Writtle v DPP

JurisdictionEngland & Wales
JudgeMR JUSTICE SIMON,LORD JUSTICE MAURICE KAY
Judgment Date20 January 2009
Neutral Citation[2009] EWHC 236 (Admin)
Docket NumberCO/9771/2007
CourtQueen's Bench Division (Administrative Court)
Date20 January 2009

[2009] EWHC 236 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before: Lord Justice Maurice Kay

Mr Justice Simon

CO/9771/2007

Between:
Svetlana Writtle
Claimant
and
Director of Public Prosecutions
Defendant

Mr Gary Bell (instructed by Messrs Freeman & Company) appeared on behalf of the Claimant

Ms D Chanteau (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

MR JUSTICE SIMON
1

: This is the hearing of a case stated by the Richmond Justices.

2

The facts can be stated shortly. On 31 st December 2006, the appellant was charged at Richmond Police Station with failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988. The prosecution case, which was heard on 25th April 2007, was as follows. The appellant had been stopped at about 1.00am on the A316 by Police Constable Fox and asked for a specimen of breath at the road side. After seven attempts at blowing into the machine she provided a positive sample.

3

The test procedure at the police station had been conducted by Sergeant Nestling. It had begun at about 1.20am and continued for some time. The appellant failed to provide a specimen of breath. During the course of the procedure Sergeant Nestling asked for the appellant to be examined by Dr Banerjee, an experienced forensic medical examiner, in order to see if there was some medical reason why the appellant could not provide a specimen. As far as Dr Banerjee could tell there was none.

4

The court heard from each of these prosecution witness and watched a CCTV recording of the procedure being carried out. The prosecution closed its case and the hearing was adjourned since there was insufficient time to hear the defence case that day and a further hearing was fixed for 4th July. The court understood that they would hear from the appellant; another witness of fact, Ms Goodwin; and an expert witness, Dr Eccles, who was to give evidence that the appellant may not have been able to give a specimen of breath because of her distressed state. The report of Dr Eccles had been served on the prosecution on 29th March 2007 and the evidence in rebuttal from Dr Banerjee on 4th April.

5

It is convenient at this stage to refer to the antecedent procedural history. On 10th January 2007, the appellant appeared at a first hearing when it was indicated that a “not guilty” plea would be entered. On 8th February 2007 the CCTV recording of the testing procedure was served on the defence. On 16th February a “not guilty” plea was entered and the matter was adjourned to a case management hearing. This occurred on 7th March, when the court considered a letter from the appellant's solicitors, Freeman and Company, which confirmed the “not guilty” plea and indicated that no novel or complex issues arose. The defence was said to be factual and the intention was to put the prosecution to proof of its case. It was said that no part of the prosecution evidence could be agreed and that the trial would last a full day. In the event, that was an underestimate.

6

It is now necessary to consider what happened following the adjournment on 25th April. On 6th June, the appellant's solicitor served an additional report on the prosecution from a Dr Trafford. Dr Trafford had looked at the CCTV recording of the testing procedure and was critical of Sergeant Nestling's conduct of it. In his view, Sergeant Nestling had given advice to blow into the device as if it were a balloon and to blow for ten to 15 seconds. He also suggested that the machine user log should be looked at to see if the machine had been recorded as having failed and he suggested that the service history should be requested. In view of the stance that the prosecution took at the resumed hearing, it might have been expected that they would express strong views about the service of such a report at such a stage. In the event, objection was raised at the resumed hearing on 4th July.

7

Save for one point, it is unnecessary to set out the arguments deployed by the defence as to why Dr Trafford's evidence should be admitted and by the prosecution as to why it should not. The point which is material is the submission on the appellant's behalf, recorded in paragraph 4 of the case:

“The appellant had assumed that Sergeant Nestling would accept that he was mistaken in giving instructions to blow like a balloon and also to blow for between ten and fifteen seconds.”

This point is repeated in paragraph 11 of Mr Bell's skeleton argument:

“It was anticipated at trial that Sergeant Nestling would have accepted that his instructions as to how to blow into the machine were wrong.”

We should say it was not Mr Bell who conducted the hearing before the Magistrates, but Mr Freeman.

8

The Justices, having referred to the Criminal Procedure Rules and two authorities of this court, to which I will come shortly, decided not to admit Dr Trafford's report. In short summary, they concluded that Dr Trafford's report was not relevant to the issues in the case and sought to introduce wholly new issues. In paragraph 6 of the case stated, the court responded to the suggestion that Sergeant Nestling's evidence came as a surprise to the appellant:

“We were satisfied that Sgt Nestling's evidence came as no surprise to the defence and we wondered why the defence had not addressed their concerns over the nature of his evidence, prior to the commencement of the trial on 25th April.”

This is a reference to the CCTV recording which had been handed over to the defence in February and which formed the only basis for Dr Trafford's report. As the case stated expresses it:

“Sergeant Nestling gave evidence regarding the questions he put to Ms Writtle and his explanation of the procedure. He had been cross-examined by the defence, who had sight of the CCTV and Sgt Nestling's statement, well in advance of the trial date. We did not feel that the interests of justice would be served by admitting this statement.”

9

The question for the opinion of this court is whether the Magistrates were wrong in law to rule that Dr Trafford's evidence was inadmissible. It seems to me that the question might also have been expressed as whether they were justified in refusing to admit it, a question which focuses attention on a matter of discretion. It matters not in the present case, since in my view the answer to the question is the same. The 2005 Criminal Procedure Rules imposed a duty on the parties to comply with the rules and to take the procedural steps required by the rules.

10

It is convenient to set out what was said about these rules by this court in the case of the Director of Public Prosecutions V Chorley Justices [2006] EWHC 1795 (Admin) on 8th June 2006 at paragraph 24 to 26:

“24. In April 2005 the Criminal Procedure Rules came into effect. By 15th April they were in force. They have effected a sea change in the way in which cases should be conducted, but it appears from what has happened in this case that not everyone has appreciated the fundamental change to the conduct of cases in the Magistrates' Courts that has been brought about by the rules. The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct...

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