Written evidence from Chief Constable Anthony Bangham, NPCC Lead for Roads Policing (DIS0062)

The committee will already have received other more fulsome submissions on behalf of the NPCC concerning disclosure. I hope the committee find this additional submission both helpful and commendably brief.

The purpose of this short submission is to bring to the attention of the committee how the inappropriate exercise of disclosure can be used to frustrate justice. Also how such exercise of the disclosure process wastes time in the lower courts and increases costs and finally to illustrate how the lower courts have struggled with the issue of disclosure as part of the wider process including the application of the Criminal Procedure Rules.

It would be fair to say there are those legal practitioners who have specialised in having cases dismissed by making requests for disclosure with which the prosecution fail to comply in a timely manner. However this is not the full story. These request are often late, extremely onerous, lacking in any relevance or justification. They sometimes include requirements for police to provide material they are not even entitled to access let alone have in their possession. This is particularly the case in drink and drug driving cases.

Most drink drive cases are prosecuted on the basis of a result produced by an Evidential Breath Test Instrument (EBTI) rather than blood. All such equipment used have to pass a rigorous testing process known as Home Office Type Approval (HOTA). The purpose of this process, and the incumbent maintenance requirements is precisely to ensure that court time is not wasted by the prosecution having to prove the reliability of the equipment in every case (provided the test cycles it completes every time it is used show it to be working correctly). At the same time this process helps to ensure that innocent drivers are not convicted.

However there are those legal representatives who have sought to use the disclosure process to undermine the integrity of the type approval process in the Magistrates Court. This of course is not the appropriate place to challenge the validity of type approval orders. It is perhaps worthy of noting that the current devices have been in use since the 1990’s and in the face of repeated challenge have withstood scrutiny. The material asked for is often not covered by the disclosure provisions but when not provided cases are dismissed.

In response to this situation and recognising failings within our own organisations the police, Crown Prosecution Service and the Forensic Science Regulator worked with forensic service providers to produce guidance covering the issue of disclosure in drink driving prosecutions. The guidance was published in January 2017 and refreshed in June the same year. It was a serious attempt to ensure proper compliance with a legal duty and at the same time support hard pressed prosecutors, often agents, when faced with disclosure demands lacking merit. I offer this document as an example of good practice where the police and CPS have recognised failings in the area of disclosure and worked with others to address them.

The ongoing criminal investigation into alleged conduct at Randox Testing Services has caused an increase in demand for more and more supporting data in relation to analysis in drug driving prosecutions. There is very clearly an understandable desire to be absolutely certain the analytical result is correct and that is an outcome the police service shares.

However in both drink and drug driving cases where the evidential result is derived from the analysis of a prosecution blood sample there is always a second part to the sample. When blood is taken from a suspect driver the sample is divided into two. This is to enable the driver to have their own sample analysed at a recognised laboratory. However in contested cases the defence seek to put the prosecution to proof of the credibility of their sample without first getting the defence sample analysed. This leads to the preparation of a complex data pack that are expensive and time consuming to prepare. There are then long debates in court over what the data provided means and how it should be interpreted.

There is no objection to the prosecution being put properly and robustly to the test but here disclosure provisions are used to seek to develop confusing arguments in court when the defence have access to their own sample which could be quickly and easily analysed. These arguments waste court time and the provision of the data packs takes scientists away from their role in analysing samples and so reduces capacity within the forensic service providers police are authorised to use.

It is submitted that the reason the defence do not have their sample analysed when there is one available is that they have greater probability of confusing the court in a subsequent argument over data pack contents or indeed having a case dismissed when the prosecution are unable to deliver the data pack on time.

A simple means of addressing this rather strange situation would be to only allow the defence to make a disclosure application for these data packs when they have had their own sample analysed and it is shows the driver to be under the specified limit or where the defendant’s sample is not available for analysis.

By way of illustration of the points raised in this submission I have attached a copy of DPP & Salford Magistrates V John Blakely and DPP & Salford Magistrates V Joshua Whyte both considered together on 27th July 2017 before the President of the Queens Bench Division.

I also attach a copy of R V Hassani which is illustrative of the relevance of the Criminal Procedure Rules to the disclosure debate around disclosure and for Completeness R V Cippriani as it is referred to in the Hassani Case. The judgements make the case in respect of the issues I have raised eloquently and concisely.

References:

The case of R v Cipriani can be found here: https://www.judiciary.gov.uk/wp-content/uploads/2016/09/cps-v-cipriani-judgment.pdf

The case of R v Hassani can be found here: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1270.html

The case of DPP & Salford Magistrates V John Blakely and DPP & Salford Magistrates V Joshua Whyte can be found here: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3719.html