Case report: not guilty verdict overturned on appeal
Most people would expect an acquittal to bring a criminal case to an end. In many cases it does, but there are circumstances in which the prosecution can challenge a magistrates’ court decision on a point of law, even after a defendant has been acquitted. A recent drug-driving case shows how that can happen and why a witness’s absence does not necessarily prevent their evidence being used. In
DPP v Berntsen, the High Court set aside an acquittal after finding that a district judge had wrongly excluded two pieces of prosecution evidence and sent the case back to the magistrates to be re-tried.
Why was the witness needed?
Mr Berntsen was charged with driving with cannabis in his blood above the specified limit. He pleaded not guilty and challenged several aspects of the prosecution case, including whether the conditions for requiring a blood sample had been met and how the sample had been handled. The prosecution said that a custody nurse, Ms Jambaya, had examined him and advised a PC John that Mr Berntsen’s condition might be due to a drug, which gave the police officer the suspicion necessary to require a specimen of blood for analysis. The defence required Ms Jambaya to attend court. Shortly before the trial, however, an unexpected family bereavement meant that she travelled to Zimbabwe for a funeral and was not due back until after the hearing. The prosecution applied to rely on her written statement in her absence. The defence objected, arguing that it should be able to question her and that the prosecution had not properly explored how to secure her attendance. The district judge refused to admit the nurse’s statement. He also ruled that PC John could not give evidence of the advice she had given him because it was hearsay. After those rulings, the prosecution offered no evidence and Mr Berntsen was acquitted.
Can a witness statement be used if the witness is abroad?
A witness will generally give evidence in person, or by a permitted live link, and can be questioned about their account. A written statement admitted in their absence is hearsay when it is used to prove that what the witness said in it is true. The criminal courts can admit hearsay in specified circumstances, but the party wishing to rely on the hearsay evidence must show a legal basis for doing so.
Section 116 of the Criminal Justice Act 2003 allows for the admission of hearsay evidence where the witness is outside the United Kingdom and it is not reasonably practicable to secure their attendance. In Mr Berntsen’s case, the prosecution had not asked whether Ms Jambaya could delay her trip, return early or give evidence remotely – albeit there are very serious diplomatic issues with witnesses giving evidence from abroad. Those omissions were matters the court could consider. But the High Court held that the district judge had focused on them without properly considering the wider circumstances, including the reason for her absence, the expense and inconvenience of securing her attendance, the importance of her evidence and the prejudice to the defence if she could not be questioned. The court noted the unexpected bereavement and considered that the defence had not explained clearly why the nurse’s absence would cause significant prejudice on the issues identified. It also considered the practical and legal difficulties that can arise with a live link from another country. On the facts, the judges concluded that the statutory test was satisfied and that the statement should have been admitted. We suspect that the situation might have been different if there was not a good reason for the witness leaving the country, but the key issue was the lack of good reason for requiring the witness by the defence. At the first hearing, the defence lawyers told the court that, essentially everything, was in issue. They did not spell out any particular issue that questioning of Ms Jambaya would have resolved, which we suspect was a major concern for the High Court judge and shows clearly why it is important for defence lawyers to fully interrogate the available evidence and set out clearly what their reasons for requiring each witness is from the earliest stage of the case.
Was the officer’s account hearsay?
The second ruling concerned a different question. PC John was not being asked to repeat the nurse’s advice to prove that Mr Berntsen’s condition was caused by a drug. The prosecution wanted to establish that the advice had been given to him, because that was the basis for his suspicion that Mr Berntsen was driving under the influence of drugs. At this point, we should take a moment to briefly explain what hearsay evidence actually is. Let’s imagine that Ms Jambaya’s words were repeated to prove that Mr Berntsen was impaired by drugs. If Ms Jambaya were present, she could give her account of what facts she observed that led her to that conclusion and she could be challenged as to the accuracy of those facts and, indeed, whether those observations do indicate that somebody has used drugs. That evidence is perfect fair and admissible. Now, if PC John tells the court what Ms Jambaya said and saw for the purpose of proving that Mr Berntsen was under the influence of drugs that would be inadmissible hearsay evidence. That is because the facts being repeated are being used to prove a fact that cannot be challenged by the defence. However, if Ms Jambaya’s words are repeated solely for the purpose of proving that those words were said then the evidence is not hearsay and is admissible. This is because the purpose of putting those words into evidence is not to prove the truth of what the words convey but merely to prove they were said. In this case, the High Court held that the officer could give direct evidence of a conversation he had taken part in to prove that Ms Jambaya had said the words to him that led him to be suspicious that Mr Bertsen had used drugs. Essentially, the court was saying that while repetition of the words proved that Ms Jambaya gave advice to PC John; it did not prove that advice was correct and therefore the officer’s account was therefore not hearsay. Hearsay is a highly technical area of law that takes students several months of study to get to grips with during a law degree and so requires expert legal advice where it is an issue in a trial. Feel free to
contact us if you have a case involving a technical evidential issue.
What does the law say about appealing an acquittal?
The Director of Public Prosecutions appealed by a procedure called ‘case stated’. A case stated appeal is a very restricted avenue of appeal that allows either party to challenge a legal ruling; it cannot be used to challenge a decision because one party or the other disagrees with a finding of fact or even because they disagree with a verdict. Thus it could be used where the outcome of a case depends on a ruling, such as a decision to admit or exclude evidence, or a refusal to grant an adjournment, etc. The party bringing the appeal will explain the issue they take with the decision under appeal and a set of specific questions will be agreed for the High Court to rule upon. This case will not create any new law, but it is a cogent reminder of the importance of trial preparation. The High Court criticised the breadth of the issues listed for the defence and found that the significance of questioning the nurse had not been clearly explained. Identifying a real issue and explaining what a witness will be asked about will make a substantial difference when a court considers whether their absence would be unfair. Chetwode Criminal Defence Solicitors advises on drug-driving allegations and challenges to prosecution evidence. If you face an allegation or need advice about a court case,
contact us for a confidential discussion.
