England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice, Strand, London WC2
		Friday 16 November 2001

MR. JUSTICE CRESSWELL:

1. The Director of Public Prosecutions appeals by way of case stated from the decisions of magistrates in two cases. In both cases the respondent was acquitted of driving a motor vehicle with excess alcohol in his breath, following challenges to readings obtained from the Intoximeter EC/IR.

Mr. Brown's case

2. Mr. Andrew Brown was acquitted by the Waltham Forest Magistrates on 15 May 2001 of an information that he on 24 June 2000, at Stanley Road, London E10 drove a motor car on a road after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit.
3. The magistrates found the following facts:-

At 2.35 a.m. on 24 June 2000, police officers stopped a Volkswagen motor car on Stanley Road, London, E10 in respect of a traffic offence. The driver of the motor vehicle was Mr. Brown. The police officers required the respondent to provide a specimen of breath for a roadside breath test, which indicated that the proportion of alcohol in his breath exceeded the prescribed limit. He was arrested and taken to Edmonton Police Station. Approximately one hour and ten minutes following his arrest, the respondent was required to provide two specimens of breath for analysis by means of an Intoximeter EC/IR, number 01384. The respondent provided the first specimen of breath for analysis at 3.35 a.m. and the second at 3.38 a.m.; the lower proportion of alcohol contained 64 microgrammes of alcohol in 100 millilitres of breath.

4. The device properly carried out self calibration checks before and after the two breath specimens had been analysed.
5. On 9 November 2000, Professor Hugh Makin, Dr. David Trafford and Dr. John Mundy attended at Edmonton Police Station to examine the device. Professor Makin and Dr. Trafford (in the presence of Dr. Mundy) carried out a series of experiments on the device. Dr. Trafford provided two specimens of breath for analysis by means of the device - both of which resulted in a zero reading indicating that he did not have alcohol in his breath. He then filled his mouth with diluted whisky, spat it out and provided a specimen of breath for analysis which gave a result that he had 84 microgrammes of alcohol in 100 millilitres of breath. Dr. Trafford then filled his mouth with diluted whisky again, spat it out and provided a second specimen of breath for analysis which gave a result that he had 96 microgrammes of alcohol in 100 millilitres of breath. In relation to the last two specimens of breath referred to above the device did not show the message "mouth alcohol - unacceptable specimen", did not detect the presence of mouth alcohol and accepted both specimens as if measuring the proportion of deep lung alcohol in the breath. Dr. Trafford then rinsed his mouth out with water and provided two specimens of breath for analysis - both of which resulted in a zero reading indicating that he did not have alcohol in his breath.
6. A fourth experiment performed by Dr. Trafford in which he did not replenish the mouth alcohol between the provision of the first and second specimens of breath resulted in the device showing the message "breath difference" and giving results of 82 microgrammes and 48 microgrammes of alcohol in 100 millilitres of breath respectively.
7. Mouth alcohol is not always detected by the Intoximeter EC/IR breath testing instrument number 01384. When the test is carried out close to when alcohol is introduced into the mouth there is a large difference between the results for the two breath specimens - with the second specimen being lower than the first. If the difference exceeds 15% of the lower result or 5 milligrams (whichever is the greater) the instrument shows the message "breath difference".
8. Finally, Dr. Trafford filled his mouth with diluted whisky, spat it out and provided a specimen of breath for analysis by blowing normally into the same device which gave a result that he had 79 microgrammes of alcohol in 100 millilitres of breath. He then filled his mouth with diluted whisky again, spat it out and provided a second specimen of breath for analysis by the device which gave a result that he had 76 microgrammes of alcohol in 100 millilitres of breath.
9. Dr. Mundy then dosed his mouth with the same diluted whisky and blew strongly into the same device which showed the message "mouth alcohol - unacceptable specimen" and did not provide a result.
10. The tests for mouth alcohol that can be carried out on the Intoximeter EC/IR breath testing instrument are numerous and results may be affected by the sensitivity of the instrument to mouth alcohol, the flow rate into the instrument and the concentration of alcohol in the mouth.
11. On 24 June 2000 the respondent provided two specimens of breath for analysis by means of the device at least 1 hour and 10 minutes after he had ceased to drink - and he would not have had enough alcohol in his stomach after this period to elevate the results on the device.
12. Before the magistrates it was contended by the respondent inter alia that the failure to detect mouth alcohol took the device outside the required specification standard (as set out in paragraph C11 of the Home Office and Forensic Science Service document issued in 1994). The device was not therefore to be treated as a 'device approved by the Secretary of State'. Where an individual device does not comply with type approval standards its use is unlawful and evidence derived from it is inadmissible.
13. The magistrates were of the following opinion.

(1) Each Intoximeter EC/IR breath testing instrument should detect mouth alcohol when it is present in a specimen of breath being provided - and show a message to that effect - and not record a result of breath/alcohol levels.

(2) In this case the device in question, although capable of detecting mouth alcohol, did not do so at all during the initial experiments carried out by Professor Makin and Dr. Trafford on 9 November 2000.

(3) The failure by the device to detect mouth alcohol also occurred in the fourth experiment carried out by Dr. Trafford when he did not replenish diluted whisky in his mouth prior to providing a second specimen of breath - although on this occasion the device showed the message "breath difference" while recording a result of breath/alcohol levels which were substantially different.

(4) All of these experiments led to the conclusion that the particular device could not be relied upon to both detect mouth alcohol and show a message to that effect when it should do so.

(5) In such circumstances the device would go on to record results of breath/alcohol levels as if it has measured the proportion of deep lung alcohol in the breath.

(6) The device self-calibrated to indicate that it was working correctly.

(7) There was no direct evidence presented that the device malfunctioned or was defective on 24 June 2000.

(8) The general presumption of reliability had been rebutted by the evidence of Professor Makin. The device was not meeting required specification standards in relation to the detection of mouth alcohol (as referred to in paragraph C11 of the Home Office and Forensic Science Service document issued in 1994) as opposed to deep lung alcohol and was therefore defective in its material function and unreliable.

14. The magistrates dismissed the information.
15. The question for the opinion of the Court is:

Were the magistrates entitled to find that Intoximeter EC/IR serial number 01384 was defective in its material function and unreliable - and to dismiss the information?

16. Mr. Whittam for the Director of Public Prosecutions submitted as follows. On 24 June 2000 the respondent failed the roadside breath test. The device was properly calibrated. The respondent provided two specimens of breath for analysis at least one hour and ten minutes after he had ceased to drink, and therefore would not have had enough alcohol in his stomach to elevate the results on the device. The respondent did not assert that he had mouth alcohol or alcohol vapour in the dead space of the upper respiratory tract generated from his stomach contents (regurgitation or eructation). There was no evidence that the device was unreliable in any relevant respect.
17. Mr. Gilbert for the respondent submitted as follows. The magistrates were entitled to find that the instrument in question was unreliable. By not meeting the required specification standards in relation to the detection of mouth alcohol, instrument number 01384 did not conform to the standard required for the granting of type approval. In these circumstances it was open to the magistrates to find that device number 01384 was defective in its material function and unreliable. It was open to the magistrates to dismiss the information given that device 01384 had been proved to provide readings which could not be relied on.

Mr. Teixeira's case

18. Mr. Jose Teixeira was acquitted by the Kingston-upon-Thames magistrates on 27 June 2001 of a charge that he on 4 June 2000 drove a Toyota motor car on the A3, Hook Underpass, Chessington, Surrey after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit.
19. The magistrates found the following facts:-

On 4 June Mr. Teixeira was driving along the A3, Hook Underpass in Chessington. He was stopped by police and provided a positive roadside breath test. He was taken to Kingston Police Station. At Kingston Police Station the Drink Drive procedure was commenced at 17.35 hours. The Intoximeter EC/IR device used was number 01828.

20. The first sample was recorded at 17.44 hours and read 159 ug/100ml.

The second sample was recorded at 17.47 and read 146ug/100ml.

21. The magistrates heard evidence from Dr. Mundy, an expert witness called by the prosecution. A number of scientific tests were performed on device 01828 at Kingston Police Station by Dr.Mundy, Dr. Trafford, Professor Makin and Mr. Roger Thorpe on 20 March 2001. Dr.Mundy stated that the EC/IR machine did not detect mouth alcohol in any of the tests when it was clearly present whilst the scientific testing was being carried out. Dr. Mundy expressed his opinion that the device 01828 did not detect mouth alcohol and stated that it was unreliable in the sense it did not detect mouth alcohol. Dr.Mundy's evidence was that in relation to the facts of the respondent's case the machine was reliable.
22. A submission of no case to answer was rejected by the magistrates.
23. The magistrates found the following further facts.

The respondent went to work on Saturday 3 June 2000 at 5 p.m. and finished on Sunday morning at 2 a.m. when he went straight home. The respondent had something to eat and two glasses of white wine when he returned home shortly after 2 a.m. before going to bed. The respondent gave credible evidence that he arrived at his sister-in-law's house in Brixton on 4 June 2000 at midday. The respondent drank three glasses of white wine with his brother-in-law at the house. There was only one bottle of wine in the house. The respondent was not drunk.

24. Mrs. Maria Teixeira gave credible evidence that the respondent drank three glasses of white wine whilst at her sister's house on 4 June 2000 from 12 noon onwards and that he was not drunk.
25. Mr. Jose Dias gave credible evidence that the respondent drank between two and three glasses of white wine whilst at his house on 4 June 2000 from 12 noon onwards, that they shared one bottle of wine, there was only one bottle of wine in the house and that the respondent was not drunk and that the respondent did not appear drunk.
26. The respondent and his family stayed at his sister-in-law's house for between one and a half to two and a half hours and in that time the respondent consumed no more than three glasses of wine.
27. The only evidence regarding the respondent's manner of driving was submitted by the Crown, by way of section 9 statement from Pc Humphrey stating "I signalled to the vehicle to stop and it began to slow down, in doing so, it veered a couple of times, quite sharply between two lanes".
28. The magistrates heard evidence from Dr. Trafford, an expert witness called by the defence. Dr. Trafford stated that the EC/IR machine failed to register mouth alcohol after two experts got consistent results. Dr. Trafford said that he had no confidence in the printout as it could appear to be a perfect printout but it would be impossible to determine if the machine had malfunctioned. Dr. Trafford concluded that in relation to mouth alcohol the machine was totally unreliable, it was doubtful if it would ever detect mouth alcohol. Dr. Trafford said that the alcohol consumed by Mr. Teixeira, at the times it had been consumed (on Mr. Teixeira's evidence) could not have caused a reading as high as that recorded by the device.
29. The magistrates found at the conclusion of the evidence that the prosecution had not proved the case beyond reasonable doubt. After listening to the evidence given by the respondent and respondent's witnesses, (which they accepted on balance) they did not believe the reading of 146 was compatible with the account given of the alcohol drunk by the respondent. After hearing the evidence of two expert witnesses who both showed concerns regarding the quality and reliability of the EC/IR machine and its fundamental function to deal with mouth alcohol levels, they found that the particular device was sufficiently flawed and could not be safely relied upon.
30. The questions for the opinion of the Court are:

1. In all the circumstances, were the magistrates right in law to determine that the breath testing device in the Kingston Police Station was not functioning to the same standard as the device approved by the Home Office and therefore could not be relied upon to provide accurate evidence upon which a conviction could be based?; and

2. Were the magistrates entitled to accept the defence evidence of Mr. and Mrs. Teixeira and that of Mr. Dias as to the level of alcohol consumed and on the basis of decided authority to reject the evidence of the breath specimen reading as incompatible with the defence witnesses?

31. Mr. Whittam for the Director of Public Prosecutions submitted as follows. The device 01828 was a manufactured device made to the specification of the approved device. The tests conducted by Dr. Trafford did no replicate the test in paragraph C11 of Annex C to the Guide to Type Approval Procedures. Therefore there was no evidence to enable the magistrates to conclude that the device was not functioning to the "same standard as the device approved by the Home Office". The device was properly calibrated. Although the device may have been unreliable in that it did not detect mouth alcohol when tested on 20 March 2001, on the facts the device was reliable. The respondent did not assert that he had mouth alcohol or alcohol vapour in the dead space of the upper respiratory tract generated from his stomach contents (regurgitation or eructation). The respondent "veered a couple of times quite sharply between two lanes". The roadside breath test was positive. Although there are circumstance in which magistrates are entitled to accept evidence called on behalf of the defence and to reject the evidence of an intoximeter, they were not entitled to do so in this case for the reasons set out above.
32. Mr. Hadrill for the respondent submitted as follows. As to question 1, the magistrates were entitled on balance to accept the evidence of the defence witnesses. The fact that there was a positive roadside breath test was only of relevance in determining the respondent's veracity. Dr. Trafford confirmed that the alcohol consumed by Mr. Teixeira (on Mr. Teixeira's account) could not have caused a reading as high as that recorded by the device. The magistrates having seen the witnesses, accepted the defence witnesses as credible and were entitled to dismiss the charge. As to question 2, both Dr. Trafford and Dr. Mundy agreed that the device did not detect mouth alcohol. The respondent did not have to raise/assert that he suffered from mouth alcohol. Mouth alcohol was a factor/possibility the magistrates could take into account when making their decision. They found that this particular device was sufficiently flawed and could not be safely relied upon. They were entitled to accept the evidence of Dr. Trafford. The magistrates considered the reliability of the respondent's evidence and that of his witnesses and accepted them as credible. That evidence was supported by the expert evidence from Dr. Trafford in that the printout from the machine could not be relied upon. The statutory presumption of the proportion of alcohol to breath was open to rebuttal upon admissible evidence.
33. In oral argument Mr. Hadrill conceded that it must be assumed that mouth alcohol did not play a part in Mr. Teixeira's case.

Analysis and Conclusions

34. I turn to consider the competing submissions in the two cases and the questions for this Court.
35. If a person drives a motor vehicle on a road, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit, he is guilty of an offence (section 5 of the Road Traffic Act 1988).
36. In the course of an investigation into whether a person has committed an offence under section 5, a constable may require him to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State (section 7(1)(a) of the Road Traffic Act 1988).
37. Of any two specimens of breath provided by a person, that with the lower proportion of alcohol in the breath shall be used (section 8(1) of the Road Traffic Act 1988).
38. In respect of proceedings for an offence under section 5 of the Road Traffic Act 1988 "evidence of the proportion of alcohol... in a specimen of breath... provided by the accused shall, in all cases... be taken into account and, subject to sub-section (3) below it shall be assumed that the proportion of alcohol in the accused's breath... at the time of the alleged offence was not less than in the specimen". (Section 15(2) of the Road Traffic Offenders Act 1988).
39. The Secretary of State, in exercise of the powers conferred upon him by section 7(1)(a) of the Road Traffic 1988 approved as from 1 March 1998, as a means by which specimens of breath may be provided for analysis under section 7, the Intoximeter EC/IR for the use of Police Forces in England and Wales (see The Breath Analysis Devices (No. 2) Approval 1998 dated 25 February 1998).
40. 'A Guide to Type Approval Procedures for Evidential Breath Alcohol Testing Instruments used for Road Traffic Law Enforcement in Great Britain' issued by the Home Office and Forensic Science Service dated October 1994 contains a description of the technical requirements to be met for consideration of type approval for new Evidential Breath Testing Instruments for police use in Great Britain. The document contains details concerning the construction of Evidential Breath Testing Instruments, their operation and the methods for testing prior to submission to the Secretary of State for consideration of type approval. This is a functional requirement for products which may be manufactured by any process. Chapter 2 (Type Approval Procedures) provides at paragraph 2.6 that when the assessments at Annex A and Annex B have been satisfactorily completed and the full report has been issued, the manufacturer shall supply three instruments to the Breath Alcohol Unit, Aldermaston Laboratory, of the Forensic Science Service together with the relevant reports. The assessment made there shall be for the tests involving Response to Alcohol Vapour Samples (Annex C). Annex C contains a Test Scheme for Instrument Response to Alcohol Vapour Samples. This scheme sets out the tests required to assess the performance of an Evidential Breath Testing Instrument in accordance with the recommendations of the organisation Internationale de Metrologie Legale. C11 provides:-

"Effect of the presence of alcohol in the upper respiratory tract. A test shall be carried out which is designed to simulate the effect on the instrument of mouth alcohol or alcohol vapour in the dead-space of the upper respiratory tract generated from stomach contents (regurgitation or eructation). No result shall be recorded and a suitable message shall be given by the instrument. This test should be carried out twice. A breath sample containing mouth alcohol is likely to exhibit an initial rapid rise in ethanol concentration followed by a negative rate of change of ethanol concentration with time."

41. The Quality Framework Document 'Evidential Breath Alcohol Testing Instruments' February 1998 drawn up by the Home Office (Forensic Science Service) defines minimum metrological standards of production, installation, period verification and performance after repair. As to Post Production Testing/Verification, the tests required are set out in paragraphs 4.2.1 to 4.2.9.
42. If there are those who have reason to believe that an intoximeter device is generally unreliable, they are in truth saying that the device should never have received the approval of the Secretary of State, or that the Secretary of State should withdraw approval in respect of the device. Such representations should be addressed to the Secretary of State (R v Skegness Magistrates' Court Ex Parte Cardy (1985) RTR 49 at 61, Robert Goff LJ).
43. The assumption in section 15(2) of the Road Traffic Offenders Act 1988 is not an assumption that the device is working correctly, but an assumption that the proportion of alcohol in the relevant specimen was not less than the proportion of alcohol at the time of the offence. In the case of a breath specimen there is a presumption that the machine is reliable, but if that presumption is challenged by relevant evidence, the magistrates will have to be satisfied that the machine has provided a reading upon which they can rely before making the assumption (Cracknell v Willis [1988] 1AC 450 at 467 C-F, Lord Griffiths).
44. In Cracknell v Willis supra Lord Goff said at 356 L-

"I fear that I do not share the optimism of my noble and learned friend that motorists will desist from seeking to persuade magistrates to reject evidence from printouts as unreliable on the ground that they have drunk so little that the reading cannot be right... I place greater faith in the good sense of magistrates who, with their attention drawn to the safeguards for defendants built into the Act..., will no doubt give proper scrutiny to such defences, and will be fully aware of the strength of the evidence provided by a printout, taken from an approved device, of a specimen of breath provided in accordance with the statutory procedure."

45. The prosecutor has to establish that the defendant's breath-alcohol content exceeded the permitted maximum. The prosecution does not have to establish a specific figure (Gordon v Thorpe (1986) RTR 358, Tudor Evans J).
46. Evidence of the roadside breath test is not directly relevant to the charge of driving with excess alcohol in the breath, but is relevant in deciding whether or not to accept a defendant's evidence as to the amount he/she had drunk. Because it is relevant to the question of the defendant's veracity, it is admissible. Where a defendant challenges the accuracy of an intoximeter by asserting that he/she had drunk only a certain amount, it is open to the prosecution to rebut that by any relevant evidence. The result of the roadside breath test is admissible for that purpose, but in considering the weight to be given to such evidence it should be remembered that the roadside device is not as accurate as an intoximeter (Lafferty v DPP (1995) Crim. LR 429).
47. In Director of Public Prosecutions v Spurrier (2000) RTR 60 Newman J pointed out that having regard to the presumption laid down in the legislation that the device is reliable, the efficient administration of justice requires that the defence should give some notice in advance of trial of the grounds upon which a claim that the device was defective will be advanced.
48. Where the presumption that an intoximeter is reliable is challenged by expert evidence (with or without evidence from the defendant/others as to the amount of alcohol consumed):-

(1) Magistrates are only concerned with the particular intoximeter device used (for example in Mr. Brown's case EC/IR instrument number 01384). It is thus no part of their function to consider whether the intoximeter EC/IR should have received the approval of the Secretary of State.

(2) Magistrates will be fully aware of the strength of the evidence provided by a printout, taken from an approved device, of a specimen of breath. The assumption in section 15(2) of the Road Traffic Offenders Act 1988 is an assumption that the proportion of alcohol in the relevant specimen was not less than the proportion of alcohol at the time of the offence. In the case of a breath specimen there is a presumption of law that the machine is reliable. If that presumption is challenged by relevant evidence the magistrates will have to be satisfied that the machine provided a reading upon which they can rely before making the assumption.

(3) Magistrates will no doubt look with a critical eye (see Lord Griffiths in Cracknell v Willis supra at 468 E) to see whether any tests conducted by expert witnesses correspond with the realities of the case with which they are concerned.

(4) Magistrates should examine carefully whether the presumption that the machine is reliable is challenged by relevant evidence. Thus for example if (a) it is common ground that in the case of a particular defendant there would not have been mouth alcohol or alcohol vapour in the dead-space of the upper respiratory tract (b) the reliability of the particular device is challenged by expert evidence confined to the effect on the instrument of mouth alcohol or alcohol vapour (c) the magistrates are satisfied that the device was otherwise reliable (d) the presumption that the machine is reliable will not have been challenged by relevant evidence. In the above example the challenge to the reliability of the particular device would not be relevant on the facts of the case.

(5) Magistrates should remember that expert evidence relates only to part of the case and that whilst it may be of assistance in reaching a decision, they must reach a decision having considered all the evidence. If the presumption that the machine is reliable is challenged by relevant evidence, magistrates will have to be satisfied that the machine provided a reading upon which they can rely before making the assumption that the proportion of alcohol in the specimen was not less than the proportion of alcohol at the time of the offence. Magistrates must consider all the evidence bearing in mind, where applicable, Lord Goff's observations set out in paragraph 44 above. If after considering all the evidence (the burden of proof being on the prosecution) they are sure that the defendant is guilty, they must find the defendant guilty. If they are not sure, they must find the defendant not guilty.

49. In the light of the above I turn to the questions for the opinion of the Court.
50. As to the question in Mr. Brown's case (Were the magistrates entitled to find that Intoximeter EC/IR serial number 01384 was defective in its material function and unreliable - and to dismiss the information?):-

It should be noted that the magistrates found "on 24 June 2000 the respondent had provided two specimens of breath for analysis...at least one hour and ten minutes after he had ceased to drink - and he would not have had enough alcohol in his stomach after this period to elevate the results on the device." I read this as a finding that on the particular facts Mr. Brown was not subject to mouth alcohol or alcohol vapour in the dead-space of the upper respiratory tract generated from stomach contents. The challenge by the defence to the technical reliability of the particular device was confined to expert evidence as to its ability to detect mouth alcohol or alcohol vapour in the dead-space of the upper respiratory tract. No other technical defect was alleged. It was not suggested that there was any link between the alleged deficiency and any wider technical deficiency. It did not follow that because the device did not meet a specification standard in one respect, it was unreliable on the facts of Mr. Brown's case. The magistrates should have asked themselves at the conclusion of the evidence (i) has the presumption that the device is reliable been challenged by relevant evidence? If no, they would convict. If yes, they should ask themselves (ii) are we satisfied that the device provided a reading upon which we can rely? If yes, they would convict, if no, they would acquit.

Although I am inclined to think, for the reasons set out above, that the magistrates should have concluded that on the facts of Mr. Brown's case that the presumption was not challenged by relevant evidence, I would hear further submissions as to whether there should be a re-hearing.

51. As to the questions for the opinion of the Court in Mr. Teixeira's case (1. In all the circumstances, were the magistrates right in law to determine that the breath testing device in the Kingston Police Station was not functioning to the same standard as the device approved by the Home Office and therefore could not be relied upon to provide accurate evidence upon which a conviction could be based?; and 2. Were the magistrates entitled to accept the defence evidence of Mr. and Mrs. Teixeira and that of Mr. Dias as to the level of alcohol consumed and on the basis of decided authority to reject the evidence of the breath specimen reading as incompatible with the defence witnesses?):-

1. The issue before the magistrates was not whether the particular device was functioning to the same standard as the device approved by the Home Office. Magistrates should not accept submissions to the effect "(a) the device in question did not function in all respects to the same standard as the device approved by the Home Office (b) therefore you should acquit". It does not follow that if a particular device was not functioning to the same standard as the device approved by the Home Office, magistrates should necessarily acquit. The correct approach was as follows. The Intoximeter EC/IR was an

approved device (see paragraph 39 above). There was thus a presumption of law that the device was reliable (see paragraph 43 above). The defence challenged the presumption. No question of mouth alcohol or alcohol vapour arose on the facts of Mr. Teixeira's case. The challenge by the defence to the technical reliability of the particular device was (as in Mr. Brown's case) confined to expert evidence as to its ability to detect mouth alcohol or alcohol vapour in the dead-space of the upper respiratory tract. No other technical defect was alleged. It was not suggested that there was any link between the alleged deficiency and any wider technical deficiency. The magistrates should have asked themselves at the conclusion of all the evidence (including the evidence of the prosecution and defence lay witnesses) are we satisfied that the device provided a reading upon which we can rely? If yes, there would be a conviction; if no, an acquittal.

2. The magistrates' approach (as reflected in question 1) was in error. It does not follow that if a particular device was not functioning to the same standard as the device approved by the Home Office, magistrates should acquit. The lay evidence appears to have been considered on or by reference to this erroneous basis. The correct approach is as set out in answer to question 1 above.

I would direct a re-hearing in Mr. Teixeira's case.

LORD JUSTICE PILL:

52. I agree. It was not open to the Magistrates in either case to find that the failure of the device to comply in one respect with the Home Office standards of itself rendered the device unreliable for present purposes. The device was of a type approved by the Secretary of State under section 7(1)(a) of the Road Traffic Act 1988. The fact that a particular device of an approved type later fails a test which is similar to one of the tests required as part of the test scheme (C 11) used during type approval procedures does not deprive the device of that approval. In R v Skegness Magistrates Court ex p Cardy [1985] RTR 49, Goff LJ, giving the judgment of the Divisional Court stated, at p 61H, that while approval subsisted, it is "wholly immaterial to mount a challenge to the general reliability of these approved devices in individual prosecutions brought under the Act".
53. That being so, it was not possible for the Magistrates to reason, as they did in Brown that because the device was not "meeting required specification standards" (C 11) it was "therefore defective in its material function and unreliable." (My emphasis). Nor could the Magistrates in Teixeira conclude that because the device was not functioning to the same standard as the device approved by the Home Office it "therefore could not be relied upon to provide accurate evidence." (My emphasis).
54. It is however open to the defence to challenge the statutory assumption in section 15(2) of the Road Traffic Offences Act 1988 by relevant evidence about a particular device. In both cases, evidence was called that the device could not be relied on to detect mouth alcohol. In neither case, however, was there evidence of any other defect or evidence which linked that defect with an inability to measure the proportion of deep lung alcohol in the breath. It is common ground, in Brown by virtue of the finding of the Magistrates and in Teixeira by concession inevitably made, that there would not have been mouth alcohol or alcohol vapour in the dead space of the upper respiratory tract when the readings relied on were taken. Thus the defect alleged was not linked with the facts of the case as found. Failure to detect mouth alcohol was not directly relevant, since there was none.
55. In Brown, the Magistrates' 5^th finding, that "the device would go on to record results of breath/alcohol levels as if it had measured the proportion of deep lung alcohol in the breath" did not justify a finding of unreliability in a case where the only alcohol to be measured in the breath was deep lung alcohol. On the evidence, the Magistrates were not entitled to conclude that "the general presumption of reliability had been rebutted by the evidence of Professor Makin." The presumption that the device is reliable had not been challenged by relevant evidence in that, in the absence of mouth alcohol, the defect alleged was not relevant to the facts of the particular case. On the evidence, the presumption in section 15(2) was not displaced in either case by the expert evidence in the manner alleged by the defendant and accepted by the Magistrates.
56. I agree with Cresswell J as to the approach to be adopted by magistrates when asked to consider evidence of the kind called in these cases.

LORD JUSTICE PILL: For the reasons given in the judgments handed down, these appeals are allowed. Are there any applications?PRIVATE 

MR WHITTAM: My Lord, in relation to the case of Brown, I am instructed to apply for a direction for a rehearing and I put my application in this way: the lower reading was one of 64 and it was found as a fact that mouth alcohol had played no part in that case. Although I do - those who instruct me know I am going to make this observation - appreciate that the application was lodged some months out of time and my learned friend did not object to the case being lodged out of time because of the issue of public importance, but I know that that is a matter that he will now raise in relation to any potential order for a rehearing.

LORD JUSTICE PILL: Yes.

MR WHITTAM: I do not think I can add anything further to that.

LORD JUSTICE PILL: Mr Gilbert?

MR GILBERT: My Lord, what has just been said is right. My Lord, we took no issue regarding the very late lodging of the case because there was an issue of public importance to be determined which was, in any event, going to be determined in the case of Teixeira and I hope it is proper for me to invite the court to regard that as a responsible approach by the respondent, Mr Brown.

MR JUSTICE CRESSWELL: How late was the----

MR GILBERT: My Lord, the case was signed on 13th July. It should have been lodged within ten days of its receipt; it was not, in fact, lodged until 26th September. So it is in the order of two months late, for reasons which, as set out in the section 10 notice, are less than compelling. What is cited is "annual leave, shortage of staff and pressure of work". My Lord, it is right to say that this court has an absolute discretion whether or not to remit the case. If the case is remitted, the justices will have no discretion regarding penalty and, my Lord, given the very late lodging of the case, I would invite the court to make no order in relation to remission.

LORD JUSTICE PILL: Yes, thank you. Anything in reply, Mr Whittam?

MR WHITTAM: No, my Lord.

LORD JUSTICE PILL: Before we rule on that, what about Teixeira?

MR WHITTAM: I do not know whether my learned friend has an application in relation to the final line of the judgment at paragraph 51, which is a direction to rehear Mr Teixeira's case. I would invite the court to direct a rehearing in his case.

LORD JUSTICE PILL: Mr Hadrill?

MR HADRILL: My Lord, it is just in regard to what I have as paragraph 51 subparagraph 2, that my Lords have included:

"The lay evidence appears to have been considered on or by reference to this erroneous basis."

It is equivocal, in my submission, the way the questions were put that the magistrates heard and accepted the lay evidence, that in itself, as it were, would have been sufficient without the side wind, the icing on the cake, if I can put it that way.

LORD JUSTICE PILL: Well, you are rearguing the point there. My Lord has put it succinctly, if I may say so. But the point is clear, is it not, that the erroneous basis, because the lay evidence was considered on the basis that the machine was defective.

MR HADRILL: But, my Lord, if it had been argued without the erroneous basis of the mouth alcohol, the magistrates could have come to the same conclusion and having found that those witness----

LORD JUSTICE PILL: They could, certainly; the question is whether they would.

MR HADRILL: And having been credible as witnesses and accepting their evidence on balance.

LORD JUSTICE PILL: Well, you argued the point strenuously at the hearing. We certainly have the point.

MR HADRILL: But I would submit that the case of Teixeira should not be remitted.

LORD JUSTICE PILL: Mr Whittam, anything in reply? Is there unfairness as between - I am not giving an indication, we have not conferred yet - if one is remitted and the other because of delay is not remitted?

MR WHITTAM: There was no delay in Teixeira's case and if your Lordships were to distinguish between the two, given the late service, it is perhaps significant that the lowest reading in Mr Brown's case was 64, but in Mr Teixeira's it was 146 and that would, in my respectful submission, be, should your Lordships wish to distinguish, a reason that could cause a distinction.

LORD JUSTICE PILL: Yes. Thank you. We will retire.

(The Court rose)

LORD JUSTICE PILL: Having heard the submissions of counsel, we do not direct a rehearing in the case of Brown, having regard to the substantial delay by the prosecution in submitting the case. We do direct remission and rehearing in the case of Teixeira.

MR GILBERT: Mr Brown is legally aided for present purposes and I believe I need to ask the court to make a Legal Services costs assessment.

LORD JUSTICE PILL: You have that direction.

MR HADRILL: My Lord, and the same applies in relation to Teixeira. He has the benefit of legal aid.

LORD JUSTICE PILL: Yes, that is granted.