Brett v Director of Public Prosecutions

Section 16 of the Road Traffic Offenders Act 1988 provides a permissive route for proving alcohol analysis by certificate. It does not create an exhaustive code that prevents reliance on the hearsay provisions in section 116 of the Criminal Justice Act 2003, even where the accused has required the analyst to attend under section 16(4).

A pre-trial ruling is binding only subject to the statutory power to revisit it after a material change of circumstances. Where a later trial affords substantially more time to investigate and secure a witness, the court must reconsider whether the hearsay conditions and the interests of justice are satisfied.

The appellant was convicted by a deputy district judge of driving with excess alcohol. The prosecution relied on a certificate analysing a blood sample after the analyst had moved to Bulgaria. Magistrates had previously ruled that the certificate could be admitted under section 116 of the Criminal Justice Act 2003, notwithstanding notice under section 16(4) of the Road Traffic Offenders Act 1988 requiring the analyst’s attendance.

At the later trial, the deputy district judge considered himself bound by that ruling and refused to allow the admissibility issue to be argued again. The questions for the High Court were whether the certificate could be admitted through the section 116 route and whether the later court was bound by the earlier ruling.

1. Admissibility of the certificate. Section 16 of the Road Traffic Offenders Act 1988 is permissive. Section 16(4) makes the certificate inadmissible by the statutory certificate route where the accused has required the analyst’s attendance, but it does not exclude other admissibility routes. The certificate could therefore be admitted under section 116 of the Criminal Justice Act 2003 if its statutory conditions were met.
2. The court had to be satisfied that the analyst was identified, was outside the United Kingdom, and that it was not reasonably practicable to secure her attendance. Admission also depended on the interests of justice, having regard to all relevant circumstances. The availability of an identical part of a blood or urine sample to the defendant reduced the potential prejudice.
3. Reconsideration of the earlier ruling. Sections 8A and 8B of the Magistrates’ Courts Act 1980 made the earlier pre-trial ruling binding only subject to a material change of circumstances. The adjournment from August to December created such a change. The prosecution then had months to investigate the analyst’s availability and possible means of securing her evidence. The deputy district judge therefore erred in refusing to permit the admissibility issue to be reopened.
4. The conviction was quashed. The court declined to remit the prosecution for retrial in the particular circumstances, although it stated that the usual position in a viable case stated appeal should be remission for retrial before a differently constituted bench. The appellant received the costs of the second case stated out of central funds; there was no order for costs concerning the unsuccessful first case stated.
5. The court stressed the overriding objective under the Criminal Procedure Rules 2005. Issues and witnesses should be identified at an early stage, and courts may impose adverse costs orders, including against legal representatives, where the parties cause unnecessary delay.

• High Court (Administrative Court): The court answered the first admissibility question affirmatively but held that the deputy district judge was not bound by the earlier ruling at the later trial. The conviction was quashed.
• Magistrates’ Court: The justices admitted the analyst’s certificate under section 116 of the Criminal Justice Act 2003. The deputy district judge later refused to reopen the issue and convicted the appellant.