Watson v Director of Public Prosecutions

On a retrial or resumed criminal proceedings, a prosecution is not generally confined to evidence available at an earlier, improperly adjourned hearing. A prior order may restrict particular evidence, but it does not impose wider restrictions unless the order clearly says so. Where a breath-testing procedure permits a specimen to be provided within a limited period, there is no general entitlement to use the whole period. The administering officer may stop the procedure earlier if the person is failing to provide the specimen. A request to use the lavatory, without more, did not provide a reasonable excuse for refusing a second specimen where the procedure would have taken less than a minute.

The claimant was convicted by justices of failing to provide a second breath specimen, together with three road traffic offences. The present appeal by case stated challenged the first conviction. The justices had admitted insurance documents as hearsay under Criminal Justice Act 2003, section 117, following an earlier Administrative Court decision which prohibited only the prosecution’s use of live evidence from two witnesses.

The appeal concerned whether the prosecution was limited to evidence available at the earlier hearing, whether the hearsay evidence should have been excluded for unfairness, and whether the claimant had a reasonable excuse for refusing the second specimen while seeking to use the lavatory.

1. Evidence at the resumed trial. The earlier order prohibited the prosecution from calling live evidence from Ms Bulman and PC Hall. It did not prevent the prosecution from adducing the relevant business documents under sections 117 and 134 of the Criminal Justice Act 2003, or from calling another witness who could be cross-examined about those documents. The documents were not sensibly disputed, and PC Hall’s evidence concerning transmission was unnecessary. The justices therefore acted lawfully in admitting the evidence.
2. The principle discussed in Dennis Reid v The Queen [1980] AC 343 concerned whether a retrial should be ordered where the prosecution had failed to adduce sufficient evidence. It did not establish that evidence on a retrial is confined to evidence available at the original trial. The authority was therefore of limited assistance.
3. Breath-testing procedure. Following Cosgrove v DPP [1997] RTR 154, there was no legal principle requiring a person to be allowed the full three minutes before the intoximeter shut down. If the administering officer concluded that the person was failing to provide the specimen, the officer could stop the procedure before that period expired.
4. Here, the claimant had provided the first specimen but refused to provide the second immediately, insisting on using the lavatory first. Since the second specimen would have taken less than a minute, the officer was entitled to treat the refusal as a failure to complete the test. The claimant had no reasonable excuse on the facts.
5. The appeal was dismissed. The respondent was awarded costs of £500, payable at the same rate as the magistrates’ court fine and costs, after those sums had been paid. The claimant’s driving disqualification consequently revived.

• Magistrates’ court: The claimant was convicted on 24 October 2005 of four offences, including failing to provide a second breath specimen.
• High Court (Administrative Court): An earlier decision restricted the prosecution from calling live evidence from two witnesses but imposed no wider evidential restriction.
• High Court (Administrative Court): The present appeal by case stated was dismissed.