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
		10th October 2006

1. MR JUSTICE BEAN: On the afternoon of Sunday 2nd October 2005, Police Constable Voss of the South Wales Constabulary was on mobile patrol in uniform in a marked police car when he saw a vehicle which the respondent, Miss Karamouzis, accepts she was driving. The vehicle was being driven erratically and swerving from side to side. It was travelling at 20-25 miles per hour. PC Voss stopped the vehicle, having had reasonable grounds to suspect that an offence was being committed. In the vehicle was the respondent, alone. She was in the driver's seat and had no trousers on. There was a strong smell of alcohol and she seemed upset and had slurred speech. The officer asked Miss Karamouzis to get dressed and, due to her manner of dress, shut the door and called for another unit, requesting that they bring a breath testing device and a female officer.
2. On obtaining the breath testing device, PC Voss asked her to provide a breath specimen at the roadside. She performed the test after two attempts. She was cautioned by the officer upon a reading the device being 111 micrograms of alcohol in 100 millilitres of breath. That is, in round figures, about three times the prescribed limit.
3. As a result of this procedure, Miss Karamouzis was arrested after caution and taken to the police station. When she was cautioned she replied "I've had a bottle of wine. I don't need this". At the police station another officer, PC Davis, asked her to provide sufficient breath specimens for the station breath test procedure to be carried out. She failed to provide any specimen and was then charged with the offence of failing to do so without reasonable excuse. She gave no evidence at her trial. Nevertheless, she was acquitted. On the face of it, this seems surprising.
4. Section 6 of the Road Traffic Act 1988 provides for preliminary breath tests, generally known as screening tests, to be carried out at the roadside. If the breath test is positive, the police constable may arrest the suspect and take him or her to a police station. This is on the basis of the officer having reasonable cause to believe that the proportion of alcohol in the suspect's breath or blood exceeds the prescribed limit.
5. Section 7 of the 1988 Act headed "Provision of Specimens for Analysis" provides for such specimens to be either breath, blood or urine. In the case of breath tests, these only comply with section 7(1)(a) if they are carried out on a device of a type approved by the Secretary of State. Until July 2005, tests under section 7 could only be carried out at a police station, but section 154(5) of the Serious Organised Crime and Police Act 2005 amends that to allow breath tests under section 7 to be carried out at the roadside. However, by subsection (2D) of section 7, where a roadside breath test on an approved device has been carried out, a requirement to take a further breath test at the police station may only be made if a device or reliable device of the type mentioned in section 7(1)(a) was not available; or it was, for any other reason, not practicable to use it at the roadside; or the constable who carried out the roadside test has reasonable cause to believe that the device used there has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned.
6. There are thus two quite different types of roadside breath test: (a) the section 6 preliminary test which, if positive, may lead to the arrest of the suspect and his or her being taken to a police station for a section 7 test; (b) alternatively, since July 2005, a section 7 roadside test on an approved device. This has the advantage that if it is carried out and there is no reason to believe the reading was unreliable, there is no need, and arguably no power, to take the suspect to the police station for further tests. There may, of course, be cases where some other offence is in play justifying arrest, but that is not the position here.
7. In the present case, the Justices acquitted because they accepted a defence submission that they could not be sure that the roadside test was not a section 7 test. The only witness giving evidence of what happened at the roadside was PC Voss. In paragraph 6 of the case stated the Justices say this:

"The device was a Lion Intoximeter mobile device with a digital read out of the 'new type'. PC Voss stated that the digital read out was 'not accurate as a roadside test but it gives a digital reading'. He further stated that for a roadside test 'the device' gave a reliable indication."

8. As Mr Willmott, who has appeared for the respondent in this court (but did not appear below) rightly and realistically accepts, when PC Voss gave that evidence it was the duty of the solicitor advocate representing the defendant to put her case in cross-examination. He could, for example, have suggested to the officer that the device used at the roadside was an approved device, or, in plainer terms, that the test carried out at the roadside was a section 7 test. He did not do so. Some relatively inconsequential questions were asked of PC Voss. After the evidence of PC Davis as to what happened at the police station had been given, the prosecution closed their case and it appears that at that time, if not at the conclusion of his own evidence, PC Voss was allowed to leave.
9. A submission of no case to answer was made and rejected. The Justices allowed a request by the prosecution to be allowed to recall PC Voss to give further evidence. Since unfortunately he had left, the case was adjourned to another day. Still more unfortunately, at the resumed hearing it turned out that PC Voss was absent on sick leave. The Justices refused an application by the prosecution for a further adjournment and then, as I have previously related, the defendant gave no evidence. Defence closing submissions were made and the Justices dismissed the charge.
10. The case stated has gone through a number of drafts and versions. The earlier of two versions actually signed and submitted by the Justices, dated 21st March, concludes with this question:

"Were we right to acquit the respondent on the basis that the conditions specified in section 7(2D) of the Road Traffic Act 1988 (as inserted by section 154 Serious Organised Crime and Police Act 2005) had not been complied with when the test in issue was one under section 6 of the Road Traffic Act 1988?

The Justices concede that they were in error in applying the section 7 Road Traffic Act 1988 conditions to the preliminary breath test required under section 6 Road Traffic Act 1988."

However, after some criticism by Collins J and further representations by the parties, the Justices amended the case stated so that the question which is before us, dated 5th June 2006, reads as follows:

"Where a police officer gave evidence that a sample of breath provided on a digital breath test device was 'a reliable indication for a roadside test', were the prosecution required to call evidence to prove that the machine was not authorised to provide the evidential specimen required for section 7 Road Traffic Act 1988, thereby entitling the officer to arrest the defendant and make a statutory request for an evidential breath specimen at the police station?"

11. As Mr Willmott has submitted, on a very literal reading the question is to be answered "No" and takes the matter no further. In a sense, the prosecution were not required to call evidence at all. But on a fair reading of the question, what the Justices are obviously asking is: were the prosecution, in order to obtain a conviction on the facts set out in the case stated, required to call evidence to prove that the machine was not authorised to provide the evidential specimen required for the section 7 procedure to apply? We do not consider that it is necessary to exercise the powers of this court under section 28A(2) of the Supreme Court Act 1981 to make a formal amendment to the case stated in its later form.
12. Reading the question posed in the way I have suggested, in my judgment the answer is still a clear "No". The question which the Justices had to decide, once the point had been taken, was whether the roadside breath test had been a section 6 preliminary test, or a section 7 approved device test pursuant to the 2005 legislation. In my view, on the facts set out in the case stated, including in particular the answers given by PC Voss, the only possible answer was that it had been a section 6 preliminary test. This is both because of the answer given by PC Voss that the digital read out was not accurate as a roadside test, and also because the whole point of the section 7 test is to make it unnecessary for the defendant to be taken to the police station.
13. The Justices should have asked themselves (on the point that was raised in closing submissions without it being put to the witness) why on earth should or would PC Voss have bothered to take the respondent to the police station under arrest when he had, if the defence submission is right, all the evidence required by the Act? In fact, we have been told that no approval has been given to any device for the purposes of the new section 7 as inserted by section 154 of the 2005 Act. Even without that information, my reading of the case stated is that the Justices could only reasonably have found that this was a section 6 preliminary test.
14. That being so, they should, at the conclusion of the case, have convicted the defendant. I, for my part, would, having answered the question in the case stated in the negative, remit the case to the Justices with a direction to convict.
15. LORD JUSTICE MAURICE KAY: I entirely agree. The order will therefore recite the answering of the question in the negative. The appeal is allowed but the case is remitted to the Vale of Glamorgan Justices with a direction to convict, and thereafter sentence as appropriate. Thank you both very much.
16. MR WILLMOTT: My Lord, I have an application for costs. However, I am not able to put a figure, I am afraid, before your Lordship. I know my learned friend has difficulties. His client is not present and he does not have information about the means or present position.
17. LORD JUSTICE MAURICE KAY: Is she in receipt of a representation order?
18. MR TWOMLOW: My Lord, yes. I have managed to ascertain over the short adjournment that she is in receipt of benefits. Which benefits and how much, I cannot say.
19. MR WILLMOTT: May I just take instructions. (Pause). Taking all matters into account, including the reason that the matter had to come here, I do not make an application for costs against the respondent.
20. MR TWOMLOW: I am grateful to my learned friend. Might I have an order for Legal Aid taxation?
21. LORD JUSTICE MAURICE KAY: Yes, of course.