QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SULLIVAN
|KEITH DAVID HAGGIS||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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MR I WHITEHURST (instructed by THE CROWN PROSECUTION SERVICE, MERSEYSIDE) appeared on behalf of the DEFENDANT
Crown Copyright ©
"2(a)At 1.40.a.m on the 14th of July 2002 the Appellant was stopped whilst driving a motor vehicle on Sefton Park Road, Liverpool 17.
(b) The Appellant when asked by Police Constable Fagin stated that he had consumed two glasses of wine.
(c) The Appellant agreed to provide a roadside specimen of breath, which was positive.
(d) The Appellant was then cautioned and arrested and taken to Belle Vale police station.
(e) At Belle Vale police station the Appellant was requested by Police Constable Fagin to provide two specimens of breath for analysis on a Camic Datamaster machine.
(f) The Camic Datamaster machine produced a printout in triplicate that disclosed a lower reading of 43 microgrammes of alcohol in 100 millilitres of breath.
(g) The Appellant signed all three copies of the print out and was provided with a copy for his own use. Although referred to by the witness Police Constable Fagin during the course of her testimony the print out was not produced in evidence before me.
3. The evidence of PC Fagin was that;
(a) She was a trained operator of the Camic Datamaster machine and gave details of that training.
(b) The Camic Datamaster machine tests itself, i.e. is self-calibrating and was working properly and produced a print out with appropriate readings, the lowest being 43 in microgrammes of alcohol in 100 millilitres of breath.
(c) She did not know the correct calibration limits of the machine."
"4. It was contended by the Appellant that;
(a) I could not be satisfied as a matter of fact that Police Constable Fagin was a properly trained operator of the Camic Datamaster machine.
(b) That as Police Constable Fagin did not know the calibration limits of the Camic Datamaster machine, the court could not be satisfied that the machine was operating properly and that its analysis was accurate.
(c) There was no reliable evidence of the amount of alcohol in the Appellant's breath at the time the samples were provided.
5. I was referred to the following cases by the Appellant;
Denneny v Harding (1986) RTR, p.350
Mayon v DPP (1989) RTR p.281"
"6.(a) Police Constable Fagin was properly trained in the operation of the Camic Datamaster device and I could accept her evidence that the machine was operating correctly.
(b) The machine was self-calibrating and was able to produce a print out showing a lower reading above the legal limit.
(c) The reading provided by the machine was entirely consistent with all the other evidence as set out in paragraph 2 hereof.
(d) Although Police Constable Fagin gave evidence that she did not know what the correct calibration levels were for the machine, there was no evidence at all which could have raised any doubt about the question as to whether the machine was operating correctly.
(e) Denneny v Harding could be distinguished because in that case the print out had not been handed to or served on the Defendant. In this case the evidence was that the print out had been served on the Appellant, the Appellant did not challenge the readings and did not challenge the calibration process.
(f) Mayon v DPP was distinguishable because in that case the intoximeter was accidentally unplugged before it could perform its calibration check or produce a print out. In this case a print out was produced by Camic Datamaster.
(g) I therefore found the Appellant guilty of the offence charged."
"In view of the evidence of the Camic Datamaster Operator, Police Constable Fagin, that she did not know what the correct calibration figures were for the machine, could a reasonable bench properly directing themselves have been satisfied on the criminal burden of proof that the machine was operating properly and that its analysis was accurate?
In view of the evidence of Police Constable Fagin that she was a trained Camic Datamaster Operator was it Wednesbury unreasonable for me to hold that she was a trained operator, i.e. a person who understood the process of calibration and recognised that unless the result of that process lies within accepted limits, the machine is not calibrating as it should and is therefore unreliable?"
"It is however an unfortunate feature of this case that, although the justices were right in concluding they could hear what the constable was able to say about his observations on the display panel, they do not seem to have given any thought to the quality of the evidence he was able to provide. We have been told by Mr Gregory the extent of which the police constable felt himself enabled to go. He went no further than to say that he observed on the display unit a reading of 75 microgrammes of alcohol in 100 millilitres of blood. By itself that was no proof whatsoever that the machine was producing reliable evidence of the quantity of alcohol on the defendant's breath at the material time. In order for it to be, it had to be accompanied by evidence of the calibration of the machine both before and after the specimen of breath had been provided by the defendant and of the date and time when the test was taken. The witness also had to be in a position to inform the justices that the figures for calibration which he saw, if he did, on the display panel were within permissible limits and that therefore the device was functioning properly.
A police officer is not in a position to give this evidence unless he is one who has been trained upon the use of this device and its manner of performance. Put another way, he has to be one who understands the calibration process and recognises that unless the result of that process lies within accepted limits the machine is not calibrating as it should and is therefore unreliable."
"The intoximeter was accidentally unplugged before it could perform its calibration check or produce a printout".
"That there was no evidence at all which would have raised any doubt about the question as to whether the machine was operating correctly".
"It must follow that, since section 10(2) [of the RTA 1972 as substituted by the Transport Act 1981] provides equally for evidence relating to specimens of breath, blood or urine, evidence relating to a specimen of breath may likewise be rejected if the court comes to the conclusion that the print-out from the particular machine is unreliable. I have considered carefully whether any distinction can properly be drawn between specimens of breath on the one hand, and specimens of blood or urine on the other, having regard to the many safeguards built into the Act in relation to specimens of breath. These safeguards are as follows. First, specimens of breath have to be analysed by means of a machine. Second, such a machine has to be a device of a type approved by the Secretary of State. Third, as is well known, the relevant approved device has built into it a mechanism by which it tests itself, and prints out the results of such a test on the statement automatically produced by it, each time it analyses a person's specimen of breath."
"Where any of the provisions in this section provide for documents to be filed at the appeal court, these documents are in addition to any documents required under Part 52 or section 1 of this practice direction."
"Where it is impracticable for the appellant's skeleton argument to accompany the appellant's notice it must be lodged and served on all respondents within 14 days of filing the notice."
"Where the skeleton argument is not included within a respondent's notice [as was the case on this appeal] it should be lodged and served no later than 21 days after the respondent receives the appellant's skeleton argument".
"Once the parties have been notified of the date fixed for hearing the appellant's advocate shall file, after consulting his opponent, for the purpose of pre-reading by the court, one bundle containing photocopies of the principal authorities upon which each side will rely at the hearing, with the relevant passages marked. There will in general be no need to include authorities for propositions not in dispute. This bundle should be made available 28 days before the hearing, unless the period of notice of the hearing is less than 28 days in which case the bundle should be filed immediately. Such bundles should not normally contain more than 10 authorities."
Needless to say, the important practice direction on citation of authorities is also relevant in this context.