Stephen David Decani v City of London Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove,Lord Justice Treacy |
| Judgment Date | 25 October 2017 |
| Neutral Citation | [2017] EWHC 3422 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 October 2017 |
| Docket Number | CO/3955/2017 |
[2017] EWHC 3422 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Treacy and Mr Justice Dove
CO/3955/2017
and
Mr J Benson QC (instructed by Geoffrey Miller) appeared on behalf of the Claimant.
THE DEFENDANT did not attend and was not represented.
Mr J McGuinness QC (instructed by the Crown Prosecution Service Appeals Unit) appeared on behalf of the Interested Party.
In the early hours of the morning on 9 th June 2017 the claimant was stopped whilst driving his car by police officers in the west of London. He provided a roadside breath test to them as they suspected that he was driving whilst under the influence of alcohol. That test measured 69 micrograms of alcohol in 100 millilitres of breath.
Following the roadside breath test he was arrested and taken to Belgravia Police Station. There he was re-tested using the station's Intoximeter machine and subjected to the process which is recorded in a form known as MGDD/A. During the course of completing that form he indicated that he had regurgitated, or burped, prior to the test being undertaken. The form indicates that if that is the case a period of 20 minutes should elapse before the test occurs. That did not in fact take place and when the Intoximeter was used, he was measured as having 61 micrograms of alcohol in 100 millilitres of breath and subsequently therefore charged with having excess alcohol in his body contrary to s.5(1) of the Road Traffic Act 1988.
The matter proceeded to the magistrates' court and on 23 rd June 2017 the claimant entered a not guilty plea at the first hearing of his case. A form entitled, the “Preparation for Effective Trial” form or PET, identified three issues which were raised by the defence as being pertinent to the charge. Those three issues were as follows: firstly, the reliability of the breath test sample which had been taken in the light of what the claimant himself was proposing to say as to what he had had to drink that evening and when he had drunk it. Secondly, whether or not there had been compliance with the MGDD/A procedure, in particular in respect of the burping or regurgitation which the claimant had advised officers of on the form, in the light of the period of time subsequently elapsing before the test was administered. Thirdly, an issue was raised to say whether or not the lawful requirements for provision of a breath specimen had been fulfilled. The claimant made clear in the PET form that police officers Casalliglla and McNaughton, who were the officers who arrested him at the scene, were required because one of the other matters which was in issue were what the claimant was said to have suggested at the time of his arrest.
Subsequent to this first hearing on 26 th June 2017 the claimant's solicitors wrote to the prosecution putting the certificate from the Intoximeter's analysis in issue pursuant to s.16(4) of the Road Traffic Offenders Act 1988. That required the attendance of the officer who had operated the Intoximeter machine, Police Sergeant Varotsis.
The relevant provisions of s.16 of the 1988 Act are as follows:
“16(1) Evidence of the proportion of alcohol or a drug in a specimen of breath, blood or urine may, subject to subsections (3) and (4) below and to section 15(5) and (5A) of this Act, be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say—
(a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that that the statement relates to a specimen provided by the accused at the date and time shown in the statement, and […]”
“16(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed.”
In the same letter the claimant's solicitors also indicated that none of the prosecution witnesses were agreed.
On 28 th June 2017 CCTV evidence of the Intoximeter procedure was requested by the claimant's solicitors. There was then a period from around 6 th July 2017 until 21 st July 2017 when the claimant's solicitors removed themselves from the record.
On 21 st July 2017 two events occurred. Firstly, the prosecution contend that the claimant was personally served (in the absence of instructions) to his solicitors with evidence which included a s.9 statement from Police Sergeant Varotsis. This is disputed and there is evidence before the court to suggest that that correspondence never arrived with the claimant. Secondly, back on the record, the claimant's solicitors wrote to the prosecution complaining about the absence of disclosure. On 27 th July 2017 the claimant's solicitors wrote to the prosecution disclosing two s.9 statements from lay witnesses of fact dealing in particular with what they had observed the claimant to be drinking on the night in question. On the following day, 28 th July 2017, two further events occurred. Firstly, the prosecution wrote to the claimant, again in person, indicating that there was no undisclosed material available in the case. Secondly, the claimant's solicitor wrote to the prosecution, firstly serving a voluntary Defence Statement detailing the nature of the defence which the claimant proposed to run, and secondly, enclosing a report from a Dr Mundy who was an expert evidence relied upon by the claimant so as to demonstrate that there must have been some error in the Intoximeter procedure.
The matter came on for trial on 7 th August 2017. When the matter was called on Police Sergeant Varotsis was not at court. Not only was he not at court, he had not been warned of the need for his attendance. This drove to the prosecution to apply for an adjournment because it was accepted by the prosecution that they would be unable to prove their case against the claimant without that evidence dealing in particular with the Intoximeter procedure. It had been put in issue by the letter of 26 th June 2017 and further by observations in the Defence Statement indicating potential reasons why the Intoximeter might not have been operating correctly. Those matters concerned issues such as whether there was a power spike or other electromagnetic interference with the machine which might explain the findings of the defence evidence that the Intoximeter's reading was vastly in excess of that which would have been anticipated from the amount of alcohol which the claimant contended he had consumed.
There are various statements before the court as to what happened at the hearing. Suffice to say that the legal adviser having recorded various submissions made on behalf of the claimant resisting the application to adjourn, records the decision of the justices in the following terms:
“It is in the public interest to adjourn this trial, it is the first listing for trial, the time delay between the date of the alleged offence and today's date is less than two months: this is not excessive in our view. It is important that the key witness attends to give evidence.”
A fuller statement of the reasons of the justices was provided subsequent to these proceedings arising. The magistrate chairing the bench on that occasion, Mr Nick Tarry JP, provides more detail in relation to both the events which arose during the course of the application for the adjournment but more particularly the reasons which were given as to why the application to adjourn was allowed. The basis of that determination of the application is set out as follows:
“4. When the court convened, Mr Becker, who appeared for the Crown Prosecution Service, made an application to adjourn. The presence of the officer who had conducted the MGDD/A was required by the defence but he had not been made available that day.
5. We queried this issue in the light of the approach adopted in Hassani. Mr Lucas (who appeared for Mr Decani), the prosecutor, Mr Becker and our legal adviser were all clear that the right of the defence to require the attendance of the officer who conducted the MGDD/A was set out in primary legislation and could not be overridden.
6. Mr Lucas, on behalf of Mr Decani, strenuously objected to the application. He provided a detailed summary of the history of the proceedings up until that point, highlighting failures on the part of the Crown Prosecution Service.
7. Mr Lucas further provided extremely detailed and thorough submissions setting out the approach that the senior judiciary have adopted. We were taken through Picton and ‘the family’...
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(1) The Queen (on the application of the Director of Public Prosecutions) v Sunderland Magistrates' Court
...to the then unreported decision of this Court on 25 October 2017 in R (Decani) v City of London Magistrates' Court, now reported at [2017] EWHC 3422 (Admin) in which, again, the charge was driving with excess alcohol, and the court quashed a decision to adjourn which had been made on the a......
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R Yogesh Parashar v Sunderland Magistrates' Court
...ability to do so is compromised.” 25 They also referred to the observation of Dove J in Decani v City of \London Magisrates' Court [2017] EWHC Admin 3422 that:- “There was no suggestion on any side before the justices that this was a claimant playing games. He was pursuing a legitimate def......