England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		29th November 2004

1. LORD JUSTICE ROSE: The appellant appeals by way of case stated against the decision of District Judge Kathryn Marshall sitting at Staines Magistrates' Court on 2nd February 2004.
2. The appellant was convicted of driving a motor vehicle having consumed excess alcohol contrary to section 5(1) of the Road Traffic Act 1988. She had been stopped on 17th October 2002 by the police while driving a Vauxhall motorcar. A roadside breath test was positive. She was arrested and taken to Staines Police Station, where she provided two specimens of breath for analysis on the Lion Intoximeter EC/IR device 3545. Each of those specimens produced a reading of 72 micrograms per 100 millilitres of breath, the legal limit of course being 35 micrograms.
3. The appellant's case was one of several where the reliability of the intoximeter in use at Staines Police Station was being challenged, and at a pre-trial hearing District Judge Clarke ordered that the appellant's case be joined for trial with those of two other defendants, a Mr Farley and a Mr Sanders.
4. When the matter came before District Judge Marshall, Mr Ley, then, as now, appearing for the appellant, objected to the order made by District Judge Clarke and sought to persuade District Judge Marshall to change the ruling. I comment in parenthesis that the submission made by Mr Ley at that stage invited the court to pursue a course which, in this court, having regard to authorities on which he sought to place reliance, it is apparent could not properly be followed. Be that as it may, District Judge Marshall ruled that the order by District Judge Clarke could not have been intended to mean that the defendants were joined as co-accused. But she interpreted the ruling to mean that, as was procedurally permissible in her view, the three cases should be heard separately but together in order to avoid the repetition of evidence, particularly expert evidence, in relation to a common issue as to the reliability of the intoximeter device. Accordingly, she declined to re-open District Judge Clarke's decision.
5. Thereupon the trial started on 14th July 2003. Evidence was heard over a total of seven days between 14th and 16th July, 17th and 19th November 2003 and on 2nd February 2004. The hearing was completed with submissions on 3rd February 2004, on which date, as I have said, the appellant was convicted and sentenced.
6. The case stated, in paragraph 4, rehearses the District Judge's account of the history in relation to the meaning of District Judge Clarke's ruling as to joint trial. There appears:

"I indicated that in my view the pre-trial order could not have been intended to 'join' these defendants' cases such that they became co-defendants in one trial with all the procedural implications that would follow, as there is nothing in the facts of the offences to connect them. The only common feature is that the same breathalyser machine was used to obtain breath samples. However, in my view it was procedurally permissible to 'hear the cases together' to avoid the same expert evidence having to be repeated and I refused to re-open DJ Clarke's decision and hear the cases separately."

7. The case stated also refers in paragraph 6 to the age of the offences, the fact that witnesses had been warned and were in attendance and the fact that no prejudice would be caused to the defendants. So she decided to proceed to hear the factual evidence from prosecution witnesses and evidence-in-chief from expert witnesses for the Crown, prior to adjourning the matter to await the outcome of proceedings for judicial review which were pending in the High Court in relation to an earlier decision of the Richmond Justices.
8. The case goes on to rehearse that, following the High Court decision, the hearing resumed on 16th November 2003, but had to be further adjourned on 17th November due to the sudden ill-health of Dr Trafford, the expert witness called on behalf of the appellant and Mr Sanders.
9. There then appears the following:

"During the course of Ms Skinner's defence case, application was made to call Professor Makin to give evidence, in addition to Dr Trafford. The written statements served under the Magistrates Courts (Advance Notice of Expert Evidence) Rules 1997 are required to set out the expert evidence to be adduced. Dr Trafford's statement contained a paragraph as follows: 'This statement should be read in conjunction with Professor Makin's statement of 14th November 2002 and relates to defendants currently being tried at Staines Magistrates' Court. I adopt that report and am in complete agreement with his conclusions contained therein'. Dr Trafford having been called to give that evidence, I ruled that it was not in the interests of justice to delay proceedings and incur additional costs by having Professor Makin called simply to repeat the same expert evidence."

10. There also appears in paragraph 9 of the case stated a passage which is pertinent to one of the complaints Mr Ley makes in this court. It is as follows:

"Mr Ley further submitted that by convicting Mr Farley I had indicated acceptance of the prosecution evidence, and therefore, in the interests of justice, I should not continue with the trial against Ms Skinner. I rejected this application as Mr Farley's conviction was based on other considerations. I provided Mr Ley with a copy of my decision in that case (which he had not seen before making his submission) and no further representations were made on this point. I exhibit my decision in the case of Mr Farley as KJM1."

I should add that the District Judge also exhibited to her decision the judgment which she gave on 2nd February 2004 in relation to the appellant.

11. The case goes on to rehearse the procedure which the District Judge adopted, namely that prosecution witnesses of fact were only permitted to be cross-examined on behalf of the defendant whose case their evidence pertained to. Defence witnesses of fact, including defendants, were not permitted to be cross-examined on behalf of other defendants. Mr Rudrum, a witness of fact from the Forensic Science Service, and Dr Munday, an expert witness called on behalf of the Crown (their evidence being called as part of the prosecution case against all three defendants and having been served in advance) were permitted to be cross-examined on behalf of all three defendants. Ms Skinner and Mr Sanders relied upon expert evidence from Dr Trafford. His evidence had been served on the Crown in advance on behalf of both defendants in the form of a statement pursuant to the rules. Mr Farley relied upon expert evidence from Andrew Stephens, whose evidence had been served upon the Crown in advance on behalf of Mr Farley. No evidence in the form of a statement from Andrew Stephens had been served on behalf of Mr Sanders or Ms Skinner. Then paragraph 14 of the case:

"Mr Ley, on behalf of Ms Skinner, sought to cross-examine Mr Stephens. I ruled that Mr Ley was not entitled to 'cross-examine' an expert witness called on behalf of one of the other defendants, in the same way that he was not entitled to cross-examine other prosecution or defence witnesses not relevant to Ms Skinner's case. Had evidence in the form of a statement from Andrew Stephens been served on the Crown in advance of the hearing on behalf of Ms Skinner, Mr Ley would have been entitled to call Mr Stephens as an expert witness. However, in the absence of such a statement, I declined to grant leave under rule 5 Magistrates' Courts (Advance Notice of Expert Evidence) Rules 1997 to allow Mr Ley to adduce expert evidence from Mr Stephens. I indicated that as this witness had only been called on behalf of Mr Farley, I would be confining his evidence to Mr Farley's case and would not take into account any evidence given by Mr Stephens when considering the case against Ms Skinner or Mr Sanders."

12. The District Judge then went on in paragraph 16 of the case to make a series of findings from (a) to (l):

"a) Mary Skinner was driving a Vauxhall motor vehicle on London Road at about 00.10 on 17.10.02.

b) It remained a possibility that she might have had alcohol present in her stomach at the time she provided breath tests.

c) A roadside test was administered, and she provided a positive specimen.

d) The standard breathalyser procedure was gone through on the Intoximeter EC/IR at Staines police station. Ms Skinner indicated that she had not consumed or taken any of the things listed in the MGDDA that might affect the accuracy of the analysis.

e) The Evidential Breath Testing Machine (EBTM) used to analyse Ms Skinner's breath specimens was an intoximeter EC/IR.

f) Ms Skinner provided two specimens for analysis on the EBTM at 01.00 and 01.03, the readings both being 72.

g) The Staines machine does not accurately detect Mouth Alcohol (MA) on each and every occasion when it is present.

h) The machine was serviced at regular intervals. On each occasion the engineer visited the machine was described as fully operational and calibration noted to be OK. On service visits, the engineer issued a certificate stating that the instrument complied fully with the requirements in the Home Office Quality Framework Document (HOQFD).

i) The machine had not been installed anywhere other than Staines Police Station, or returned to the laboratory.

j) No alterations had been made to the machine that would affect the analytical part of the instrument (calibration of the chemical fuel cell).

k) The Infrared (IR) cell had not been changed.

l) The settings under which the Staines machine operated may have been altered."

13. The District Judge then expressed her conclusions. They included these: there was no evidence from a suitably qualified expert with regard to the possibility of mouth alcohol being present through regurgitation or some other means in Ms Skinner's case; Dr Trafford accepted that mouth alcohol was most unlikely to be borne out on the evidence in this particular case. I interpose there the comment that mouth alcohol, although featuring in the first of the questions posed by the case stated, is an aspect which has not been pursued on the hearing of this appeal. The District Judge's conclusions continued that there was no evidence of any alterations or modifications to this particular EBTM which would take it outside the current TA order; that is to say, Type Approval Order. There was no evidence before the court that the machine might be operating with incorrect software. The prosecution had established that the machine was an intoximeter EC/IR, a type approved machine and, in the absence of evidence challenging reliability, were entitled to rely on it as functioning correctly.
14. The case rehearsed the evidence supporting those findings and the rival submissions which had been made before the District Judge.
15. The case concludes with a number of questions for this court. The first, as I have indicated, is no longer relevant:

"2. Was I entitled to conclude, as a matter of law, that in the absence of any admissible evidence to the contrary, the prosecution were entitled to rely on a presumption that the EC/IR, being an approved device, was operating with the correct type approved software in the case?

3. Was I entitled, as a matter of law, to rule that there was a presumption that, in the absence of sufficient evidence to challenge it's reliability, a machine I had found to be an intoximeter EC/IR and an approved device, was operating correctly (including operating with the correct software) at the time the specimens were provided?

4. With regard to the conduct of the trial, was I entitled to

a) Commence the trial knowing that it would have to be adjourned part-heard for over 3 months before its conclusion?

b) Continue with the trial part-heard in November 2003 and again in February 2004, the trial having commenced in July 2003?

c) Interpret a previous decision to 'join' cases together as a direction that they be 'heard together' rather than legally joined where there were no connecting facts relating to the offences and where the only connecting feature was the use of the same breathalyser machine to obtain evidential specimens on different dates?

d) Continue to hear the informations together to avoid the need for similar expert evidence to be repeated in separate trials, albeit that the cases were in fact concluded separately?

e) Refuse to allow cross-examination of an expert witness not called on behalf of Ms Skinner where no advance statement of evidence from that witness in relation to her case had been served on the Crown and where that evidence would not be taken into account in determining her case?

f) Refuse to allow the defendant to call a second expert whose evidence was the same as the expert called on behalf of Ms Skinner and who would not give any new evidence that was materially different from that already given by the previous defence expert witness?

g) Continue with the case against Ms Skinner having concluded the case against Mr Farley?"

16. On behalf of the appellant, Mr Ley, in relation to questions 2 and 3, draws attention to the cross-examination of Dr Munday called by the prosecution, who gave evidence of having tested the intoximeter machine. When he was asked, he could not say what the software was in the machine. Yet, says Mr Ley, in the defence statement the Crown had been put to strict proof in relation to the machine, including specifically its software. He is critical of the District Judge's conclusion that the presumption that the software was approved was not displaced by that cross-examination. He referred to certain passages in the judgment of Lord Bingham in Attorney General's Reference (No 4 of 2002) (2004) 3 WLR 976. At paragraphs 12 and 13 of that opinion Lord Bingham referred to the decision of the European court in Salabiaku and quoted the following passage in paragraph 27 of the Salabiaku judgment:

"As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States."

Lord Bingham goes on: "It also sanctions, but in a qualified way, the application of factual and legal presumptions." Lord Bingham then quoted from paragraph 28 of the judgment in Salabiaku and went on:

"Thus the question in any case must be whether, on the facts, the reasonable limits to which a presumption must be subject have been exceeded."

17. It is Mr Ley's submission that the reasonable limits of the presumption that the software was of an approved version were exceeded by the District Judge in the present case. The only presumption was that the machine was working correctly, and the real question was whether or not the software was version 5.23, as identified in the approval of the device contained in the Breath Analysis Devices (No 2) Approval 1998.
18. Mr Ley accepted that the only evidence to alert the District Judge to the possibility that the software was inappropriate consisted of the cross-examination of Dr Munday, which I have rehearsed.
19. The question, he rightly submits, is whether the District Judge's assumption was within the reasonable limits of the presumption as identified by Lord Bingham.
20. As to the conduct of the trial, to which question 4 and the subsidiary questions are directed, Mr Ley submits that it was Wednesbury unreasonable for the District Judge to start the trial in mid-July, knowing that it would have to be adjourned pending the decision in the Richmond Justices case, which was anticipated in October. Mr Ley submits that it was obvious what difficulties might arise if the case had to be adjourned. But, he said, he "did not complain much" about continuing in November. The illness of Dr Trafford, of course, as Mr Ley rightly accepts, was not anybody's fault and could not have been anticipated. But, Mr Ley submits, as there is no verbatim transcript of proceedings before justices, the fact that there was a considerable period of time elapsing between July and November, and then between November and the following February, meant that the trial could not fairly be conducted. His notes would not necessarily be as comprehensive as those of the District Judge and, as he had taken part in other cases in the intervening period, his recollection of what had happened in this case would be impaired.
21. It is apparent that the District Judge did have a very full note of the proceedings. She could not, as it seems to us, have delivered herself of the judgment that she did or descended to the particulars which she did in the case stated had that not been the case. Mr Ley complains that she did not offer her notes to him; on the other hand, he admits he did not ask for them.
22. As to the continuation of proceedings in February 2004, that, submits Mr Ley, was Wednesbury unreasonable. Had this been a trial with a jury, the judge would have long since aborted the trial.
23. As to question (c), the order for a joint trial by District Judge Clarke meant, in the ordinary way, that all co-defendants could cross-examine each other and each other's witnesses. It is perhaps of some slight significance that, in the course of his response before us, Mr Ley, by reference to the words "joint trial", added "whatever that may mean". He submits that District Judge Marshall was not entitled to construe the order made by District Judge Clarke in the way which she did, namely that the defendants' cases should be heard separately at the same time, but that the expert evidence in relation to the common issue as to the validity of the intoximeter device should be all heard together.
24. Mr Ley drew attention to a number of authorities: R v Acton Youth Court, ex parte DPP (unreported) 10th May 2000, in relation to special measures directions, and R v Bingham Magistrates' Court [1987] Crim LR 771, in the course of which it was said in the Divisional Court that it is not open to a second bench of magistrates to depart from a ruling as to joint trial made by an earlier bench, even if the earlier decision was plainly wrong. Mr Ley submits that there was no jurisdiction in District Judge Marshall to proceed other than by way of a joint trial. That, as I have said, is contrary to the submissions which he made in the court below.
25. In relation to questions 4(d) and (e), Mr Ley submits that there was no power to hear the cases together unless there was a joint trial in the sense of the defendants being regarded and treated as co-accused. He referred to the powers of a justices' clerk under the Justices' Clerks Rules 1999, which, to my mind, do not assist in the resolution of this matter.
26. Mr Ley further submits that the District Judge was quite wrong to refuse him permission to cross-examine the witness called as an expert on behalf of another defendant. He accepted that the allegation against Mr Farley related to the presence of alcohol in his breath rather than in his blood.
27. Mr Ley referred to Young v Flint [1987] RTR 300 in relation to the ability of the defence to call those witnesses which it wishes to call. He submits that he should have been permitted not only to cross-examine the expert called on behalf of the other defendant, but also to have called expert evidence of his own, notwithstanding that no statement of that evidence had been previously served in accordance with the rules.
28. As to question (f), which is closely linked with question (e), Mr Ley referred to Robinson (unreported), 11th October 2004, in relation to the ability of the defence to call witnesses. He submits that there was no discretion in the District Judge to exclude the calling of the expert evidence which he wished to call. He also refers to Morley [1988] QB 601 in support of that proposition.
29. There was, he submitted, no power in the District Judge to prevent Professor Makin from being called on behalf of the appellant, and the failure to permit that evidence to be called gave rise to breaches, among other things, of Articles 3 and 6 of the European Convention on Human Rights.
30. He accepted that the magistrates' court does have powers of case management, but they do not, he says, extend to the power to stop relevant witnesses from giving evidence. Alternatively, if there was a power, it was exercised disproportionately in the present case.
31. As to question 4(g), Mr Ley submits that, having reached the conclusion which she did in relation to Mr Farley, the District Judge placed herself in an impossible position by thereafter continuing to adjudicate on the defendant's case. The same evidence in relation to Mr Farley applied to the appellant and, if the District Judge had accepted that evidence in relation to Farley, she was bound to accept it in relation to the appellant.
32. On behalf of the Director of Public Prosecutions, Mr Bendall submits, in relation to questions 2 and 3, that, there being a presumption that this was the right sort of machine, a matter which is not in dispute, it could be assumed that it contained the right software. Such an assumption is, he submits, within the reasonable limits of assumptions which Lord Bingham indicated are permissible. It would, he submits, be absurd to dismantle the machine to see what was inside it, unless there was some evidence to suggest that the machine might be affected. It would be proper to assume that it contained the correct software. The District Judge, having heard the cross-examination of the prosecution expert by Mr Ley, was entitled to conclude that there was no evidence to suggest that the software might be unreliable or not approved. In that respect, it is perhaps pertinent to point to a passage in the judgment of District Judge Marshall on 2nd February 2004, page 3 of which contains the following:

"The intoximeter machine has embedded in it software which governs its operation. The software version for the EC/IR is specified in the TA order issued on 1.3.98 by the then Secretary of State as version 5.23. There is no direct evidence before the court confirming that the Staines machine is running on version 5.23 ... The defence must meet an evidential burden with regard to raising TA issues analogous to reliability issues. In other words, defence must put some evidence before the court that the machine is not in fact operating with the correct software before the CPS are put to strict proof on this point. To find otherwise would mean that the defence need only assert that the software might not be 5.23 and the CPS would be put to formal proof of the version of software installed in every case."

It will be noted that those comments amplify the conclusions in the case stated which I have earlier rehearsed.

33. As to question 4 and the questions raised as to the conduct of the trial, Mr Bendall submits that it was within the discretion of the judge hearing the case to make the decision which she did to start the proceedings in July ahead of the Divisional Court's decision in the Richmond Justices case in October. She was entitled to have regard to the fact that there were witnesses present at court and to proceed with the case, even if it had to be adjourned. She had a detailed note of the proceedings which she preserved throughout the case. Mr Bendall points out that no suggestion is made on behalf of the appellant that, despite the unusually long period of time over which this seven day hearing took place, the District Judge fell into error as to any of the evidence which she had heard.
34. As to questions (c) and (d), Mr Bendall submits that the District Judge was entitled to interpret District Judge Clarke's earlier ruling in the way which she did. It was for her, as the magistrate conducting the hearing, to assess how the procedure could fairly be adopted when trying three separate cases, which had a common issue in relation to the propriety of the device. Her conclusion that the fairest way was to have the expert evidence called once is, submits Mr Bendall, unimpeachable. In that regard, he relies on paragraphs 11 and 12 of the case stated in relation to the cross-examination of witnesses and expert witnesses, which I rehearsed at an earlier stage in this judgment. It was, Mr Bendall submits, a proper exercise of discretion well within the District Judge's discretion as indicated in Chief Constable of Norfolk v Clayton [1983] 2 AC 473. No unfairness, submits Mr Bendall, resulted from the procedure which was followed. Furthermore, he submits, this court, in the light of the speech of Lord Roskill in Clayton, should be slow to impose rules as to the manner in which a District Judge should exercise his or her discretion. The authorities relied on by Mr Ley in relation to a decision as to joinder by one bench not being reversible by a second bench are not in point because District Judge Marshall was adhering to the earlier decision, albeit interpreting it in the way indicated.
35. So far as the evidence of Mr Stephens is concerned, Mr Bendall submits that it was apparent by the time that he gave evidence in Farley's case that the issues were different. Mr Stephens was saying that it might be that the machine had been set up to give disadvantageous breath readings compared with blood readings and hence, in that case, the materiality of the F11 settings. But, in the appellant's case, the issues were not the same. Accordingly, the District Judge's decision in this respect was unimpeachable.
36. As to question 4(e), the defence were not, Mr Bendall submits, disadvantaged. The case stated, in paragraphs 10 to 14, which I have earlier rehearsed, was a fair, reasonable and appropriate approach as adopted by the District Judge. Young v Flint relied on by Mr Ley was a very different case - the defence there were not allowed to call witnesses - but in the present case there was no disadvantage because, in the light of the expert statements which had been served, the District Judge was entitled to reach the conclusion which she did.
37. Mr Bendall relied upon certain observations by Judge LJ, giving the judgment of the court, in Jisl, Court of Appeal Criminal Division transcript 1st April 2004, EWCA 2004 Crim 696, in particular paragraph 114 in relation to case management:

"The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. Resources are limited. The funding for courts and judges, for prosecuting and the vast majority of defence lawyers is dependent on public money, for which there are many competing demands ... the sensible use of time requires judicial management and control."

Mr Bendall submits that those observations are as apt in relation to trial by justices as they are in relation to trial before a judge and jury at the Crown Court. With that submission I agree. In the light of it, the conclusion in the case stated which I have already rehearsed in paragraph 9 above, explaining why the District Judge did not permit Professor Makin to be called, seems to me to be well-founded.

38. It is also to be noted that there is further amplification of the case to be found in the judgment given by the District Judge in the appellant's case on 2nd February 2004, in particular at page 6, which relates to the software programme 5.23 and the state of the evidence in relation to that, including the absence of any evidence of alterations or modifications which would take it outside the current TA order.
39. In relation to question 4(g), Mr Bendall submits that there was no impropriety in the District Judge considering the case of the appellant, having already dealt with and given judgment in relation to the case of Mr Farley. The findings in relation to Farley did not in any way pre-judge the findings in relation to the appellant. There was no evidence of malfunctioning or wrong software or modifications taking the machine out of TA in the Farley case such as to impinge upon the fairness of the decision in the appellant's case. The only common feature in relation to the machine as between Mr Farley's case and the appellant's was in relation to mouth alcohol, and that, as I said at an earlier stage, is an aspect which has now disappeared from the present case. Mr Bendall also makes the practical point that it is very likely, in cases involving equipment for ascertaining the level of alcohol in the blood or in the breath, that the same experts will give evidence on many occasions. If Mr Ley's submission is right, every case would have to be tried by a different District Judge lest their conclusion in a subsequent case was said to have been tainted by the conclusion which they had reached in an earlier case.
40. I have already indicated in one respect my acceptance of Mr Bendall's submissions. As it seems to me, his submissions are well-founded in all other respects. The conduct of this trial was essentially a matter within the discretion of District Judge Marshall, within the parameter of the direction previously given by District Judge Clarke. She was entitled to interpret that earlier ruling in the way she did and there was no injustice or prejudice resulting to the appellant from the way in which her case was conducted. Furthermore, the conclusion which the District Judge reached as to what could permissibly be assumed in relation to the software within the approved device was correct, in the absence of any evidence at all suggesting that the software was not that which it ought to have been.
41. I pay tribute to the conspicuous care and thoroughness shown by District Judge Marshall, not only in the case which she has stated for consideration by this court, but also in the judgments annexed to the case in relation to the appellant and to Mr Farley, which in some respects, as I have indicated, provide further amplification of the case stated.
42. For my part, therefore, I would dismiss this appeal.
43. MR JUSTICE PITCHFORD: I agree and wish to add only some words of my own as to questions 2 and 3 posed by the District Judge.
44. Mr Ley drew to the court's attention the cautionary remarks of Lord Parker CJ in Scott v Baker [1969] 1 QB 659, in particular at page 672, as to the application of a factual presumption that a device used in the instant case had been approved by the Secretary of State.
45. Here, the device which was approved by means of the Breath Analysis Devices (No 2) Approval 1998 was: "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-UK 5.23".
46. It does not seem to me that the factual situation with which the District Judge was faced compares with that in Scott v Baker. As I see it, the important factual aspects of this case as found by the District Judge include the following:

(1) the machine was in all observable respects compliant with the approval, and it was common ground between the prosecution and the defence that, subject to the question of operating software, it was compliant;

(2) the machine, when supplied, should have had version 5.23 operating software installed since those were the terms of the approval;

(3) the machine had been inspected and calibrated on several occasions, on each occasion the engineer described the EC/IR as fully operational and properly calibrated;

(4) no instance of malfunctioning was noticed and there was no occasion of out of service recorded, in particular it had never been returned to the laboratory for modification; and

(5) as to changes in machine settings which may have taken place, these would not have involved any change to the software programme and had nothing to do with the gas delivery system.

47. In my view, there was available to the District Judge the compelling inference that the machine which tested this appellant's breath was installed with the original and approved software. The District Judge approached the factual issue by deciding that, in the light of the evidence, there was an evidential burden upon the appellant to make good what was otherwise mere assertion. Mr Ley relied in this respect upon evidence given by Dr Munday on behalf of the prosecution in which he said words to the effect that he was aware of a case in which the wrong software may have been installed in another machine. That evidence was supported, as far as I can tell, with no detail, circumstantial or otherwise, upon which the District Judge could have acted in the instant case. It is my view that she was right in deciding that there was no evidence from which she could find that the evidential burden to which I have referred was discharged by the appellant. For the reasons given by my Lord and those to which I have just referred, I too would dismiss the appeal.