Director of Public Prosecutions v Christopher Berntsen

Under Criminal Justice Act 2003, s 116(2)(c), reasonable practicability of securing an absent witness is assessed in context. The court considers the reasonable steps available, the importance of the evidence and prejudice from its absence, the expense and inconvenience of securing attendance, and the reasons for absence. A communication is not hearsay when tendered only to prove that statutory advice was given, rather than the truth of its content. Under Road Traffic Act 1988, s 7(3)(c), the condition is that the constable received the specified advice; its correctness or reasonableness is not an additional requirement.

The Director of Public Prosecutions appealed by case stated from two pre-trial rulings in Basingstoke Magistrates’ Court on 11 December 2025. Christopher Berntsen was charged with driving with cannabis in his blood above the specified limit. The prosecution relied on a health care professional’s advice to the police officer that Berntsen’s condition might be due to a drug, as required for a blood-sample requirement under the Road Traffic Act 1988. The health care professional was abroad because of a family bereavement and did not attend trial.

The magistrates’ court excluded her statement under s 116(2)(c) of the Criminal Justice Act 2003, then excluded the officer’s account of the advice as hearsay. The prosecution offered no evidence and Berntsen was acquitted. The appeal concerned whether the prosecution had shown that securing the health care professional’s attendance was not reasonably practicable, and whether the officer’s evidence was hearsay when offered to prove that the statutory advice had been given.

1. The appeal was allowed. The acquittal was set aside and the case remitted to the Magistrates’ Court for trial.
2. Section 116(2)(c) of the Criminal Justice Act 2003 requires that the witness be outside the United Kingdom and that securing attendance be not reasonably practicable. The test is not impossibility. Applying the considerations in R v Castillo [1996] 1 Cr App R 438, endorsed for the 2003 Act in R v Yu [2006] EWCA Crim 349, the court considers the evidence’s importance and the prejudice caused by absence, the expense and inconvenience of securing attendance, and the reasons for absence. The assessment also takes account of the reasonable steps normally available to the party, having regard to its means and resources.
3. The magistrates’ judge erred by focusing on the prosecution’s failure to make further enquiries. The defence had not clearly shown why the health care professional’s evidence was challenged or what material prejudice her absence would cause. The expense and inconvenience of bringing her back from Zimbabwe would have been considerable, and her absence resulted from an unexpected family bereavement. A live link was not reasonably practicable in the short time available because the necessary consultation with Zimbabwean authorities could not be completed in time, consistently with Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC).
4. For s 7(3)(c) of the Road Traffic Act 1988, the relevant fact is that the constable was advised that the driver’s condition might be due to a drug. The statutory condition does not require the advice to be correct or reasonable. The court determines whether evidence is hearsay by identifying the matter for which it is tendered: R v Twist [2011] EWCA Crim 1143; [2011] 2 Cr App R 17. The officer’s evidence was offered to prove that the advice had been given, not that its content was true. The health care professional’s intention that the officer act on the advice did not, by itself, make the evidence hearsay.
5. The prosecution may call the health care professional at the remitted trial. The court expressed no view on the merits of the prosecution case.

1. High Court, Divisional Court: Allowed the Director of Public Prosecutions’ case stated appeal, set aside the acquittal and remitted the case for trial.
2. Basingstoke Magistrates’ Court (11 December 2025): Excluded the health care professional’s statement under s 116(2)(c) of the Criminal Justice Act 2003 and the police officer’s evidence as hearsay. After the prosecution offered no evidence, the defendant was acquitted.