West Midlands Probation Board v French

A licence issued on the release of a prisoner under statutory authority may be admissible in criminal breach proceedings as evidence of its contents. The licence is a statement for the purposes of the hearsay provisions where it represents facts and is intended to cause persons to believe or act upon them.

It may qualify as a public document under the preserved common-law rule in the Criminal Justice Act 2003. It may also be an order within section 2 of the Documentary Evidence Act 1868, if it is a public document created to give effect to an Act of Parliament. A licence is not prepared for contemplated criminal proceedings merely because it warns that breach may lead to prosecution.

The West Midlands Probation Board prosecuted Darren French before magistrates for allegedly breaching conditions of a licence issued under section 40A of the Criminal Justice Act 1991. The Board sought to rely on a copy of the licence, which French had countersigned, to prove the release, the conditions and his acknowledgement of them.

The magistrates ruled that the document was inadmissible hearsay and did not fall within section 2 of the Documentary Evidence Act 1868. They dismissed the Information when the Board offered no further evidence. On a case stated, the Divisional Court considered whether the licence was admissible under the hearsay provisions, the preserved common-law rule for public documents, or the 1868 Act.

1. Disposition. The court answered the two questions stated by the magistrates “No” and “yes”. The licence was admissible as evidence of its contents, and the breach proceedings were remitted for rehearing before a different bench.
2. The licence contained representations of fact concerning the statutory release, its conditions and French’s acknowledgement. Under sections 114 and 115 of the Criminal Justice Act 2003, those representations were hearsay because their purpose was to cause French, prison staff, the Home Office and the probation service to believe the matters stated and act upon them. The common-law hearsay rules had been abolished, subject to the statutory gateways and preserved rules: R v Sukdave Singh [2006] 1 WLR 1565.
3. The licence was a public document. It was made by a public officer under an official duty, for an official purpose, and for use by persons with a legitimate interest in the statutory licensing process. It was therefore admissible under the preserved rule in section 118(1)(b) of the 2003 Act and section 114(1)(b).
4. The magistrates also erred under the 1868 Act. The word order in section 2 has a wide meaning and includes an executive act of government performed by creating a public document to give effect to an Act of Parliament: R v Clarke [1969] 2 QB 91. The licence satisfied both requirements because it implemented section 40A of the 1991 Act. A copy would, however, require certification in the statutory form.
5. The licence was not prepared for pending or contemplated criminal proceedings within section 117(4)(a) of the 2003 Act. No relevant proceedings were pending, and there was no evidence that proceedings were contemplated when the licence was created. The warning of prosecution for breach did not establish such a purpose. This was consistent with R v Bedi and Bedi (1992) 95 Cr App Rep 21.
6. The court added that admission under section 114(1)(d), in the interests of justice, appeared available, although it made no final ruling because the relevant section 114(2) submissions had not been developed. The licence was highly probative, its maker and creation appeared reliable, and any challenge to the underlying lawfulness of the licence was more appropriately pursued by judicial review.

The judgment arose from a case stated by the Justices of the Peace for the West Midlands after the magistrates dismissed the Information following their ruling that the licence was inadmissible.

• West Midlands Magistrates Court: ruled that the licence was inadmissible hearsay and was not an “order” under section 2 of the Documentary Evidence Act 1868; the Information was dismissed.
• High Court (Administrative Court): answered the stated questions “No” and “yes”, held the licence admissible and remitted the breach proceedings for rehearing before a different bench.