Bielecki v The Director of Public Prosecutions (includes ruling)

I heard this appeal as a one-judge Divisional Court on 12 May. The following day the draft judgment was sent to Counsel with a request that any suggested corrections should be communicated by 4 pm on Monday, 16 May, with a view to the final form of the judgment being handed down later during that week. By a letter of 16 May, Miss Calder (Counsel for the Appellant) suggested that the draft judgment was "based on a fundamental underlying misunderstanding of the case" which, she asserted, originated in the submissions of Mr Little. Miss Calder suggested that the fundamental misunderstanding in the judgment was that I had proceeded (wrongly) on the basis that the Appellant's case was that he could not understand the Polish interpreter, whereas he had never claimed not to have understood the interpreter. She said that his case was that any warning given or requirement made at the police station (the occurrence of both of which having been disputed at the trial before the justices) was "not in any language that the appellant could understand". It was, of course, not in dispute that Sgt Cart (see paragraph 12 below) made the requirement and issued the warning in English.

I will return to the suggestion of a "fundamental misunderstanding" below at paragraph 7. Miss Calder also suggested that, possibly because of her hearing difficulties, she had missed something in the argument of Mr Little that had led or contributed to this misunderstanding. Because of difficulties with the loop system in the Royal Courts of Justice on the day of the hearing, the Courts Service agreed to provide a transcript of the hearing at its expense and, in due course, one was provided. (I should, perhaps, say that I have not myself seen it, but given what I shall say below, I do not consider it essential that I should have done so.) I gave directions that Miss Calder and Mr Little should make further written submissions: Miss Calder first, Mr Little in response and a final right of reply to Miss Calder. Miss Calder's final written submissions were sent to me on 3 August. Neither in her final submissions nor in those she had sent on 19 July was any suggestion made that because of her hearing difficulties or deficiencies in the loop system she had missed something in the oral submissions made to me which led to the "fundamental misunderstanding" she suggests has occurred. It follows that I can deal with the application she has subsequently made to me without reference to any such consideration.

She submits that the appeal should now be set down for hearing before a two-judge Divisional Court (and makes an application to that effect) on the basis that the effect of my decision, as reflected in the draft judgment, could affect "any criminal case" and not just those cases involving road traffic matters. She says that my decision represents "a departure from the law on evidence relating to statements given in a foreign language" and that the point is "fundamental" and "can have far reaching effects".

So far as the question of jurisdiction is concerned, she has drawn my attention to what occurred in the case of Sneyd v DPP, another breathalyser case in which Miss Calder appeared for the appellant. In that case Walker J (also sitting as a one-judge Divisional Court) had, in the draft judgment sent to the parties, rejected an argument advanced by Miss Calder based upon a decision of a two-judge Divisional Court in Owen v Chesters [1985] RTR 191, saying that, in his view, the line of authority did not go as far as she had contended. After receiving the draft judgment and before it was handed down, Miss Calder had invited Walker J to withdraw the judgment he planned to give and to direct that the case should be re-listed before a two-judge court. Walker J was persuaded that, since the point argued by Miss Calder based upon Owen v Chesters was derived from "an important line of authority", the case should be re-argued before a two-judge Divisional Court. It was conceded before him that he had the power to do so and consequently that issue was not fully argued, nor does it appear that there was any significant argument on behalf of the DPP that the course proposed should not be adopted in the circumstances of this case. It is opposed strongly on the DPP's behalf in this case.

Sneyd was considered in due course by a two-judge Divisional Court (Richards LJ and David Clarke J) and the appeal was "emphatically" dismissed (see paragraph 48). Richards LJ said this of the arguments advanced by Miss Calder:

That, of course, was a different case from this, but it has made me question just how "far-reaching" the effects of my judgment would truly be if it is promulgated in its present form. For my part, my decision in the present case is a fact-specific decision based upon the somewhat unusual circumstances obtaining when the evidential specimens were requested. I do not see it as having any wider implications than that. I do not consider, therefore, that the issue that it raises merits further judicial consideration at Divisional Court level simply because of its alleged "far-reaching" effects.

Miss Calder has suggested in her written submissions on more than one occasion that I have misunderstood her argument and the nature of the Appellant's case. I do not think that a fair reading of my draft judgment, and particularly the paragraphs to which she draws attention in this regard (which are now paragraphs 24 and 27 in the present judgment), would demonstrate or support any such proposition. I have never understood the issue in this case to be based upon the suggestion that the Appellant could not understand the Polish interpreter. The issue was whether the justices were entitled to conclude that the interpreter had correctly translated the requirement made and warning given by Sgt Cart because Sgt Cart was plainly unable to communicate those matters directly to the Appellant in a language he understood. The justices concluded that the interpreter did so and all that I have decided is that there was evidence (based on inference from evidence they accepted and other surrounding circumstances) upon which they were entitled so to conclude. It is necessary to keep one's feet on the ground in this situation: calling the interpreter as a witness would simply have resulted in the interpreter saying, doubtless honestly, that he or she translated what the police officer had said, conveyed it to the Appellant in such a way that a native Polish speaker would understand and conveyed back to the police officer in English anything which the Appellant had said to the interpreter in Polish. There was ample evidence before the justices that the actual requirement was made and the warning was given clearly in English which, given the presence of an accredited interpreter (which presumably means someone whose credentials as an interpreter had been approved to an appropriate standard), resulted in them being able to conclude that the requirement and warning had been passed on to the Appellant in a language he could understand.

I see the case as having no greater importance than that and none of the additional cases that Miss Calder has cited to me since the oral hearing has made me think that a decision to that effect on the appeal was wrong.

If I am wrong about that and this case truly has wider implications (and/or my judgment is based upon a misunderstanding of the position), then there is a further avenue of appeal if permission to appeal can be obtained. However, I can see no basis for directing a further hearing before a Divisional Court. Objection to a one-judge court could have been taken earlier (even during the hearing before me), but irrespective of that, I consider that it would be a rare circumstance in which a judge who had considered an appeal as a one-judge Divisional Court should be persuaded to refer the case to a two-judge court after he or she has sent the draft judgment of the parties. Any general readiness on the part of the court to do such a thing would encourage second, and potentially unmeritorious, bites at the same cherry with the effect of (a) delaying the hearing of other cases and (b) simply increasing the costs.

It follows that the draft judgment sent to the parties will stand as the substantive judgment on this appeal. Because of the need for this preamble, the paragraph numbers of the substantive judgment have changed from those in the original draft, but other than that the judgment is exactly as before. The substantive judgment appears in paragraphs 11-29 below.

This is an appeal by way of case stated from the decision of the Feltham Magistrates’ Court on 30 September 2009 as a result of which the Appellant was convicted of an offence of failing to supply specimens of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988. That conviction arose out of an incident that occurred on 28 September 2008 when he was required at a police station to provide specimens of breath for analysis after he had been stopped earlier driving a vehicle and the officers who stopped him detected alcohol on his breath.

On that day, at Hounslow Police Station, the evidential breath test was conducted in the presence of an interpreter and another police officer, the person requesting the provision of the specimens being Police Sergeant Cart.

The Appellant is a Polish National who had lived in the UK for only a few months before the incident occurred. He spoke and understood very little English and, as I have indicated already, it was necessary for an interpreter to be present during the course of the evidential breath test. The short issue is whether the justices were entitled to find that the Appellant understood the requirement for the provision of the specimens. His case was that he did not – indeed he said that he was not asked to provide these specimens.

It is a mandatory requirement of the Act that a person required to provide a specimen pursuant to section 7 must be warned that a failure to provide the specimen may render him liable to prosecution: see section 7(7). As Mr Tom Little, on behalf of the Respondent, accepted in his Skeleton Argument, a failure to warn the suspect that he is liable to prosecution if he does not provide a specimen of breath will be fatal, as will a failure to warn a non-English speaking suspect in a language that he understands of his liability to prosecution if he fails to provide a specimen of breath will also be fatal.

The three questions posed for the opinion of the court were specified by the justices as follows:

Were we entitled to find that a valid requirement to provide specimens of breath for analysis had been made of the Appellant?

Were we entitled to find that the Appellant had been given a warning of prosecution pursuant to section 7(7) of the Road Traffic Act 1988?

Were we entitled to find that the Appellant had no reasonable excuse for his failure to provide [such a specimen]?

As will be apparent from the dates I have already given, the trial took place on 30 September 2009, just over a year after the incident that led to the Appellant’s arrest. He had first appeared in the Magistrates’ Court on 4 November 2008 when it was indicated that the issue was whether the Appellant had refused to provide a specimen of breath or not. Miss Calder says that it was also made clear that his case was that he did not understand that he had been asked for these specimens. In his Skeleton Argument Mr Little had suggested that an indication of only the first matter had been given and that the second issue was not raised until the substantive trial. Obviously, had that been so, issues concerning the duty of all parties to cooperate in an early identification of the real issues pursuant Parts 1 and 3 of the Criminal Procedure Rules and the need to avoid situations of “ambush” might have arisen: cf. per Thomas LJ in The Queen on the application of the DPP v Chorley Justices & Andrew Forest [2006] EWHC 1795 (Admin) at paragraphs 24-26, quoted by Leveson LJ in Brett v DPP [2009] EWHC 440 (Admin). However, Miss Calder’s recollection of what was said at that time was not controverted and I do not think it would be right to draw any adverse conclusions about the indications given to the court at that hearing.

The case came before the court again on 29 January 2009 and again on 6 July 2009, neither hearing being effective through no fault either of the Appellant or indeed the Respondent.

When the matter came on for trial, the evidence relied upon by the prosecution for the purpose of establishing the offence was that of Police Sergeant Cart and Police Constable Ward, the arresting officer who also witnessed the procedures in the police station. No evidence was called from the interpreter who assisted the Appellant in this part of what occurred and no statement from the interpreter under section 9 of the Criminal Justice Act 1967 had been served. No notes prepared by the interpreter had been provided in the unused material.

Miss Calder in effect says that this was a lacuna in the evidence for which the Respondent was responsible since the onus of proof was on the prosecution. It was, she suggested, for the Respondent to say that it needed the interpreter to be present and not for the Appellant. Wherever the responsibility lay, she said, the absence of the interpreter made it impossible for the justices to conclude so that they were sure (a) that the requirements for the specimens were made properly and/or (b) that the Appellant understood the requirements and the consequences of not providing the specimens.

I will turn to that shortly, but I should record the material findings of the justices. They were set out verbatim as follows:

Sgt Cart conducted the evidential breath test procedure in accordance with form MGDD/A, and explained the procedure to the Appellant via the accredited interpreter. PC Ward witnessed the procedure.

Although she did not circle “yes” or “no” to record the answer to the first question at section A14 of the form, Sgt Cart did tell the Appellant that she required him to provide two specimens of breath for analysis and did warn the Appellant on more than one occasion that if he did not provide these specimens he might be prosecuted.

Sgt Cart’s words having been translated by the interpreter, the Appellant understood that he was required to provide specimens of breath and that failure to provide them would render him liable to prosecution.

The Appellant failed to provide either specimen of breath.

The Appellant had no reasonable excuse for his failure to provide.

The justices provided also a note of the reasons which, apparently, they gave in open court to explain their decision. The material part was as follows:

The short issue is whether the justices were entitled, as they must have been in the absence of any direct evidence from the interpreter, to infer that what was said by Sergeant Cart to the Appellant (they being satisfied so that they were sure that Sergeant Cart had indeed made the relevant requests in English) had been translated properly by the interpreter and understood by the Appellant. As I have indicated, Miss Calder says that no such inference was permissible and that the justices needed to hear direct confirmation from the interpreter before being able to come to that conclusion.

Mr Little submits, however, that they were entitled to draw that inference so that they could be sure that the words were spoken and that they were understood. As juries are told on a daily basis, an inference is nothing more than a common sense conclusion based upon the evidence that is otherwise accepted. The justices plainly accepted Police Sergeant Cart’s evidence, supported by PC Ward, that she made the appropriate requests for the specimens notwithstanding that she failed to put a circle around the “yes” or “no” to record the first answer on the MGDD/A form at section A14. They must have accepted her evidence, supported by PC Ward, that she heard the accredited interpreter say things in a foreign language to the Appellant after she had made the requests. Whilst she was in no position to say (and did not seek to suggest) that what she had said had been translated accurately by the interpreter, it was to my mind, certainly a legitimate inference for the justices to draw that the words had been translated accurately. As Mr Little says, there was some other evidence that suggested that the Appellant understood what the interpreter was saying to him and translating on his behalf. There was, he said, no evidence that the interpreter suggested to the police that the Appellant was not understanding what was being said. Equally, there was no evidence that the police officers did not understand the English that the interpreter was speaking.

All these factors go to support, in my judgment, the drawing by the justices of the inference to which I have referred.

Miss Calder submitted that drawing this kind of inference runs counter to the approach in the case of Scott v Baker [1969] 1 QB 659. That case concerned a factual presumption concerning the question of whether the device used by the police had been approved by the Secretary of State. To my mind, it is a long way from the issue in this case, namely, whether, based on all the evidence available to the justices, they were entitled to draw the inference that the Appellant could understand the requirements made of him and the consequences of his failure to respond positively to them. It involves no kind of presumption; it is an exercise in drawing an inference based upon the evidence that is accepted.

Miss Calder also drew support for her submissions from the case of R v Attard 43 Cr. App. R. 90. This is a report of a ruling given by the trial judge, Gorman J, at a murder trial at the Central Criminal Court in December 1958. The defendant spoke only Maltese and the Crown proposed to call a police officer to give evidence of an interview conducted by that officer of the defendant through an interpreter. It was conceded for the purposes of the argument that the defendant could not understand or speak English. Gorman J ruled in favour of the defence submission that the officer should not give this evidence and that the interpreter should be called to say what was said at the interview. The case is referred to in Archbold (paragraph 8-193), Blackstone (F15.5) and Phipson (paragraph 28-36).

Again, I do not think that I need analyse the present day implications of that case. There is, of course, no doubt that the way interviews are conducted by the police now are markedly different from the way they were conducted over 50 years ago. However, I do not see that there is anything in the ruling that negates the proposition that a court may draw the inference, if the evidence supports it, that someone being asked to do something in a police station by a police officer with the assistance of an accredited interpreter of the relevant language has been asked the correct question, understands it and also the consequences of not responding to it. Here there is no evidence at all that the interpreter, for example, said to the officers “I am sorry, but he does not understand what you are asking him to do”. If that had been said, one could see that concerns might arise, but no such evidence was given and, as I have said, there was other evidence available to the justices that suggested that the Appellant knew and understood what was happening.

For these reasons, in my judgment, the justices were amply justified in reaching the conclusion they did, for which there was evidence in support, and I can see no grounds for suggesting that their decision to convict the Appellant was wrong.

I would, accordingly, answer each of the questions posed in the Case Stated in the affirmative. In relation to the last question, the onus is on the prosecution to disprove the existence of a “reasonable excuse”. Since no issue was raised about it (other, arguably, than that the Appellant did not understand the requests), I can see no grounds for criticising the finding that there was no reasonable excuse for failing to provide the specimens. The issue was really part and parcel of the previous two issues both of which were, in my judgment, rightly found proved by the justices.

It follows that this appeal must be dismissed.

Because this final form of the judgment has been handed down in the middle of the Long Vacation, I will extend the time of both parties for making any consequential applications (which should be made in writing) until 4 pm on Friday, 30 September.