My client, an 18-year-old man of impeccable character, had been stopped by the police shortly after midnight, on suspicion of drug driving. They alleged – though my client denied this – that he had been speeding and that his car had been weaving in the carriageway.
A roadside drugs test apparently revealed cannabis in his system and this, the police alleged, was supported by the subsequent analysis of the blood sample taken at the police station (the evidential test). My client’s case was not helped by the fact that cannabis was actually found in his possession, for which he accepted a roadside police caution.
The Crown Prosecution Service (CPS) case papers were given in the form of a short police report, received before the first hearing date. What was not received – either before or at the hearing -was a single syllable of actual admissible evidence (witness statements, interview record, etc.,): thus what had been provided was pure hearsay and could never be put in front of a court. Leaving aside that seemingly minor quibble, things didn’t look good when I first read the papers. However, a CPS case which – on a first reading – may seem unanswerable, can evaporate if the right tactics are adopted.
Remember that the CPS can never really win such a prosecution for, as far as they are concerned, the evidence is so overwhelming that it can only result in a guilty plea. That complacency can be used to the advantage of the defence! It follows that the CPS can only really lose when the evidence is apparently so much in their favour, and this is exactly what happened in these proceedings. It may be – I don’t really know – that some lawyers faced with such an apparently overwhelming case, will simply tell a client that he/she should plead guilty immediately thus obtaining as much discount as possible on sentence (earned by such a timely guilty plea). I can understand such an approach but totally disagree with it.
Moreover, that is not quite the way I work and there were, in any event, a number of things about this police investigation which required scrutiny and careful consideration.Additionally, clients are entitled to expect that their lawyer will go through every aspect of their case with a fine tooth comb; explaining every possible option. In any event, the decision on plea is, after all, that of the client and not the lawyer!
The following were the points, amongst others, which I felt required such careful consideration before my client made his decision on the plea.FIRSTLY, there had been no “impairment test”; i.e. the police had not carried out those time consuming and elaborate tests which might have supported such a charge. It followed that if we could kick the drug driving charge “into touch” then
they could not, later, charge driving whilst unfit; it simply was not an alternative as the evidence did not exist to support it: the police having never taken steps to obtain it!
SECONDLY (leaving aside the correctness or otherwise of the evidential blood sample analysis), my client took issue with whether or not the police had properly followed the strict legal procedures required when they demand a specimen of blood. In other words, he was putting forward a “positive case” concerning that aspect of the CPS case.
[In that context it is important to remember that, if the police foul up on the procedure (depending on the nature of such mistake or multiple mistakes), then this will lead to an automatic acquittal. I am not suggesting here a mistake in the spelling of a name, date of birth or some other such irrelevance, but major errors which have the effect of removing
the safeguards which Parliament has inserted into the legislation (The Road Traffic Act 1988) for the protection of a suspect’s rights. Remember too the highly unusual and draconian nature of this legislation, forcing, as it does, a suspect to provide evidence (i.e. a breath, blood or urine sample) against himself/herself or risk being prosecuted for failing to provide!]
THIRDLY (and contrary to what I have sometimes heard prosecutors say), any and every defendant has an unfettered right to – as it is known – “put the prosecution to proof”. What this means is that any defendant can simply force the CPS to call its witnesses to testify (presupposing that it can do so in the first place) by refusing to allow the evidence to be read to the court. Such a defendant cannot put forward a positive case, but he can sit on his hands and effectively tell the prosecutor to “get on with your case and prove me guilty if you can, but I will not help you by pleading guilty!” Thus, in this case, as regards the taking of his blood and the subsequent analysis of the same, my client insisted that the prosecution proved the steps in that continuity process. That, of course, is where things can start to become difficult for the CPS and, in this case, led to a complete prosecutorial disaster!
Having considered his position carefully and having discussed it with his father, my client pleaded “not guilty” and the case was adjourned for trial; scheduled to take place a whole five months and two days later. Though it never happens in practice (and in this case never happened at all!) the CPS should provide their case papers and evidence to the defence within 28 days of that first hearing. In this case, despite the fact that the CPS and police were written to, no case papers were ever supplied and there was no response to any correspondence. The next thing to happen was that at lunchtime two days before the trial (i.e. 12 working hours before the trial listing), I was contacted by a distressed client. The court admin’ department had just ‘phoned him to say that the CPS had been in touch. Apparently, the main prosecution witness was unavailable to come to court and therefore the CPS required an adjournment.
Having reassured my client and explained the options he, unsurprisingly, instructed me to attend the trial listing, and oppose the CPS application. At court on the day of the hearing, the difficulties faced by the CPS became even more apparent. It transpired that they had posted some case papers to a wholly incorrect address and even that correspondence had been dispatched hopelessly late. Moreover, they had still not supplied any of the evidence against my client. It became manifestly obvious that this case simply had not been prepared properly for trial.
In the event the District Judge was not prepared to adjourn the case and the unfortunate prosecutor on the day, for whom I felt a great deal of sympathy, was left with no alternative but to offer no evidence; meaning that the case was dismissed and my client’s good character retained. To add spice the DJ made a Defendant’s Costs Order in favour of my client: thus he will be reimbursed some of his costs. If there is a moral to this story (if “moral” is the right word!) then, as ever, one never quite knows what is going to happen if a client chooses to exercise his/her constitutional right to insist that the prosecution proves its case.
As they say “there’s many a slip between lip and cup” but here not only did we not get a wee dram, we didn’t even get a nip of the prosecution’s evidence! As I walked from court that morning having secured my client’s acquittal on what was, by anybody’s standards a serious charge, I reflected on the fact that I still had not been given a copy of – let alone seen – a single syllable of CPS evidence in the case; 5 months and 2 days after the first hearing!