Prosecution routinely failing to re-serve their evidence in cases where defendants have made Statutory Declarations
Over the past 18 months I have been involved in a number of motoring offence cases prosecuted before the dedicated road traffic courts in the London area (the MET Traffic Prosecution area), where the prosecution are routinely failing to serve evidence prior to the day of trial. The cases I am referring to have all been commenced by way of Postal Requisition and the charge/s (for example, speeding, s.172 RTA, fail to provide driver information, careless driving, red light offences etc) have subsequently been proved in absence following the non-attendance of the defendant at the first hearing/absence of a written plea being received. The defendants have all then made Statutory Declarations (because they had not received the Postal Requisitions and so were unaware of the proceedings). In all of these cases the prosecution have failed to re-serve the written statements upon which the prosecution subsequently seek to rely in order to prove their case.
On each occasion BB Law (being specialist motoring solicitors who are pro-active and always seek to comply with the Criminal Procedure Rules) have written to the prosecution (and court) prior to the trial date pointing out in good time prior to the trial that no evidence has been served since the making of the Statutory Declarations. In all these cases the CPS have subsequently sort to argue that the original service of the written statements (in the same envelope as the original Postal Requisitions), is sufficient to amount to service of evidence in accordance with s.9 of the Criminal Justice Act 1967. This is despite the CPS accepting that Statutory Declarations had been made weeks or months after the date the Postal Requisitions were posted.
You don’t have to be a specialist motoring solicitor to know that the CPS argument is totally without merit and recognise it as a desperate and perhaps even disingenuous attempt to persuade the court to allow the prosecution’s evidence to be admitted in writing despite a fundamental failure to comply with s.9 CJA 1967.
There must be hundreds of defendants who are turning up on their trial dates at these courts only to be handed a copy of the statements by the prosecution advocate, whilst being told (by the prosecution advocate) that the statements are admissible in evidence because they were served with the original requisition and there has been no objection to those statements received within the 7 days allowed for by s.9 CJA 1967 and CPR 16.4.
Unrepresented defendants and those represented by less capable advocates, are failing to point out to the prosecution and the court that CPR 24.17 (4) (not to mention common sense and the rules of natural justice) effectively says that the service of evidence prior to the making of a Statutory Declaration is not good service. Even when the failure to re-serve is pointed out and the defendant choses to exercise their right to object to the evidence being admitted in writing, often the courts and the CPS will then seek to force defendants to agree the written statements there and then. This is notwithstanding the fact that the defendant has a unfettered right to object (within 7 days of service) to the evidence being admitted in writing.
If a defendant turned up at trial with 2 or 3 written defence witness statements which exonerated him from the alleged offence, and then demanded the statements be admitted as evidence in accordance with s.9 CJA 1967, despite a failure to comply with the requirements of s.9, then they would (quite rightly) be laughed out of court. So why do the prosecution think they can get away with it and more to the point why doesn’t the court always take a robust approach? Good question!
In my experience this failure to re-serve evidence is common practice at courts in the London area, however, there are also examples of it happening in Manchester. Sooner or later I can forsee one of these cases resulting in a claim for judicial review.
My advice to anyone who makes a Statutory Declaration, pleads not guilty and doesn’t then get served with the written evidence until the day of trial (or within 7 days of the trial date), is as follows –
You have the right to object to the written statement being admitted in evidence (as long as you object within 7 days of service)
You have the right to object to any application for an adjournment (the CPS will probably ask the court to adjourn to give them a second opportunity to get their witnesses to court – cheeky I know but that’s what they will do!)
In the event the court indulges the CPS (and ignores the Criminal Procedure Rules) and allows the case to be adjourned (to give the prosecution a second chance to properly prepare their case for trial), then you could consider making a wasted costs application against the CPS for the costs thrown away as a result of the ineffective trial hearing.
If you are horrified by the above and thinking to yourself “how on earth do the prosecution think they can get away with this sort of thing”. The good news is that not all magistrates’ courts tolerate this sort of inefficiency and poor practice in the justice system. For example, many courts in Lancashire, Bedfordshire and Oxfordshire, in my experience take the Criminal Procedure Rules very seriously.
Your chances of being listened to are far higher if you have a capable specialist motoring solicitor fighting your corner. If you have made a Statutory Declaration, are heading towards a trial date and haven’t been served with any evidence then do not hesitate to get in touch with me – firstname.lastname@example.org
Bobby Bell – 16th June 2016