Hunt v Crown Prosecution Service [2018] EWHC 3341(Admin)
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Hunt v Crown Prosecution Service [2018] EWHC 3341 (Admin) concerned an appeal by way of case stated against convictions for driving with an excess of controlled drugs; the Divisional Court (Treacy LJ and Garnham J) allowed the appeal and quashed the convictions.
Mr Anthony Hunt had been convicted on 5 December 2017 by Justices sitting at Cannock Magistrates’ Court of two offences of driving with an excess of controlled drugs, contrary to section 5A(1)(a) and (2) of the Road Traffic Act 1988. The charges alleged that his blood contained proportions of two controlled drugs greater than the specified limit. On 1 September 2017 Mr Hunt appeared before District Judge McGarva and submitted documents identifying the issues for trial. In those documents he stated that he did not accept that the amount of specified drugs in his blood exceeded the prescribed limit, that he had consented to provide a specimen, or that the statutory warning had been provided to him. He further stated that he did not accept that he had excess specified drugs in his blood and that the Stage 1 Streamlined Forensic Report (SFR1) had not yet been served.
The District Judge gave directions requiring Mr Hunt to comply with Criminal Procedure Rule 19.3(2)(a) by 15 September 2017, finding that the trial issues were not sufficiently identified, and listed a case management hearing for 29 September 2017. That hearing was adjourned to be heard by a District Judge, and on 6 October 2017 Mr Hunt and his representative appeared again before District Judge McGarva. The appellant’s solicitor had sent three letters to the CPS (dated 18 and 26 September, and 5 October 2017) which were provided to the court. The letter of 18 September purported to respond to the SFR1, stating that the conclusions as to the proportion of the two drugs in Mr Hunt’s bloodstream were not agreed because he did not accept that his blood contained excess specified drugs or that the analysis was carried out correctly, reliably or accurately. The letter of 5 October was to similar effect and included a list of examples of what might have caused inaccurate readings in other cases, including human errors, manipulation of data, mixing up of samples, misreporting, contamination and defective instruments. However, the letter did not identify any specific issue as to why the sample in Mr Hunt’s case was unreliable and did not specify what had happened to the second sample which could have been independently analysed.
The District Judge concluded that despite the three letters Mr Hunt had not complied with paragraph 19.3 of the Criminal Procedure Rules and had not sufficiently identified the issues in the case. On that basis he concluded that the SFR1 should be admitted in evidence, and it was common ground that this was a binding pre-trial ruling made pursuant to section 8A of the Magistrates’ Court Act 1980. The trial was fixed for 5 December 2017. On that date Mr Hunt, who was represented, said he would no longer pursue any issues associated with police station procedure. Not guilty pleas were confirmed and the officer in the case gave evidence as to the circumstances in which the specimen had been taken and the blood sample sent for testing. The defence made an application in accordance with section 8B(3) of the 1980 Act to vary the pre-trial ruling on the basis that there had been a material change of circumstances. That change was said to be the report of alleged manipulation of data at a forensic science laboratory called the Randox Testing Service Laboratory. The defence argued that the Randox scandal was a stark example of why SFR1s were not suitable to be relied upon as the only evidence of drug content in cases where the accuracy and reliability of the analysis results were positively disputed. The Magistrates ruled they could not go behind the ruling of a District Judge, pointing out that this case did not concern a sample tested by any of the laboratories under investigation. Accordingly the SFR1 was read to the court. The defence then made a submission of no case to answer which the Magistrates rejected. Mr Hunt was not called to give evidence.
In closing submissions the Crown asserted that the SFR1 was admitted into evidence and the defence had not challenged that evidence. The defence submitted that the pre-trial binding rulings said nothing about the weight to be attached to the SFR1 and argued that the SFR1 was not intended to be used as evidence in the trial. The Justices decided that they were satisfied Mr Hunt was guilty of the offence charged. Mr Hunt invited the Justices to state a case for the opinion of the High Court, posing the question whether they erred in law by admitting the Stage 1 Streamline Forensic Report as part of the evidence.
Mr Corre for the appellant argued that the ruling made by District Judge McGarva admitting the SFR1 as evidence was beyond his power. Referring to section 30 of the Criminal Justice Act 1988 and Part 19 of the Criminal Procedure Rules 2015, he argued that the court could not force a party to accept an SFR1 and the District Judge misdirected himself as to the effect of an SFR1. Mr Grieves-Smith for the respondent argued that section 30 of the 1988 Act gave the courts a wide discretion to grant leave to admit an expert’s report into evidence without the need to call the witness, and that the appellant was in breach of Rule 19 of the CPR and in particular had failed properly to identify what the nature of his challenge was to the SFR1. He argued in any event that the appellant had required Justices to state a case and not the District Judge, and that the only material change in circumstances relied upon before the Justices was in fact immaterial because the author of the SFR1 did not work at a Randox Laboratory.
Garnham J, giving judgment, held that Mr Hunt had plainly failed to comply with the requirements of Rule 19.3(2). The bland denials contained in the letters of September and October 2017 did not properly identify the disputed issues relating to the expert’s conclusions. Similarly Mr Hunt had failed to comply with his duty to the court under Rules 3.3(1)(a) and 3.2(2), which oblige every party including a defendant actively to assist the court in fulfilling its duty to further the overriding objective by actively managing the case. The failure properly to identify what was objected to about the prosecution expert evidence constituted a failure to comply with that procedure.
However Garnham J rejected the submission that the District Judge had power to treat the SFR1 as an agreed fact or as established evidence in the interests of efficiency because of a failure to identify the real issues as required by Rule 19.3. If, as appeared to be the case, the District Judge decided that the SFR1 should stand as an agreed fact, he had no power to do so. Insofar as he ordered that it stand as evidence, it did not comply with Rule 19.4 nor with section 30.5. Rule 3, which was essentially a case management power, could not operate so as to set aside requirements relating to admissibility of evidence set out in Rule 19.4 and section 30.5. Rule 19.4 set out in considerable detail the required contents of experts’ reports in criminal proceedings. As was made clear on the face of the SFR1, it did not purport to and did not in fact comply with Rule 19.4. Accordingly, as it did not comply with Rule 19.4, it did not comply with Rule 19.3(3) and was not admissible unless the court directed or the parties agreed. The parties did not agree but the District Judge nonetheless made a direction admitting the SFR1.
Section 30.2 provided that an expert report should be admissible in circumstances where the author did not give evidence only with the leave of the court. Section 30.5 provided that expert report meant a written report by a person dealing wholly or mainly with matters on which he was qualified to give expert evidence. The District Judge gave leave under section 30.2, but the basis of his grant of leave was that the breach of the obligations under Rule 19.3 by Mr Hunt were such that he could treat the SFR1 as an agreed report. Garnham J disagreed. The SFR1 was not an expert report within the definition in section 30.5 because it contained no details of the author’s expertise and the court was unable to judge whether she was suitably qualified. Further, breach of Rule 19.3 did not make a report which did not comply with Rule 19.4 admissible in evidence. In determining admissibility under section 30 the court was required to have regard to the factors itemised in subsection 3. There was nothing to suggest that the District Judge did have regard to those considerations and in those circumstances the District Judge’s decision was vulnerable to challenge.
Garnham J held that the Justices who heard the case on 5 December 2017 had not erred in their approach. They correctly determined that there was no material change in circumstances to justify their reversing the decision of the District Judge. Reference to the Randox matter did not avail Mr Hunt because the scientists in the present case did not operate from a Randox laboratory. The appellant was correct to delay challenging the decisions in his case until after the conclusions of the Justices, as was apparent from section 111 of the 1980 Act. The court referred to Miller v DPP [2018] EWHC 262 (Admin) in which the Divisional Court had held that it was generally inappropriate to use either the case stated procedure or judicial review to seek to challenge interlocutory rulings on the basis of an error of law prior to the final determination of the criminal proceedings, and that the appropriate course was to await the conclusion of the case and then to appeal. Section 8A did not in any way amend or alter section 111. Garnham J held that it was open to Mr Hunt to appeal the decision of District Judge McGarva at any time up to 21 days after the disposal of the case on 5 December 2017. It followed that the proceedings were begun in time and had merit, but they were directed against the wrong party. It should have been the District Judge, not the Justices, who were asked to state a case.
However the stated case provided by the Justices accurately summarised the intent and effect of the District Judge’s decision, and it was the observation of both parties that it would be wrong to waste time and money requiring the District Judge to state a case afresh. Garnham J took the view that it was appropriate to proceed with the matter on the basis of the material before the court. The court allowed the appellant’s appeal against the decision of District Judge McGarva dated 2 October 2017. The answer to the question posed by the Magistrates was that they did not err in law by admitting the Stage 1 Streamline Forensic Report because they were obliged to do so as a result of the ruling of the District Judge; however, the District Judge erred in making that ruling. The evidence should not have been admitted and without it the prosecution had no case. Garnham J quashed the conviction and remitted the matter to a fresh Bench to rehear the matter. Treacy LJ agreed.
In short, the Divisional Court held that a District Judge had no power to direct the admission of a Stage 1 Streamlined Forensic Report which did not comply with Rule 19.4 of the Criminal Procedure Rules or section 30.5 of the Criminal Justice Act 1988, and quashed the resulting conviction for driving with excess drugs.