Braham v DPP
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 1994 |
| Date | 19 December 1994 |
| Court | Family Division |
Queen's Bench Divisional Court
Before Lord Justice Butler-Sloss and Mr Justice Latham
Criminal evidence - discretion to exclude - point should have been put to justices
It was not permissible to raise before the Divisional Court the issue of justices' discretion to exclude evidence under section 78 of the Police and Criminal Act 1984 when that was not raised earlier before the justices.
The Queen's Bench Divisional Court so stated when dismissing an appeal by Araminta Braham by way of case stated of a decision of Horseferry Road Justices on October 27, 1992 when they found her guilty of an offence under section 5(1)(a) of the Road Traffic Act 1988.
Mr Victor Temple, QC, who did not appear below, for Ms Braham; Mr Peter Ader for the prosecution.
MR JUSTICE LATHAM said that the justices' clerk had been wrong in law to advise that justices had no discretion under section 78 of the 1984 Act to exclude evidence obtained from a breath specimen test. The court could exercise its discretion to exclude if the prosecution behaviour was oppressive in the way described in Matto v Wolverhampton Crown CourtUNK((1987) RTR 337).
In the present case, however, there had been no submission made to the justices based on that power under section 78 in contradistinction to bothMatto and Sharpe v DPPUNK ((1993) RTR 392) where it was made clear that evidence could be excluded because of oppression and because the section 78 point had been raised and had to be dealt with by evidence.
Rather, the submissions before the justices were directed to the lawfulness of the arrest and that was the issue on which they had concentrated. Before the Divisional Court it was accepted that was not the relevant issue.
However, in his Lordship's judgment, the justices could not be criticised for deciding as they did, which was a perfectly permissible decision, by reference in the Divisional Court to a power they had not been asked to exercise.
If they had not been asked it was not for the Divisional Court to criticise a decision made by the justices directed to a different point they might have decided in a different way if the...
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