QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|ANDREW WAYNE RICHARDSON||(CLAIMANT)|
|THE DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS A POWER (instructed by The Crown Prosecution Service, Kings House, Kymberley Road, Harrow, Middlesex, HA1 1YH) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The device known as the Intoximeter EC/IR, manufactured by Intoximeters Inc, of St Louis Missouri, composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR-UK5.23."
"A preliminary point was taken on behalf of the Appellant that the proceedings should be further adjourned as the prosecution had failed to provide full disclosure the service history of the Intoximeter device. It was contended on his behalf that modifications to the Intoximeter device had been such that it was no longer in the same condition as it had been when the Secretary of State's approval was given, and the Appellant's defence would be handicapped if fuller information were not available. We refused this application for reasons which are given in paragraph 7 (below)."
"We were of the opinion that
(a) We should refuse the request for an adjournment as the issue of approval of a device was a matter solely for the Secretary of State, and no useful purpose would be served by the disclosure of information calculated to suggest that the device should not continue to enjoy that approval."
That opinion of theirs in relation to the matters to which it referred was undoubtedly as a matter of law correct.
"(a) Were we correct in ruling that the approval of the Intoximeter device could not be challenged in this court, and that the request for an adjournment should therefore be refused?"
"(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.
(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used."
Section 7(4) provides:
"If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine."
"Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence."
"It is likely that there will in practice be a fine line between:
(a) Requiring the police not to obstruct the preparation of a defence, which must be implied in the right recognised in section 24(d) [which is the relevant provision of the Bill Of Rights Act]; and
(b) Imposing on the police a new and affirmative duty to assist in the collection of evidence useful for the defence.
"Omissions to obtain or preserve evidence likely to be material to the defence will fall on one or other side of the line according to a wide variety of factors. Clearly bad faith on the part of the police would point towards obstruction. In other cases the degree and foreseeability of materiality of the lost evidence, and the existence and extent of any practical difficulties in obtaining or preserving that evidence, will often be relevant.
"It is unnecessary in this case to consider whether section 24(d) should be seen as imposing an affirmative duty on the police. There is much more to be said for the view that a more limited interpretation is likely to render the right ineffective in cases such as the present. For what real opportunity does a driver have to obtain his or her own blood test in the evening or night hours. For present purposes it is enough to hold that in the particular circumstances of the this case, although there is no suggestion of bad faith on the constable's part in refusing to arrange the taking of blood, her refusal to do so tipped the case at least into the category of obstruction of the right to prepare a defence and should be recognised as a breach of section 24(d). The case requires no further analysis then this, and we deliberately refrain from any.
"Having reached that conclusion, we are satisfied that the proper remedy to affirm the right is to exclude the medical evidence. The result would be that the conviction could not stand."
"Failure may or may not amount to a breach of the right given by section 24(d). For the reasons set out in the foregoing judgment, it is our view that, for the reasons there stated, the refusal in this case to consider and accept the appellant's request to arrange for the taking of a blood sample did constitute a breach of section 24(d)."