Maher v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,MR JUSTICE LEVESON |
| Judgment Date | 12 May 2006 |
| Neutral Citation | [2006] EWHC 1271 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9993/2005 |
| Date | 12 May 2006 |
[2006] EWHC 1271 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Scott Baker
Mr Justice Leveson
CO/9993/2005
MISS D GRAHAM (instructed by Langleys) appeared on behalf of the CLAIMANT
MR C J SMITH (instructed by CPS North Yorkshire) appeared on behalf of the DEFENDANT
The facts of this case are simplicity itself. The law is not quite so straightforward.
On 21st November 2004, the appellant had parked her BMW Mini which was light blue in colour, registration number YF51 SYR, in Sainsbury's car park in Monks Cross. Thomas Huddlestone had parked his Vauxhall Astra in the same car park nearby and was shopping with his girlfriend, Nichola McDonough, when Susan and David Dennis (Mr and Mrs Dennis) saw the appellant reverse her Mini into the Astra, get out and look at the damage, and then drive off.
Fortunately for Mr Huddlestone, the Dennises were public spirited enough to make a note of the appellant's registration number and their contact details and to leave it on the windscreen of the damaged Astra under the wiper. When Mr Huddlestone and Miss McDonough returned to their damaged Astra they found the note and telephoned the police, reciting the number of the offending vehicle. The police recorded the details in the Police Incident Log.
A subsequent DVLA check of that registration number led to the appellant. She was spoken to three days later on 24th November 2004 by Police Constable Forth. In the course of interview under caution, she admitted to being the driver of a BMW Mini, registration number YF51 SYR. She further admitted to being in the car and in the car park at the material time and, whilst accepting that she had reversed out of a space in the car park, denied that she had been involved in a collision. She said that she had only found out that there had been a collision when she had been told earlier on that day by the police.
By the time of the trial, the note that had been left on the windscreen was no longer in existence, or, if it was, it could not be found. The Magistrates admitted the Police Incident Log in evidence, despite objection from those advising the appellant, and convicted the appellant of careless driving and failing to stop and report the accident. The issue is whether the log was rightly admitted. It is submitted that as that was the only evidence that fully implicated the appellant, that she should have been acquitted. Her submission is that the evidence was hearsay and should not have been admitted.
The admissibility of hearsay evidence is now governed by sections 114 to 136 of the Criminal Justice Act 2003. As the editors of the 2006 edition of Archbold say at paragraph 11.1, the opening words of section 114(1), taken together with section 115, effectively define hearsay as "any representation of fact or opinion made by a person otherwise than in oral evidence in the proceedings in question when tendered as evidence of any matter stated therein". The general rule is that hearsay is inadmissible unless it can be brought within an exception defined in the legislation. There are additional requirements for multiple hearsay to be admitted (see section 121). In the present case, the evidence was not only hearsay but multiple hearsay.
Mrs Dennis identified the number of the offending vehicle and wrote it on a piece of paper, putting it under the wiper blade on the windscreen of Mr Huddlestone's car. When Mr Huddlestone and Miss McDonough returned to the car, Miss McDonough took the piece of paper, phoned the police and read the number to someone who recorded the number on the police log. The transmission of the material information (namely, the number of the car) is therefore Mrs Dennis to Miss McDonough via the note (since lost or destroyed) to the clerk in the police station who recorded it in the log.
It seems helpful to me to identify first-hand hearsay from the subsequent multiple hearsay which is what was ultimately sought to be admitted. Leaving aside the note on the windscreen, the first-hand hearsay is the owner of the car (which I take as, for present purposes, Miss McDonough) saying that Mrs Dennis said to her that the offending vehicle is the one with the number YF51 SYR.
The starting point for the admissibility of simple hearsay is section 114. Multiple hearsay comes in under section 121. Section 114 provides as follows:
" Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any manner stated if, but only if —
(a) any provision of this chapter or any other statutory provision makes it admissible;
(b) any rule of law preserved by section 118 makes it admissible;
(c) all parties to the proceedings agree to it being admissible; or
(d) the court is satisfied that it is in the interests of justice for it to be admissible."
Taking the first-hand hearsay for a moment and focussing on that, it is not, in my view, arguable that there is any route for that to be admitted in this case other than under 114(d), the sweeping up interests of justice test. In that event, the court has to go on to consider a number of matters that have to be taken into consideration under section 114(2), but I shall return to that in due course.
It is important, in my judgment, to keep in mind that the thrust of the evidence sought to be admitted is that the vehicle that reversed into the Vauxhall Astra was YF51 SYR. Let us assume for present purposes that there would have been no difficulty in admitting the first-hand hearsay under section 114. I turn on to consider the real issue in this case which is the application of section 121, namely multiple hearsay. I am at this point focussing on the record in the police log which was what all the argument was about. Section 121 provides:
" Additional requirement for admissibility of multiple hearsay
(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless —
(a) either of the statements is admissible under section 117, 119 or 120;
(b) all parties to the proceedings so agree; or
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admitted for that purpose.
(2) In this section 'hearsay statement' means a statement not made in oral evidence that is relied on as evidence of a matter stated in it."
The Magistrates admitted the evidence (namely, the contents of the police log) under section 117. What they said was this:
"(a) The Police Incident Log was a business document for the purposes of section 117 Criminal Justice Act 2003 and therefore admissible in evidence in that:
(i) oral evidence of the matters stated in the log would have been admissible by oral testimony in court. Had Miss McDonough been called to give evidence she could have given oral evidence of what she found and subsequently did on returning to the damaged car.
(ii) the said log was created by a person in the course of his or her occupation;
(iii) Miss McDonough, who supplied the information to the police from the scene of the incident, had personal knowledge of the information contained in the note;
(iv) since the information was relayed directly from a relevant person at the scene of the incident and not through any other person to the police, section 117(2)(c) was not applicable;
(v) Miss McDonough could not reasonably be expected to have had any recollection of the actual registration number contained in the Police Incident Log, having regard to the length of time since the information was supplied;
(vi) the reliability of the information contained in the log was therefore not undermined in view of the circumstances which we accepted were applicable to this case."
I turn, therefore, to examine in a little detail section 117. It is headed "Business and Other Documents". Subsection (1) reads:
"In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if —
(a) oral evidence given in the proceedings would be...
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