Roberts v DPP

This is an appeal by way of case stated against decisions of the Chester, Ellesmere Port and Neston Justices sitting at Chester on 4th January 2007 and on 3rd April 2007, whereby the appellant was convicted of an offence of failing to provide a specimen of breath for analysis, contrary to section 7(6) of the Road Traffic Act 1988. He was fined £500, disqualified from driving for 12 months and ordered to pay costs.

The primary appeal concerns the refusal of the Justices to stay the prosecution as an abuse of process, but following the decision of this court in Sunworld Limited v Blackfriars Crown Court: Sunworld Limited v London Borough of Hammersmith and Fulham [1999] CO/2317/1999, 23rd November 1999, a further application is made to extend the case to require the Justices to deal with a further question, namely whether there was any evidence on which a reasonable bench, properly directing themselves, could have held that Field Hey Lane was a road or other public place for the purposes of the Road Traffic Act 1988. The Justices declined to state a case in relation to this issue on the basis that they considered the application “frivolous”.

I can deal with the case concerning abuse of process comparatively briefly. The incident the subject of this appeal occurred on 7th June 2006, and seven days later the appellant entered a plea of not guilty. On 19th July there was a pre-trial review which was adjourned, but was followed by a defence statement dated 9th August 2006 in which the appellant disputed that the MG DD/A form used by the sergeant in the police station had been completed in his presence, or that he had been warned as required under section 7(7) of the Road Traffic Act 1988. The appellant then sought disclosure of the custody area video and made application under section 8 of the Criminal Procedure and Investigations Act 1996 for disclosure of that material.

It is common ground that CCTV covered the custody area and the Intoxiliser room, although at the time the CCTV in the Intoxiliser room was not functioning properly. The practice was to keep the custody area CCTV for 90 days, unless it was required. Thus, within 90 days of the incident the Crown Prosecution Service had been put on notice that this CCTV was required. Unfortunately, although the defence statement had been served on 9th August 2006, the prosecutor did not review the file until the end of September/beginning of October 2006. At that stage a request was made to the police to retain the CCTV, but it was then too late.

Mr Ley, who appeared for the appellant in the court below as he does in this court, contended that its destruction constituted an unanswerable ground for staying the prosecution, on the basis that the appellant was prejudiced in the conduct of his defence in that he was deprived of the evidence of what had transpired in the custody suite.

Following the approach identified by this court in Ebrahim v Feltham Magistrates' Court and Mouat v Director of Public Prosecutions[2001] EWHC Admin 130; [2002] RTR 7, the Justices concluded that there had been a clear breach of the requirements of the code of practice in that, having been placed upon notice that the CCTV was required, it had not been retained. Nevertheless, following a study of that decision, they concluded that there was no abuse of process in the circumstances of this case.

At that hearing, the officer who conducted the procedure with some four years custody desk experience, gave evidence that he completed the form in the presence of the appellant who had, at his request, initialled a number of the responses. The appellant did not give evidence at the abuse of process hearing, although, when giving evidence at the trial, intimated that he had not seen the form at the time of the procedure and had not been verbally warned that he would be prosecuted. The stated case observes:

“We had sight of the MG DD/A form and noted the initialled responses. In particular the appellant's response at A14, the warning the prosecution required under section 7(7) of the Road Traffic Act 1988 had been initialled. We found Sergeant Williams to be credible and to support the contention that the trial should proceed. We found that, unlike Mouat, the CCTV coverage was never primarily intended to prove the offence and this fact applied to both prosecution and defence.”

They then posed the question for this court:

“Was it Wednesbury unreasonable to hold that there was no abuse of process when a video recording of the breathalyser...