QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE ROYCE
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MR S EVERETT (instructed by Messrs Freeman & Co, Rhodesia House, 52 Princess Street, Manchester M16JX) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The officer admitted in cross-examination that he did not change the mouthpiece between the first and second attempt, and he accepted that he should have changed it if the indicator was illuminated in the first test, as it indeed was".
"4. Instruct the Subject
Tell the subject he will have to take in a deep breath, place the mouthpiece in his mouth, seal his mouth around it and blow continuously through the mouthpiece until you tell him to stop.
Tell him to keep his hands down: if he holds unit he may obstruct your view of the lights.
5. Take Breath Sample
The subject must now blow as instructed: strongly enough to bring on 'Flow' and sound continuous beep - and long enough to bring on 'Analysing' and sounds the double beep.
If he does not bring on 'Analysing' he has failed to provide a suitable sample of breath for analysis.
6. Note Alcohol Reading
When 'Analysing' goes off and 'Wait' comes back on, note subject's breath alcohol level. The display clears automatically after a preset time.
The display light readings are to be interpreted as follows: ...
7. Discard mouthpiece
Remove mouthpiece and dispose of properly. Do not reuse, on either the same or different subjects.
8. Switch off, or Wait
If you wish to test another subject straight away, wait for 'Ready' to come back on: then proceed from '3'. If no other subject is to be tested straight away, switch unit off."
"We were satisfied that the failure to change the mouthpiece was more than a mere technicality, and went to the heart of the procedure for dealing with motorists suspected of driving with alcohol above the prescribed limit. We considered that the evidence of the roadside breath test and the subsequent police station procedure would have such an adverse effect on the fairness of proceedings that we ought not to admit it. To find otherwise would result in a conviction arising from a procedure tainted by a fundamental error in its execution. As a result, we had no evidence to consider regarding the alcohol content of the respondent's breath, and we therefore reached a verdict of not guilty."
"If the subject stops blowing before ANALYSING has come on, no sample will have been taken for analysis: this will be indicated by a beep warning. In such a case, depending on the circumstances, the subject may be offered a second attempt, using either the same or a fresh mouthpiece. When WAIT goes off and READY has come back on you may proceed by telling the subject to blow again."
And to the same effect, at paragraph 4.10, the handbook says:
"If the operator decides to allow the subject to repeat the attempt, it is only necessary to wait until READY comes back on; there is no need to change the mouthpiece."
Even if the roadside test was not properly performed, so that the right to arrest arose pursuant to section 6(5) of the Road Traffic Act, that is not a condition precedent to the admission of evidence as to what happened at the police station; that evidence, if admitted, proved the offence charged. As to that, it is necessary, in the submission of the appellant, to look at R v Fox (1985) RTR 337. That was appreciated by the magistrates' court but, in the submission of the appellant, what does not seem to have been appreciated was that the discretion to exclude such evidence, which is granted to the court by section 78 of the 1984 Act, must be exercised judicially, and can only be exercised when the defendant is able to point to something more than an improperly administered roadside test and a wrongful arrest; otherwise the court will be re-instating the position which the House of Lords said in Fox was wrong in law, and indeed which Parliament changed the statute to overcome, because it will be making a correct administration of procedures at the roadside a condition precedent to a conviction under section 5. It may not be necessary to demonstrate bad faith or oppression by the police officers, but simple maladministration of the roadside test will, it is contended, not do. In this case, on any view, there was no more than that.
Mr Everett, on behalf of the respondent, submits that as to improper administration of the test, the officer conceded that the mouthpiece should have been changed and, secondly, it was agreed evidence that the manufacturer's instructions indicated that the mouthpiece should not be reused on either the same or different subjects. Therefore, the justices were entitled to conclude that the test was not properly administered and the suspect was not validly arrested pursuant to section 6 (5). Secondly, as to the exclusion of the evidence as to what happened at the police station pursuant to section 78, he reminds us of the decision in DPP v Carey (1970) AC 1072, decided at a time when a valid arrest was still a condition precedent to a conviction under what is now section 5. In that case, the House of Lords held that failure to comply in full with the manufacturer's instructions in relation to a roadside breath test did not invalidate the test or render the result inadmissible. The case really turned on whether the duty of a police officer to ask a suspect if he had taken alcohol within the last 20 minutes before administering the test was itself a part of the procedure. At page 1096A Lord Diplock said:
"The instructions dealing with the method of assembly of the three parts [of in that case the Alcotest R80] must be complied with strictly for unless this is done the product of the assembly is not a device of a type approved by the Secretary of State."
"... although the police officer has not acted in the bad faith, the justices may still be justified in exercising the discretion under section 78 of the Act of 1984 to exclude evidence. One such case might be where the breath test equipment had been wrongly assembled; another might be when the officer had had no ground for suspecting that the motorist had alcohol in his body."
Of course, what Roch LJ seems to have had in mind was the equipment at the police station, reading the judgment as a whole, not that at the roadside because, after the change in the law, the decision in Fox made any mistake in the assembly of the roadside equipment not a material consideration in relation to a charge under section 5 of the 1988 Act.
"The prosecutor's argument here has to be that on the facts found no justices properly directing themselves could reasonably have decided to exclude this evidence. I am not, for my part, prepared to accept that argument. The justices were entitled to conclude that the substantial breach by the constable of the protection afforded to members of the public by section 6 was denied to the defendant, that as a result the prosecutor obtained evidence which he would not otherwise have obtained, and that as a result the defendant was prejudiced in a significant manner in resisting the charge against him."
The case does seem to turn in the end on the fact that the justices gave no reasons for the exercise of their discretion, and therefore it could not be shown that that exercise of discretion was wrong. In substance, Mr Everett submits that in the present case, for the reasons they did give, the justices were entitled to exercise their power under section 78 as they did.
In my judgment, the justices were mistaken in their reading of the manufacturer's instructions. The fact that they had before them only the instructions and the evidence of the police officer, makes their mistake understandable. But on a careful reading of those instructions, they do not require that the mouthpiece be changed after the suspect's first attempt to provide a sample. No one reading the card carefully and properly, in my judgment, could come to that conclusion and, of course, I accept that I am fortified in that view by what appears in the handbook.
Even if the justices were not mistaken, they patently failed to consider whether the failure to change the mouthpiece could have had any significant effect upon the test result. Mr Everett is prepared to concede as much. If they had considered that question, they would inevitably have concluded that it could not have done so, for the reasons which I have already explained. That is sufficient to dispose of the case. It means that the first question posed by the justices should be answered in the negative, but it is a badly formulated question. It is not a matter of law whether a fresh mouthpiece should be used for each breath test. What the justices were really asking, as both counsel agree, was whether they were entitled to conclude that because no fresh mouthpiece was fitted after the defendant made his first effort to provide a sample, there was a failure to comply with the manufacturer's instructions and, if so, whether it was of such significance as to render the test invalid. To that question, I would, as I have indicated, give the answer "no".
However, I do propose to go on to consider the use of section 78, and I start by repeating the warning most recently given by Roch LJ in Kay. At page 122, he said:
"In approaching an application on behalf of a defendant to exclude evidence of the taking of a specimen under section 7 of the Act of 1988, justices must be aware that Parliament altered the form of the original Act of 1972 deliberately to remove, as a precondition for the valid taking of a specimen at a police station or hospital, the taking of a roadside breath test correct in every detail. If the police officers at the roadside and at the police station or hospital are conducting in good faith a genuine inquiry into whether an offence under section 3A, 4 or 5 of the Act of 1988 has been committed, justices should be slow to exclude evidence of the taking of the specimen of breath, blood or urine because of a technical shortcoming in the procedure carried out at the roadside. The justices must weigh the defect in the roadside procedure and consider its effect on the evidence of the police officer who has taken the specimen of breath, blood or urine by following the correct procedures at the police station or hospital. It is only if the admission of the second police officer's evidence in the light of what had gone wrong at the roadside would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it that the second officer's evidence may be excluded. The justices must have in mind, when weighing the failure to follow the correct procedure at the roadside and its effect on the fairness of the proceedings, that Parliament enacted the provisions in the Act of 1988 in their present form precisely to avoid motorists who were over the permitted limit escaping responsibility on technicalities."