Whyte v Director of Public Prosecutions

Where an analyst’s certificate is relied on in a drink-driving prosecution, service on the accused within the statutory period is a precondition to admissibility. The prosecution must prove service by admissible evidence; hearsay evidence from an officer who was not present when service allegedly occurred is insufficient. Evidence identifying a blood sample must also establish, directly or by admissible evidence, that the sample was properly labelled at the police station and corresponds substantially with the information used for analysis. Where evidential deficiencies are attributable entirely to the prosecution, and the defendant has already suffered disqualification, the conviction should be set aside without remittal for a rehearing.

Jerome Greville Whyte appealed by way of case stated against his conviction at Highgate Magistrates’ Court on 13 September 2002 for driving with excess alcohol in his blood. The appeal concerned whether the prosecution had established that the analyst’s certificate had been served within the period required by section 16 of the Road Traffic Offenders Act 1988, and whether the blood analysed was the appellant’s. The magistrates accepted evidence from a police officer who was not present when the certificate was allegedly served. The central issues were whether the case stated adequately raised the evidential questions and what order should follow if the certificate was inadmissible.

1. Appeal allowed. The conviction was set aside. The matter was not remitted to the magistrates for a rehearing.
2. Section 16 of the Road Traffic Offenders Act 1988 makes service of the analyst’s certificate on the accused not later than seven days before the hearing a precondition of its admissibility. The only evidence of service was hearsay because PS Ward had not been present at the police station on the relevant date. There was therefore no admissible evidence of service, and the certificate and its contents were inadmissible.
3. Although the first question in the stated case was framed indirectly, it sufficiently raised the relevant issue. The magistrates and the prosecution understood the point, and the answer to the question whether there was evidence supporting the conviction had to be no.
4. The court also identified a material evidential gap concerning the identity of the blood sample. The prosecution should place before the magistrates evidence of the label affixed to the sample at the police station, showing that it corresponds substantially with the information later taken from the label by the laboratory.
5. Despite the court’s view that a properly conducted prosecution would almost inevitably have resulted in conviction, the defects were entirely attributable to the prosecution and the appellant had already incurred a period of disqualification. General principles therefore required that the prosecution not be continued by remittal.
6. Costs were ordered for the appellant in the defendant’s case and in the court below.

• Highgate Magistrates’ Court: The appellant was convicted on 13 September 2002.
• High Court (Administrative Court): The appeal by way of case stated succeeded. The conviction was set aside and the matter was not remitted.