Cummings v Crown Prosecution Service

For the purposes of refreshing memory under Criminal Justice Act 2003, verification is a question of fact. A witness verifies a document where, while the matters are fresh, the witness satisfies themself that it records their recollection and is accurate. A signature is relevant evidence but is not essential. A witness who observed a procedure may therefore refresh memory from a contemporaneous record completed by another officer, provided the witness verified its accuracy. The resulting evidence remains the witness’s direct evidence of what was seen and heard, rather than hearsay. The provision may be used to recall precise details of a procedure, including questions, answers and warnings.

Davina Caroline Cummings appealed by way of case stated against her conviction by Bexley Magistrates’ Court on 27 April 2016 for three road traffic offences, including failing to provide a specimen of breath contrary to section 7(6) of the Road Traffic Act 1988.

The central issue was whether PC Parsons was entitled under section 139 of the Criminal Justice Act 2003 to refresh her memory from an MG DD/A form completed principally by Sergeant Moreland. PC Parsons had witnessed the breath-test procedure, but the signature box for her was blank. The question was whether she had made or verified the document and whether it recorded her recollection at a time when her memory was significantly better.

1. Appeal dismissed. The justices were entitled to permit PC Parsons to refresh her memory from the MG DD/A form under section 139 of the Criminal Justice Act 2003.
2. Section 139 requires that the document was made or verified by the witness at an earlier time, that the witness states that it recorded their recollection at that time, and that their recollection was likely to have been significantly better then. The meaning of verification remains informed by the common law authorities.
3. Verification is a factual question. It requires the witness to have satisfied themself, while the matters were fresh, that a record had been made and that it was accurate. A signature may provide evidence of verification, but it is not indispensable.
4. The justices had accepted that PC Parsons was present throughout the procedure, heard all the questions and answers, and completed each page of the form with Sergeant Moreland. Those findings entitled the court to conclude that she had verified the form as an accurate record of what she had seen and heard. The blank signature box did not alter that conclusion.
5. PC Parsons’s evidence concerned her own observations. It was therefore direct evidence, not hearsay. The form could properly be used to refresh her memory of precise details, including the requests for specimens, the warning and the responses. The court distinguished the evidence required to prove what PC Parsons had witnessed from evidence that only Sergeant Moreland could have given.
6. The court noted that the justices might also have concluded that PC Parsons had jointly made the form within section 139, but expressly limited the decision to verification. The case stated questions were answered in the affirmative. The respondent’s costs were summarily assessed at £738.50, not to be enforced without leave of the court, with detailed assessment of legally aided costs.

1. High Court (Administrative Court) — [2016] EWHC 3624 (Admin): appeal by way of case stated dismissed.
2. Bexley Magistrates’ Court — 27 April 2016: convicted the appellant of three road traffic offences.