England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		7th October 2003

1. LORD JUSTICE BROOKE: I invite Sullivan J to give the first judgment.
2. MR JUSTICE SULLIVAN: This is an appeal by case stated against a decision of Deputy District Judge Singleton sitting at Liverpool Magistrates' Court on 24th February 2003.
3. On 12th September 2002 the appellant had pleaded not guilty to an information alleging that on 14th July 2002 he had driven a Nissan Micra motorcar, registered number C749 MFR, on Sefton Park Road, Liverpool 17, after consuming so much alcohol that the proportion of it in his breath, namely 43 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit.
4. The information was heard on 24th February 2003 and the deputy district judge found the following facts in paragraphs 2 and 3 of the case stated:

"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."

5. The case stated then records the contentions advanced on behalf of the parties as follows:

"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. The judge expressed his opinion as follows:

"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."

7. The judge posed two questions for this Court to consider. They are as follows:

"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?"

8. I find it convenient to begin with the second question. On behalf of the appellant, Mr Ley relied upon dicta of Watkins LJ in Denneny V Harding. In that case the defendant had not been served with a print out and the prosecution was unable to call the police sergeant who had required the defendant to provide specimens of breath. The prosecution called instead a police constable who had observed the visual display on the device to be 75 microgrammes in the case of the first specimen. Watkins LJ said this at page 356 between letters D to H:

"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."

9. There is a danger in construing dicta in a particular case as though it was a requirement in a statutory instrument. The observations of Watkins LJ have to be considered against the factual background in that case. The police constable who gave evidence was not a trained operator of the device. There was no evidence that he had had any experience of operating it, or that he understood the process of calibration. The evidence was that the only person at the police station who did understand how the device operated was the police sergeant who was not available to give evidence until a late stage in the proceedings. The limited evidence that he was then able to give does not appear to have been accepted by the magistrates.
10. Mr Ley submitted that since PC Fagin did not know the correct calibration limits she was not in a position to say that the machine was correctly calibrated. There are, however, significant differences between the evidence of the police constable in the Denneny case, who had no knowledge of the operation of the machine and just happened to see a figure on its visual display and PC Fagin's evidence in the present case. Save for the fact that she did not know the correct calibration limits of the machine, there is nothing to indicate that there was any other challenge to her knowledge and expertise. There was no challenge to her evidence that she was a trained operator of the Camic Datamaster machine nor to the details that she gave of her training. It was not, for example, suggested that her training had been inadequate. She knew that the machine was self-calibrating. She stated that it was working properly, that it had produced a print out with appropriate readings and that the lowest reading was 43 microgrammes of alcohol in 100 millilitres of blood.
11. The first and last of these points is not disputed: that the machine was, indeed, self-calibrating and that the lowest reading was 43. While the fact that she did not know the correct calibration limits of the machine was certainly capable of casting doubt on the weight to be given to the remaining parts of her evidence, his view was that the machine was working properly, and that the readings on the print out were appropriate. It was a question of fact for the judge to decide whether this lack of knowledge so undermined her evidence that she could not reasonably be described as a trained operator. He was entitled to conclude that it did not. However thorough a training programme may be, not every trainee will necessarily emerge from it word perfect in cross-examination. The fact that there is a gap in the trainee's knowledge does not mean that he or she cannot reasonably be described as a trained operator. Unlike the magistrates in the Denneny case, the judge in the present case did consider the quality of PC Fagin's evidence and the extent to which her lack of knowledge, as revealed in cross-examination, indicated that the machine might not be calibrating correctly. I would, therefore, answer no to the second question posed by the judge. It was not unreasonable for the judge to conclude that PC Fagin was a trained operator. Against this background I turn to the first question.
12. Mr Ley relied upon the decision of the Divisional Court in Mayon V DPP. As the judge pointed out Mayon is distinguishable because in that case there was evidence that when the second specimen of breath was provided the machine registered 'abort'. As Glidewell LJ observed, at page 238J, that meant that either the machine was not functioning properly or that the defendant had not provided a proper specimen. The case stated then recorded that:

"The intoximeter was accidentally unplugged before it could perform its calibration check or produce a printout".

13. In simple terms, there was evidence in that case that there was or might have been a problem with the machine. There was no such evidence in the present case. There was nothing to gainsay PC Fagin's evidence that it was "working properly". Mr Ley accepts that had that been the sum total of her evidence it might have been reasonable to infer that a machine that was "working properly" was correctly calibrating itself. He submits that PC Fagin's answer in cross-examination that she did not know the calibration limits of the machine means that she could not have known whether it had correctly calibrated itself and therefore could not have known whether it was working properly.
14. As I have indicated, when considering the answer to question 2, beyond eliciting the fact that PC Fagin did not know the correct calibration limits of the machine, there was no attempt to challenge her evidence that the machine was working properly, that it had produced a print out and that the readings at least appeared to PC Fagin (accepting that she did not know the calibration limits) to be appropriate and that the lowest reading was 43 microgrammes in 100 millilitres of breath.
15. The appellant had been provided with a copy of the print out. If there was anything in the print out (which was not produced to the judge) to indicate that the machine was not working properly that could, and no doubt would, have been put to PC Fagin in cross-examination. In these circumstances, and each case will turn very much upon its own particular facts, the judge was entitled to conclude:

"That there was no evidence at all which would have raised any doubt about the question as to whether the machine was operating correctly".

16. In his skeleton argument Mr Ley referred to the speech of Lord Goff in Cracknell V Willis (1988)AC 450 at page 470G. Lord Goff there identified certain safeguards for the motorists. The third of which was that the device has a mechanism built into it by which it tests itself. Mr Ley submitted that the prosecution must prove that this has occurred and did not do so in the present case because PC Fagin did not know what the acceptable calibration figures were.
17. Lord Goff said this in relation to the question of safeguards:

"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."

18. Since it is "well known" that the machine tests itself, I do not accept that the prosecution have to prove that this is a characteristic of the machine on each and every occasion. It may be taken that the device does test itself unless there is something to indicate that it might not have done so in the particular circumstances of the case. Pausing there, there was evidence in this case that this machine did test itself, that is to say that it was self calibrating. Although the operator's knowledge was imperfect, her evidence was, nevertheless, that the machine in her view was working properly and nothing was put to her to suggest that her evidence in this respect was or might have been wrong.
19. Mr Ley criticised the judge for expressing the view that the reading produced by the machine (43) was consistent with all the other evidence, which, of course, included the appellant's admission that he had drunk two glasses of wine and the fact that the roadside breath test had been positive.
20. Mr Ley referred in his skeleton argument to the decision of Elias J in Lonergan v DPP (2003) RTR 188. The facts of that case were very different. After a collision the appellant had gone to a public house, remained there drinking for an hour and a half and then walked home. He was not asked to provide a specimen of breath at the police station until over two hours after he had stopped driving. The magistrates relied heavily on their own assessment of what an appropriate reading would have been after the lapse of a period of two hours. Elias J concluded that they could not properly rely upon such an assessment.
21. In saying that the reading provided by the machine in the present case was consistent with all the other evidence, the judge was doing no more, in effect, than ruling out a possible ground for concluding that the machine might not be operating properly. If the only reading available to the court had been inconsistent with the other evidence, that might have raised a doubt about whether the machine was operating correctly; but there was no such inconsistency.
22. For these reasons, I would answer yes to the first question posed by the judge. I would simply add this: a great deal of trouble and expense for both parties, and indeed for this court, would have been saved if the Crown had taken the trouble to produce the print out before the judge. No reason has been given as to why that was not done. In saying this, I should make it plain that Mr Whitehurst, who appeared on behalf of the prosecution before us, did not appear before the judge.
23. LORD JUSTICE BROOKE: I agree. I am adding this short judgment of my own in order to draw attention to certain points of practice which, in my experience, are at present more honoured in the breach than in the observance, not only in this court, but also in the Court of Appeal.
24. This was an appeal by way of case stated from a Magistrates' Court to the High Court. Because it is an appeal relevant practice and procedure are set out in CPR Part 52 and its practice direction. The practice direction in particular sets out the court's requirements in relation to the filing of skeleton arguments and bundles of authorities. Paragraphs 18.1 to 18.6 of the practice direction, which are found in section 2, make special provision for appeals by way of case stated by the Crown Court or the Magistrates' Court and, in particular, paragraph 18.5 makes special provision for the documents to be lodged by the appellant with the appellant's notice.
25. So as far as other requirements are concerned, paragraph 16.2, at the start of section II of the practice direction, states:

"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."

26. It is to section 1 that one has to turn to see the requirements in relation to skeleton arguments and agreed bundles of authority in a case of this kind. So far as the appellant's skeleton argument is concerned, this is governed by paragraph 5.9 of the practice direction. And if the appellant's notice is for some reason not itself accompanied by a skeleton argument paragraph 5.9(2) provides:

"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."

27. In this appeal the notice was filed on 19th May 2003 so that the skeleton argument had to be lodged and served on the respondent at the latest by 2nd June 2003. In the event, it bears the date 18th September 2003, which is just under three weeks ago. If the appellant's solicitors had asked for an order that the time for lodging a skeleton argument should not start to run until a representation order was granted to their client on 10th July 2003, no doubt the court would have made an order accordingly.
28. So far as the respondent's skeleton argument is concerned that is governed by paragraph 7.7 of the practice direction and it provides that:

"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".

29. This casts in extremely sharp relief the difficulties that are caused when the appellant delays serving its skeleton argument and the respondent does nothing to expedite service because the 21 days from 18th September have not yet expired. As it was, Mr Whitehurst faxed his skeleton to the court on 5th October, two days ago. He came under a good deal of criticism from the court during the course of the hearing and it would certainly have been very helpful if we could have had his skeleton considerably earlier, but now that I have had an opportunity to consider the language of the practice direction, it is quite clear that the problem was initially caused by the very late service of the appellant's skeleton.
30. So much for skeleton arguments, and the judges of this court and the Court of Appeal are likely in future to be very much less forbearing in relation to the late service of skeleton arguments. Their lack of forbearance may well lead to disagreeable orders in relation to costs if this is the only way in which discipline can be achieved.
31. I turn now to the bundles of authorities. A bundle of authorities was lodged on behalf of the appellant on 30th September 2003, seven days ago. Mr Whitehurst caused four additional authorities, to which he referred in his skeleton argument, to be faxed to the court this morning. The practice direction in relation to bundles of authorities is largely unknown by most practitioners who are asked about its requirements. It is set out in paragraph 15.11 of the practice direction relating to appeals and it reads:

"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.

32. The judges of the Court of Appeal and the Heads of Division have recently considered the language of this practice direction. They take the view that what is really important is that this agreed bundle should be filed not less than seven days before the hearing. This appears to be a more reasonable time. If an agreed bundle with each side's authorities is not filed at least seven days before the hearing, again the judges of this court and in the Court of Appeal are likely to show very much less forbearance than they have in the past.
33. I draw particular attention to the need to mark in the authorities the passages on which the advocates wish to rely. It is also very helpful if the page number can be mentioned in the skeleton argument, although that is not specified in the practice direction. The reason for this is that the judges wish to be able to pre-read whenever they reasonably can. If they are simply referred to a case which may have 20 or 25 pages in it, it is unlikely that they are going to be enthusiastic about reading all 25 pages in order to run to earth, if they spot it, the principle on which the advocate seeks to rely.
34. I mention all these matters because it is now high time that practice in this respect is tightened up so that unnecessary time is not wasted either by the parties waiting for the other side to file skeleton arguments in accordance with the rules, or by the court in being bombarded at a very late stage, sometimes after it has already done its pre-reading, with the late arrival of skeleton arguments and important authorities.
35. I agree entirely with what Sullivan J has said about the disposal of this appeal and the justices' questions will therefore be answered in the way that he suggests. The appeal is therefore dismissed.