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Royal Courts of Justice

The Strand

London WC2

Tuesday 14th January 1999

B E F O R E :

LORD JUSTICE ROCH

MRS JUSTICE BRACEWELL

and

THE RECORDER OF MANCHESTER

(HIS HONOUR JUDGE RHYS-DAVIES QC)

(Acting as a Judge of the CACD)

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R E G I N A

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JULIE JOHNSON

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR P KING appeared on behalf of the Appellant

MR J HOUSE appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

JUDGMENT

MRS JUSTICE BRACEWELL: This is an appeal against conviction and sentence with the leave of the single judge. On June 4th 1998 in the Crown Court at Peterborough before His Honour Judge Hall and a jury, the appellant was convicted of doing an act tending and intended to pervert the course of justice and thereafter was remanded on bail for the preparation of reports. On June 29th in the same court she was ordered to pay a fine of £1,000 with 28 days' imprisonment imposed in default. Her co-accused Robin Hicks was convicted of the same offence and was sentenced to six months' imprisonment.

The essence of the prosecution case was that Mr Hicks, who was a disqualified driver, drove a Ford Escort motorcar into collision with a stationary Volvo motorcar and that because he was a disqualified driver the appellant and Mr Hicks concocted a false story that it was the appellant who had been driving the car at the time of the collision and not Mr Hicks. The appellant's case was that she had driven throughout with Mr Hicks as a passenger, that they had told the truth to the police and there was no perversion of the course of justice.

The evidence which was adduced needs to be considered in a little detail. It was just after 1 pm on June 27th 1997 when a Mr James Smith returned to his stationary Volvo motorcar which he had parked on the high street in Chatteris, Cambridgeshire, quite close to a junction on the near side which led into a road known as King Edward Road. Mr Smith was on the pavement about to unlock the car when he heard the screeching of brakes and saw a Ford Escort car coming out of King Edward Road at some speed. His evidence was that the driver was male. The Escort hit the off side front door of the Volvo and carried on out of sight. In cross-examination he was asked whether or not the Ford Escort had stopped and reversed before it drove off. He denied that that had occurred. He had first seen the driver when his car was struck.

Before or just after the police arrived on the scene, Mr Smith had spoken to the second witness Mr Mark Bailey. Mr Bailey had been walking along the high street when he heard the screech of wheels and he saw the Ford Escort coming out of King Edward Road against the one way traffic sign. He observed that the driver put his foot down, swerved and hit the Volvo. The Ford Escort ricocheted off and carried on down the high street. Mr Bailey said in evidence that he recognised the driver of the Ford Escort as Mr Hicks whom he had known for between two and four years. Mr Bailey was not aware of any other person in the Escort and, likewise, Mr Smith had said in evidence that there was no other person in the car than a male driver.

The third witness was an off-duty policeman, Police Sergeant Lockwood, who was walking down King Edward Road. His evidence did not tally with that of either Mr Smith or Mr Bailey because he stated that when he was about 40 yards from the high street he saw a car in front of him which was revving its engine to excess. He noted part of the registration number and he described the vehicle as being the one which was subsequently in collision. He observed this vehicle to reverse and then to proceed forward at a fast speed. Almost immediately he heard a bang and he noted the time as being 1.20 pm. He did not see the driver of the vehicle, but he stated in evidence that there was someone in the rear passenger seat who appeared to be a teenager of some 16 or 17 years old.

This incident having happened, the appellant went to the police station and arrived with Mr Hicks in the Ford Escort, the police station being situated about a three minute drive away from the scene of the accident. The appellant stated that she had been driving the Escort, that an old lady had stepped off the pavement, and in an endeavour to avoid hitting the old lady she had struck the Volvo car. She stated that Mr Hicks had been sitting in the front passenger seat throughout and Mr Hicks was also interviewed and confirmed the appellant's account of events. This was the substance of the evidence given by both the appellant and Mr Hicks.

Two witnesses were called on behalf of the defence. Their evidence, significantly, was not challenged either as to accuracy or truthfulness by the Crown and their evidence is of considerable significance.

Mr Butler was driving along the high street that day when he passed the Escort which was being driven by the appellant whom he recognised and who was a friend of his and in passing they acknowledged each other. He said in his statement to the police that this was between 1.15 and 1.20 but in evidence he enlarged the bracket to between 1.15 and 1.40. A second witness, a Mr Jansen, who was a friend of Mr Hicks, had been drinking with Mr Hicks at a working men's club. The appellant arrived at the club in the Ford Escort car which she had hired in order to travel to Cardiff and she collected Mr Hicks from the club at about 1.25 pm. Mr Jansen saw the appellant and Mr Hicks leaving the working men's club in the Escort with the appellant at the wheel. The club was situated about 170 to 180 yards from the scene of the accident. It was less than 75 yards from the accident that Mr Butler had observed the appellant driving at a speed which was just below the statutory limit of 30 mph.

It is the judgment of this court that when the prosecution did not challenge in any way the evidence of Mr Jansen and Mr Butler, that the position of the Crown became untenable, as the judge observed in the discussion which took place in the absence of the jury at the close of the defence evidence. The prosecution were left with the situation that in order for Mr Hicks to be driving as the car turned into the high street from King Edward Road, at a distance of no more than about 15 metres from the junction, unobserved by anyone and for no discernible reason, the appellant not only ceased to drive the motorcar but got out in what was apparently rainy weather in order to walk somewhere unknown, that Mr Hicks moved over to the driving seat and drove the car alone into collision with the Volvo, and, having done so, Miss Johnson then went back into the car so that some three minutes later they both appeared at the police station together. This simply makes no sense in relation to the history of events on that day. The whole purpose of the hiring of the car by Miss Johnson was to go on a long journey for her benefit and she took along Mr Hicks as a passenger. She had collected the car from the hiring service and she had driven the car from the club where she collected Mr Hicks. The situation in relation to the Crown simply did not leave any sensible distance in which the car could stop, exchange of driver, Mrs Johnson leaving, and then the car recommencing its journey over a matter of yards into collision with Mr Smith's Volvo car. None of what the Crown speculated about was observed by anyone and some of the evidence which was relied upon by the Crown, such as Police Sergeant Lockwood, was wholly at variance with other witnesses. For the Crown to argue, as they did, in the discussion with the judge in the absence of the jury, that the narrow issue for the jury to determine related to the identity of the driver at the moment when the Escort struck the Volvo, ignores the reality of the evidence. The learned judge was plainly much exercised by the difficulties revealed by the evidence and the fact that the Crown did not in any way seek to challenge the evidence of Mr Jansen and Mr Butler, thereby changing the basis upon which the case had been presented and narrowing down the dispute as to the driver in the moments before the accident occurred.

At one stage in the discussion the judge was so concerned about the different basis upon which the Crown was presenting the case, that he made this comment:

"...if I were a juror assessing the case on your arguments, I would throw it out, but I am not the jury."

In consequence, despite the concerns of the judge, he did not direct the jury to return a verdict of not guilty, he allowed the case to continue, although he had it within his power to withdraw the case from the jury even at that stage of the proceedings.

In the case of Boakye (unreported) decision of a different constitution of the Court of Appeal decided March 12th 1992, Lord Justice Steyn (as he then was) stated as a matter of principle that a judge was entitled to hold that there was no case to answer even at the end of the defence case. Were it not to be so the situation could arise where a judge would be powerless to prevent a real miscarriage of justice in a case where there was a sudden change in the strength of the prosecution case as a result of cogent evidence emerging in the defence case. That is what happened here and it is our judgment that the change in the evidence was so fundamental that this case should have been withdrawn from the jury at the stage when the discussion took place in the absence of the jury.

We conclude that the conviction of Miss Johnson is unsafe and we therefore quash the conviction.