Steward v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY,MR JUSTICE CRANE |
| Judgment Date | 30 July 2003 |
| Neutral Citation | [2003] EWHC 2251 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2841/03 |
| Date | 30 July 2003 |
[2003] EWHC 2251 (Admin)
Mr Justice Maurice Kay
Mr Justice Crane
CO/2841/03
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
MR J LOFTHOUSE (instructed by Coffin Mew and Clover, Bay House, Compass Road, Portsmouth PO6 4RS) appeared on behalf of the CLAIMANT
MR S A.B. PARISH (instructed by CPS Portsmouth Criminal Justice Unit, Winston Churchill Avenue, Portsmouth P01 2DG) appeared on behalf of the DEFENDANT
This is an appeal by case stated from an adjudication of a Magistrates' Court sitting at Portsmouth on 22nd January this year. The appellant, Gary David Steward, faced a charge that on 6th August 2002 he had driven a motor vehicle on the M27 after consuming so much alcohol that the proportion of it in his blood, namely 97 milligrams of alcohol in 100 millilitres of blood, exceded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988. He pleaded not guilty and the trial occurred on the 22nd January. Eventually the justices found the case proved. They fined the appellant £500 plus costs, endorsed his licence and disqualified him for 12 months.
The evidence came mainly from two police officers, PC Davis and PC Jackson. It was PC Davis who had encountered the appellant on the M27 and who administered the breath test at the roadside; that test proving to be positive. The appellant was then arrested and taken to Fareham police station. The evidence of PC Jackson related to events at the police station. The case stated contains these findings:
"We found the following facts form the sworn evidence of PC Jackson:
A) He was the authorised intoximeter operator who undertook this procedure in respect of the appellant at the Police Station. The appellant provided two specimens of breath; the lower of the two readings was 41 microgrammes of alcohol in 100 millilitres of the breath.
B) The appellant then elected for the specimen to be replaced by a specimen of blood.
C) He [PC Jackson] arranged for Dr Bell, Police Surgeon, to attend.
D) He observed Dr Bell obtain the appellant's consent to blood being taken and then Dr Bell actually take two specimens of blood from the appellant.
E) One sample of blood was given to the defendant.
F) PC Jackson took the second sample from Dr Bell at 2158 hrs."
The remaining findings in relation to his evidence concern the transmission of the samples and is not material to this appeal.
The other witness who gave evidence (by way of witness statement) was Dr Trotter, an authorised analyst. He produced his certificate relating to the proportion of alcohol found in the blood specimen. At the end of the prosecution case a submission of no case to answer was made on behalf of the appellant. The contention was that there had been no oral evidence or a certificate from Dr Bell, and that therefore there was no evidence upon which the appellant could be convicted.
The justices heard rival submissions and then retired. When they came back, the case stated records in paragraph 9:
"We ruled there was no case to answer on the basis we believed that Dr Trotter's certificate should have been served at least seven days before the hearing. The evidence of analysis of the blood was therefore inadmissible. Therefore an essential element of the offence was missing.
10. a) Upon the decision of No Case to Answer being announced, the prosecuting solicitor asked which certificate was referred to by the Bench; upon the Chairwoman's reply that it was the analyst's certificate, he stated (and it was agreed by the defence) that the statement of the analyst was not in dispute, and had been accepted under section 9 of the Criminal Justice Act 1967 and read to the Court. The issue was as to the absence of evidence from Dr Bell to prove that he was a medical practitioner and that the samples had been taken with the Appellant's consent.
B) We sought advice from the legal adviser as to whether we could now review our decision. The legal adviser advised us that we were able to review our decision.
C) as the basis of our decision of No Case to Answer was that we believed that a certificate by Dr Trotter had to be served at least seven days before the hearing, or otherwise the certificate by him … was inadmissible … we realised that we had erred in finding no case to answer on this basis.
D) The prosecution clarified that the certificate/statement by Dr Bell was not necessary because PC Jackson had observed the consent being given and was aware Dr Bell was a police surgeon."
Once their mistake had been explained to them and agreed by all, after further consideration the magistrates found that there was a case for the appellant to answer, despite the fact that the prosecution had not produced any statement or certificate from Dr Bell and he had not given evidence. The case stated then refers to the fact that PC Jackson had given evidence that the blood samples were taken by Dr Bell at the election of the defendant, and that PC Jackson had been present when the blood samples were taken. The case therefore proceeded.
The appellant did not give or call any evidence. It seems that the appellant's solicitor submitted, either following the reconsideration or in final submissions, that the magistrates were not entitled to re-open the case after finding that there was no case to answer. The submission was made that PC Jackson's evidence was not capable of being accepted in substitution for the attendance of Dr Bell or a duly signed statement from him under section 16(2) of the Road Traffic Offenders Act 1988. It was further submitted that there was insufficient evidence upon which they were entitled to convict the appellant.
However, they found the case proved. In paragraph 14 of the case stated they explain why. It says:
"a) In this case, the prosecution relied on the evidence of PC Jackson that the two blood samples were taken by Dr Bell from the defendant, with his consent. We were satisfied on this evidence that the sample was taken from the appellant with his consent by a medical practitioner. PC Jackson had given evidence a police surgeon was arranged and this was Dr Bell. Therefore the evidence of the taking of the blood sample was admissible."
A little later:
"We were entitled to reverse our decision … because we had not finished hearing the case and it became quite clear that we made our decision on the submission of no case to answer on the mistaken belief that it was Dr Trotter's certificate that was in issue…
"We found there was sufficient evidence to satisfy us beyond reasonable doubt that the defendant was guilty of the offence charged."
The appeal to this court is put on three bases. The first ground of appeal relates to the magistrates proceeding to hear the case after finding that there was no case to answer. In short, the submission of Mr Lofthouse, on behalf of the appellant, is that from the moment the magistrates ruled that there was no case to answer, the magistrates were functi officio. He submits that the utterance of the words "no case to answer" amounted to an acquittal. He points out that under section 9 of the Magistrates' Court Act 1980 a magistrates' court in a summary trial has only two choices: either to convict the accused or to dismiss the information. He submits that by the utterance "no case to answer" the information was dismissed. In support of this submission he refers to R v Essex Justices ex parte Final [1963] 2 QB 816. In that case, having heard the evidence and retired to consider it, the magistrates returned and announced that the case had been proved and that a fine of £3 would be imposed. At that point the defendant's solicitor began to make submissions to the effect that the case had not been proved, adverting to factual evidence that was or was not before the court. He succeeded in persuading the Bench to reconsider their verdict. When they did so, the justices dismissed the information. The Divisional Court held that the justices had erred in so doing because they were functi officio and had no jurisdiction to substitute an acquittal for a conviction or vice versa. The Lord Chief Justice, Lord Parker, said at page 820:
"It is perfectly clear that what the chairman of the bench announced amounted to a conviction … it is perfectly clear that the justices intended and were understood to find that the case against the defendant had been proved and to have inflicted a fine of £3."
Counsel for the defendant had contended for a principle to the effect that if, before dispersing, a matter was drawn to the attention of the Bench which would make them change their minds, they were at liberty to do so and substitute an acquittal. The Lord Chief Justice said at page 821:
"There is clearly no statutory power to enable them to do so nor do I think that there is any inherent power. They are, in my judgment, functi officio from the moment when they have announced their decision, however inconvenient the result may be."
Gorman J agreed, as did Salmon J, who said at page 823:
"It is quite plain on authority that once a decision by justices is announced in open court that decision so announced amounts either to an acquittal or to a conviction, as the case may be. Once the justices have convicted or acquitted, they are functi officio and cannot alter their...
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