Director of Public Prosecutions v Manchester and Salford Magistrates' Court John Blakeley (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] EWHC 1708 (Admin) |
| Docket Number | Case No: CO/2078/2017; CO/2076/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 2017 |
[2017] EWHC 1708 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Ouseley
Case No: CO/2078/2017; CO/2076/2017
and
and
John McGuinness Q.C. and Simon Heptonstall (instructed by CPS Appeals and review Unit) for the Claimant
Jeremy Benson Q.C. (instructed by Geoffrey Miller, Manchester) for the Interested Parties
Hearing date: 27 June 2017
This is the judgment of the court to which we have both contributed.
For many years, notwithstanding the provisions of s. 3(1) and 7A(2) of the Criminal Procedure and Investigations Act 1996 ("the 1996 Act"), disclosure of material unused by the prosecution in criminal cases that might undermine the prosecution case or support the case advanced by the defence has continued to give rise to serious issues. On the one hand, it is beyond argument that miscarriages of justice have occurred where such material has been withheld. On the other hand, attempts by the defence to seek unnecessary or inappropriate disclosure run the risk of undermining the trial process; as Lord Bingham made clear in R v H & C [2004] 2 AC 134, [2004] UKHL 3 at [35]:
"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court."
These cases concern two prosecutions brought against motorists in unconnected circumstances for driving a motor vehicle on a road or other public place after consuming so much alcohol that the proportion if it in their respective breath exceeded the prescribed limit, contrary to s. 5 of the Road Traffic Act 1988. The same defence solicitors have appeared and, in both cases, defence statements have been served which deny the consumption of sufficient alcohol to give rise to a positive reading and challenge the reliability of the Lion Intoxilyzer device used in the procedure. Pursuant to these statements, applications have been made under s. 8 of the 1996 Act for comprehensive documentation concerning the relevant device, relying on expert evidence to the effect that there must have been some defect in the device: the evidence proceeds on the unstated premise that what is said by each of the motorists as to their alcohol consumption is accurate.
In the event, in each case, the District Judge acceded to defence applications for disclosure of this material on the basis that once an issue as to reliability of the device had been raised and documentation requested, the prosecutor was under an obligation to consider reliability, inspect the material and, disclose it. In one case (that of Joshua Whyte), after considerable difficulty, the Crown Prosecution Service ("CPS") complied with the terms of the order. In the other (John Blakeley), the same judge ordered disclosure of the metrological log and a record of the previous 300 evidential breath analyses in respect of the particular device. That order has not been complied with and this application for judicial review in both cases challenges the conclusion reached by the District Judge on the basis that it orders the prosecution to do far more by way of disclosure than the law requires.
Jurisdiction
Before dealing with the merits of these applications, a preliminary issue arises in relation to jurisdiction. In particular, Jeremy Benson Q.C. for the interested parties argues that the decisions that are in issue are interlocutory case management decisions which this court does not have jurisdiction to hear. If the material disclosed does undermine the prosecution case, the interested party would properly be acquitted; if he is convicted, the remedy for the prosecution is compensation in costs.
In support of that proposition, Mr Benson relies on R v Rochford Justices ex parte Buck (1978) 68 Cr App R 114. The facts of that case concerned the offence of permitting the unloading of duty free goods from aircraft. The defendant faced five charges but, following objection, one charge was heard first. During the trial, an application by the prosecution to adduce the facts forming the other charges as similar fact evidence was refused and, when the prosecution sought to review that decision, the trial was adjourned. This court (Lord Widgery CJ, Croom-Johnson and Stocker JJ) held that the prosecution should have continued with the case to its end and then, if necessary, proceeded to the Divisional Court by way of case stated. The headnote reads that it was held that there was no jurisdiction in the Divisional Court to interfere with the justices' decision, which had not been reached by termination of the proceedings below.
Citing Carden (1879) 5 QBD 1, in which Lord Cockburn CJ observed that the court had "no authority … to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject", Lord Widgery went on to deal with the type of proceedings being determined and observed (at 118):
"The obligation of this Court is to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings."
It is worth underlining that both Lord Cockburn and Lord Widgery were dealing with appeals during the course of the hearing of the relevant trial (thereby causing an adjournment for the decision to be challenged.) We consider that these decisions can be explained (and justified) on that basis. The same is so for the subsequent decision which relied on Buck. In R (Hoar-Stevens) v Richmond Magistrates Court [2003] EWHC 2660 (Admin), the defence wished to explore the reliability of the breath device and had sought access to records in relation to it. The prosecution had not fully complied with orders relating to disclosure and, at the conclusion of the prosecution case, a submission was made that the prosecution should be stayed as an abuse of process. The District Judge considered she was not bound by the earlier disclosure ruling and refused the application, reserving the question whether to exclude the material pursuant to s. 78 of the Police and Criminal Evidence Act 1984 to be addressed during closing submissions. This court considered itself bound by Buck, Kennedy LJ observing (at [18]):
"The proper course is to proceed to the end of the trial in the lower court and then to test the matter, almost certainly by way of case stated."
John McGuinness Q.C. for the D.P.P. accepts what he describes as this general principle but challenges the proposition that it is a question of jurisdiction. Thus, in R (Watson) v Dartford Magistrates' Court [2005] EWHC 905 (Admin), following a refusal by one bench to adjourn a trial, a further application without a change of circumstances was granted. On appeal to this court (Sedley LJ and Mitting J), it was not accepted that there was a bar to intervention. Referring to Buck, Mitting J put the matter (at [7]) in this way:
"I accept that this is the normal rule, but in this, as in some other cases, the prosecution would no doubt say at that conclusion of a trial resulting in a conviction that it was too late for the claimant to complain about an adjournment that should not have been granted before. In a case such as this, where the issue is straightforward and the principle clear, I do not see that there is any fetter on this court intervening."
Similarly, in CPS v Sedgemoor Justices [2007] EWHC 1803 Admin, the court was concerned with an excess alcohol case in which the magistrates ruled that the evidence of a toxicologist was inadmissible as she was not an 'authorised analyst'. Dealing with the application for judicial review, the court (Hughes LJ and Treacy J) referred to Buck, Hoar-Stevens and Watson. Hughes LJ (as he then was) went on (at [11]):
"It needs to be said, it seems to me, that the general rule as set out in Buck is important. It is necessary in nearly every case to wait until the end result of the trial in the Magistrates' Court is known before anybody can say whether there is a source for complaint or not. That was the position in Hoar-Stevens because other decisions — for example, that under Section 78 of the Police and Criminal Evidence Act — might yet remove any reason for complaint at all. Quite apart from that, it is necessary in nearly every case to wait until the end of the case so that the magistrates can find the facts and they can properly be known for the purposes of decision here. It is for that reason that it is the procedure by way of case stated which is, in nearly every case, the correct manner in which to challenge a decision in the Magistrates' Court. Otherwise the facts may be the subject of dispute in this court."
Mr Benson points out that Hughes LJ went on to say (at [12]) that the application for judicial review ought not to have been brought and that the prosecution should have behaved as in Buck. That is so, but the court must have...
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