Olajide, R (On the Application Of) v Stratford Magistrates' Court

The claimant, Mr Olajide, applies with permission of the single judge for judicial review of the decision of the Stratford Magistrates' Court on 8 March 2017 to convict him of an offence contrary to s.5(1) of the Road Traffic Act 1988, namely driving with excess alcohol.

Mr Olajide has been assisted today by Mr Awojobi. We are grateful to him for his assistance. He provided us with short written materials and he has amplified those orally. His submissions have brought the issues in the case into sharp focus and enabled us to deal with the case in an expeditious fashion.

There is a single ground on which the claimant has permission, namely that the prosecution failed to comply with s.16(3)(a) of the Road Traffic Offenders Act 1988. Section 16 is concerned with the admission of documentary evidence as to the specimens of breath obtained by police in proceedings under the Road Traffic Offenders Act.

The claimant's case is that a document, consisting of a printout from the breath test device certified by a police officer, was not provided to him as required by s.16(3)(a). The document, therefore, should not have been admitted by the magistrates in the course of the hearing. The claimant's case is that without it, the prosecution could not prove their case and it follows that the conviction should be quashed.

We must deal briefly with the factual background to the conviction. Shortly after 10 o'clock in the evening on 27 November 2016, two police officers were called to an incident in Seven Sisters in North London. They discovered that a white transit van had collided with a taxi. The taxi driver, a Mr Ali, was able to show the officers the damage to his taxi. He then pointed out a white van which he said had been involved in the accident. He also pointed out the man whom he said had been driving the van. This man was the claimant.

The claimant was carrying a box he had retrieved from the van. It was quite clear that the claimant was badly affected by alcohol. Not only was that the observation of the police officers, but also it was confirmed by the claimant himself, who said he had been drinking all day. However, he said he had not been driving. Rather, he had simply been collecting something from the van.

He failed the roadside breathalyser test. He was arrested. He was found to have the key to the van in his pocket. He was taken to Bethnal Green police station where he provided an evidential breath test. Two readings were obtained, one of 87 micrograms of alcohol in 100 millilitres of breath and the other 90 micrograms. He was nearly three times over the limit.

The procedure was conducted by reference to a standard form. Once the breathalyser machine had provided its printout, the police officer moved to a section on the printed form headed with a reference to s.16(1)(a) of the Road Traffic Offenders Act. The form referred to the print out from the machine. It stated that this was a copy of the record provided by the machine. On the face of the form, the subject, namely Mr Olajide, is said to have accepted it. He is recorded as saying, "I would like it. I need to use it." The printout, signed by the police officer, was attached to the form itself.

The claimant was charged some two weeks after his arrest. His first appearance at the magistrates’ court was on 11 January 2017 when he was represented by a duty solicitor. He pleaded not guilty. The issue in the case was identified, namely was the claimant the driver? The trial preparation form indicated that another identified individual was the driver and would be giving evidence at trial.

The statements of the police officers had not been served at that stage. However, it was indicated that the claimant had been properly arrested and procedures thereafter carried out appropriately. The duty solicitor indicated that the evidence would be agreed once served. The only witness required was the taxi driver.

On 8 March 2017 the trial was listed, the claimant then being assisted by a friend rather than by any solicitor. He said he had not received any statements. The prosecutor at court appears to have been independent counsel. She could not say whether the statements had been served so she took the pragmatic course of serving all statements and exhibits there and then. There was an immediate argument by the claimant as to this being an abuse of process, an argument which was rejected. The trial proceeded later in the day. The only live witness for the prosecution was the taxi driver. The claimant was convicted.

There was initially an appeal by the claimant to the crown court against his conviction, but that was not pursued. The appeal was abandoned. He then moved to these proceedings. The claimant first sent a pre-action protocol letter in around April 2017 and filed his claim for judicial review on 6 June 2017. That is just within time. Permission was initially refused on the papers. After a renewal hearing in January of this year, permission was granted, to the limited extent we have indicated, on 17 April.

The provisions of s.16(1) of the Road Traffic Offenders Act, insofar as they are relevant, read as follows:

"Evidence of the proportion of alcohol... in a specimen of breath... may, subject to subsection (3)… below be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say -

(a)

a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable..."

Subsection (3) reads as follows, insofar as it is relevant:

"A document purporting to be such a statement or such a certificate (or both...) as is mentioned in subsection (1)(a) above is admissible in evidence on behalf of the prosecution... only if a copy of it either has been handed to the accused when the document was produced or has been served on him not later than seven days before the hearing."

The argument is that in this case that statement produced by the device was not provided either at the time it was printed off by the machine or at any time prior to the day of the hearing and therefore, it was not admissible in evidence.

Reliance is placed on the case of R (on the application of) Wooldridge v Director of Public Prosecutions [2003] EWHC 1663 (Admin). That case concerned a different subsection within s.16 but of similar effect, namely that a particular type of certificate could not be admitted as proof of the facts stated in the certificate if it had not been served at the relevant time.

The answer to the claimant's claim as put by the interested party, namely the Crown Prosecution Service, in their written material is simple. Section 16 does not provide an exhaustive process for the proof of level of alcohol in breath. That principle is established in Brett v DPP [2009] 1 WLR 2530. The language of s.16 is of the evidence via certificate may be used to demonstrate the relevant proportion of alcohol in breath. There are other routes.

The evidence served on the claimant and adduced before the court included the evidence of a Police Constable Cooper, one of the officers who not only had been at the scene in Seven Sisters, but also had been at the police station with the claimant. His evidence read as follows, insofar as was relevant:

"I have been present whilst Olajide has blown into the evidential breath analyser and given two samples of 87 milligrams and 90 milligrams."

There is a presumption that a machine of the type the officer was speaking of works correctly. His evidence as to what the machine indicated was and is admissible. That evidence, without any more, proved that the level of alcohol in breath was in excess of the legal limit.

It is, therefore, unnecessary to consider whether in fact Mr Olajide was handed the printout from the machine when it was produced as required by s.16(3)(a). On the face of it, it would appear that he was, in which event the point in respect of which the claimant was given permission fails on the available evidence. But it is not necessary for us to resolve that evidential issue, which is raised before us today, because the evidence of P.C. Cooper proved the level of alcohol in the claimant’s breath.

In his concluding sentence of the skeleton argument submitted on behalf of the claimant, Mr Awojobi writes that this appeal should be allowed in order to satisfy the sense of fairness in this building of justice. We hope that by confirming a conviction of a man who admitted that he had drunk too much to drive and who did not take issue with the witness statement of a police officer who proved the level of alcohol in his breath via a machine is doing no more than justice to the case.

Subject to what my Lord says, I would dismiss this claim.

I agree. The fundamental difficulty which Mr Olajide faces at this hearing today is that he only has permission to argue before us the single issue about the admissibility of the certificate giving the breathalyser result. As my Lord has explained, there was ample evidence before the magistrates to confirm the admissibility of that certificate and in any event to prove that Mr Olajide was intoxicated – which, as I understand it, was not really in dispute.

His real grievance is that he continues to maintain that he was not the driver of the van. However, evidence on that point was given by a taxi driver, Mr Ali, which the magistrates accepted. What Mr Olajide really wishes to do is to challenge that finding of the magistrates and in particular the evidence that Mr Ali gave identifying Mr Olajide as the driver. But the problem, as I explained to Mr Awojobi, who has represented Mr Olajide most courteously and well today, is that he does not have permission to make that argument.

Mr Awojobi appealed to our sense of fairness in this building to quash the conviction, but it is not open to judges simply to exercise their sense of fairness. They are bound to do so in accordance with rules of law. Those include rules of procedure which determine the process by which claims can be pursued.

Under those procedural rules, there are two stages that a claim of this kind must go through. The first stage is to obtain permission to proceed with the claim by showing that the grounds put forward for bringing the claim are arguable. The second stage is then for those grounds, and only those grounds, for which permission is given to proceed to a full hearing.

The attempt to challenge the finding made by the magistrates identifying Mr Olajide as the driver of the vehicle failed at the first stage before Nicol J, who found that this ground was not sufficiently arguable to proceed to a full hearing. It is, therefore, simply not open to us to entertain it today.

The one ground for which permission has been given was, as my Lord has explained, an argument which cannot succeed and, accordingly, the claim must be dismissed.