Khatibi v Director of Public Prosecutions

This is an appeal by way of Case Stated from a decision of the City of London Justices, sitting at The Justice’s Rooms, London EC4, who on 7.10.2002 convicted the Appellant of driving a motor vehicle having consumed excess alcohol, contrary to section 5(1) of the Road Traffic Act 1988, and schedule 2 to the Road Traffic Offenders Act 1988.

At 2305 hours on 12 November 2001 the Appellant was stopped by police in Queen Victoria Street, driving a yellow BMW motorcar. It was noted that her breath smelt of intoxicating liquor. She was breathalysed and, having provided a positive sample, was arrested at 2310 and taken to Snow Hill Police Station. There she provided two samples of breath on the Camic Datamaster device, one reading showing 42 mgs of alcohol in 100 ml of breath and the other 41 mgs in 100 ml of breath. As the readings were both below 50 mgs the Appellant was offered the statutory option of replacing the lower of these samples with a specimen of her blood. She elected to do this. Dr Wall, the City of London Police Force medical examiner, obtained a sample of blood from the Appellant between 0010 and 0020 on 13 November 2001. The sample was divided into two containers, one being given to the Appellant and the other to Police Sergeant Moggeridge, who sealed it.

A sample labelled “Dr Wall, PC 276B Lee, Snow Hill, 13.11.01, 00.15 hrs, KHATIBI” was received at the forensic science laboratory, Chorley, on 15 November 2001 and analysed by Mr Robinson and his assistant Debbie Kirkham. The sample was divided into four smaller samples, two of them being analysed by Mr Robinson and two by Debbie Kirkham. Each used the same procedure on two separate machines. The results ranged from 90.00 to 91.3, the average of the four readings being rounded down to 90. An allowance of 6 was deducted, giving a reading of not less than 84 milligrammes of alcohol in 100 millilitres of blood, that is, in excess of the permitted level.

The Appellant pleaded not guilty on 21 January 2002 and a pre-trial review was held on 5 February 2002. The Appellant’s counsel Ms Renee Calder, who appeared before this Court, indicated that four prosecution witnesses were required including Dr Wall and the forensic scientist Mr Robinson. We were informed that the reports and statements of those witnesses were not served upon the defence.

The trial commenced on 16 May 2002 and the justices heard evidence from Police Constable Lee, Dr Wall and Mr Robinson, the forensic scientist. Mr Robinson was cross-examined on the possible effects of preservative in the phials and the contents of a recent academic article the details of which are not relevant to this appeal. Mr Robinson was not asked any questions about Miss Kirkham’s part in the analysis and we were told by Miss Calder that the first time that she was aware of Miss Kirkham’s involvement in the matter was when Mr Robinson gave evidence. Miss Calder told us that Mr Robinson confirmed that the only information he had as to whether the blood that he analysed was that of the Appellant, was the label which stated “Dr Wall, PC 276B Lee, Snow Hill, 13.11.01 00.15hrs KHATIBI”.

No submission was made at that stage and the Appellant was called to give evidence. She confirmed that she was driving home from a charity event when she was stopped by PC Lee who administered a breath test which was positive. She told PC Lee that she had had two glasses of wine in the evening. She was arrested, taken to Snow Hill Police Station, provided two samples of breath and Dr Wall later took a sample of blood. There was therefore no substantial dispute of the prosecution evidence save for that of Mr Robinson.

At the conclusion of the evidence of both parties the Appellant submitted to the justices that the prosecution evidence about the blood sample lacked continuity, that Mr Robinson’s evidence was inadmissible in that it relied in part on the evidence of another person of whose results Mr Robinson could not give evidence, that Mr Robinson was not an authorised analyst, and that in any event the amount of preservative used meant that the analysis could have varied by up to a further 4 points which would have meant that the offence had not been committed.

As to continuity it was submitted that no evidence had been given as to what happened to the second sample after PS Moggeridge had sealed the container. There was no evidence before the Court as to how the label was produced so that Mr Robinson’s evidence that he examined a phial with the label on it giving the Defendant’s details was hearsay. The case of Paterson v DPP [1990] RTR 329 was relied upon. In the Appellant’s case it was not even known who attached the label to the specimen analysed or who wrote on it. As no evidence had been given by any of the prosecution witnesses as to what had happened to the Appellant’s blood sample after it had been sealed, no inferences could be drawn that the blood analysed was the Appellant’s blood.

In relation to the submission that Mr Robinson’s evidence was inadmissible because it relied in part on Miss Kirkham’s evidence the Appellant relied on R v Jackson [1996] 2 Cr App Rep 175.In that case an adjournment had been allowed so that the assistant analyst could be called but it was submitted to the justices that such an order could not be made by them because the pre-trial procedure was different in the Crown Court, where Jackson had been heard.

The prosecution addressed the continuity submission and in so far as Mr Robinson’s evidence was concerned referred to the case of R v Tate [1997] RTR 17. The Bench asked counsel to produce this report ‘before we proceeded to consider the case’. (Paragraph 19 of the Case Stated).

The magistrates then record in the Case Stated that ‘we then retired to make our decision on the ‘Continuity Submission’ this being the Appellant’s main submission’. They later returned and gave the following decision:-

“Having listened carefully to the evidence we are satisfied that the correct procedure for testing blood has been followed. We accept the evidence from Dr Wall that the blood sample was divided and sealed in the presence of the Defendant. It is not disputed that Mrs Khatibi, the Defendant, had been driving on the night of 12 November 2001. She failed a roadside breath test and agreed to go to Snow Hill Police Station for a second breath test, which she also failed. She then consented to have a blood test.

We are also satisfied that the phial labelled with Mrs Khatibi’s name and analysed at the forensic science laboratory at Chorley, contained a sample of her blood.

We have been referred to the case of Paterson v DPP. We are able to distinguish this case because the facts show clear discrepancies in the evidence, which gave rise to doubts about the blood samples.

In this case (the Appellant’s case), however, the details on the label of the phial support the evidence of PC Lee and Dr Wall.

We therefore accept that the sample analysed was that of Mrs Khatibi.”

Prosecuting counsel then produced the case of R v Tate to which he had made reference earlier and submitted that it showed that the evidence of one analyst was not weakened by the fact that he had had an assistant working with him, as R v Tate showed that scientific analysis nowadays was too complex for one person to carry out every part of it. He applied to recall Mr Robinson so that he could be asked about the steps taken to supervise the assistant. Miss Calder on behalf of the Appellant objected to the application on the grounds that the judge’s comments in Tate were obiter, that Mr Robinson had been present in court and heard the submissions and it was too late to call any further evidence. The prosecutor then applied to reopen the prosecution case and adjourn so as to enable Miss Kirkham the assistant, to be called. The Appellant objected to this on the grounds that the prosecution should have anticipated the point.

The magistrates retired to make their decision, granted the application to reopen the case and adjourned it part heard. The case was adjourned until 12 June 2002 to obtain the dates to avoid for Miss Kirkham. It was by that time 6.10 p.m. and too late to contact her. On 12 June 2002 a second pre-trial review took place. Miss Calder indicated that the statement of Debbie Kirkham would not be accepted under section 9 of the Criminal Justice Act 1967 as she contended that the magistrates had erred in law by granting the adjournment because it was too late. The adjourned hearing was fixed for the 7^th October 2002 which was the earliest date available for all parties to the proceedings. The length of the adjournment was commented on by Miss Calder but no allegation of a breach of the Appellant’s article 6 ECHR rights was then made.

At the resumed hearing on 7 October 2002 the Appellant submitted that the case should be dismissed, as it clearly would be in breach of article 6. The memories of the bench would have faded over the five-month delay. The magistrates rejected this submission and in doing so noted that they had taken full contemporaneous notes of the evidence on 16 May 02 as had their clerk, and that they had spent 40 minutes refreshing their memories from their respective notes. No case had been cited to them which had in their view prevented them from proceeding with the trial.

They then heard the evidence of Debbie Kirkham. She confirmed that the sample labelled “Dr Wall, PC 276B Lee, Snow Hill, 13.11.01, 00.15 hrs, KHATIBI” had been received at the laboratory on 15 November 2001. She said that she had analysed the sample under the direct supervision of Mr Robinson and confirmed her results. She was not cross-examined and the Appellant did not address the bench further. They found the case proved.

The questions posed for the High Court, as amended by the Divisional Court are:-

“(i)

After retiring to consider our verdict, were we right to adjourn the case for the purpose of hearing further evidence and then doing so?

(ii)

Were we right to continue with the trial after adjourning it for five months?

(iii)

Was there evidence upon which a reasonable bench, properly directing itself, could have found that the blood analysed by Mr Robinson was that of the Appellant.”

There is a general discretion to admit evidence after the close of the prosecution case which is not confined to the two well established exceptions of rebuttal and mere formality. The discretion must be exercised with great caution and the strictly adversarial nature of the English criminal process, whereby the cases for the prosecution and the defence are presented consecutively in their entirety, should be borne in mind and the normal order of events not departed from substantially unless justice really demands. A Defendant may demand that the prosecution proves its case and keeps silent at any prosecution shortcomings until the time when it can take advantage of them. Tactics, as Lord Justice Mustill said in Munnery and Lord Justice Pill in effect said in R v Aylesbury Crown Court ex parte Lait Divisional Court 13 March 1998, are a legitimate part of the adversarial process. But Lord Justice Mustill continued, ‘Justice is what matters: justice to the public, represented by the prosecution as well as to the Defendant.’

Lord Justice Kennedy in Christopher James Jolly and Director of Public Prosecution Divisional Court 31^st March 2000 reviewed the authorities before concluding that there was a general discretion to permit the calling of evidence at a stage later than the closing of the prosecution case but prior to the moment the justices retire and said that before exercising that discretion the court will look carefully at the interests of justice overall and in particular the risk of any prejudice whatsoever to the Defendant.

Each case must be looked at on its own facts and these will determine the outcome. As Miss Calder rightly says the later the stage in the proceedings when the application to call further evidence is made the more difficult the task of the prosecution becomes. The nature of the evidence to be called and its affect upon the proceedings must also be considered. Thus in R v Aylesbury Crown Court ex parte Lait Divisional Court 13 March 1998 it was held that the Recorder was wrong in allowing an adjournment for a witness to be called to fill a gap in the evidence where such an adjournment appeared likely to necessitate a complete rehearing.

There must be finality in proceedings. Thus it has generally been accepted that an application to call further evidence cannot succeed after the bench has retired to consider its verdict. Webb v Leadbetter [1996] 1 WLR 245 and Jolly v DPP. In Webb Lord Parker CJ said that in the magistrates court:-

“As a general rule and in the absence of some special circumstances, it would certainly be wholly wrong for the Justices to purport to exercise their discretion to allow evidence to be called once they had retired, and, indeed probably after the defence had closed their case.”

Miss Calder submits that the Justices had clearly retired to consider their verdict on the facts of this particular case. A verdict is a verdict, and once they had retired they had embarked upon it. They were not able to consider effectively one third of their decision separately from the rest. Furthermore she submits, when she obtained from the court the manuscript copy of their reasons after their first retirement that manuscript copy did not contain the heading Continuity which the typed copy and the Case Stated did. This addition did not reflect what occurred, which was the retirement to consider their verdicts not simply one issue, namely continuity.

This Court must however accept, as I do accept, that the account given by the Justices in the Case Stated accurately records what occurred. During the course of the submission, whether through the clerk or the prosecuting counsel himself, the case of R v Tate [1997] RTR 17 was referred to in relation to the admissibility of the forensic evidence. This was an entirely separate point to the continuity submission. In the case of Tate, where the facts were very similar to the present case the Court of Appeal held that the trial judge had a discretion to allow the prosecution to call further evidence, namely an assistant forensic scientist, after closing their case. Paragraph 19 of the Case Stated makes it abundantly plain that counsel was asked to produce a copy of the authority of Tate before the bench proceeded to consider the case. Counsel then, it appears, sought to obtain a copy of the report from chambers which he did, and whilst he was doing so, the bench, as they state in paragraph 21 of the Case Stated, ‘retired to make our decision on the ‘Continuity Submission’’. The text of their decision at paragraph 23 of the Case Stated demonstrates that their decision related solely to this issue.

When the bench retired to consider the Continuity Submission, a matter which it was in the circumstances appropriate for them to consider discretely, they had expressly stated that they would not proceed to consider the case of Tate, and hence the admissibility arguments based upon it, until prosecuting counsel produced a copy of that decision.

In my judgment it is clear from the Case Stated and the sequence of events that the bench had retired to consider one specific issue, namely the continuity issue and had not retired to consider the case generally. Furthermore they had specifically reserved their consideration of the admissibility issue until it was seen whether a copy of the decision in Tate could be obtained. If it was, no doubt, as indeed occurred, further argument would take place upon it. As the issue of inadmissibility of the forensic evidence had expressly been left open for further argument there was therefore nothing to prevent an application being made once that further argument took place, for an adjournment so that further evidence on that issue could be called.

What do the interests of justice overall require in this particular case? Is there any risk of prejudice whatsoever to the Defendant? The facts are not essentially in dispute; if the sample is the Appellant’s, she was driving with excess alcohol in her blood; the evidence of Mr Robinson and indeed Miss Kirkham was neither unusual nor complex and the evidence of Miss Kirkham, whether or not it would have been cross-examined had she been called in the first place, was not challenged when she was called. It would have been open to Miss Calder to have accepted her evidence under section 9 whilst reserving all rights to her arguments on admissibility. She did not choose to do so. Miss Calder did not raise the question of admissibility or seek to allege that there were any gaps or deficiencies in the prosecution account until she made her final speech. She had given no notice of any of the legal arguments which she saw arising as the case developed.

She was entitled to take that course but having done so, as Lord Justice Simon Brown said in the case of Leeson, ‘can hardly complain, if in the result, Justices exercise their discretion so as to secure justice rather than allow a totally unmeritorious acquittal.’

The evidence to be called was straightforward. It was the second part of the analysis of which Mr Robinson had already given evidence, and of which the Appellant was fully aware. This evidence was short and already available. It did not therefore require any ‘scouting around’ to obtain as envisaged by the court in Royal v Prescott Clarke [1966] 2 AER 366.

I can see no prejudice in these circumstances to the Appellant in adjourning the hearing so that the evidence of the forensic assistant could be sought. She may have lost the benefit of a technical point, but as Lord Justice Mustill said justice is what matters. Had the bench not adjourned the matter to call Miss Kirkham, justice, that is justice to the public, would have been denied.

I am satisfied that after retiring to consider their decision on the continuity submission the Justices were right to hear further argument based upon the case of Tate on the admissibility of the forensic science evidence, and in view of the submissions being made on behalf of the Appellant were right to adjourn the case for the purpose of hearing further evidence and then doing so. On these particular facts the first question should therefore be answered ‘yes’.

Miss Calder submits that a delay of 5 months before the matter could be reheard was in breach of the Appellant’s entitlement to a fair trial under Article 6 of ECHR and Wednesbury unreasonable.

An adjournment should only be granted where evidence is reasonably available (R v Francis [1991] 1 AER 226 and ex parte Lait).

The matter was hanging over the Appellant, undecided, for a long time and counsel and the Court could not be expected to remember everything over the period in question. Finality in proceedings was also ignored. Hence the proceedings were unfair.

Miss Calder said that the reason for the length of the delay was not to do with the availability of Miss Kirkham or her refusal to agree a section 9 statement but because of the lack of availability of the Justices. She did object to the delay though did not raise the question of article 6 until the 7^th October.

For my part I regard the point on delay to be without merit. The adjournment was brought about by the failure of the prosecution to see that they had all proper evidence available for the hearing and by the Appellant’s response to that lack of evidence. The only evidence to be called was that of Miss Kirkham whose evidence was already known and indeed not in the event challenged. Miss Calder made no further submissions to the bench. The submission that fading memories in these circumstances is relevant is without merit. The bench had been able to refresh their memories their notes as indeed had Miss Calder and the fact that she was not able to take a note of her own cross-examination would in the circumstances in no way prejudice either her ability to deal with the proceedings or the magistrates ability to deal with them.

In the circumstances the bench were right to continue with the trial after adjourning it for five months and the answer to the second question is ‘yes’.

It is submitted on behalf of the Appellant that there is no evidence that the blood analysed was hers. The prosecution called no evidence to show who, how or in what circumstances the label was put on the container which reached the laboratory and was analysed. In such circumstances it was simply unknown whether one of the police officers had filled in the label and put it on, whether a civilian at the police station had done so or whether it had not been filled in at the laboratory. This was a fundamental flaw in the prosecution case. It could not be cured by any inferences to be drawn from the details on the label because those were inadmissible. In Patel v Comptroller of Customs & Excise [1966] AC 356 it was held that markings on packing crates were no evidence of their contents and that the list of exceptions to the hearsay rule cannot be extended judicially to include such things as markings on labels. There was no basis upon which the Justices could be sure that the label was attached to the right specimen. The specimens could have been mixed up.

Miss Calder submitted that the case of Paterson v DPP [1970] RTR 329 was a similar but less strong case on its facts concerning the labelling of specimens and in that case Lord Justice Neill sitting in the Divisional Court had said that the police should have followed the correct method of proof but had failed to do so. The gap in the Crown evidence, by virtue of the fact that there was no direct evidence to show a link between the container which was sent from the police station and that which was examined at the laboratory could not be filled by inference.

The case of Paterson however, as the Justices found, can clearly be distinguished from the facts of this case. In Paterson there was an inconsistency as to where the sample had been taken. The label recorded one police station whereas the evidence noted another. This conflicting evidence undermined any attempt to close the gap in the prosecution case by the drawing of inferences

Mr Kennedy on behalf of the prosecution accepted that there was a gap in the prosecution case in that there was no evidence as to who had written the details on the label but submitted that the contents on the label were sufficient for the magistrates to infer that the blood in the container analysed was the Appellant’s. The contents of the label were admissible under sections 24 and 26 of the Criminal Justice Act 1988 and could therefore have been ruled admissible by the bench had the question of admissibility been raised by the Appellant. Miss Calder submits that the submission is misconceived. Sections 24 and 26 were not put before the magistrates and cannot now be used to correct the omission in the Crown’s case.

It should be noted, Mr Kennedy submits, that the label gives details of the exact time, at which the sample was taken, namely 0015hrs on 13 November 2001, which is entirely consistent with the evidence of Dr Wall that he took the sample between 1210 and 1220 a.m. on that date. In addition the name of the arresting officer, PC Lee is also correctly stated as is the name of the doctor who took the sample, namely Dr Wall, and where he took it, namely, Snow Hill. I would add that Miss Kirkham’s evidence confirmed that that sample so labelled had been received at the laboratory on 15 November 2001. ‘Document’ and ‘statement’ under the 1988 Act are widely defined in schedule 2 paragraph 5. ‘Document’ means anything in which information of any description is recorded and ‘statement’ means any representation of fact however made.

In these circumstances it is submitted that it is a reasonable inference that the label was created contemporaneously with the taking of the sample. To suggest that it could have been filled in at the laboratory by the FSS on a blank label is no more than an intellectual construct. The evidence of Miss Kirkham indicates that the sample was labelled when it was received at the laboratory.

It is, Mr Kennedy submits, an irresistible inference on the facts that the label was created by a police officer in the course of his work and that therefore the information contained in the label was supplied by a person who had personal knowledge of the matters dealt with. Any other inference would be unreasonable. Hence section 24(1)(i) and (ii) are satisfied. If, as Mr Kennedy eventually accepted the label was prepared for the purpose of a criminal investigation, he submitted that section 24(4)(iii) was satisfied in that no police officer could reasonably be expected to recall the details of the matters set out on the label months later. No note of the details on the label would have been taken. As PC Lee was asked no questions about this matter in cross-examination the court could only draw the appropriate inferences.

As to section 26, the prosecution submit that it was in the interests of justice to admit the statement which resulted in no unfairness to the accused other than establishing the true facts.

I am satisfied that the inferences which the prosecution invite the court to draw are sound, that the statement is one which was admissible under section 24 and, under section 26 of the Criminal Justice Act 1988. The magistrates did not rule upon sections 24 and 26 because they were not invited to do so by the Crown but the evidence was admissible by virtue of that section. Had Miss Calder raised the question of the admissibility of the contents of the label in the customary manner, when the evidence was given or so soon as she was able to do so, an application could have been made under section 24 and 26 by the Crown, and the magistrates would have dealt with it. Had that occurred it would have been perfectly proper for the magistrates to have found the contents of the label admissible. Miss Calder is entitled to put the Crown to proof on every aspect of the case against her client but if she chooses to take that course she cannot complain subsequently if this Court looks to the interests of justice in determining what would have occurred had a timely objection to admissibility been made.

In those circumstances the Justices were entitled to conclude on the evidence of PC Lee, Dr Wall, Mrs Khatibi and the details on the label, including the presence of Mrs Khatibi’s name, that there was evidence upon which, properly directing itself, the bench could have found that the blood analysed by Mr Robinson was that of the Appellant. The answer to the third question is therefore ‘yes’.

For these reasons I would dismiss the appeal.

I agree.