England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		12 June 2006

1. MR JUSTICE SILBER: Roger Leong appeals by way of case stated from a decision of the Newcastle and Ogmore Justices sitting at Port Talbot Magistrates' Court on 4 February 2005, convicting him of an offence of driving a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. He was also convicted of another offence with which this appeal is not concerned.
2. The issue for the opinion of the High Court is:

"Were we entitled to rely on the secondary evidence of PC Roberts, where he read out the contents of a print-out (i) without making an exhibit; and (ii) when the appellant objected that it had not been served upon him?"

3. The facts relevant to the determination of this issue as found by the justices were that:

"(a) On 9 April at approximately 02.35 hours at Derwen Road, Bridgend, Mr Leong was driving a motor vehicle registration number P763TBH. As a result of driving through lawfully placed no entry signs, he was followed by the police and brought the vehicle to a stop. He was required by a police officer to provide a breath test and provided a positive test. Mr Leong was then arrested and conveyed to Bridgend Police Station.

(b) At the Police Station Mr Leong was required to provide specimens of breath for analysis, by Police Constable Gareth Roberts, on an Intoxilyser 6000 machine.

PC Roberts was asked by Miss Lambert if he wished to refer to the MG/DDA (Breathalyser Procedure) forms completed by him at the time he conducted the Intoxilyser test with Mr Leong and he confirmed that he did. Miss Calder informed us she had no objection as long as it was on the basis of an aide memoir. The MG/DDA forms were handed to PC Roberts, who referred to them.

(c) PC Roberts explained the procedure to Mr Leong and warned him of the consequences of failing to supply the specimen. The officer operated the machine and Mr Leong supplied two specimens of breath. The machine supplied a print-out containing the calibration and breath test results which satisfied the officer that the machine was working correctly. The resultant print-out containing the calibration tests and breath test results were attached to the MG/DDA forms and read out to us by PC Roberts. This showed both specimens of breath supplied by Mr Leong had a reading of 98. There was no challenge by way of cross-examination by Miss Calder in relation to the content of the MG/DDA forms including the print-out.

(d) No mobile phone, police radio or other similar device was in or near the room at the time of the breath tests.

(e) PC Roberts was an experienced operator of the Intoxilyser machine.

(f) The machine in question was of a type approved by the Secretary of State as from 2 November 1999. Further, the individual machine in question had been serviced on dates either side of Mr Leong's test, ie 4 November 2003 and 5 May 2004, which constituted a period within the specified parameters for service of the machine.

(g) The machine was therefore working correctly at all times.

(h) At no time during his evidence did PC Roberts use any words to the effect that he produced or exhibited the MG/DDA forms, including the attached print-out."

4. Police Constable Roberts gave evidence that he was on duty in the custody suite of Bridgend Police Station where he had dealings with Mr Leong. He recorded details of Mr Leong and he put him on the Intoxilyser 6000 machine. The officer said he completed the forms at the time. The magistrates then go on to say that:

"PC Roberts stated that the print-out produced had four readings, which he read out to us as follows:

The machine first purged itself resulting in a reading of 0. This was the machine clearing itself to make sure no alcohol was present.

The second reading was a simulatory check with a pre-determined amount of alcohol in a gas forced into the machine. The reading should be between 31 and 37 and was in fact 34. The machine further purged itself with a reading of 0.

Mr Leong then produced his first specimen of breath with a reading of 89. This was followed by another purge resulting in a reading of 0. Mr Leong then provided his second breath specimen resulting in a reading of 89.

This was followed by another purge with a reading of 0 and a final simulatory test with a reading of 33.

As far as Police Constable Roberts could see everything was working correctly and Mr Leong provided proper specimens of breath.

He confirmed that he told Mr Leong what would happen if he failed. He read the warning out."

The officer was then cross-examined, but nothing was said in the cross-examination which is relevant to this appeal.

5. Miss Renee Calder, who appeared on behalf of the applicant at the magistrates' hearing, as she does today, did not submit there was no case to answer, but instead, after the claimant had given evidence, she submitted that there was no evidence on which the applicant could be convicted. In essence, her case is that the justices were wrong to regard as admissible what Police Constable Roberts said he had seen on the print-out.
6. The basis of her submission is that for the print-out to have been admissible, it would have had to have been served according to section 16(3)(a) of the Act, but it was not served. Thus she says it was not admissible, with the consequences that the evidence relied upon by the justices was inadmissible. She points out that in the witness box the evidence of the police officer consisted of his reading from a print-out, but he did not give any independent evidence of what was seen on the display. Indeed, she says there was no evidence that he had ever looked at the display. His evidence according to Miss Calder was secondary evidence and he did not ask for leave to adduce secondary evidence or give any explanation. In any case, she contends that the justices did not exercise any discretion to allow secondary evidence.
7. Her case is that reading from a print-out is an attempt to get in by the backdoor a document which was inadmissible evidence.
8. Before commenting on her submissions, it is convenient now to set out the relevant provisions of section 16 of the Road Traffic Offenders Act 1988:

"16(1) Evidence of the proportion of alcohol or a drug in a specimen of breath, blood or urine may, subject to subsections (3) and (4) below and to section 15(5) of this Act, be given by the production of a document or documents purporting to be whichever of the following is appropriate, that is to say—

(a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the accused at the date and time shown in the statement, and

(b) a certificate signed by an authorised analyst as to the proportion of alcohol or any drug found in a specimen of blood or urine identified in the certificate.

(2) Subject to subsections (3) and (4) below, evidence that a specimen of blood was taken from the accused with his consent by a medical practitioner may be given by the production of a document purporting to certify that fact and to be signed by a medical practitioner.

(3) Subject to subsection (4) below—

(a) a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in subsection (1)(a) above is admissible in evidence on behalf of the prosecution in pursuance of this section only if a copy of it either has been handed to the accused when the document was produced or has been served on him not later than seven days before the hearing, and

(b) any other document is so admissible only if a copy of it has been served on the accused not later than seven days before the hearing.

(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed.

...

(6) A copy of a certificate required by this section to be served on the accused or a notice required by this section to be served on the prosecutor may be served personally or sent by registered post or recorded delivery service.

(7) In this section 'authorised analyst' means—

(a) any person possessing the qualifications prescribed by regulations made under section 76 of the [1984 c 30] Food Act 1984 or section 27 of the [1956 c 30] Food and Drugs (Scotland) Act 1956 as qualifying persons for appointment as public analysts under those Acts, and

(b) any other person authorised by the Secretary of State to make analyses for the purposes of this section."

9. In my view, it is important to stress that section 16 does not seek to set out an exhaustive and comprehensive statement of how the prosecution can prove that a defendant had more than the prescribed amount of alcohol in his blood, his breath or his urine. Indeed, in the case of Thom v the Director of Public Prosecutions [1994] RTR 11, Clarke J (as he then was) giving a judgment with which Kennedy LJ agreed, pointed out in respect of section 17(1) that it was permissive and that -

"It provides for one method by which the proportion of alcohol in the specimen of blood may be proved. It does not have either express or implied implication to prevent any other admissible evidence from being relied upon."

There are indeed no provisions which limit the form of admissible evidence which can be adduced relating to the requisite amount of alcohol in the blood, breath or urine of a driver.

10. In support of the approach taken by the justices, Miss Sarah Lambert, who appears today for the prosecution as she did in front of the justices, submits that this matter has been conclusively determined in favour of the respondents by the decision of the Divisional Court in Sneyd v the Director of Public Prosecutions [2006] EWHC 560 (Admin). In that case, the court had to consider submissions that were made by Miss Calder which were that since the print-out had not been produced, there was no admissible evidence of the reading from the intoximeter and that no reliance could be placed on what the police officer saw on the print-out.
11. Richards LJ, in giving the only reasoned judgment (with which David Clarke J agreed), "emphatically dismissed the appeal". He held that there was no need for evidence of the amount of alcohol in the blood to be proved by means of the print-out as it could be given orally by a police officer who saw what was on it. In that case he dismissed the appeal. In the course of his judgment, he said:

"32. For my part I am wholly unpersuaded by Miss Calder's submissions, which seem to me to be contrary to a long run of authority. First, it is well established that evidence both as to the results of the analysis and as to the reliability of the machine can be given either in the form of a written print-out or orally by the officer who carried out the procedure."

12. Richards LJ proceeds then to consider the case of Thom v the Director of Public Prosecutions (to which I have already referred) and Greenaway v the Director of Public Prosecutions [1994] RTR 17. In Greenaway, Buckley J said, in connection with the way in which the prosecution could prove the amount of alcohol in somebody's breath, at page 22A:

"But it is clear that prosecution may also rely on the direct evidence of the officer who administered the breath test at the police station to give the reading based on the observation of the figures on the machine. If he is going to do that, he must give evidence that the machine was working properly and appeared to be reliable at the time. That is a matter of basic common sense which the courts have underlined."

Staughton LJ agreed with that approach. Indeed, as I have already indicated, there was in the present case evidence accepted by the justices that the machine was working properly and appeared to be reliable. It therefore follows that Greenaway is also authority for the proposition that a police officer can give evidence based on what his observations disclosed.

13. Miss Calder submits that the decision in Sneyd was wrong because the court there were admitting hearsay evidence. She relies on a number of cases, such as Denneny v Harding [1986] RTR 350, in which the police officer had read off the screen and that evidence was inadmissible. It is significant that none of the judgments in any of those cases state or even imply that the only way in which the level of blood alcohol can be proved is on the basis of what the officer reads from the result on the visual display. In my view, there is no difference between what is on the visual display and what is seen on the print-out, provided, as was the case here, that the machine was working properly.
14. I agree with Miss Lambert that the correct approach was that set out by Richards LJ at paragraph 38 of Sneyd in which he says.

"In that connection I see no problem of oral evidence of the results shown on the print-out and no difference in principle between that and oral evidence of the results on the screen of the machine. These are just two different ways by which the machine displays its results. The same thing appears on both. In neither case, in my judgment, is oral evidence inadmissible hearsay."

In my respectful view, that is a proper and correct analysis because what Police Constable Roberts was doing in this case was merely saying what he had seen; that is not hearsay evidence. Where, as in the present case, there is evidence that the machine is working properly, there is no reason why the police officer concerned cannot give admissible evidence of what he saw in the print-out. There is no difference between that and what was seen on the screen. So the justices were correct.

15. It is appropriate now to mention that, at the outset of the hearing, Miss Calder asked me to remit this appeal to be heard by the Divisional Court on the basis that I, as a single judge, might be more reluctant to consider a decision of the Divisional Court to be wrong than a Divisional Court. I explained to her that the best course for me to adopt would be to hear the appeal and then at the conclusion of submissions to consider if there was any prospect at all that a Divisional Court would take a different line from that advocated in Sneyd v DPP. I also bore in mind the passages to which she drew my attention from the decision of the Divisional Court in R v Greater Manchester Coroner, ex p Tal [1985] QB 67.
16. Having heard the evidence, I am quite satisfied that no Divisional Court would consider taking a different approach from that adopted by the Divisional Court in Sneyd. So it would appear pointless to remit this case to be considered by the Divisional Court.
17. For the reasons which I have sought to set out, in spite of the comprehensive and sustained submissions of Miss Calder, this application must be, in the words of Richards LJ, "emphatically dismissed". In those circumstances, I answer in the affirmative the question from the justices, which was:

"Were we entitled to rely on the secondary evidence of PC Roberts, where he read out the contents of a print-out (i) without making an exhibit; and (ii) when the appellant objected that it had not been served upon him."

18. Thank you very much.
19. MISS CALDER: My Lord, I mentioned at the outset whether you might consider, whichever way you found, giving whichever party a certificate.
20. MR JUSTICE SILBER: A certificate on the point that it is a matter of general public importance?
21. MISS CALDER: Yes.
22. MR JUSTICE SILBER: That means taking a view on the merits of the case. Certainly my present view is that this case does not reach that threshold. Is there anything you want to say?
23. MISS LAMBERT: No, my Lord.
24. MR JUSTICE SILBER: No, I do not give you the certificate. Are there any further directions to be given?
25. MISS CALDER: Yes, there is one other. That is that the defendant -- you asked before whether the defendant was disqualified. His disqualification is dependent on the outcome of this appeal. I wonder weather (inaudible) you might give 24 hours for them to contact --
26. MR JUSTICE SILBER: So that the suspension is terminated in 24 hours' time?
27. MISS CALDER: Yes.
28. MR JUSTICE SILBER: You cannot object to that, can you?
29. MISS LAMBERT: I can see the sense in that, my Lord.
30. MR JUSTICE SILBER: Is it not the best thing to say for it to take effect on Wednesday the 14 June, because that gives him sufficient time for everything to be dealt with.
31. MISS CALDER: Thank you.
32. MR JUSTICE SILBER: I must express my gratitude to the justices for a very carefully considered decision and a very impressive case stated.