Afolayan v Crown Prosecution Service

MR JUSTICE MITTING: At 03.55 on 8 November 2010 PC Broome stopped the appellant while driving his Mercedes motor car (N473 ELW) in Tulse Hill suspecting that he had been drinking. He required him to provide a specimen of breath, which eventually he did. The lower of the two readings was 45 micrograms per 100 millilitres of breath. That exceeded the statutory limit of 35 micrograms. Accordingly, PC Broome arrested him and took him to Brixton Police Station.

Because the breath reading was less than 50 micrograms per 100 millilitres, a blood sample was taken by Dr Huggins, the force medical examiner. Evidence was given, but not by Dr Huggins, about the manner in which the blood sample was taken and dealt with. It was sent for analysis. When analysed it was found to contain 96 milligrams of alcohol per 100 millilitres of blood.

A number of mishaps occurred during what was otherwise a routine case. Applications for adjournments were made by the appellant on 14 February 2011, 28 February 2011 and 28 April 2011. All were granted. The hearing was fixed for 13 May 2011. On that date the appellant's legal representative indicated that the appellant would not be, as he had anticipated before, relying on expert evidence of his own and asked that the matter was adjourned. It was. So on four occasions up to that point, on the appellant's application the case had been adjourned. It was fixed for 1 July 2011.

The first of the mishaps that were then the responsibility of the prosecution occurred. Dr Huggins had not been warned to attend and so did not attend the trial. An application was made to adjourn the case. The magistrates acceded to it. It was adjourned and finally heard on 26 August 2011.

The first of the grounds of appeal on which the appellant relies is that on 1 July the magistrates should not have adjourned the case. The reasons which they gave for adjourning were that although it was the prosecution's fault for not warning Dr Huggins to attend, the error was a minor one and was by no means the only one that had occurred in the course of the proceedings do date. The court noted that there had been several adjournments at the appellant's request.

Accordingly, balancing the public interest in conducting a trial and the fact that an adjournment would not prejudice the appellant against the fact that it was a summary matter which should be dealt with expeditiously, the court concluded that it was in the interests of justice for the appellant's prosecution to take place and accordingly adjourned the hearing.

In fact on the adjourned date Dr Huggins did not attend again, on this occasion because he was on holiday. The court went on to hear the case in his absence, a fact which gives rise to one further ground of appeal to which I will refer in a moment.

The appellant challenges the exercise of the magistrates' discretion to grant an adjournment. It is settled law that the magistrates have a wide discretion and unless they step outside that wide discretion, then their decision is not open to challenge. I am satisfied that, on the facts of this case, the magistrates' decision to adjourn was well within that wide discretion.

Further, and in any event, granting the adjournment gave rise to no advantage to the prosecution, nor disadvantage to the appellant because, on 26 August when the case was finally heard, Dr Huggins was again absent and so the case proceeded on the same evidence as that on which it would have proceeded on 1 July. The first ground of challenge accordingly is not made out.

The case then proceeded in a relatively normal manner. PC Broome gave evidence about the reasons for stopping the appellant. They were that he had known him from earlier dealings, the time at which the driving was taking place (3.55am), the direction from which the defendant was driving which, on the basis of earlier occasions, led PC Broome to believe to be from a drinking establishment, and the fact that the appellant was wearing ceremonial dress. That caused PC Broome to suspect that the appellant had attended a function of some kind at which he was likely to have taken alcohol.

The appellant challenges the magistrates' finding that PC Broome was entitled to stop the appellant on the basis of that evidence. The answer to that challenge is straightforward. On the basis of what PC Broome said, if accepted as true by the magistrates (which it was), he had reasonable grounds to stop the appellant, and having stopped him and having smelt, as he said, alcohol on his breath, to require him to undertake the roadside procedure.

I then come to what is at the heart of this appeal. The appellant's case was that the procedure for taking a sample of blood was not properly followed, and the procedure for analysing the sample of blood was not watertight. The evidence of the scientist who examined the blood was read as agreed evidence, but evidence of the taking of the sample was not agreed. The only evidence relied on by the prosecution was the evidence of PC Broome and of the desk sergeant, Police Sergeant Hawkins. PC Broome said that he was present when the blood sample was taken from the appellant by Dr Huggins, a procedure with which the appellant complied. He (PC Broome) had packaged the blood sample and given it a unique reference number and placed it in a safe in the front desk of the police station.

He said he had got 9 years' experience as a police officer and had seen nothing untoward in the taking of the sample, although it is correct that he did say that he personally did not know how to set about taking a blood sample. The blood sample was taken by Dr Huggins.

Police Sergeant Hawkins gave evidence that he had participated in the process. He had packaged the specimen and confirmed that, as he put it, "All normal procedures" were correctly followed. In one respect normal procedure was not correctly followed. This is a lengthy form to be filled in, known as form MG DD/A, which Police Sergeant Hawkins should have completed. He only completed it partly. He noted that there were no medical or other reasons why a specimen of blood could not or should not be taken, decided that a blood rather than a urine sample should be taken, and noted that Dr Huggins was of the opinion that the appellant was fit to provide the sample.

What is in many cases, including this, likely to be the most important page of the document was not however completed. The page which contains section B:20 sets out the guidance for the medical practitioner taking the sample and for the police officers dealing with the samples as to how they should set about their tasks. Section B:20 notes that the sample was provided at 5.50am on 8 November 2010, but does not go on to note, as the form indicates it should, that part of the specimen taken was offered to the accused, that it was sealed in his and presence and it was accepted by him.

The appellant says to me that the specimens were not sealed in his presence, but he does accept that he was given a specimen for analysis, a specimen which in the event he did not cause to be analysed.

The absence of Dr Huggins, together with the omission to complete section B:20 of the form, clearly created a potential problem for the prosecution. If the magistrates were not sure that the procedure had been properly complied with, then the appellant might have been acquitted. What occurred to the samples then was not however in dispute because, as Lauren McGoldrick said in her agreed statement, she received a sealed sample with the unique reference number given to it by PC Broome and conducted an ordinary and satisfactory analysis of it, which produced the result that I have referred to.

A submission was made by counsel for the appellant that there was no case to answer because the procedures could not be shown to have been fulfilled, and at the conclusion of the case that he should be acquitted for much the same reason.

The magistrates noted the appellant's own evidence, which was that he had had no drink before driving. About the taking of the samples and the way in which they were dealt with, their conclusion was as follows:

On that critical question, the court posed the following question for me:

The simple answer to that question is yes. The police officers could give evidence, as they did, about the procedure that was followed and that it was followed correctly. The magistrates were entitled to prefer that evidence to such evidence as may have been given by the appellant to opposite effect. They were entitled to rely upon the undisputed evidence of the forensic scientist that a properly sealed and bagged specimen reached her laboratory and was analysed by her. The appellant had his own opportunity to have the sample, which he admits was given to him, tested. Had it been and had it cast doubt upon the result achieved on the sample analysed by the forensic scientist, then there may well have been a difficult issue for the court to resolve. But on the evidence that they heard, the magistrates were clearly entitled to reach the conclusion they did. This appeal is accordingly dismissed.

MR CHINWEZE: My Lord, there is no application in relation to costs.

MR JUSTICE MITTING: Mr Afolayan, the prosecution have asked that you pay the costs of the appeal. That normally follows an unsuccessful appeal in the case of this kind.

MR CHINWEZE: My Lord, I said there is no application.

MR JUSTICE MITTING: Sorry, I misheard you. There are no applications.