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Cite as: [2005] EWHC 3535 (Admin)

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		Neutral Citation Number: [2005] EWHC 3535 (Admin)
		CO/5226/05

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

Royal Courts of Justice
Strand
London WC2

14th October 2005

B e f o r e :

LORD JUSTICE KEENE
MR. JUSTICE POOLE
____________________

	WILLIAM SCHEINER	(CLAIMANT)
	-v-
	HARROW CROWN COURT	(DEFENDANT)

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Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr. N. Ley (instructed by Messrs Byrne Frodsham & Co.) appeared on behalf of the CLAIMANT.
Miss J. Whitby (instructed by C.P.S. Harrow) appeared on behalf of the Interested Party.
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HTML VERSION OF JUDGMENT
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MR. JUSTICE POOLE: This is a renewed application for permission to apply for judicial review of a decision of the Harrow Crown Court on 2nd June of this year, refusing to state a case in relation to the dismissal of the applicant's appeal on 23rd March this year against his conviction at the Brent Magistrates' Court on 29th July 2004 for driving with excess alcohol, contrary to section 5(1) of the Road Traffic Act 1988. Two questions are posed: Did the court err in law in holding that there had been a valid breath analysis when the intoximeter operator admitted that he probably had his mobile telephone with him and switched on when carrying out the breath test, which is said to be in breach of the guidelines for operation, and, second, was there any evidence on which a reasonable bench could find that the appellant had been given a warning of prosecution prior to his breath being analysed?

The applicant's arguments are these. First, the defendant can refuse to state a case only if the application is frivolous under the Magistrates' Courts Act 1980, section 111(5); that is to say, if it is futile, misconceived, hopeless or academic, as paraphrased by Lord Bingham in Ex parte Forest Heath District Council [1997] 161 JP 401.

The applicant's first proposed question proceeds from the manufacturers' instructions for the use of the intoximeter EC/IR, which include "as a precaution that mobiles and police radios should be switched off in the immediate vicinity of the police station breathalyser." The custody sergeant testified at trial that he probably had his mobile with him at the material time and it would have been switched on. We have been referred to Webber v Carey [1970] AC 1072, where the court held that all a police officer had to do when administering a breath test was to act bona fide. If he does not follow the manufacturers' instructions, where failure could cause prejudice to the defendant, he was not acting bona fide, and therefore there would be no valid breath analysis. In my judgment, on the facts as I understand them, this does not seem to be an appropriate case for an argument of mala fides.

More pertinently, we have been referred to Attorney General's Reference No 2 of 1974 [1975] RTR 142, when it was held, in the case of a constable who was administering the alco test, acting bona fide but in ignorance of the manufacturers' instructions, that whilst his ignorance might excuse his lack of knowledge of some fact or circumstance concerning the test, it could not excuse his lack of knowledge of the manufacturers' instructions. We note that the Recorder's judgment at paragraph 11 refers to advisory guidance 'that it is not sensible to use a mobile phone" -- we emphasize use a mobile phone -- "in the vicinity of a breath test machine." There is no evidence that the breath test was interfered with by a mobile phone being used. The evidence at its highest is that one or two of the officers might have had mobiles with them which were switched on. At page 7, however, of the transcript of the evidence of the expert witness, Mr Munday, it is clear that the evidence as to the rubric in the instruction booklet was that it read thus: "As a precaution all radio sets and mobiles where evidential breath testing is in use should be switched off." It therefore seems to me that on this first question the applicant is justified in asking the Crown Court to state a case, it being his case that the analysis of breath was invalid by reason of non-compliance with the manufacturers' instructions, albeit the sergeant was ignorant of that instruction, and that his request for a case to be stated cannot be dismissed as frivolous or academic. We make no comment as to the strength of the evidence. It will need to be argued fully.

The second point concerns the prosecution warning or lack of it. The appellant's argument is this. The police officer said in the course of giving evidence as to the warning that he followed the form MG DD/A. This form was not exhibited at trial, but it was not and is not challenged that it includes a warning of prosecution. He did not say in terms that he had given a warning of prosecution. It is argued by Mr Ley, echoing the words contained in his solicitor's formulation, that the prosecution could not have been taken by surprise at that point being taken. It was one of the reasons put forward as to why the video recording of the police station procedure was required by the defence. When it was produced there was no sound audible. The claimant said that he had no recollection of being given a warning of being prosecuted until after his breath was analysed. It is argued that failure to give a warning is fatal to a prosecution and it cannot be frivolous to argue that there was no evidence of a relevant warning. We have considered the argument.

As the single judge observed in refusing permission, provided the sergeant followed the form and there was no challenge or issue raised in the course of the evidence about the warning, the court was entitled to find that it had been given. It is nothing to the point that before the hearing the question of the warning had been raised. I would regard this second argument as academic. I would refuse the second part of this application while granting the first.

LORD JUSTICE KEENE: I agree. The order will be that the Crown Court at Harrow do state a case in respect of the first question, the mobile phone issue. The application for such an order in respect of the warning by the prosecution issue is dismissed.