Court had no power to quash conviction

LAW REPORT v 5 September 1995

Regina v Dolgellau Justices, ex parte Cartledge; Regina v Penrith Justices, ex parte Marks; Queen's Bench Divisional Court (Lord Justice Stuart-Smith, Mr Justice Turner and Mr Justice Butterfield) 31 July 1995

The Queen's Bench Divisional Court had no jurisdiction to make an order of certiorari to quash a conviction which followed an unequivocal plea of guilty, where no complaint was made of the conduct of the tribunal and where the conduct of the prosecution could not fairly be categorised as analogous to fraud.

The court refused applications by Gordon Cartledge and John Edward Marks for judicial review to quash their convictions on pleas of guilty to driving with excess alcohol after the police had taken specimens for analysis without following the correct procedure laid down in DPP v Warren [1993] AC 319.

Nigel Ley (Byrne Frodsham & Co, Widnes) for the applicants; John McGuinness (CPS) for the respondents.

Lord Justice Stuart-Smith, giving the judgment of the court, said that in an effort to ensure that constables correctly follow the procedure laid down in the Road Traffic Acts for requiring a motorist suspected of a drink-driving offence to supply a specimen of blood or urine, police forces throughout the country introduced standard forms setting out the questions to be asked and information to be given. Until the decision of the House of Lords in DPP v Warren, it was widely thought these forms correctly embodied the statutory procedure. Now the applicants alleged the correct procedure had not been followed in their cases.

Although as a general rule evidence, if relevant, was admissible even if it had been obtained contrary to the correct procedure, subject to the court's power to disallow it under s 78 of the Police and Criminal Evidence Act 1984, it was now established that, if the correct procedure laid down by the Road Traffic Acts in this class of case was not followed, the evidence was inadmissible.

Did the court have jurisdiction to quash the convictions? Normally certiorari would not lie where an applicant had entered an unequivocal plea of guilty. But there were a number of cases where, notwithstanding the plea of guilty, complaint was made in relation to the conduct of the prosecution and certiorari was granted.

In R v Leyland Justices, ex p Hawthorn [1979] QB 283, the police failed to disclose to the defence the existence of two witnesses from whom statements had been taken but who were not called by the prosecution.

In R v Home Department, ex p Al-Mehdawi [1990] 1 AC 876, Lord Bridge preferred to explain Hawthorn's case as one of suppressio veri having the effect of suggestio falsi and therefore (although no dishonesty was suggested) more analogous to fraud, collusion or perjury, rather than a case of procedural impropriety or breach of natural justice.

In two recent cases also involving failure by the police to follow the Warren procedure, different constitutions of the Divisional Court had come to divergent conclusions. In R v Cheshire Justices, ex p Sinnott (4 October 1994), Lord Justice McCowan and Mr Justice Gage granted certiorari, counsel for the CPS having conceded that the court had jurisdiction to do so.

In R v Burton on Trent Justices, ex p Woolley (11 November 1994) the court had the assistance of an amicus curiae on the question of jurisdiction. Mr Justice Buxton, with whom Lord Justice Beldam agreed, said that the jurisdiction to quash a decision by way of certiorari, founded on conduct of the prosecutor, was sui generis and was of a limited nature, there being no authority for recognising it as extending beyond conduct that could fairly be categorised as being analogous to fraud. It was possible for conduct so to be categorised where there was no actual fraud of dishonesty. Whether it should be so categorised was a question of judgment for the court, looking at all the facts.

Their Lordships respectfully adopted that analysis. The next question was whether the conduct of the prosecution in the present cases could properly be described as analogous to fraud.

There had been no falsifying or suppression of evidence. The evidence itself was not open to doubt. There was a procedural error in obtaining it. But there was no injustice to the applicants. This was an important distinction.

In their Lordships' judgment, the prosecution's conduct was not analogous to fraud and, even if it were, the court would not exercise its discretion to quash the convictions.

P

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

HR Assistant / Human Resources Assistant

£Neg + Excellent Benefits: Guru Careers: An HR Assistant / Human Resources Ass...

Talent Community Coordinator

£Neg + Excellent Benefits: Guru Careers: A Talent Community Coordinator is nee...

Business Support - Banking - Halifax - £250 pd

£150 - £250 per day: Orgtel: HR Analyst - Banking - HR - Halifax - £150 - £250...

Geography Teacher

£24000 - £33600 per annum + pre 12 week AWR : Randstad Education Manchester Se...

Day In a Page

Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform
Climate change threatens to make the antarctic fur seal extinct

Take a good look while you can

How climate change could wipe out this seal
Should emergency hospital weddings be made easier for the terminally ill?

Farewell, my lovely

Should emergency hospital weddings be made easier?
Man Booker Prize 2014 longlist: Crowdfunded novel nominated for first time

Crowdfunded novel nominated for Booker Prize

Paul Kingsnorth's 'The Wake' is in contention for the prestigious award
Vladimir Putin employs a full-time food taster to ensure his meals aren't poisoned

Vladimir Putin employs a full-time food taster

John Walsh salutes those brave souls who have, throughout history, put their knives on the line
Tour de France effect brings Hollywood blockbusters to Yorkshire

Tour de France effect brings Hollywood blockbusters to Yorkshire

A $25m thriller starring Sam Worthington to be made in God's Own Country
Will The Minerva Project - the first 'elite' American university to be launched in a century - change the face of higher learning?

Will The Minerva Project change the face of higher learning?

The university has no lecture halls, no debating societies, no sports teams and no fraternities. Instead, the 33 students who have made the cut at Minerva, will travel the world and change the face of higher learning
The 10 best pedicure products

Feet treat: 10 best pedicure products

Bags packed and all prepped for holidays, but feet in a state? Get them flip-flop-ready with our pick of the items for a DIY treatment
Commonwealth Games 2014: Great Scots! Planes and pipers welcome in Glasgow's Games

Commonwealth Games 2014

Great Scots! Planes and pipers welcome in Glasgow's Games
Jack Pitt-Brooke: Manchester City and Patrick Vieira make the right stand on racism

Jack Pitt-Brooke

Manchester City and Patrick Vieira make the right stand on racism
How Terry Newton tragedy made iron men seek help to tackle their psychological demons

How Newton tragedy made iron men seek help to tackle their psychological demons

Over a hundred rugby league players have contacted clinic to deal with mental challenges of game