Divisional Court
| Published date | 01 August 1999 |
| Author | J. A. Coutts |
| Date | 01 August 1999 |
| DOI | 10.1177/002201839906300402 |
| Subject Matter | Divisional Court |
Divisional Court
Whether s5(I)(a) of
the
Road Traffic Act 1988 Created
Six Offences or
One
Rv
Bolton
Magistrates,
ex p Khan [1999] Archbold News, issue 1, p 2
(C0I3628/94)
HELD,
the
Road Traffic Act 1988, s 5(1)(a) created six different
offences,
that
is, driving, or attempting to drive a
motor
vehicle
on
a
road or
other
public place after consuming so
much
alcohol
that
the
proportion thereof in
the
defendant's breath, blood or urine exceeded
the prescribed limit. A charge, which alleged driving
with
excess alcohol
etc in the defendant's 'breath/blood/urine', was bad for duplicity. The
prosecution would be in a position to say
whether
breath, blood or urine
was appropriate,
and
where
an
error
was made, i.e.
the
offending words
had
not
been deleted from a pro forma charge, an
amendment
could
readily be made
without
prejudice to the accused.
COMMENTARY
Before analysing the decision, it is
noteworthy
that
the
duplicity point
had
already
been
clarified in relation to the sister charge of failing to
provide aspecimen
pursuant
to s 7(6) of the 1988 Act. As regards s 7(6),
there were conflicting decisions of
the
Divisional Court as to
whether
the section created
one
offence or more
than
one
offence: on
the
one
hand, Shaw v
DPP
(1993) 157 JP
6H;
on
the
other
hand,
DPP
v
Corcoran
(1993) 157 JP 154. The
matter
was ultimately resolved by an appeal to
the
House of Lords which decided as a
matter
of law
that
s 7(6) did
not
create more
than
one offence,
and
therefore was
not
bad for duplicity
where
the
information or charge alleged a failure to provide a
breath
specimen for analysis:
DPP
vButterworth
(A.P.)
(1995) 159 JP 33; [1994]
RTR
H.
In
Wylie
v
DPP
[1988] Crim LR 753
and
DPP
vWilliams [1991]
RTR
214, further
argument
ensued
as to
whether
acharge which alleged a
failure to provide specimens of breath, blood or urine was defective
on
the grounds of duplicity
and
that
the prosecution should be required to
elect. However, in
Worsley
v
DPP
[1995] Crim LR 572,
the
defendant
appealed by way of case stated against his conviction for failing to
provide asample of
breath
without
reasonable excuse.
It
was submitted,
interalia,
that
the charge was bad for duplicity.
HELD,
DISALLOWING
THE
APPEAL,
S7(6) created only
one
offence,
and
although
the
penalties provided for
under
s 7(6) depended ultimately
upon
whether
the investigation was
under
s4or s 5,
they
were
not
dependent on
whether
the sample requested was breath, blood or urine.
The Divisional Court distinguished
Wylie
and
Williams on
the
facts.
It
is submitted
that
all
three
specimens are mutually exclusive
and
should be charged as such. Alternatively,
the
prosecution should make
278
Justices'
Power
To
Commit
Absent
Accused
for
Trial
clear in the charge or
the
statement
of facts accompanying asummons
whether
the accused is alleged to have failed or has provided aspecimen
of breath, blood or urine: see by
way
of analogy, R v Waltham
Forest
Justices,
ex p
Barton
[1990] RTR49.
It
is debatable
whether
the
duplicity point has
any
relevance to a
prosecution
under
s 5(1) (a).
If
one
examines the procedures
under
s 7 of
the 1988 Act, a constable
may
require
the
person concerned to provide
specimens of
breath
for analysis by
means
of
an
approved device, or to
provide aspecimen of blood or urine. In short,
the
procedures
and
evidence to establish
whether
asuspect has driven
on
aroad etc.
with
excess alcohol are mutually exclusive: s7(3). For example,
where
the
breath
reading provided by
an
approved device contains
no
more
than
50 microgrammes of alcohol in 100 millilitres of breath, the person
who
provided it may claim
that
the
specimen should be replaced by a
specimen as may be required by s 7(4). Where
such
aspecimen is
provided,
neither
specimen of
breath
is admissible to prove
that
the
accused was driving while over
the
prescribed limit.
Justices' Power To Commit Absent Accused for Trial
R v
Liverpool
City
Magistrates'
Court,
ex p Quantrell (1999) The
Times,
2February
The applicant was charged
with
abducting a child contrary to s 2(1) of
the
Child Abduction Act 1984. The child was the applicant's grandson
and
he claimed
that
he
had
areasonable excuse for taking
the
child.
Prior to committal proceedings
the
applicant informed his solicitors
that
he
had
been diagnosed as suffering from a depressive illness by his
general practitioner
and
been
advised
not
to travel from Aberdeen,
where
he
lived, to Liverpool. As a result
the
applicant gave consent to
the
solicitors
that
his case be committed to
the
Crown Court in his
absence. The prosecution was content for
the
committal hearing to
proceed in
the
applicant's absence. At
the
hearing however, the court
clerk advised the justices
that
they
lacked
the
power
to commit the
applicant in his absence as they could
not
comply
with
their
obligations
under
the relevant legislation
and
to bail
him
to appear before the
Crown Court for
any
plea
and
directions hearing. The justices refused to
commit
and
adjourned
the
hearing. The applicant sought judicial
review.
In all committal proceedings prior to
the
Criminal Justice Act 1967
prosecution witnesses
had
to give evidence orally,
and
examining
justices
had
to go
through
the
motions of satisfying themselves
that
there
was sufficient evidence to
put
the
accused
on
trial by jury. In
many
cases, no one, least of all
the
defendant questioned this. The result was
agreat waste of time
and
public money. Reform was brought about by
the Criminal Justice Act 1967. It enabled justices to commit for trial
without
consideration of
the
evidence. However, 'old-style' committals
279
The
Journal
of
Criminal
Law
were retained by
the
1967 Act
and
are
now
to be found in the Magis-
trates' Courts Act 1980 (MCA), s 6(2).
During
the
last
two
decades
there
have
been
several notable altera-
tions to the procedures which regulate committal proceedings. At the
beginning of the 1980s,
the
accused's right to make an unsworn state-
ment
from the dock was removed. The accused's right to
make
an
un-
sworn statement during committal proceedings (or trial) was a Victorian
anachronism attributable to the embargo on the accused, pre-Criminal
Evidence Act 1898, from giving evidence in his
own
defence. From
memory, this requirement was removed by
the
Criminal Justice Act
1982.
More notable
have
been
the
changes
brought
about by
the
Criminal
Procedure
and
Investigations Act 1996.
In
former times
the
accused was
entitled at
the
committal hearing to give evidence or to call witnesses
if
he wished to do so. Secondary legislation required
that
the
accused
be informed of this right: Magistrates' Courts Rules 1981, r 7(10). In
the odd case clerks experienced difficulties in applying the rules, for
example, RvBarnetMagistrates'
Court,
exp
Wood
[1993] Crim LR 78. Rule
7(10) was repealed by
the
1996 Act. Furthermore, the requirement to
hear
oral evidence was removed. 'Old-style' committal
now
consists of a
read
out
of the evidence (even this
requirement
is subject to direction
by the court: r 7(3)). Pre-committal,
the
evidence is reduced into docu-
mentary
form
and
served
upon
the
defence (see Magistrates' Courts Act
1980, ss SA-SF).
It
would be remiss
not
to
mention
Wilkinson v
Crown
Prosecution
Service
(1998) 162 JP 591. In this case the Divisional Court held
that
changes in
the form of committal proceedings introduced by
the
1996 Act did
not
affect
the
general principle that
the
prosecution is entitled to choose
which witnesses to rely
upon
for the purposes of such proceedings: Rv
Epping
and Harlow
Justices,
ex p
Massaro
[1973] 1 QB 433 followed. The
court also opined
that
since committal proceedings do
not
involve
any
final determination by
the
court, the appropriate form of challenge to
such adjudication by justices is probably judicial review,
not
appeal by
way of case stated. The Divisional Court
had
in
mind
those cases
where
there
had
been
aprocedural flaw or
much
inadmissible evidence formed
the basis of
the
committal or
where
there
was a plain lack of evidence to
support trial
on
indictment. The remedy is discretionary
and
is unlikely
to issue if the accused's
own
conduct contributed to
the
failure of
procedure or if
an
application to
quash
the
indictment is
an
adequate
alternative remedy (ex p
Wood).
The MCA 1980
and
the 1981 rules govern
the
procedures for com-
mittal. Mode of trial
and
the
reading of
the
evidence can take place
in
the
absence of
the
accused in certain specified circumstances, for
example, illness or disorderly behaviour. None the less,
and
having
regard to case law such as ex p
Wood,
it was generally believed
that
the
decision to commit could
not
take place in the absence of
the
accused.
Academic
and
judicial opinion overlooked s 122 of the 1980 Act.
HELD,
DISALLOWING
LEAVE,
the justices were entitled to commit the
applicant for trial
under
MCA, s 6(2) in his absence.
280
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