R v Wood Green Crown Court and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,MR JUSTICE MITCHELL |
| Judgment Date | 15 May 1995 |
| Judgment citation (vLex) | [1995] EWHC J0515-7 |
| Date | 15 May 1995 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CASE NO: CO/3615/94 |
[1995] EWHC J0515-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Mccowan and Mr Justice Mitchell
CASE NO: CO/3615/94
MR N LEVISEUR (instructed by Messrs Cordell Tibber & Co, London, N12) appeared on behalf of the Applicant.
MR C DIGBY (instructed by The CPS, Wood Green Area) appeared on behalf of the Respondent.
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Monday, 15th May 1995
This is an application for judicial review pursuant to leave granted by Schiemann J on 11th January 1995. The applicant challenges a decision of the Wood Green Crown Court, dated 30th September 1994, on appeal from the Enfield Magistrates' Court.
The applicant had been convicted in the latter court of failing to provide a specimen of breath contrary to s.7 of the Road Traffic Act 1988. He appealed to the Crown Court. When the appeal was called on counsel was not in court. Judge Gerber was presiding over the court, sitting with two lay magistrates. He decided that the Court should proceed with the appeal in the absence of prosecuting counsel.
There is before us an affidavit sworn by the solicitor advocate, who was appearing for the applicant on that occasion. In paragraph 6 of his affidavit he said this:
"At approximately 10.55 a.m. the case was called on. Counsel instructed by the respondent was not however in court. He had apparently been briefed by the Crown Prosecution Service to appear on a number of matters that day which were in other courts. Despite efforts by the Crown Prosecution Service to secure his attendance before His Honour Judge Gerber, the prosecuting Counsel was unable to appear.
7. In those circumstances the learned Judge elected to follow the same course as he had with the appeal which was heard immediately before that of Mr Taylor, namely to proceed in the absence of prosecuting counsel and to call the witnesses for the respondent".
In paragraph 8 he describes what actually happened:
"The Judge directed the usher to bring the first of the two prosecution witnesses into Court. That witness was Police Constable Watson. The officer gave his evidence to the Court and I was then afforded an opportunity of cross-examining him which I took.
9. The second, and final, witness for the prosecution was Police Sergeant Jolin. Again he gave his evidence and I was afforded an opportunity of cross-examining which I took.
10. I then called Mr Taylor to give evidence and he did so. He told the Court that he had been in an extremely agitated and excitable state at the police station and that when the Police Sergeant had outlined the procedure for supplying a specimen of breath he had not understood the Sergeant to have told him that a failure to so supply was an offence punishable by fine and disqualification. He told the Court that even if that explanation had been given to him he was in no fit state to understand it and had not understood it. No questions were put to Mr Taylor by the learned Judge. By that stage prosecution counsel had arrived in Court but the Judge indicated that as counsel had not been present in court during the course of Mr Taylor's examination in-chief it would not be right to afford him an opportunity of cross-examining Mr Taylor.
11. At the conclusion of the evidence I made a submission to the learned Judge that, as a result of Mr Taylor's agitated and excited state of mind (an assertion that was accepted by the prosecution witnesses), the penal consequences which would flow from a failure to provide a specimen of breath had not impinged upon his mind and as a consequence he had not, as a matter of law, received the statutory warning. Counsel for the prosecution having taken no part in the appeal did not respond to my submissions".
I interpolate at this point, that this was a defence of perfectly respectable provenance. It was based upon s.7(7) of the Road Traffic Act 1988, which reads:
"A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution".
That requirement is clearly mandatory. Additionly, reliance was placed upon the decision in Spalding-v- Paine 1985 Crim LR 673, which holds that for the warning to be effective it must have been understood by the defendant.
What then was the answer to that point? That is set out in the remainder of paragraph 11 of the affidavit which I now read:
"… the learned Judge in giving judgment concluded that because in his evidence one of the police officers had stated that he was satisfied that Mr Taylor had understood the warning, the Court was entitled to reject the submission and accordingly dismiss the appeal".
Before departing from the affidavit, I make mention again of the fact that apparently the judge had proceeded in the same way in the immediately preceding case, where, again, prosecution counsel was absent. It appears that in that case the appeal was allowed and so far as is known, no more has been heard of that case. Apart from that case neither counsel nor, indeed, the Court, is aware of any other case in which a judge has similarly conducted the entire prosecution case.
I can shortly summarise the grounds upon which relief was sought. It was said that the decision to conduct the case for the prosecution and to cause the prosecution witnesses to be called was not one which should have been taken by the judge. It amounted, in fact, it is submitted, to a material procedural irregularity. Moreover, it is said that no impartial observer would have failed to conclude that the presiding judge had descended into the arena and usurped the role of the prosecutor, a role incompatible with the judge's duty to preside at an appeal. What, in other words is being said, is that justice was not seen to be done.
Further, it is pointed out that there was no pressing reason why the appeal should not have been put back for the prosecutor to attend. Indeed, that point is, if anything, substantiated by argument on behalf of the respondent. The respondent said that the prosecutor was not far away, that he was merely detained in another court and it would not have taken very long before he could have joined the court. If that did not appeal to the learned judge, because he thought it was quite wrong, and I quite understand why he should have so felt, that he should be left without a prosecutor, then it was open to him to allow the appeal in the absence of a prosecutor.
Mr Leviseur, appearing for the applicant, has accepted that there is power in a judge, albeit a power to be exercised sparingly, to call a witness of his own motion. He took us in this context to the case of R-v- Grafton 1993 QB 101. The facts emerge from the headnote:
"Following a fight outside a public house in which the complainant was injured, the appellant was charged with causing grievous bodily harm with intent, contrary to s.18 of the Offences Against the Person Act 1861. At the trial, the prosecution called the complainant and another witness, whose evidence supported the statement previously made by the appellant to the police that the complainant had started the fight by attacking the appellant with a bottle. Counsel for the prosecution then stated that he would offer no further evidence. The judge made it clear that he thought the complainant was the truthful witness and that...
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