Practice and Procedure


PUBLISHED July 30, 2003

South-East Hampshire Magistrates Court had not erred in re-opening a case after accepting a submission of no case to answer in respect of a charge of driving whilst the level of alcohol in the appellant's blood exceeded the prescribed limit.Appeal by way of case stated from the decision of South-East Hampshire Magistrates Court on 22 January 2003 to convict the appellant ('S') of driving a motor vehicle whilst the level of alcohol in his blood exceeded the prescribed limit. S had provided a positive roadside breath test and had subsequently chosen to give a blood sample at the police station. At the close of the prosecution case, S made a submission of no case to answer on the basis that there was no oral evidence or certificate from a medical practitioner, that the blood sample had been taken with his consent and by such a practitioner. The justices retired and upheld the submission on the basis that the prosecution had not followed the correct procedure by not serving a certificate. The prosecution then asked the justices which certificate had not been served. The justices indicated that they were referring to the statement of the analyst of the blood sample. The prosecution then stated that that statement was not in issue. The justices then admitted that they had proceeded on the basis of an error, re-opened the case and convicted S, who had offered no evidence. On the present appeal, S argued that: (i) in reliance on R v Essex Justices, ex parte Fymon (1963) 2 QB 816, it had not been open to the justices to re-open the case following their own finding that there was no case to answer; (ii) the only evidence in relation to the consent of S and the status of the medical practitioner was from a police officer who had been present at the time and such evidence was inadequate. Under s.15(4) and s.16(2) Road Traffic Offenders Act 1988 such matters could not be established without either the oral evidence or certificate of the medical practitioner concerned; and (iii) therefore there had been no or insufficient evidence to convict him.HELD: (1) It had been open to the justices to re-open the case following their acceptance of the submission of no case to answer. The present case was distinguishable from Essex (supra) as that case had been re-opened in order to hear further submissions on the evidence whereas, in this case the justices had identified their error straight away, admitted it and rectified it. Additionally, it was now more common for justices to give reasons than it had been at the time that Essex had been decided and so the process of adjudication was extended. It was a matter of chance whether justices began a ruling with reference to evidence with the intention only of a finding of no case to answer or left it until the end. In the former case, if a solicitor spotted an error in the review of the evidence, it was equally a matter of chance whether he interrupted immediately or waited until the end. In this case, the process of adjudication had not been completed and was not "effective in point of law" (S v Recorder of Manchester (1971) AC 481 considered). (2) The evidence as to consent and the status of a medical practitioner was not required to be given solely by the oral evidence or certificate of such a practitioner. The legislation provided an economical and convenient method for the provision of such evidence but it was permissive not obligatory. It did not prescribe the only way to present such evidence. (3) It was clear from the case stated that there was sufficient evidence from the police officer who had witnessed the procedure with regard to the blood sample. There was no reason not to take that evidence at face value nor was it suggested that that evidence was challenged in any way.Appeal dismissed.

[2003] EWHC 2251 (Admin)