Director of Public Prosecutions v Stephens

Service provisions in the Road Traffic Offenders Act 1988 provide an alternative route for serving a section 9 witness statement; they do not exclude service under section 9 of the Criminal Justice Act 1967. By contrast, an analyst’s certificate admissible only under section 16 must be served personally, by registered post or by recorded delivery within the statutory period. An adjournment should be granted where refusal would cause substantial unfairness to a party. A refusal producing that result is irrational and cannot stand.

The Director of Public Prosecutions appealed by case stated from the dismissal of proceedings against Milton Geoffrey Stephens for driving with excess alcohol. The prosecution relied on a medical practitioner’s witness statement and an authorised analyst’s certificate. The statement and certificate had been included in a bundle personally served six days before trial, but neither had been served by the methods specified in section 16(6) of the Road Traffic Offenders Act 1988. The magistrates ruled both documents inadmissible and refused an adjournment. The issues were whether the documents had been validly served and whether the refusal of an adjournment was unlawful.

1. The appeal was allowed. The acquittal was quashed and the case was remitted to a different bench for retrial.
2. Dr Frazer’s witness statement was validly served under section 9(8)(a) of the Criminal Justice Act 1967. Section 16 of the Road Traffic Offenders Act 1988 supplies an alternative method of service for a statement complying with section 9. It does not exclude service under section 9. Since no counter-notice was served under section 9(2)(c), the statement was admissible.
3. The analyst’s certificate was not a section 9 statement and could be admitted only under section 16. Section 16(6) specifies the exclusive methods of service: personal service, registered post or recorded delivery. The word “may” permits a choice between those methods; it does not permit service by ordinary first-class post. As the certificate was not served by an authorised method at least seven days before the hearing, it was inadmissible.
4. Section 117 of the Criminal Justice Act 2003 could not be relied on because the prosecution had not established the requirements of section 116(2), as required by section 117(4)(a) and (5).
5. The applicable test for refusing an adjournment was stated by Lord Bingham CJ in R v Hereford Magistrates Court, ex parte Rowlands [1998] QB 110: intervention is justified where refusal would cause substantial unfairness. On the facts, refusal caused substantial unfairness to the prosecution, was irrational and could not be upheld.

• High Court (Administrative Court): allowed the appeal by case stated, quashed the acquittal and remitted the case to a different bench for retrial.
• Richmond Magistrates’ Court: dismissed the prosecution after ruling the witness statement and analyst’s certificate inadmissible and refusing an adjournment.