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
		20 June 2006

1. MR JUSTICE MITTING: Shortly after midnight on 22 August 2000, the appellant was stopped by police officers in Spencer Road, Mitcham. He admitted that he had been drinking. The police smelt alcohol on his breath and administered a roadside breath test which proved positive. He was lawfully arrested at 0.45am and taken to Wimbledon Police Station. There he provided two specimens of breath on an intoximeter EC/IR device, the lower reading of which was 90 milligrams per 100 millilitres of breath. The procedure was correctly performed.
2. The appellant was tried by District Judge Snow at Wimbledon Magistrates' Court on 12 and 13 October 2004. He gave evidence, which the district judge disbelieved, that he had only drunk three to five cans of Carling lager between 7.45pm and midnight on 21 August 2000. He was convicted of an offence contrary to section 5(1)(a) of the Road Traffic Act 1988 and sentenced to a fine and disqualification. He appeals to this court by way of case stated. We have heard the appeal today on 20 June 2006, just under five years and ten months after his arrest. The recitation of those dates shows that something has gone seriously wrong with the administration of justice in this case. The fact that there were no fewer than 44 court hearings reinforces the point. Save in wholly exceptional circumstances or where a defendant absconds, no case before the magistrates should take over four years from arrest to trial, or involve anything like so many appearances. Indeed, no case should take five years and ten months from arrest to appeal to this court. Although the period between trial and appeal is not directly in issue in this appeal, it is to be noted that a little over eight months of that time is attributable to the delay on the part of the appellant and his representatives in lodging an appeal. The case was finally stated on 4 April 2005. The appeal was not actually lodged until 29 December 2005. That delay is symptomatic of that which occurred earlier in the proceedings.
3. I refer to an abridged chronology of the 44 appearances before the court and of what transpired within them. I believe that the abridged chronology that I propose to set out gives sufficient of the picture for a judgment to be made upon its causes and consequences.
4. On 23 August 2000, the defendant made his first appearance in court. The CPS were to provide statements by 30 August. On 6 September, he entered a not guilty plea. From 4 October 2000 until 16 January 2001, the case was adjourned on five occasions so that the experts could examine the intoximeter device upon which breath specimens were provided. By 19 February 2001, the defence expert had examined the intoximeter device. It was ordered that his report be served on the CPS by 26 February. Between 5 March 2001 and 20 July 2001, there appears to have been muddles over the attendance of experts at court.
5. There is, on 11 June 2001, referred to in the witness statement of the solicitor, lodged for the purpose of this appeal, the assertion that a defence case statement was served. The Crown deny having had such a document. It has not surfaced. If it did exist, its contents are unknown.
6. On 9 November 2001, the case was adjourned to await High Court decisions in other cases, which it was thought might have some bearing on this case. On 5 March 2002, the case was adjourned for trial on 1 October 2002. Both sides were ordered to file legal submissions by 2 September 2002. Later applications to adjourn the case were refused. On 20 September 2002, the CPS was ordered to serve the service history of the intoximeter device on the defence. There is a dispute of fact which it is impossible for us to resolve as to whether or not that was ever done. Certainly, it was not done immediately.
7. On 1 October 2002, the defendant applied to adjourn. The issue was now said to be whether changes to the intoximeter device took it out of the type approval given to it by the Secretary of State. The defence said that no secondary disclosure had occurred on this issue because it had not been previously raised in a defence case statement. An order for the service of the defence case statement by 8 October 2002 was made. Secondary disclosure (if no defence case statement had been served by then, prematurely) was ordered by 19 November 2002. The trial was fixed for 13 February 2003.
8. On 14 November 2002, a defence case statement was served on the CPS and the court. It raised five issues:

(1) The accuracy of the analysis of specimens of breath was said to be disputed because (a) the device could not detect and distinguish mouth breath from lung breath; and (b) the EC/IR gave higher readings than other approved devices.

(2) The EC/IR 3526 (the device on which these specimens were provided) was not an approved device due to changes in its software.

(3) The EC/IR was made by Alcotech, not by Intoximeter Inc and was therefore not an approved device.

(4) The Secretary of State acted irrationally in failing to withdraw type approval.

(5) The Secretary of State had acted irrationally in approving the intoximeter device.

9. On 21 January 2003, the trial previously fixed for 13 February 2003 was vacated. On 19 February 2003, the CPS was ordered to provide details of modifications to the device by 18 March 2003. On 18 March and 16 April 2003, further orders were made that those details be provided by 14 May. The defence was to give notice that it was seeking secondary disclosure of such documents as had not been disclosed by that date.
10. On 8 July 2003, on the defendant's application under section 8 of the Criminal Procedure and Investigations Act 1996, the CPS were ordered to disclose:

"Mr Rudram's undisclosed documents [I understand that to be a reference to documents in the possession of the former Home Office scientist concerned with type approval of the intoximeter device], the complete engineer's service history and F11s."

All of those documents were to be disclosed by 11 November 2003.

11. Mrs Needham has explained to us that which would have been well-known to the district judge, but which was at least not known to me, that the F11s are records in the possession of Intoximeter Inc which Intoximeter Inc are apparently willing to summarise but not to supply in full for reasons of commercial confidentiality. Mrs Needham asserts that, those documents apart, all of the documents which were there referred to, in particular the engineer's service history, were in fact disclosed some time after 8 July 2003. That remains, as I have already indicated, an issue that is contentious. Mr Ley asserts that he at least never saw such a service history.
12. The trial was fixed for 23 and 24 February 2004. On 5 December 2003, disclosure of the documents to which I have already referred was again ordered by 22 December 2003. On 23 February 2004, the trial did not proceed. The prosecution contended, having by then instructed specialist counsel, and contended for the first time, that the orders for secondary disclosure, at least in relation to the F11s, should not have been made because the documents were not in the possession of the prosecution. The magistrates directed that the prosecution were to decide whether or not to issue a witness summons to Mr Rudram apparently to deal with these questions by 5 March 2004. On 26 March 2004, the case was adjourned for trial with a time estimate of three days on 12 to 14 October 2004.
13. On 28 September 2004, an amended defence case statement was served. By reference to the numbered issues in the first defence case statement, it abandoned issue (1), the accuracy of the analysis; issue (3), the identity of the manufacturer of the device; issues (4) and (5), the Secretary of State's decisions on type approval. Only issue (2) remained, changes in the software took it out of type approval. An additional ground was added, that the amount that the appellant had had to drink could not have produced a reading of 90 milligrams per 100 millilitres of breath. Thus, by the time the trial occurred, the defence had abandoned all of the defences to which the applications and orders for secondary disclosure had been directed, save for the second, to which the F11 issue remained relevant.
14. The whole exercise, which may not have resulted in the disclosure of a single document, or alternatively did result in the disclosure of all of the documents in the possession of the Crown Prosecution Service, was in the event, as far as I can tell, pointless.
15. On 12 and 13 October 2004, the case was heard by a single professional judge. He sought to cut through the tangled skein which had enwrapped the case and to try it on its merits. He was right to do so. Inevitably, before the hearing proper began, he was faced with an application to stay proceedings as an abuse on the ground of delay. His rejection of that application gives rise to the eighth and final question of those posed by him for the consideration of this court. It is in simple terms:

"Did I err in law in refusing the defence application to stay proceedings for delay?"

16. The district judge reminded himself correctly of the principles laid down by the majority of their Lordships in Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, that proceedings should only be stayed for delay if a fair trial was no longer possible or it would be unfair to try the defendant. Only the first principle was engaged. The case stated does not set out his reasons for rejecting the application in full; it simply records that he declined to find fault with the Magistrates' Court, the Administrative Court (I understand that to be a reference to the cases that were decided whose outcome was awaited) or the prosecution. The finding which he must have made, that a fair trial could be had, was therefore implicit. He may also have found again implicitly that the delay had been caused by the defence. If he did make the latter finding, it would, in my view, have been an incomplete, though correct, finding. It is true that the prosecution and the court appeared to have allowed the case to be stalled by unfounded applications for secondary disclosure made ostensibly to support unmeritorious technical defences which were, in the end, mostly rightly abandoned. But the remedy lay in their hands.
17. The statutory regime was contained in section 7 and 8 of the Criminal Procedure and Investigations Act 1996, which at the relevant time read as follows:

"7(1) This section applies where the accused gives a defence statement under section 5 or 6.

(2) The prosecutor must-

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under section 5 or 6, or

(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).

(3) For the purposes of this section prosecution material is material-

(a) which is in the prosecutor's possession and came into his possession in connection with the case for the prosecution against the accused, or

(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.

...

8(1) This section applies where the accused gives a defence statement under section 5 or 6 and the prosecutor complies with section 7 or purports to comply with it or fails to comply with it.

(2) If the accused has at any time reasonable cause to believe that-

(a) there is prosecution material which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under section 5 or 6, and

(b) the material has not been disclosed to the accused,

the accused may apply to the court for an order requiring the prosecutor to disclose such material to the accused.

(3) For the purposes of this section prosecution material is material-

(a) which is in the prosecutor's possession and came into his possession in connection with the case for the prosecution against the accused.

(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused, or

(c) which falls within subsection (4).

(4) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused."

18. The material of which secondary disclosure was sought by the defence, which remained outstanding when the order of 8 July was made, was, we are told by Mrs Needham, never within the possession of the prosecution at any material time. Nor was it material which the prosecution could insist was given to it by a third party. If that be right, then this material was not material which the prosecution could ever have been required to disclose by way of secondary disclosure.
19. Further, some of the orders supposedly for disclosure made by the lay magistrates appear to have been for disclosure not of documents but of information. Again, such information can never properly be the subject of an order for secondary disclosure under sections 7 and 8.
20. The prosecution should have drawn the provisions of sections 7 and 8 to the attention of the court well before 23 February 2004. The orders made on 18 March 2003, in part on 8 July 2003, on 15 December 2003 and on 23 February 2004 should accordingly not have been made. In the event, the court invited the prosecution to consider whether or not to seek a witness summons against the scientist, Mr Rudram. The prosecution were under no obligation to do so and in the end decided not to do so. The defence, if truly interested in this question, could have done so. If, contrary to the impression given by the defence conduct of the case which I have described, they were truly interested in the evidence rather than in an opportunity to complain about its absence, one would have expected to see a witness summons applied for and justified before the district judge.
21. We are told by Mr Ley that no application could be made to him because he was not sitting at Wimbledon Magistrates' Court in the interval. I for my part do not accept that that was an insuperable barrier to obtaining an order of the Magistrates' Court necessary, if the defence thought it was, for the proper conduct of the defence. The fact that it was not made speaks volumes about the true reason for making the majority of these applications.
22. The district judge was unquestionably right, in my opinion, to refuse to stay the proceedings. The issues raised in the amended defence case statement did not turn to any extent on the reliability of the memory of any witness including the appellant, but on his truthfulness and upon technical evidence, to the extent that it was led, as to type approval and perhaps the functioning of the intoximeter EC/IR device. There was no challenge to any of the police evidence as to the administering of the three breath tests, or any other aspect of the procedure. If there was a defence, it was not affected by the passage of time.
23. Applying the principles laid down in the Attorney General's Reference (No 2 of 2001), the district judge was bound to refuse to stay proceedings. Any other decision would, in my opinion, have been irrational. The answer to question (8) is therefore, no.
24. I turn now to questions (1) and (2), which read:

"(1) Did I err in law in holding that a defendant is only entitled to secondary disclosure of unused material if a defence statement had been served on the prosecution within 14 days of the service on him of primary disclosure by the respondent?

(2) As a matter of law was I entitled of my own motion to set aside an order of a bench of justices because I considered their order to have been made in excess of their jurisdiction?"

25. The first question was considered by this court in the Director of Public Prosecutions v Wood and McGillicuddy [2006] EWHC 32 (QB), in which at paragraph 24, Ouseley J observed:

"I reject Mr McGuiness' submission, which he made in the end rather tentatively having drawn s11 to our attention, that the defence statement was not a defence statement given 'under' s5 or s6 because it was given late. That submission is at odds with the language of s11 which describes a defence statement as given 'under' s5 or s6 even when given late. It can still be used to damage a defence case. The concept of a statement given 'under' s5 or s6 must be the same for the purpose of applying s8. I find it also difficult to see that the late provision of such a statement could deprive a DJ of jurisdiction to hear a s8 application, in the light of R v Sekhon and Others [2002] EWCA Crim 2954, [2003 1 WLR 1655 and R v Soneji [2005] UKHL 49, [2005] 3 WLR 303."

26. I agree with Ouseley J's analysis, in particular with his observation that the district judge's ruling does not sit with the approach which must now be adopted to rules of procedure in criminal cases, to ask whether it was the intention of Parliament that an act done in breach of such a rule should be invalid (see R v Soneji [2006] 1 AC 340. It cannot have been Parliament's intention that a defendant should lose the right to disclosure of material, or to apply to the court for disclosure of material in the possession of the prosecution which might reasonably assist his case, by delay, even for a short period, in serving his defence case statement. My answer to question (1) is, therefore, yes.
27. It is unnecessary to answer question (2). The defence did not receive the secondary disclosure which they sought. The consequences are provided for in section 10(2) and (3), which provides.

"(2) Subject to subsection (3), the failure to act during the period concerned does not on its own constitute grounds for staying the proceedings for abuse of process.

(3) Subsection (2) does not prevent the failure constituting such grounds if it involves such delay by the prosecutor that the accused is denied a fair trial."

28. No application to stay under section 10(3) was in fact made. The issue was therefore irrelevant to the outcome of the case and is so to that of the appeal. That statement is one which in the context of a case which has generated many applications may appear surprising, but Mr Ley tells us that, in the light of the district judge's decision on his power, he declined to make the application to the district judge to stay proceedings under section 10(3) and confined himself to an application to stay on general grounds. I for my part find such reticence on the part of Mr Ley surprising. It has certainly deprived this court of the district judge's view of what his reasons may have been for refusing such an application, as well as his decision upon the matter. Be that as it may, the issue is not in fact live in this appeal.
29. Questions (3) and (4) are as follows:

"(3) Was I entitled to find that the Intoximeter EC/IR machine number 3526 at Wimbledon Police Station was of a type approved by the Secretary of State in accordance with section 7 of the Road Traffic Act 1988?

(4) Was there any evidence on which a reasonable Bench properly directing themselves could have held that the breathalyser used in this case had the approved software and approved gas delivery system, and was I required to consider this issue in the absence of any evidence called by either party on this subject?"

30. The answer to question (3) is, yes. The device on which the two evidential breath tests were administered was of a type approved by the Secretary of State under section 7(1)(a) of the Road Traffic Act 1988 by "the Breath Analysis Devices (No 2) Approval Order 1998". There was no evidence to the contrary. The district judge's finding was the only one open to him.
31. Question (4) raises two questions:

(1) Was the district judge entitled to conclude that the device had the approved software and delivery system?

(2) Was he required to consider the issue in the absence of evidence called by either side on the point?

The answer to the first part of question (4) is, yes, and to the second part, no. The district judge was entitled to assume that the device had installed within it the software and gas delivery system of the type it contained when it was approved by the Secretary of State: see the court's acceptance of the respondent's submission to that effect in Skinner v DPP [2004] EWHC 2914 (Admin) at paragraph 32.

32. Question (5) is next, which reads:

"Did the Breath Analysis Devices (No 2) Approval Order of 1998 constitute expert evidence for the purpose of the Magistrates' Court (Advance Notice of Expert Evidence) rules?"

33. It is common ground that the order is not expert evidence; it is a public document, proved under section 2 of the Documentary Evidence Act 1868, without the need for proof of the Minister of State's signature: see section 1 of the Evidence Act 1845. The answer to question (5) is, therefore, no.
34. Question (6), which depends upon an affirmative answer to question (5), does not therefore arise.
35. Question (7) reads:

"(7) Did I err in law in holding that the Road Traffic Offenders Act 1998 section 15(2) did not compel the respondent to adduce the result in figures of the breath analysis carried out at the roadside by a Lion Alcometer device?"

36. Both sides made the following admissions for the purposes of the case:

"(1) The Lion Alcometer SL400 series samples the breath specimen provided and stores the analytical result in digital form in its memory.

(2) The memory of the Lion Alcometer SL400 machine is capable of storing a number of results not exceeding 150 in its memory.

(3) When in operational use the machine is ordinarily set in 'ignore' mode. In this mode once memory capacity is reached, subsequent results overwrite earlier results in a chronological sequence beginning with the oldest.

(4) Police are able to download results from the Lion Alcometer memory in indicative mode (pass/warn/fail). Police are unable to access any further information relating to the reading.

(5) Only an authorised Lion Laboratories employee is able to download the digital results held in the memory of Lion Alcometer SL400 machine, using appropriate software tools."

37. Mr Ley submitted that section 15(2) of the Road Traffic Offenders Act 1988 required the prosecution to obtain and produce in evidence the analysis which had been stored in the memory of the Lion Alcometer by which the roadside test had been administered. The relevant statutory provision in the form in which it was at the relevant time is section 15(2) (in the form amended by the Road Traffic Act 1991), which reads:

"(2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, including cases where the specimen was not provided in connection with the alleged offence, be taken into account, and subject to sub-section (3) below it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen."

38. Free of authority, I would hold that the evidence of the proportion of alcohol in a specimen there referred to meant, and meant no more than, evidence actually placed before the court by either party. If no evidence was adduced of the proportion of alcohol in a specimen, there is no requirement for a court to take it into account. Thus, though evidence of the proportion of alcohol in a specimen of breath provided in a roadside breath test still in the memory of the Lion Alcometer device is admissible in evidence if it is retrieved, if it is not there is no evidence to take into account.
39. Mr Ley submits that the reasoning of this court in Badkin v Director of Public Prosecutions [1988] RTR 401 compels a different conclusion. I disagree. In that case, the court was concerned with an evidential blood sample, lawfully obtained after a police officer concluded that the device by which the evidential breath tests had been administered was not reliable. Failure to analyse and call evidence of the results of the analysis "vitiated the prosecution case".
40. I understand and accept that conclusion on the unusual facts of that case. But nothing in the judgment of Glidewell LJ leads to the conclusion that in every case the prosecution must obtain from the manufacturers an analysis of the proportion of alcohol in the specimen provided in the roadside breath test and put that result in evidence. That conclusion, I believe at least tentatively, is reinforced by the current wording of section 6 and 7 of the Road Traffic Act 1988 (as amended by the Railways and Transport Safety Act 2003), which refers respectively to "preliminary tests" at the roadside, and "specimens of breath for analysis" in the police station or hospital. Only the latter need be put in evidence. Accordingly, I answer the seventh question, no.
41. Those are the answers that I would give to the questions posed by the district judge in the case. But before I depart from it, I wish to add some general observations.
42. The history of this case, which can properly be described as scandalous, illustrates what happens when the process of the court is used not to achieve a fair trial of real issues within a reasonable time, but in the hope that something will turn up, and if not, the proceedings may be so delayed that no trial can occur. The response of the prosecution and of the justices on the facts which I have recited can, even if perhaps harshly, be described as lame. It is to be hoped that if such tactics are adopted by the defence in future cases a more robust response will occur.
43. In my view, this court should do nothing to encourage the abuse of the court's procedures as manifest in this case. Such events should not occur. If they do, it is, in my view, the duty of the prosecution, and the court attempting to deal with them, to deal with them robustly and within a short compass of time.
44. LORD JUSTICE MAURICE KAY: I entirely agree with the judgment of My Lord, and would answer the questions in precisely the way he has indicated. I shall add a few words of my own simply to underline the lamentable history of this case.
45. It has to be recalled that the first appearance in the Magistrates' Court was on 23 August 2000, the day after the offence was committed and the appellant was charged. That was the first of the 44 hearings, which culminated in the two-day trial on 12 and 13 October 2004. In the course of the many pre-trial hearings, it is apparent that the appellant, assisted or encouraged by his legal advisers, considered a number of defences, including what I may refer to as the unreliable machine defence, the type approval defence and the mouth alcohol defence. Expert witnesses were instructed and probably re-instructed. The potential of all those defences was at all times, to say the least, entirely speculative. We do not know what the costs of this matter in the Magistrates' Court were, but in view of the 44 appearances, the involvement of solicitors, counsel and the instruction of experts, they must have been huge. On any basis they were wholly disproportionate to the shifting sands of the issues in the case. I say "issues", but in truth few of the considerations ever achieved that status.
46. It turns out that the appellant was publicly funded in the Magistrates' Court, as he has been here. Mr Ley says that the test for public funding in Magistrates' Courts for cases such as this is now far harder to come by. I am not surprised about that. It is not before time, and this case illustrates the reason why.
47. I am not saying that all the many things that have gone wrong are matters for which the appellant and his advisers must take the exclusive blame. The prosecution's approach to the case over a period of time was neither effective nor efficient. The case was allowed to descend into farce in the Magistrates' Court. Now that the Criminal Procedure Rules 2005 are in force, it is to be hoped that Magistrates' Courts will never again countenance the conduct of criminal litigation in the indulgent manner which prevailed in this case between 2000 and April 2004.
48. It follows from what we have said, the questions having been answered as we have answered them, that the appeal must be dismissed.