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, WC2A 2LL
		22/08/2007

Mr Justice Nelson :

1. This is an appeal by way of case stated from the decision of Deputy Judge Wicks, sitting at Milton Keynes Magistrates' Court on 23 November 2004, convicting him for an offence of driving a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.

The Facts.

2. On 25 January 2003 the Appellant was found by police at the scene of a road traffic accident with his vehicle on its roof in the middle of the road. No other vehicle was involved. The Appellant admitted that the vehicle was his and stated that he had 'just lost it'. A road side breath test was administered by a police officer using an alcotest SL 400 hand held device. The test proved positive and the Appellant was conveyed to the police station where the substantive breath test procedure was carried out on an EC/IR Intoximeter device. The Appellant provided two specimens of breath, the lower of which produced a reading of 58 mcg alcohol/100 ml breath, the legal limit being 35 mcg.
3. At trial the Appellant contended that there was insufficient evidence to show that the Intoximeter EC/IR device used in this case was an approved device. Reliance was placed upon the fact that the Guide to Type Approval relating to the device provided that the 'gas delivery system shall comprise an automatic change-over valve', whereas the device in question had a manual change-over valve. Additionally, it was contended that the failure by the Crown to adduce evidence of the proportion of alcohol obtained from the road side breath test was fatal to the prosecution case, having regard to Badkin v DPP [1988] RTR 401, and section 15(2) on the Road Traffic Offenders Act 1988. For the Respondent it was contended that the defence advanced by the Appellant amounted to a general challenge to type approval which was impermissible. The machine approved by the Secretary of State, and intended to be approved by him, had a manual change-over valve which, it was agreed, had no effect on its ability to detect breath alcohol. Furthermore, the Respondent contended that it was never Parliament's intention that evidence from the roadside breath test device would be placed before a court. The references in section 11(2) of the Road Traffic Act 1988 and section 15(2) of the Road Traffic Offenders Act 1988 could only refer to specimens taken for analysis. The District Judge rejected the Appellant's submissions and convicted him. He was fined £300, ordered to pay costs of £546 and disqualified from driving for 12 months.

The case stated.

4. The District Judge found that prior to driving the Appellant had consumed alcohol, which he told the police amounted to four pints. After the roadside test had been administered to him in accordance with the prescribed procedure and was positive, the Appellant was arrested and taken to Milton Keynes police station. The correct procedure was followed there, where he provided two specimens of breath on the Lion Intoximeter machine EC/IR number 01620, the lower reading from which recorded 58 micrograms of alcohol per 100 millilitres of breath. The presence of a manual change-over valve, and not an automatic change-over valve, in the Intoximeter machine did not affect its reliability. The Guide to Type Approval referred to the incorporation of a gas delivery system with automatic change-over valve, but the District Judge found that the type of valve which was in existence in all machines at the time of the signing of the Type Approval Order was a manual valve. The machine intended to be approved had a manual valve.
5. The roadside breath testing machine, the SL 400, stores in its memory a reading indicating the alcohol level in figures of each preliminary breath test. The police were not, in January 2004, able to obtain a printout of those figures direct from the roadside breath testing device; at that time this could only have been secured through the police submitting an individual machine to Lion Intoximeters. By the time of the trial, however, the police could obtain the figures direct from the machine themselves by a memory stick.
6. In rejecting the Appellant's argument as to the approval of the device, the District Judge found that the evidence of the Appellant's expert on this issue was speculative, based upon a perusal of documents and did not form a permissible foundation for the challenge to be advanced. It was in reality a non evidentially based argument whereas the only evidence which the District Judge considered he could place reliance upon was from that of the Prosecution expert, Dr Munday, who said that the type of change-over valve installed in the EC/IR machines at the time of the Type of Approval Order was a manual valve, and that this was what the committee responsible for granting such approval had accepted. The District Judge encapsulated his view on the issue of the approval of the device by saying that the formula expressed in the Guide to Type Approval referring to an automatic valve rather than a manual valve was 'descriptive and not prescriptive'. He said he was reinforced in his conclusion by the evidence of both expert witnesses that the reliability of the machine was unaffected by whether the change-over valve was automatic or manual. He therefore rejected the argument that the EC/IR was not an approved device.
7. The District Judge found that section 15(2) of the Road Traffic Offenders Act 1988 did not apply to roadside breath tests, but to the two specimens taken for analysis under section 7 of the Road Traffic Act 1988. The wording of section 15(2) was not apt to apply to the preliminary breath test, which was taken for the purpose of obtaining an indication whether the proportion of alcohol was likely to exceed the prescribed limit under section 6 of the Road Traffic Act. The use of a reading from a preliminary breath test could render unworkable the provisions in the latter half of section 15(2) whereby an assumption was made that the proportion of alcohol in the accused's breath at the time of the offence was not less than in the specimen, meaning the specimen taken under section 7 for analysis. There were safeguards built into the section 7 tests which were not present for the preliminary roadside tests. Furthermore, there was no automatic production of any statement measuring the proportion of alcohol in the specimen of breath produced by the roadside breath test machine at the time of this offence, and hence no such document as is referred to in section 16 of the Road Traffic Offenders Act. The District Judge concluded that the case of Badkin did not assist in the resolution of the case. The submission that a print out of the roadside breath test result was required to be taken into account in every case was misconceived and absurd.

The submissions.

8. I have been greatly assisted by the detailed written submissions as well the oral submissions in this case.

The Appellant.

i) The approval of the device.

9. Mr Nigel Ley submitted that the device which was approved consisted of three components as set out in the Schedule to the Approval. These were the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR – UK 5.23. The Approval was signed by the Minister of State of the Home Office on 25 February 1998. Some two weeks before, on 12 February 1998, the Secretary of State for the Home Department had entered into an agreement with Intoximeters Inc. the manufacturers of the Intoximeter EC/IR. The Agreement was signed by Mr Nick Montgomery-Pott in the presence of Mrs Carol–Ann Sweeney on behalf of the Home Office. This agreement referred to the same three components set out in the schedule, including the Gas Delivery System. Paragraph 13 of the Agreement said that Intoximeter Inc. "Shall comply with the general requirements set down in section 3 of the document – Evidential Breath Alcohol Testing Instruments: A Guide to Type Approval Procedures for Evidential Breath Alcohol Testing Instruments used for Road Traffic Law Enforcement in Great Britain".
10. Paragraph 16 of the Agreement stated that the Agreement should have effect "only for so long as the device is approved by the Secretary of State..". This paragraph demonstrates, Mr Ley submits, that the Agreement and hence the Guide both form part of the Approval, and set out the necessary specification,
11. Under General Requirements of the Guide to Type Approval Procedures paragraph 3.7 stated:-

"..For the Gas Simulator this shall be the Gas Simulator Unit comprising of the pressure reduction valve, automatic change-over valve and the associated pipe work."

12. Under para 4.12.1 the Guide stated:-

"Gas Simulator Unit

The gas simulator unit shall comprise a pressure reduction valve and an automatic change-over valve enabling two cylinders to be connected to the instrument at one time."

13. Mr Ley submitted that the device which was approved was the one specified in the Guide. It was therefore essential that it had an automatic change-over valve not a manual valve.
14. It was later decided that two cylinders were not required and correspondence to this effect in November 2003 was before the court. This correspondence repeated para 4.12.1 thereby demonstrating, Mr Ley submitted, that the automatic change-over valve was still an essential part of the approved device before the change to one cylinder operation was achieved by the blanking off of one of the cylinders.
15. Mr Ley submitted that the Gas Delivery System approved had to be specified. Were this not to be the case, then a defendant would not know what device had been approved. Furthermore European Union competition rules require that there has to be a published tender document in circumstances such as these (The Commission v Kingdom of Denmark ECR [1993] 1 – 3353) and on the facts of this particular case the Guide is the tender document. It is not sufficient just to describe the device as it is in the Schedule to Approval, without more. This would be an inadequately specified device. The evidence given by Dr Munday that the device which was approved had the manual change-over valve rather than the automatic change-over valve was inadmissible. Dr Munday was not on the relevant committee at the time in question, the evidence was hearsay and the agreement signed by Mr Montgomery-Pott and witnessed by his assistant Mrs Carol-Ann Sweeney of the Home Office, signed only two weeks before the Approval was given, makes it overwhelmingly probable that the device approved was the one with the automatic change-over valve. Mr Montgomery-Pott was not merely the signatory of the Agreement, but also chaired the committee which approved the device. He must know what had been decided. The evidence of Dr Munday that the only devices which he had come across had the manual change-over valve, was of no assistance. Nor was the evidence of both experts that the reliability of the machine was unaffected by the absence of an automatic valve.
16. The device had to comply with what had been approved and the courts took a strict view on this as can be seen from the case of Rayner v Hampshire Chief Constable [1971] RTR 15 where a breathalyser bag with a hole in it was found not to constitute equipment comprising a device of a type approved by the Secretary of State. Here, Mr Ley submitted, the device with a manual change-over valve instead of an automatic change-over valve was like the difference between a manual or automatic gearbox in a car, or the difference between a four speed or a five speed gearbox. They were simply not the same. The case of Kemsley v DPP [2004] EWHC 278 (Admin) shows that if the device is not the same as that which has been approved, the results of its use cannot be admissible even where it was substantially like an approved device, and even if its performance is the same as that of an approved device.
17. The Crown had failed to prove that this was an approved device.

ii) Roadside breath test figures

18. Section 15(2) of the Road Traffic Offenders Act 1988 states:-

"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 accordance with the alleged offence), be taken into account.."

The wording of this section is wide enough, as amended, it was submitted, to cover not only a specimen of blood taken at a hospital, but also roadside breath test figures. Mr Ley places substantial reliance upon the case of Badkin v DPP [1988] RTR 401 where the police had required a breath test at the police station. The device they used failed to produce a printout and they considered it might be unreliable. They therefore took a specimen of blood. At trial the breath test was in fact relied upon and no evidence given of the analysis of the blood specimen. The Divisional Court held that the failure to put the results of the blood analysis in evidence vitiated the prosecution case. Mr Ley also placed reliance upon O'Sullivan v DPP 27 March 2000 and Parish v DPP [2000] RTR 143. The same central arguments and authorities had been submitted to the Administrative Court by Mr Ley in the case of Stewart John Henry Smith v DPP [2007] EWHC 100 (Admin). The court there rejected the argument that the roadside breath test figures had to be adduced in evidence by the prosecution. Lord Justice Pill said at paragraph 26:-

"As a matter of statutory construction, I cannot accept that submission. The specimens of breath which established whether or not a defendant has committed an offence under section 5(1) of the 1988 Act, are those which may be required of a defendant at the police station under section 7 of the Act, the two specimens of breath mentioned in section 7(1)(a). The requirement under section 15(2) of the Road Traffic Offenders Act 1988 to 'take into account' the specimen of breath is, in relation to the roadside test, no more than a requirement to ensure that the section 6 procedure which led to the arrest, and to the section 7 requirement, has been correctly followed. The bracketed words now included in section 15(2) broaden the range of specimen to be taken into account but do not extend the purpose of the roadside test.

I do not consider that the statutory scheme in relation to specimens has been fundamentally changed by the amendment of the 1988 Act which took effect in 2004. However the use in the current section 6 and 6A of the Act of the expressions 'preliminary test' and 'preliminary breath test' confirm the purpose of the roadside test. The roadside procedure, as section 6A provides, is a procedure by which an 'indication' whether the prescribed limit is likely to be exceeded is obtained and the specimen has no greater status.

Further, the assumption in the last part of section 15(2) plainly applies to the section 7 specimens which provide the evidence for the section 5 offence. It would defeat the scheme of the Act (often to the detriment of the defendant) if the assumptions were to be placed upon the roadside breath test.

When the 1988 Acts took effect, the device used in the roadside test provided only a threshold test. Technology has advanced and a reading in figures can, with modern equipment, readily be obtained. That change in technology has not, in my view, affected the statutory procedure to the extent that the prosecution are obliged to put that figure in evidence in every case."

19. The case of Murphy [2006] EWHC (Admin) 1753 also rejected the argument that the results of the roadside breath test should be put in evidence. Mr Ley submitted however that the police could not then obtain roadside results as they are now able to do.
20. In essence Mr Ley's submission was that the decision in Smith was wrong and capable of producing great injustice. Mr Ley referred to a case in which he had appeared in which the breath test readout was not admitted in evidence, even though it was considerably lower than the breath test figures revealed at the police station. Had the lower roadside breath test been adduced in evidence the defendant would have been acquitted, but he was in fact convicted.
21. Furthermore the case of R v Cooksley [2003] RTR 483 was not referred to in the judgment in the case of Smith. The Court of Appeal did not disagree with the trial judge in Cooksley having taken into account digital roadside results indicating the level of consumption of alcohol. Mr Ley submitted that even though that information was before the court solely on the issue of sentence, the case was relevant to the submissions in Smith and is therefore in the present case; if the prosecution can make use of these results the defence should be able to as well.
22. Mr Ley also relied upon the New Zealand case of R v Donaldson [1995] 3 NZLR 641 as authority for the proposition that the refusal by the police to permit or arrange the taking of a blood test may amount to an obstruction of the right to prepare a defence. This was held to be a breach of the New Zealand Bill of Rights Act and, by analogy, Mr Ley submitted, the prosecution failure to adduce the figures here would amount to a breach of Article 6.
23. Mr Ley did not think that an application had been made here for disclosure and accepted that this was therefore a case of a failure to adduce evidence by the prosecution.

The Respondent .

i) Approval of the device.

24. Mr Blake submitted that the device must comply with the Approval Order, no more and no less, and that is what it did in this case. Neither the Agreement nor the Guide were incorporated, nor was it necessary to incorporate them. The contents of the Guide were, as the District Judge had said, descriptive rather than prescriptive.
25. In any event Dr Munday's evidence was admissible and relevant. Neither expert had known of any device which did not have the manual valve rather than the automatic valve. It was clear that what had been approved was the EC/IR device, which in fact had the manual valve.
26. As long as the device delivered by the manufacturers was an Intoximeter EC/IR machine, had the Intoximeter EC/IR Gas Delivery System and software version EC/IR-UK 5.23 in accordance with the schedule it would be an approved device. In Richardson v DPP [2003] EWHC 359 (Admin) Mr Justice Stanley Burnton held that if a device did not include the Intoximeter EC/IR Gas Delivery System, or had a software version which was not UK 5.23 but some significantly different version, it would not be an approved device. "It does not follow from that that every modification to an Intoximeter takes it out of the Approval. Far from it. The alteration must be such, in my judgment, that the description in the schedule to the Order no longer applies to it."
27. Here, Mr Blake submitted, the device complied with the Approval Schedule and Mr Ley's point must fail.

ii) Roadside breath test figures

28. This point has already been decided, Mr Blake submitted, by Smith and Murphy. Section 15(2) places no obligation on the authorities to produce the roadside breath test figures. These do not have the protection for the motorist which is built into the specimens for analysis. Thus no warnings are given and the higher figure is not disregarded. There is no obligation to provide the readings, but in practice they are now disclosed. If the readings were particularly low they would have to be disclosed under the disclosure rules, as being material likely to assist the defence. Otherwise no obligation would arise.

Conclusions.

i) The approval of the device.

29. The device which is approved is set out in the Schedule to the Approval document dated 25 February 1998. There is no reference, express or implied, in this schedule to either the Agreement with the manufacturer or to the Guide, and I see no reason why those documents should be incorporated within the Approval or, why the Approval should be read as being subject to them. The definition of the device, in my judgment, stands by itself in the Schedule to the Approval and does not admit of further identification or specification.
30. Paragraph 16 of the Agreement does no more than determine the life of the Agreement; it does not make the Agreement part of the Approval or make the Approval subject to the Agreement.
31. The device must receive Type Approval but that is precisely what the Schedule to the Approval achieves. I see no purpose in including as part of the Approval a substantial number of details, which may be irrelevant to the essential and efficient functioning of the machine, yet every one of which has to be complied with for the device to be properly approved. I prefer the approach of Mr Justice Stanley Burnton in Richardson: if for example the Intoximeter EC/IR had no gas delivery system or had a significantly different software version it would not be an approved device under the Schedule of the Approval. But there must be room to make sensible modifications without having to seek a new approval every time this is done. The test must be whether after such modification or alteration the machine remains one to which the description in the schedule still properly applies. If it does not, then the device is no longer an approved device; but if the description does still properly apply to the device it will remain an approved device even though modifications or alterations have been made. Thus the removal of one cylinder, which did not affect the operation of the device, did not take it out of the Approval. Nor in my judgment, would the supply of a device with a manual change-over valve, rather than an automatic change-over valve when the machine had two cylinders, render it no longer an approved device. It remained an Intoximeter EC/IR with a gas delivery system.
32. It follows that the expert evidence about Intoximeter design was not relevant or therefore admissible. But had it been admissible, the very fact that Dr Munday had never seen an Intoximeter EC/IR with an automatic valve after the Approval would have been evidence from which an inference could be drawn that the Intoximeter EC/IR as approved had always had such valves, namely manual rather than automatic.
33. Rayner and Kemsley are both cases decided on their own facts. They are to be distinguished upon the basis that the device in this case was one which was approved because it fell within the definition to the Schedule of the Approval.

ii) Roadside breath test figures.

34. This issue has now been decided in the Administrative Court by the case of Smith v DPP [2007] EWHC 100, and for my part, I see no reason to depart from either its conclusions or its reasoning. Section 15(2) of the Road Traffic Offenders Act 1988 does not in my judgment apply to preliminary tests under section 6 of the Road Traffic Act 1988 or indeed to preliminary breath tests under its amendment by virtue of section 6A. The purpose of the preliminary test is to obtain an indication of whether the proportion of alcohol was likely to exceed the prescribed limit. It is not to determine whether the limit has in fact been exceeded, which is the function of the specimens taken for analysis under section 7. The latter part of section 15(2) clearly applies to section 7 specimens, as Lord Justice Pill found in the case of Smith, and there is no basis for believing that the earlier part of the section refers to a different type of specimen. It cannot have been intended that the roadside breath test, which does not determine whether an offence has been committed, and is not subject to safeguards for the accused such as warning of the risk of prosecution, could be the specimen which has, under the assumption, to determine the lowest level of alcohol in the accused's breath or urine.
35. It would in many instances, as Mr Ley concedes, be to the serious disadvantage of the Defendant that the roadside breath test figures are adduced. They will often be greater than those later obtained. I do not consider that section 15(2) could properly be construed so as to cover preliminary breath tests.
36. No request was made by the defence for disclosure of the roadside breath test figures in this case. Mr Blake, on behalf of the Defendant, conceded that as part of the general duty of disclosure the prosecution would have to disclose roadside breath test figures which assisted the defence or undermined the prosecution case, but that apart I can see no obligation upon the Crown to adduce the figures. As in my judgment there is no statutory obligation upon the Prosecution to adduce such material they did not have to adduce the figures in this case. Mr Blake does not dispute that, if asked for, the figures should routinely be provided to the defence.
37. The case of Murphy is also against Mr Ley's argument and I see no benefit to him from the case of Cooksley. That related solely to sentence and does not assist the Court in considering whether there is a statutory or general duty to adduce the roadside breath test figures in all cases when prosecuting an alleged offender under the Road Traffic Act 1988..
38. There has been no obstruction of the right to prepare a defence in this case and I do not consider that any Article 6 argument, based on Donaldson or otherwise, is available to the Claimant.
39. The questions posed by the District Judge in the case stated are:-

1. Did I err in law in holding that the breathalyser machine used in this case was an approved device?

2. Did I err in law in holding that the prosecutor did not have to adduce the actual amount, in figures, of the alcohol level revealed by the breath test carried out at the roadside with Alcotest 400?

40. I would answer both questions in the negative. For the reasons set out above the appeal should in my judgment be dismissed.

Lord Justice Sedley:

41. I agree.