Royal Courts of Justice
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MRS JUSTICE HALLETT DBE
VIVIAN MARY JONES
(APPELLANT)
-v-
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
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MISS R J CALDER (instructed by Byrne Frodsham & Co) appeared on behalf of the APPELLANT
MR R BENDALL (instructed by CPS Surrey) appeared on behalf of the RESPONDENT
J U D G M E N T
LORD JUSTICE LAWS: This is an appeal by way of case stated from the decision of the South East Surrey Justices sitting at the Dorking Magistrates' Court on 12th November 2002 when they convicted the appellant of driving a motor vehicle when the proportion of alcohol in her blood exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988. The case was stated by the magistrates pursuant to an order of this court (May LJ and Nelson J) made on 23rd January 2004.
The incident giving rise to the prosecution took place on 1st February 2002. Given the points arising on the questions asked of this court in the case stated, it is convenient to cite the statement of PC Wiles which was admitted before the magistrates pursuant to section 9 of the Criminal Justice Act 1967:
"On Friday 1st February 2002 I was on mobile patrol in full uniform when at 1134 hours I attended Green Lane, Ashstead, Surrey, acting on information received. On my arrival I saw a blue Peugeot 206 index X426HGF at the bottom of the road by the railway line. The vehicle appeared to have crashed into a concrete post, and I saw that a female was being helped from the driver's seat by ambulance staff. She was taken to hospital by ambulance, and I remained at the scene to assist with recovering the vehicle."
That statement is an annex to the stated case. A statement of PC Sullivan was also admitted under section 9 and is before us. Part of it reads:
"At 1121 hours we attended Green Lane in Ashstead, the scene of an RTC involving a green Peugeot 206 index X246 HGF. The driver of the vehicle was identified as being Vivian JONES DOB 29/4/54 of 30 Oakhill Road Ashstead. Also at the scene was PC WILES."
Those materials enable me to deal with the first point in this appeal straight away. On a submission of no case to answer it was argued before the magistrates that no admissible evidence had been called to prove that the appellant had been the driver of the vehicle. This is how it was put:
"Defence counsel submitted that the wording on the statement of PC Sullivan suggested that he had not himself identified the driver as being Vivian Jones and therefore that part of the statement was hearsay and inadmissible. Defence submitted that on that basis there was no evidence before the court to identify the driver as the driver of the vehicle and the case should be dismissed."
This submission is repeated in this court by Miss Calder.
PC Wiles and PC Sullivan were, as is plain, at the scene at the same time. The burden of PC Sullivan's statement was that the driver was identified as the appellant at the time. PC Wiles saw a woman being helped from the driver's seat. The magistrates found that the statement of PC Sullivan could be interpreted as indicating that he had identified the appellant himself. Neither PC Wiles nor PC Sullivan was cross-examined. As I have said, both statements were read under section 9.
In my judgment, given the circumstances and facts of this case, if identity were an issue the defence should have called for the relevant witnesses to be cross-examined and objection should have been taken to the admission of the relevant extract from PC Sullivan's statement. As it happens, the appellant plainly admitted that she was the driver when she gave evidence (see paragraph 7 of the case stated). That was, of course, after the submission of no case had been made and rejected.
The vital requirement that the Crown prove its case in criminal proceedings is an instrument of justice and not an invitation to disreputable technicality. I accept of course that a defendant is entitled to require proper proof by the Crown of all the material elements in the prosecution case whether or not as regards any particular instance the defendant has a different tale to tell; but here there was the clearest chain of evidence linking the appellant with the driver of the car and the magistrates were entitled to treat all of it as admissible. It was by no means demonstrated, absent cross-examination or investigation, that PC Sullivan's evidence of identification rested only on hearsay. I have to say I regard the way in which this point has been dealt with on the appellant's behalf as frankly irresponsible.
This issue engages the first question put to this court in the case stated, which is drafted as follows:
"Upon a submission of no case to answer at the end of the Prosecution case, could a reasonable bench properly directing itself have found that there was evidence that the Appellant had driven a motor vehicle?"
I would answer this question in the affirmative.
The remaining two questions for the opinion of this court concern what I may in shorthand call the breathalyser procedure. They are as follows:
"II. Did the police carry out the correct drink-driving procedure in that they did not tell the Appellant why she could not supply a specimen of breath?
III. Were we right to hold that the Appellant had been supplied with a sample of her blood?"
I turn then to question II. In this case the procedure for taking specimens for analysis was carried out from first to last while the appellant was in hospital. Section 7(2) of the Road Traffic Act 1988 provides:
"A requirement under this section to provide specimens of breath can only be made at a police station."
There was accordingly no power to take a specimen of breath from the appellant at the hospital. In fact, as paragraph 2(e) of the case stated discloses, PC Gilbert did ask the appellant to provide a specimen of breath and she refused. As this happened at the hospital and not a police station, PC Gilbert's request should no doubt not have been made; but that casts no light on the correct answer to question II in the case stated. As question II shows, the complaint is that the officer did not tell the appellant why she could not supply a specimen of breath.
There is of course a good deal of learning about these procedures for taking specimens, beginning, so far as the cases relate to the 1988 Act, with Warren [1993] AC 319 in their Lordships' House. Warren however was not dealing with section 7(2) cases.
Looking at the matter without the benefit of authority, I would hold without hesitation that there is no conceivable good reason in a section 7(2) case to require the police to explain to the suspect why a breath test cannot be taken. Her response to such information cannot affect what is to be done. Parliament has said that there shall be no breath specimen taken in such circumstances, and that is an end of it. The proposed requirement merely adds a barren technicality to the bureaucracy of these procedures. It would offer no proper or legitimate protection to the individual, and, if anything, would be inimical to the doing of justice. It is right that there is a dictum in Duffy [1994] RTR 241 suggesting that such information should be given. However, my view of the matter is, with great respect, supported by what was said by Buxton J (as he then was) in this court in Wolley [1995] RTR 139, 150F as follows:
"... as counsel appearing as amicus pointed out, in a hospital case the inability to take a specimen of breath is not a matter of fact but a matter of law, because of the limitations on the taking of breath specimens imposed by s 7(2). In these circumstances it is entirely supererogatory to require the constable to recite why breath cannot be taken, and it is difficult or impossible to think that Parliament intended such a recital, or that Lord Bridge, had he been directing himself in Warren to a hospital case, would have so required."
Moreover, it is to be noted that the last five editions of Wilkinson's Road Traffic Offences have expressed this view:
"Although in the light of these conflicting decisions of the Divisional Court the law cannot be stated with certainty, it is nonetheless submitted with all due respect that ... ex parte Wolley presents a cogent view of the statutory requirements and is likely to be followed."
The appellant's argument is not, in my judgment, advanced by their Lordships' House's decision in Jackson [1995] 1 AC 406 since Lord Hutton's remarks at page 425 do not address cases covered by section 7(2).
In my judgment, the answer to question II is again in the affirmative and I would so deal with that part of the case.
I turn lastly to question III. For the relevant facts I should quote this extract from paragraph 2(g) of the case stated:
"PC Gilbert told the court that the doctor took the blood sample, which was then divided into two canisters and placed in a sealed plastic container. He offered one of the samples to the defendant and put it into an envelope sealed and signed by him. The item was then placed into the defendant's handbag, which was with her personal belongings on the hospital trolley."
Section 15(5) of the Road Traffic Offenders Act 1988 provides:
"Where, at the time a specimen of blood or urine was provided by the accused, he asked to be provided with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the prosecution unless -
the specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the accused was divided at the time it was provided, and
the other part was supplied to the accused."
The appellant's argument is that she was not supplied with the sample merely by its having been put into her handbag. She claims that she never found it there and the policeman did not tell her he had put it there. She said she was moved to another ward and the sample was lost. The magistrates found (see paragraph 10(c) of the case):
"We accepted the evidence of PC Gilbert that he had offered the sample of blood to the defendant and subsequently placed it into her handbag. We were satisfied beyond reasonable doubt that the defendant had been supplied with a sample of her blood."
One may perhaps be forgiven for surmising that, given the prosecution's reading of the appellant's blood alcohol level at over twice the legal limit, she is perhaps unlikely in any event to have had her sample analysed, but no doubt that is beside the point.
The short reality is that the magistrates were entitled to find as they did, that this appellant had indeed been supplied with the sample pursuant to section 15(5). The third question posed for the consideration of this court should, in my judgment, also be answered in the affirmative. The point which it raises is as far distant from the real world as that in question II.
This appeal is spectacularly without merit. I would dismiss it and answer the magistrates' court's questions in the manner I have indicated.
MRS JUSTICE HALLETT: I would agree and I would answer the questions posed for this court in exactly the same way.
I would just like to add this. Miss Calder seems to specialise in ambushing the prosecution and taking highly technical and often totally unmeritorious points in breathalyser cases. Given the demands on limited public resources, I find her approach to litigation of this kind totally unacceptable.
MR BENDALL: My Lord, might I ask that the appellant pay the respondent's costs please.
LORD JUSTICE LAWS: Is she publicly funded?
MISS CALDER: Yes.
LORD JUSTICE LAWS: For this appeal?
MISS CALDER: Yes. She was not publicly funded before but she is publicly funded for the case stated, and I would therefore oppose any application.
MR BENDALL: There is nothing I can sensibly add to the fact of the application.
LORD JUSTICE LAWS: If she is publicly funded, by statute we could only make what many years ago used to be called the football pools order; is that not right?
MR BENDALL: My Lord, no, you would be entitled to assess what her means were when she made the application and consider what reasonable sum she ought to pay.
LORD JUSTICE LAWS: Are you asking us to do that?
MISS CALDER: If that information is before the court, which I assume it must be --
LORD JUSTICE LAWS: No, those sort of things are decided by the costs judge surely.
MR BENDALL: So be it, my Lord. I will not pursue it, thank you.
LORD JUSTICE LAWS: Counsel is not equipped to deal with the technicalities of what is required when an application for costs is made against a publicly funded party, so we shall make no order.