Bisi Afolayan v Crown Prosecution Service

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...