Court had no power to quash conviction

LAW REPORT v 5 September 1995
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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.