R Yogesh Parashar v Sunderland Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Mrs Justice Simler |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] EWHC 514 (Admin) |
| Date | 06 March 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4285/2018 |
[2019] EWHC 514 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mrs Justice Simler
Case No: CO/4285/2018
Jeremy Benson QC (instructed by Geoffrey Miller Solicitors) for the Claimant
James Boyd (instructed by Appeals and Review Unit, Crown Prosecution Service) for the Interested Party
The Defendant court did not appear and was not represented
Hearing date: 26 February 2019
Approved Judgment
On 12th February 2018 the Claimant Mr Parashar drove a BMW car into a Tesco car park in Sunderland where he allegedly collided with a parked vehicle. When he entered the store he was observed to be smelling strongly of alcohol. The police were called. A preliminary roadside breath test was carried out giving a reading of 102ug/100ml of breath. He was arrested and taken to a local police office. He attempted to provide his first specimen of breath but the device produced a “mouth alcohol” message and aborted the test procedure. Shortly thereafter he provided two specimens of breath for analysis, the lower reading being 116ug/100ml of breath, more than three times the legal limit of 35ug/100ml. He was charged with the offence of driving with excess alcohol and released on bail.
At the first hearing in the Magistrates' Court on 28 February 2018 the Claimant pleaded not guilty. Directions were given as follows; the defence to state witness requirements by 14 March 2018, any further prosecution evidence to be served by 18 April 2018; trial set for 14 June 2018.
On 30 May 2018 the defence served on the prosecution an expert's report by Dr John Mundy. The letter enclosing it stated:-
“This statement will be tendered in evidence before the court unless you wish the witness to give oral evidence. If you wish this witness to give oral evidence please confirm this within seven days. If you do not do so within seven days of receiving this letter you will lose the right of statement being tendered in evidence and you will only be able to require attendance of the witness with leave of the court under Section 9 of the Criminal Justice Act 1967. We can confirm that a copy of this report has been filed with the court.”
This letter was received the following day by the CPS, which did not respond.
On 5 June 2018 the prosecution served the statements of 8 witnesses. The dates of these statements varied from 12 February to 26 March 2018.
On 14 June 2018 the case came before District Judge Purcell. The prosecution had failed to serve all their evidence. In particular, the originals of the breath test results had been destroyed and the printouts available in court were illegible. The judge granted an adjournment. He gave directions that the prosecution were to serve evidence to include the breath test logs by 5 July 2018. A submission by the defence that for the prosecution to proceed would be an abuse of process was listed for hearing on 8 August 2018 (later moved to 10 August 2018 by consent) with provision for the service of skeleton arguments in advance of that date. The judge further directed that if the abuse of process argument was rejected the trial would take place on 8 October 2018. It should be noted that there was no suggestion at this hearing that a prosecution expert would be instructed.
On 9 August 2018, the day before the abuse of process hearing, the prosecution at last served a legible copy of the breath test print outs. On the same day the officer in the case, PC Barrass, informed the CPS that he had forwarded the papers to an expert to address the issues in Dr Mundy's report.
The next day the abuse of process argument did not proceed. Each party has given an account of what took place: they have some points in common but are not identical. The prosecution witness statement is as follows:
“From a note inside the envelope I received at court in a CPS court bag the officer seems to have already instructed an expert to comment on the defence expert report. DJ suggests this can be dealt with in same manner as defence expert. i.e. being adduced as hearsay at the trial. This can be hopefully sorted out once both expert evidence are to hand and both cross-served on each expert for their opinion. If not capable to being agreed then they may have to attend the trial but DJ hopes this can be avoided”.
The defence puts it in a different way.
“On 10 August 2018 the matter was before DJ Elsey who refused to hear the abuse of process application that had been listed by DJ Purcell. The CPS was supposed to serve legible copies of the breath test print outs or the metrological logs by 5 June 2018. In default the Claimant was supposed to serve an abuse of process application by 19 July 2018. An abuse of process and section 78 argument was served by the Claimant on 25 July 2018 and there was no response from the CPS. On 9 August 2018 the CPS served a legible copy of the print out. On 14 June 2018 DJ Purcell [had] specifically stated that the CPS had a “limited chance” to serve the print out. DJ Elsey disagreed with DJ Purcell and refused to hear an abuse of process argument or Section 78 application without hearing the evidence at trial. … DJ Elsey was referred to the report of Dr Mundy and it was confirmed by the CPS that the science was agreed and it could therefore be read under Section 9 or under the hearsay provisions. The CPS was asked by DJ Elsey if it intended to raise any objection to the report and they specifically indicated that they were content for the report being read as an unchallenged report pursuant to the hearsay provisions. On that basis the current trial date was purposefully [sic] fixed for a date that was incompatible with Dr Mundy's availability.”
On any view, this adjournment was not at the request of the defence. There seems, with respect, to have been a lack of clear thinking about how the expert evidence was to be treated. If Dr Mundy's report had been truly unchallenged then there was no need for him to attend the trial. But if the prosecution were to be permitted at such a late stage to instruct their own expert to challenge the findings of Dr Mundy, and there was no agreement between the two experts, then fixing a trial date on which Dr Mundy could not attend would clearly have been wrong.
On 12 September 2018 the court emailed the parties as follows:
“Please note the above-named defendant was listed for trial at Sunderland Magistrates Court on 08 October 2018. … The district judge has requested this matter is listed with a time estimate of a full day hearing.”
After referring to a skeleton argument sent in by the defence in two parts and saying that the document appeared to be incomplete the email continued
“With all this in mind the district judge has directed the trial hearing on 8 October 2018 is vacated, however to remain listed for legal argument. Therefore the trial has been vacated and re-listed for trial as per the below listing: 9 November 2018, 10am, Sunderland Magistrates Court. Please note: the parties are still required to attend the legal arguments hearing scheduled for 08 October 2018 at 10am.”
On 19 September 2018 the defence solicitor emailed the court stating that the new trial date had not been listed in accordance with availability dates of counsel and the defence expert and put forward suggested dates. The court replied, giving District Judge Elsey's ruling.
“I note that the matter remains listed on 08 October for a legal argument towards the trial on 09 November 2018. All parties to a summary trial are entitled to expect that matters are dealt with swiftly. There has already been significant delay and I am not satisfied in the interests of justice to delay the trial for the current matters into the new year.”
The writer asked for further availability dates close to 9 November 2018. The defence reply was that the expert was available on 8 October 2018 but counsel was not. The earliest date when they were both available was 21 January 2019.
By a further email dated 26 September 2018 the court office gave the district judge's ruling:
“The dates had been fixed for some time now and the offence is driving a motor vehicle when alcohol level is above the limits which does not require counsel. The DJ is willing to admit the expert evidence as hearsay and the trial remains in the list.”
Thus at this stage the court had listed legal argument for 8 October 2018 and the trial, with the only expert report thus far filed to be “admitted as hearsay”, for 9 November 2018 in the event that the abuse of process argument was rejected. This was confirmed by the court in an email on Friday 5 October 2018:-
“The case is listed at Sunderland Magistrates Court on 8 October 2018, courtroom 2, for a legal argument towards the new trial date which is set for 9 November 2018 at 10am, Sunderland Magistrates Court for a full day trial.”
However, later on 5 October 2018 a further email was sent by the court as follows:
“Please note the above-named defendant was listed for legal argument at Sunderland Mags Court on 9 November 2018 [sic]. Case Management has reviewed the legal argument and found it is an application where the defence are seeking to exclude the interview under section 76 PACE as they state that the interview was conducted while the defendant was still under the influence of alcohol. In view of case management the application cannot be heard without the officer being present and giving evidence. If the witness is expected to attend court, fine, but it seems to be an issue that is better dealt with at the trial with all of the issues in the mix. This has been referenced to a District...
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