QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE JACK
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MR J CAUDLE (instructed by CPS Essex, Chelmsford) appeared on behalf of the DEFENDANT, Wednesday 22nd January 2002
Crown Copyright ©
LORD JUSTICE CLARKE:
The case stated
Question 1: Was there evidence upon which the Court could conclude that the defendant was lawfully required to provide a specimen of breath?
"(A) On 10th April 2001 at about 2320 the appellant was followed and then stopped by PC Lucas on the A12 near Chelmsford.
(B) Shortly before he got on to the A12 the appellant had been to the Plough & Sail public house on the A130 south of Chelmsford.
(C) The appellant says that he had had 2-3 pints of Guinness in the hour before he left the public house. We do not believe his evidence on that point and we find that he had had more to drink than he says. We so find both because of his general demeanour before us and because we draw that inference from his conduct as set out subsequently.
(D) After following the appellant for about 4 miles, PC Lucas stopped him.
(E) PC Lucas had reasonable cause to suspect that the appellant had committed a moving traffic offence by exceeding the speed limit.
(F) PC Lucas required the appellant to give a specimen of breath. The appellant said that he had had a drink within the preceding 5 minutes (which was clearly untrue) and that the officer needed to wait 20 minutes from his last drink before requiring him to give a specimen. He said he knew his rights.
(G) The officer again required a specimen. The appellant said that he was not refusing to give one. However he did not give one. The officer then arrested the appellant for failing to give a specimen."
"10. We conclude without hesitation that the officer, faced with a motorist who was clearly telling at least one lie and who was making it clear that he would take any point he could, acted both reasonably and bona fide in requiring the test. Put another way, in the context of this particular case the officer had no reasonable cause to suspect the consumption of alcohol within the preceding 20 minutes.
11. In those circumstances the request for a breath test was valid and the appellant was properly arrested."
"1. The manufacturers' instructions say that a breath test should not be administered within 20 minutes of the last drink.
2. In DPP v Carey Viscount Dilhorne said (p1084H) that if a police officer has reason to suppose the suspect has consumed alcohol within the last 20 minutes, he must wait until 20 minutes has elapsed after the last drink before administering the breath test. If he does not know and has no reason to suppose such consumption, he need not wait the 20 minutes.
3. Here the Appellant left a public house shortly before joining the A12. PC Lucas followed him for 4 miles. When required to take a breath test the appellant said that he had finished his drink within the preceding 5 minutes - which the court found was untrue. The court found that if an officer had been faced with a motorist who clearly lied and who was taking any point, then the policeman had acted reasonably and had no cause to suspect alcohol consumption within the last 20 minutes.
4. The appellant told PC Lucas that he had drank alcohol 5 minutes ago. PC Lucas still said he must take the breath test forthwith. What the appellant did after that is irrelevant. The requirement for an immediate test had been made. The officer never said why he had not accepted the defendant's account of when his last drink was.
5. The Case sets out no evidence on which the officer could have had reasonable grounds for disbelieving the appellant's account of when his last drink was...
6. Thus there is no evidence on which the court could have held that PC Lucas could have suspected he had been lied to by the Appellant...
7. ... No reason was given by PC Lucas (a) why he did not ask the Appellant when his last drink was before requiring an immediate breath test and (b) why he did not wait a further 15 minutes before requiring a breath test, when the appellant told him the answer to the question he never asked about when the appellant had finished drinking.
8. It was Wednesbury unreasonable for the Court to have held that PC Lucas had good reason not to wait before administering the breath test. PC Lucas gave no reason and it is not the task of the criminal court to make one up. Also the court failed to consider if there was any significance in (1) PC Lucas not giving any justification when the last drink was and (2) why prosecuting counsel did not ask PC Lucas why he did not wait 15 minutes in view of what the appellant had told him. The only logical answer to (2) must be that the prosecutor knew the answer to the be unfavourable to his case."
"(1) Where a constable in uniform has reasonable cause to suspect -
(a) that a person driving or attempting to drive or in charge of a motor vehicle on a road or other public place has alcohol in his body or has committed a traffic offence whilst the vehicle was in motion ...
he may, subject to section 9 of this Act, require him to provide a specimen of breath for a breath test."
No-one suggests that section 9 of the Act is relevant.
"(1) The manufacturer's instructions supplied with the Alcotest test formed no part of the device as approved by the Home Secretary.
(2) The only manufacturer's instructions which necessarily had to be complied with were those as to the assembly of the device.
(3) Provided there was a bona fide use of the device by the constable subsequent proof of failure to comply with the other instructions would not invalidate the breath test, and in particular:
(a) As to the instructions relating to recent consumption of alcohol, i.e. 20 minutes should elapse between consumption of alcohol and the test: if the constable had no knowledge of or reasonable cause to suspect the consumption of alcohol within 20 minutes preceding the test (if he had he should wait) or recent smoking it was a valid test even if the motorist had consumed alcohol within 20 minutes of the test. Moreover a police officer had no duty to inquire when a motorist last consumed alcohol.
(b) As to the instructions relating to inflating the bag ...
(4) (Per Lord Diplock) the only relevance of non-compliance with any of the instructions for the use of the Alcotest (other than those relating to its assembly) was that it might be evidence from which the mala fides of the constable could be inferred."
"We conclude without hesitation that the officer, faced with a motorist who was clearly telling at least one lie and who was making it clear that he would take any point he could, acted both reasonably and bona fide in requiring the test. Put another way, in the context of this particular case the officer had no reasonable cause to suspect the consumption of alcohol within the preceding 20 minutes."
Mr Ley, properly concedes that the court correctly directed themselves in law in that paragraph in the light of the decision of the House of Lords in DPP v Carey.
Question 2: Was the Court correct to follow the guidance given in DPP v Brown and DPP v Texeira  EWHC 931 to the effect that evidence should not be put before the Court as to whether the ECIR instrument should not have received the approval of the Secretary of State and/or that approval should have been revoked and/or that it had been modified?
(1) The initial approval and (2) the revocation of approval
"The device was of a type approved by the Secretary of State under section 7(1)(a) of the Road Traffic Act. 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 (C11) used during type approval procedures does not deprive the device of that approval. In R v Skegness Magistrates' Court ... 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'."
"Magistrates are only concerned with the particular intoximeter device used (for example in Mr Brown's case EC/IR instrument no 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."
"Mr Ley wished to argue that the ECIR instrument used should not have received the approval of the Secretary of State and/or that approval should have been revoked. Following the decision in Brown and Texeira, particularly at para 48(1), he was not permitted by the court to call evidence on that matter. He said that the Divisional Court had acted per incuriam. It seems to us that we must follow the recent Divisional Court decision, but in any event the argument that it was flawed by the reasoning of the House of Lords in Boddington v British Transport Police  AC 143 seems to the court to be misconceived."
"In my judgment only the clear language of a statute could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a by-law or administrative decision where his prosecution is premised on its validity."
Mr Ley submitted and submits that the same principle must apply to a prosecution premised on the validity of an approval of a device such as an intoximeter.
"It is submitted that if it had had regard to that decision, it [that is the court in Brown and Texeira] would have declared itself ready to permit the appellants to rely on the public law challenge to the Secretary of State's purported approval of the device, and had it done so, would have found that the Secretary of State's approval of the device was invalid or unlawful. The same argument must by implication lie to the Scottish case."
"75. What the court effectively was doing in each of those cases was considering comprehensively in the broad legislative context whether it could have been intended by Parliament that the defendants in those cases should be able to challenge the approval of the device in question. In each of the cases the answer was no.
76. I have also given attention in this case, in the broad legislative context, to whether the Crown Court was permitted to rule on the Secretary of State's approval of the device. In my opinion, the answer in the present case should also be no. The reasons for this view are apparent from the passages already cited and are principally as follows:
(a) The point at issue is one of admissibility of the relevant evidence, ie of the intoximeter reading.
(b) The reliability of the reading in a particular case is always open to challenge by admissible evidence and in the event of challenge it is for the prosecution to approve its actual reliability.
(c) In the light of the legislative context when properly analysed, Parliament, in my view, cannot have intended every defendant to have the right to challenge the lawfulness of the Secretary of State's approval of the evidential device.
(d) In any event, in the context of the reliability of the machine and the provisions of the statutory scheme when looked at as a whole, including all the procedural safeguards relating to the possibility of inaccurate readings due to mouth alcohol, the approval of the device cannot be described as irrational.
(e) In the present case, the ability of the device to detect mouth alcohol was wholly irrelevant to the reliability of the evidence it provided against the respondent. Its accuracy in that context was not doubted by any of the experts."
(3) Alteration of the device
"We permitted Mr Ley to ask questions of Dr Trafford designed to show that the devices in question had been modified from the original specification. However, we take the view that even had Dr Trafford's evidence established that there had been such a modification, which in our view it did not, but rather was founded upon some speculation and second hand information, that would not be a matter into which we should enquire, following the analogy of Brown and Texeira: it would not be a matter for this court."
"So in our judgment the weight of authority is now in favour of the conclusion that when the Crown Court sits in an appellate capacity it must give reasons for its decision. The custom has become or ought to have become universal ... of course as Griffiths LJ emphasised in the later Engil Trust case  3 All ER 199, the reasons need not be elaborate but they must show the parties and if need be this court the basis on which the Crown Court has acted."
I do not read paragraph 20 in English v Emery Reimbold as putting the point any differently.