared on the applicant's behalf. What then happened was that the court's register was produced which showed that a person with the same name and date of birth as the applicant, had been disqualified from driving at the same court . . . on June 10th 1991 for a period of three years. The court's register was produced pursuant to rule 68 of the Magistrates' Courts Rules.
. . .
The prosecution then decided not to call the clerk to the court, who had apparently been present in court when the applicant was disqualified from driving on June 10th 1991 and closed its case. Despite a submission by the applicant's solicitor that there was no evidence that the person disqualified from driving on June 10th 1991 was the applicant, the justices convicted the applicant of driving whilst disqualified".
Having then recited section 73(1) and subsection (4) of the 1984 Act, the judgment continues:
"Thus, there are two requirements. First, the production of a certificate of conviction and, secondly, proof that the person named in the certificate, as having been convicted, is one and the same person, as in the instant case, the applicant.
Counsel on behalf of the applicant submits that the second requirement in section 73(1) had not been met, as no evidence was given that it was the applicant who had been disqualified from driving on June 10th 1991.
That could have been done in three ways, as he submitted: firstly, by an admission by or on behalf of the applicant pursuant to section 10 of the Criminal Justice Act 1967; or, secondly, by evidence of fingerprints pursuant to section 39 of the Criminal Justice Act 1948; or, thirdly, by evidence of a person who was present in court when the applicant was convicted on June 10th 1991.
Counsel on behalf of the respondent submits that strict proof was not required.
As far as I am aware, it has never been accepted that the mere matching of the personal details -- whether the name, address or the date of birth of the defendant -- with those upon the certificate of conviction is sufficient to establish or identify the defendant as the person earlier convicted.
It is significant that section 39 of the Criminal Justice Act 1948 survives the enactment of section 73 of the Police and Criminal Evidence Act 1984, indicating that there was not in section 73 an abandonment of the usual requirement of strict proof of identity in cases where the identity of a convicted person was required to be proved.
Accordingly, I am bound to conclude that there was no evidence, as required, that it was the applicant who was disqualified from driving on June 10th 1991. The Justices were therefore wrong in law in convicting the applicant in the absence of evidence of an essential ingredient of the offence".
In the case of DPP v Mooney [1997] RTR 434, this court, presided over by McCowan LJ, who had presided at the hearing of the Heaviside appeal, emphasised that the list of ways identified in the judgment in Heaviside, in which a defendant on trial could be proved to be the person named in the certificate of conviction, was not intended to be exhaustive.
In Mooney, the respondent, having been stopped by a police officer while driving his car, admitted to the officer that he was a disqualified driver. Upon being charged, he replied, "guilty". There was, therefore, cogent evidence, independent of any certificate, that the man before the court had been at the material time a disqualified driver. Furthermore, a section 73 certificate was produced in those proceedings and the personal details set out in it did correspond with those of the accused then before the court. Thus, the admissions when he was stopped, and later upon being charged, enabled the second requirement of section 73(1) to be satisfied.
An example of where an admission in interview of the fact of being a disqualified driver, and of the particulars of the disqualification date and court, was held to be sufficient evidence of the defendant having been a disqualified driver on the later date he was seen to be driving a motor vehicle on the road -- is to be found in the case of Moran v Crown Prosecution Service, 164 JP 562. In that case, the complaint founding the appeal to this court was that the evidence of disqualification was insufficient because no section 73 certificate of conviction had been produced to the court. It was, and was held to be, a hopeless complaint because not only had the defendant admitted his disqualification in interview; he also admitted it in evidence before the Justices.
The last cases it is necessary to refer to are R v Derwentside Justices ex parte Swift and R v Sunderland Justices ex parte Bate [1997] RTR, 89. The facts in ex parte Swift were merely a variation on the theme of proving by way of an admission, other than an admission under section 10 of the Criminal Justice Act 1967, that the person named in the certificate was the person before the court.
In ex parte Bate, the position was very different. In that case, the only evidence that the defendant on trial had been a disqualified driver at the material time was that of a police officer who had made a witness statement which was admitted in evidence under section 9 of the Criminal Justice Act 1967. The statement was to this effect:
"At 10 am on Wednesday 26th May 1993 I was present at Durham Crown Court for the trial of a man who I knew to be David Trevor Bate. Bate was present throughout the trial and was convicted of a number of offences including driving whilst disqualified for which he subsequently received a two year disqualification from driving".
On appeal, this court held that such evidence was sufficient, having regard to an earlier decision of the Court of Appeal in Ellis v Jones, in which the same point arose but in a very different context. The court in Ellis v Jones had this to say about the evidential significance of the section 9 statement under consideration in that case.
"The effect of a statement properly put into court under section 9 of the 1967 Act was the same as if the witness had given it orally from the witness box. Accordingly, in the absence of any suggestion that the Clive Jones in the dock and the Clive Jones referred to in the statement were different people the matter can only be approached on the footing that it was the same person who was referred to".
What all these cases serve to emphasise is the existence of a fundamental requirement that the prosecution, if put to proof, must prove its case.
The Justices in Mr Denny's case were actually referred to the decisions in Heaviside and Mooney. I take the reference in the case stated to Maloney to be a reference to Mooney.
How anyone can read those authorities and then be convinced, as these Justices and their Clerk must have been, that it was appropriate to take the course that they followed, I find impossible to understand. Each of these convictions is accordingly quashed.
Each of the cases will be remitted to the appropriate Magistrates' Court, with a direction to acquit. It follows that the answer to the question formulated in the Kingsnorth case is 'No'. Similarly, the answer to each of the questions formulated in the Denny case is 'No'.
For the avoidance of doubt, a further word must be added by way of an answer to the second question in Denny. The question reads:
"The question for the opinion of the High Court is whether we were correct to take the view (a) that valid convictions within our own jurisdiction could be deemed to be within our knowledge and not require formal proof by any party, and if so (b) that in the absence of any evidential challenge to the accuracy of the court record it was legitimate to conclude that a conviction against a person identified to the court as sharing the same surname, first names, date of birth and address as the person before us was indeed a conviction against the person before us".
The absence of any evidential challenge to the accuracy of the court records can scarcely be criticised, let alone be regarded as of evidential significance, because there was no admissible evidence before the court of this essential ingredient of the offence which could have been challenged. For those various reasons, and with the results that I have identified, these appeals are accordingly allowed.
What about costs?
MR EVANS: My Lord, I do not have a schedule. I would ask that there be public funding assessment.
MR JUSTICE MITCHELL: Legal aid taxation?
MR EVANS: Yes, my Lord.
MR JUSTICE MITCHELL: Right, in each case.