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
		13 June 2006

1. MR JUSTICE MITTING: On 7 August 2003, after dark, the appellant was stopped by a police officer while driving his motor car without lights in Tudor Close, Wembley. The police officer smelt alcohol on his breath and required him to take a breath test, which he failed. He was arrested and taken to Kilburn Police Station, where two specimens of breath were provided on an Intoximeter EC/IR device. Analysis of both samples showed that the proportion of alcohol in his breath exceeded the prescribed limit.
2. The manufacturer's instructions for the use of the device include the following sentence:

"As a precaution all radio sets and mobile telephones in the room where the evidential breath testing instrument is in use should be switched off."

3. On the facts found by the Crown Court, the operator of the device probably had his mobile telephone with him and, if he had, it would have been switched on. The appellant submitted that, because the mobile telephone may have been switched on, the test was not performed in accordance with the manufacturer's instructions and therefore was not a valid breast test for the purposes of section 15(2) of the Road Traffic Offences Act 1988 and section 5 of the Road Traffic Act 1988.
4. He was convicted by the Brent Magistrates' Court and on appeal by Mr Recorder Mitchell QC and two justices at Harrow Crown Court. The reason given by the Crown Court for rejecting his appeal against conviction is succinctly stated in paragraph 6 and 8 of the case:

"6. It was submitted by the respondent that there was no evidence that the result of the analysis was inaccurate. This is accepted by the court, following evidence from an expert ...

8. We dismissed the appeal. Our reason for doing so was because of the expert evidence to which we have referred in paragraph 6."

5. The question posed for this court is:

"Did the court err in law in holding that there had been a valid breath analysis when the Intoximeter operator testified that he probably had his mobile telephone with him during the carrying out of the analysis and if it had been with him it would have been switched on?"

6. In this court, Mr Ley advances what is, to my mind, the remarkable proposition that, although there was no evidence to show that the result of the analysis was incorrect, nevertheless the conviction must be quashed. The ground for his argument has changed in the course of submission, at least as I have understood it, but is set out succinctly and bluntly in paragraph 8 of his skeleton argument, which reads:

"8. No evidence was adduced about how often mobiles would interfere with a breathalyser but there must clearly have been a real possibility of it happening, hence the manufacturers' instructions. It is for the DPP to show that it could never interfere with the result but all he could show was that on this particular occasion there was no evidence of the results being inaccurate. That is not the same as saying that radio waves could never cause any inaccuracy."

7. That argument it seems to me is indistinguishable from the proposition of law that in the early days of breathalysers was held to be axiomatic, but which was dismissed as fallacious by the House of Lords in DPP v Carey [1970] AC 1072. Lord Diplock noted that Melford Stevenson J in the instant case had said:

"In my view, the words 'carried out by means of a device of a type approved for the purpose of such a test' involve by necessary implication the observance of the instructions which are printed as an integral part of the device issued for the purpose of taking the breath test."

8. Lord Diplock observed that:

"If it were correct that the instructions were an integral part of the device, it would no doubt follow that the breath test was not carried out by means of a device of the type approved by the Secretary of State and Scott v Baker would be in point. But, in my view, Melford Stevenson J's statement involves a misconstruction of the Act."

9. Mr Ley's argument was developed to encompass other aspects of the decision in DPP v Carey, and in particular the proposition that by reason of the fact that the operator knew all of the relevant circumstances, and objectively that those circumstances included a potential breach of the manufacturer's instructions, so the breath test was not administered for the purposes of the Act. In relation to that submission in DPP v Carey, Lord Diplock observed:

"The requirements of the Act are satisfied provided first, that the device used is of a type approved by the Secretary of State, and, secondly, that the test is conducted and its results are evaluated bona fide by the constable carrying out the test. He must accordingly comply with any instructions for the use of the device which to his knowledge in the circumstances in which the breath test is carried out need to be observed in order that the device may give a reliable indication whether or not the proportion of alcohol in the blood of the person to whom the test is administered exceeds the prescribed limit. If he does not, the test carried out by him is not a 'breath test' within the meaning of the Act because it is not carried out for the defined purpose. But provided that he acts bona fide in the conduct of the test and in the evaluation of its result, it matters not that it may subsequently be proved at the trial that the person to whom the test was administered that through inadvertence or ignorance of some relevant circumstances the instructions were not fully complied with."

10. There is no suggestion in this case that the officer acted in any way other than bona fide; or that, objectively, the breath tests he administered were administered for the purposes of the Act. The question is, upon a true analysis, as the Crown Court realised, simply a question of proof. The answer is provided by applying the observations of the House of Lords, in particular of Lord Griffiths in Cracknell v Willis [1988] RTR 1, at page 19C-D:

"In the case of a breath specimen, there is of course a presumption that the machine is reliable. But if that presumption is challenged by relevant evidence, the magistrates will have to be satisfied that the machine has provided a reading upon which they can rely before making the assumption."

11. The Crown Court was satisfied that the device with which it was concerned provided a reading upon which it could rely for the reasons set out in paragraph 8 of the case. Having so found, it was right -- and indeed, in my view, bound -- to reject the appeal to it against conviction. The only evidence which the Crown Court had was that there was no evidence that the operation of the device was impaired by the possibility that the operator's mobile telephone was switched on and was with him.
12. This appeal should, in my view, mark the end of arguments before Magistrates' Courts and Crown Courts that, merely because a mobile telephone or police radio was -- still less, may have been -- present and switched on, so the result of the analysis of the samples of breath produced by the intoximeter EC/IR device should not be admitted and/or should be found unreliable. Evidence is required at least to raise the realistic possibility that the device on the occasion with which the court is concerned may have malfunctioned and produced a false reading. Assertions based merely on an alleged failure to comply with manufacturer's recommendations do not amount to such evidence. They do not amount to such evidence not least because there is no common understanding, of which a court could take notice, of the impact upon the operation of such a device of a radio wave transmitted by a mobile telephone or short wave police radio.
13. For those reasons, in my view, this appeal discloses no ground of appeal and the answer to the stated question is no.
14. LORD JUSTICE MAURICE KAY: I entirely agree.
15. MR LEY: My Lord, in view of your judgment, I do not propose to pursue the next case. My Lord, I would seek leave to withdraw it.
16. LORD JUSTICE MAURICE KAY: You want leave to withdraw it?
17. MR LEY: Yes, in view of what your Lordship says, it is doomed to failure.
18. LORD JUSTICE MAURICE KAY: I think that is realistic. So we will simply dismiss it upon your withdrawing it.
19. MR LEY: My Lord, I never thought I would ever agree with a pronouncement of Melford Stevenson J.
20. LORD JUSTICE MAURICE KAY: Very well. Nothing else?
21. MR LEY: No, my Lord.
22. LORD JUSTICE MAURICE KAY: Thank you very much.