Streamlined Forensic Reporting (SFR), was introduced in 2013, aiming to deliver ‘swift and sure justice’, by achieving early agreement with the defence on forensic issues, where this cannot be achieved in the first instance. They are used to identify the contested issues in a drink/drugs driving case.
You will encounter both Stage 1 – SFR1’s and Stage 2 – SFR2’s
Here we discuss inadmissibility of Stage 1 – SFR1’s in the context of drink and drug driving offences, but in reality the same principles will apply whenever the CPS seek to rely on expert evidence.
Summary
SFR1’s are only admissible by way of an agreed fact with the defence.
They are not admissible by any other means as they are not compliant with Criminal Procedure Rule 19 (CPR 19) which governs expert evidence.
If a defendant makes a “Bland denial” that amounts to “the Crown’s expert must be wrong” this would not comply with the defence obligations under CPR 3 and 19 but this failure does not allow the Crown, or any tribunal, to circumvent the rules on admissibility of expert evidence.
An SFR2 will therefore be required for the Crown to prove any fact that falls within the remit of experts if the defence do not agree the SFR1.
Hunt v CPS [2018] EWHC 3341 (Admin) sets out that Non-compliance with the Crim PR (r 19 on expert evidence) and the admissibility of evidence are distinct issues. Non-compliance cannot alone make a form SFR1 admissible. It has no evidential weight. There was no (s10) agreement to the form.
In the case – Mr Hunt, was charged on 18 August 2017 with two counts of “drug driving”. He appeared for his first hearing and produced a plea letter which stated:
“The Defendant does not accept that the amount of specified drugs in his blood exceeded the prescribed limit. The Defendant does not accept that he consented to provide a specimen for analysis at the time the specimen was taken. The Defendant does not accept that the statutory warning was given”
Mr Hunt also partially completed a case management form which stated:
“The Defendant did not accept that he had excess specified drugs in his blood…the SFR1 is not yet served and so it is not possible to say at this stage but continuity is not expected to be an issue”
The District Judge gave a direction requiring Mr Hunt to comply with CPR 19.3(2)(a) (Identifying issues with the Prosecution’s report) by 15 September 2017 as the trial issues had not been sufficiently identified.
A case management hearing was listed for 23 September 2017. At that hearing, the magistrates acceded to the Crown’s request for a case management hearing in front of a District Judge.
The case came before a District Judge on 6 October 2017 for a case management hearing. Mr Hunt provided three letters that had been sent to the CPS purporting to respond to the SFR1. The first letter, dated 18 September 2017 stated that the SFR1 was not agreed:
“Because the Defendant does not accept that his blood contained excess specified drugs, or that the analysis was carried out correctly, reliably, or that the analysis result is accurate”
The second letter, dated 5 October 2017 stated:
“The Defendant does not yet know what went wrong and it is not for the Defendant to speculate. But examples of what has been known to have caused inaccurate readings in other cases include human errors during the analysis process, staff working at the lab could have manipulated the data, the lab could have mixed up samples, the results could have been misreported on the SFR1, the analysis could have been conducted in breach of the relevant standards, the sample could have been contaminated, the analysis could have involved the use of defective instruments, the lab could have used a non-standard calibration range, the analytical methodology peer reviewing process could be deficient”
The District Judge stated that the Defence did not identify any specific issue as to why the sample in his case was unreliable and he noted that Mr Hunt did not specify what had happened to his second sample which could have been independently analysed. The District Judge stated the three letters did not comply with CPR 19.3 and on that basis, admitted the SFR1 as evidence by way of an agreed report.
This was a pre-trial ruling for the purposes of s8A Magistrates’ Court Act 1980. The mechanism he used to admit the report was s30 Criminal Justice Act 1988.
At trial, the Defendant dropped all issues regarding the police station procedure and made an application to vary the pre-trial ruling on the SFR1 on the basis that there had been a material change in circumstances (s8B(3) MCA 1980).
It was stated that the change in circumstances was the report of alleged manipulation of data at the Randox Testing Service Laboratory. The Defence argued that the “Randox Scandal” was a stark example of why SFR1s are not suitable to be relied upon as evidence, where the accuracy and reliability of the analysis results were positively disputed.
The Magistrates said they could not go behind the ruling of the District Judge and highlighted that Mr Hunt’s case did not involve a sample tested by a Randox facility.
The SFR1 was read at trial and the Officer in the Case gave evidence. A submission of no case to answer was unsuccessful. Mr Hunt did not give evidence and was convicted on both charges.
Mr Hunt invited the Magistrates to state the case for the opinion of the High Court which they did, asking whether they erred in law by admitting the SFR1 as part of the evidence.
The High Court heard the case on 27 June 2018 before Garnham J and Treacy LJ.
The Court first examined Mr Hunt’s compliance with CPR 19.3. Garnham J stated that in his judgment, Mr Hunt had failed to comply with CPR 19.3(2). He stated the “bland denials” contained in the letters of September and October 2017 did not properly identify the disputed issues relating to the expert’s conclusions.
This failure also amounted to a failure under CPR 3.3(1)(a) and 3.2(2) which included fulfilling the overriding objective by ensuring that evidence, whether disputed or not, is presented in the clearest way.
The Court then considered the admissibility of the SFR1. Garnham J stated that the District Judge had no power to admit the SFR1 as an agreed fact.
Insofar as the District Judge ordered it to stand as evidence, the SFR 1 did not comply with CPR 19 nor with s30.5 of the Criminal Justice Act 1988. Garnham J further stated that he was unable to accept that CPR 3, a case management power, could operate so as to set aside the admissibility of evidence as set out in CPR 19 and S30 CJA 1988.
The Court highlighted that CPR 19.4 sets out in considerable detail the required contents of experts’ reports. The Court highlighted the fact that the SFR1 itself says it does not purport to and does not in fact comply with CPR 19.4. It does not comply with CPR 19 and so is not admissible unless the court directs or the parties agree.
Concluding his judgment on the admissibility of the SFR1, Garnham J stated:
“Section 30.2 provides that an expert report shall be admissible in circumstances where the author of the report does not give evidence only with the leave of the court. Section 30.5 provides that:
“In this section ‘expert report’ means a written report by a person dealing wholly or mainly with matters on which he is (or would if living be) qualified to give expert evidence.”
Here the District Judge gave leave under s.30.2, but the basis of his grant of leave was that the breach of the obligations under Rule 19.3 by the appellant were such that he could treat the SFR1 as an agreed report. I disagree. This was not an expert report within the definition in s.30.5. The SFR1 contained no details of the author’s expertise and the court was unable to judge whether she was suitably qualified. Further a breach of Rule 19.3 does not make a report, which does not comply with Rule 19.4, admissible in evidence. In determining admissibility under s.30 the court is required to have regard to the factors itemised in subsection 3. There is nothing to suggest that the District Judge did have regard to those considerations and, in those circumstances, the District Judge’s decision is vulnerable to challenge.”
Quashing the conviction, the High Court held that the Magistrates had not erred in admitting the SFR1 because they were obliged to do so as a result of the ruling of the District Judge. However, the District Judge erred in making that ruling. The SFR 1 should not have been admitted and without it, the prosecution had no case.
Commentary
The judgment in the Hunt case will come as a welcome relief to those facing drink/drug prosecution by reinforcing the principle that where the Crown want to prove an element of an offence that is outside the remit of a tribunal of fact, they must do so by way of a full, CPR 19 compliant, expert report (an SFR2).