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 WC2A 2LL
		30 January 2008

1. LORD JUSTICE MAURICE KAY: This is an appeal by case stated from the Lincoln Crown Court. The history of the proceedings is that the appellant was the subject of an information laid by the Chief Constable of Lincolnshire that, on 25 September 2004, having been required to provide a specimen, or specimens, of breath for an analysis by means of an approved device of a type approved by the Secretary of State, pursuant to section 7 of the Road Traffic Act 1988, in the course of an investigation into whether he had committed an offence under sections 3(a) 4, or 5 of thereof, the appellant failed, without reasonable excuse to do so, contrary to section 7(6) of the same Act.
2. On 10 March 2006, the appellant was convicted in the Magistrates' Court. He appealed to the Crown Court and on 14 September 2006 his appeal was dismissed. We say nothing of the penalties imposed at this stage, that is a matter to which we have said we shall return in the event of this appeal being dismissed.
3. The facts found by the Crown Court were set out as follows in the case stated:
4. "(i) On the 26th September the appellant was lawfully required to undergo a breath test at a petrol station in Brook Street, Grantham. He failed to do so and was arrested and was taken to Grantham Police Station.

(ii) At the said police station the appellant was lawfully required to provide 2 specimens of breath for analysis by means of a device of a type approved by the Secretary of State, namely an Intoxilyser 6000.

(iii) (a) The Intoxilyser 6000 machine is designed to measure the amount of alcohol in breath. It does this by measuring a minimum volume of breath (1.2 litres) and by continuing to measure the level of alcohol in breath until the reading reaches a plateau. At this point it has a complete specimen.

(b) This has the effect that a reading of what is referred to as 'deep lung air' should be taken. This is a more reliable guide to the level of alcohol in someone's breath as mouth alcohol is more variable over time and may be much higher or lower than the total amount of alcohol in someone's breath.

(c)If the requirements of the machine are not met, then the device will still analyse the samples provided but the printout will be marked "Specimen Incomplete "

(iv) The appellant blew into the Intoxilyser. The results were as follows:

Time	Duration	Volume	Breath Alcohol
4.35	1.0 secs	0.2 litres of breath	37 micrograms of alcohol per hundred millilitres of breath
4.36	2.0 secs	0.6 litres of breath	39 micrograms of alcohol per hundred millilitres of breath
4.37	2.3 secs	0.7 litres of breath	36 micrograms of alcohol per hundred millilitres of breath
4.37	0.6 secs	0.2 litres of breath	27 micrograms of alcohol per hundred millilitres of breath

The print-out also showed the words 'specimen incomplete.'

(v) The results accurately showed the amount of alcohol in the samples which were exhaled into the device.

(vi)(a) The words 'incomplete specimen' means that the requirements of the Intoxilyser machine had not been met.

(b) The Appellant had been properly instructed in how to blow into the machine and this had also been demonstrated to him. The Appellant deliberately did not comply with these instructions.

(c) The Appellant chose not to co-operate but to deliberately frustrate the objectives of the breath test."

5. Having dismissed the appeal against conviction, the magistrates have posed these questions for this court:

"(i) Could a reasonable Bench on the evidence adduced in that case have held that the appellant had failed to provide two specimens of breath for analysis?

(ii) Was it Wednesbury unreasonable to have held that the appellant had failed to provide 2 specimens of breath, when he had provided 4 specimens of breath, all of which had been accurately analysed?

(iii) Does the meaning of 'breath' as defined in the case of Zafar v DPP have any effect on the meaning of 'specimen' as defined by section 11(3) of the Road Traffic Act 1988?"

On behalf of the appellant, Mr Ley submits that the appeal to the Crown Court ought to have been successful. The foundation of his submission is Zafar v Director of Public Prosecutions [2004] EWHC 2468 (Admin). In that case this court concluded that the word "breath" in section 5 of the Act embraces both deep lung air and breath exhaled simply from the mouth. That authority has, to my knowledge, been followed in many cases and Mr Ley, for the purposes of the present case, accepts its correctness. He, nevertheless, submits that it provides him with a platform for his argument in this case, to the effect that the appellant had provided a specimen of breath for a breath test, which satisfied the demands of the statute, even if it was not provided in a way which enabled the device to produce an analysis of the kind that it was intended to produce. He says that the device in this case was plainly designed to analyse deep lung air. However, on the basis of Zafar that is not necessary, and, as I have recorded, the magistrates found as a fact in the present case that the samples provided, and the results obtained, showed the amount of alcohol that was actually exhaled into the device.

It is necessary, at this stage, to set out the relevant statutory provisions. Section 5(1) states:

"If a person-

drives or attempts to drive a motor vehicle on a road or other public place, or

is in charge of a motor vehicle on a road or other public place,

after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."

6. Section 7(1) provides:

"In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him-

to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or

to provide a specimen of blood or urine for a laboratory test."

By section 7(6) a person who, without reasonable excuse, fails to provide a specimen when required to do so, in pursuance of section 7, is guilty of an offence. Section 11(3) then provides:

"A person does not provide a specimen of breath for a breast test or for analysis unless the specimen-

(a) is sufficient to enable the test or the analysis to be carried out, and;

(b)is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved."

In reality this case is concerned with the proper construction of section 11(3). Section 11(3) has been considered on previous occasions by this court. In DDP v Heywood [1998] RTR 1 Lord Bingham of Cornhill, then Lord Chief Justice, said:

"The simple question therefore arises: did the defendant fail to provide a specimen of breath for the purposes of section 6(4) of the Act of 1988. [that being in the same terms as section 7(6)]. The answer to that question depends on the application of section 11(3). Rephrased, therefore, the question is: did the defendant provide a specimen of breath which was sufficient to enable the test to be carried out and which was provided in such a way as to enable the objective of the test to be satisfactorily achieved? To that question there is, in my judgment, only one possible answer, which is 'No'. The objective of the test was to establish reliably whether a sample of the defendant's breath was or was not positive when tested for alcohol. The defendant gave a specimen in such a quantity or in such a way that it could not be established reliably whether a sample of her breath was or was not positive when tested for alcohol. The specimen she gave enabled a reading to be obtained, but the reading might or might not be reliable. It was reliable if it was positive, but not reliable if it was negative."

7. Mr Ley submits that Heywood ought to be distinguished because that was a case that proceeded on the basis that deep lung air was required, and the test had not been able to establish that the requisite amount of deep lung air had been analysed. Since Zafar, submits Mr Ley, the court ought to approach the matter in a different way.
8. Mr Ley has made this submission in a previous case: Director of Public Prosecutions v Darwin [2007] EWHC 337 (Admin), in which Thomas LJ and Stanley Burnton J rejected his submission. The first basis upon which they did so was in reliance with the passage from Heywood, to which I have referred, but that was not the only part of the reasoning. Thomas LJ went on to say this, at paragraph 14:

"Secondly, it is clear from the certificates to which I have referred that the machine itself recorded that there was an insufficient specimen. It seems to me, therefore, reading section 11(3) and asking myself the question: had a specimen of breath been provided in accordance with it?, the answer is plainly 'No'. The respondent did not provide a specimen for the analysis to be carried out, and he did not provide it in such a way that the analysis could be satisfactorily achieved. There were two reasons: first, the respondent did not provide a specimen of breath as directed; and secondly, the machine itself made it clear that the amount of air produced was insufficient for its purposes."

Thomas LJ then addressed Mr Ley's reliance on Zafar. He rejected it in these terms at paragraph 15:

"In my view, the magistrates' finding that the machine was set up to require deep lung air, and their view that he was not required to provide deep lung air, is wholly irrelevant. The question was: was the breath to be provided, taking the ordinary definition of that word as set out in Zafar, sufficient for the purposes set out in section 11(3)? In my view the answer is plainly "No".

9. In my judgment, the present case is not distinguishable from the case of Darwin. Mr Ley does not suggest otherwise. His submission is that Darwin was wrongly decided. This court will generally follow previous decisions of the Divisional Court, unless satisfied that they were plainly wrong. In my judgment, Darwin was not plainly wrong; it seems to me that it was plainly right. Section 5 defines the offence. Section 11(3) is concerned with the way in which the offence may be proved. It was not a pre-requisite to the commission or proof of the offence that the excess alcohol found in the sample had come from deep lung air. It was not a pre-requisite that the police used a device that concentrated on deep lung air. However, that is the device that they chose to use. That was a lawful choice. The device was one of the type approved by the Secretary of State.
10. Having chosen to test the appellant by the use of the Intoxilyser, one then has to consider whether the appellant had provided a specimen of breath for that particular breath test. I return to the words of section 11(3): a specimen is not provided unless it is sufficient to enable the test or the analysis to be carried out, and unless it it is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.
11. Plainly the purpose of the test, through the operation of the Intoxilyser 6000 machine, is to measure a minimum volume of breath - 1.2 litres - and to continue to measure it until the reading reaches a plateau and produces a complete specimen. This is what the Crown Court found. The Crown Court then found that this appellant, having been properly instructed on how to activate the machine, and having had the method demonstrated to him, deliberately failed to comply with the instructions. He chose not to co-operate, but deliberately to frustrate the objectives of the test.
12. In my judgment, the Crown Court was correct to find that, in those circumstances, the specimen was not sufficient to enable the test, or the analysis to be carried out, nor had it been provided in such a way as to enable the objective or the test or analysis to be satisfactorily achieved. The objective of the test was to produce a result on the basis of a complete specimen in accordance with the specification and instructions, to which I have referred.
13. Accordingly, for substantially the same reasons that resulted in the Director of Public Prosecutions' successful appeal in the case of Darwin, in my judgment, the appeal of the appellant in the present case must fail.
14. I will answer the questions posed by the case stated as follows: as to the first question, "yes", as to the second question, "no", and as to the third question, "no". I would dismiss the appeal.
15. MR JUSTICE WALKER: I agree that this appeal should be dismissed. For my part, I can see a possible argument under section 11(3)(b) along these lines: if the conduct of the person in question is sufficient to enable the court to determine that there has been the commission of an offence under section 5, then the objective of the test has been achieved, albeit not in the way that was envisaged by the test. However, in argument Mr Ley accepted that it is not sufficient for his client that section 11(3)(b) alone has been met. It is necessary that subsection (3)(a) also be met. This required, in the circumstances of this case, that a particular volume be supplied. That volume was not supplied.
16. In those circumstances it is, in my view, clear that the appellant did not provide a specimen that was sufficient to enable the test, or the analysis, to be carried out. I consider that the words "test" and "analysis" are directed to the particular procedure that was adopted, and the particular requirements of the machine in question. That, as it seems to me, is why both subsections (3)(a) and (b) are requirements which must be met.
17. As it is clear that the requirement in subsection (3)(a) was not met, it seems to me that the offence was plainly made out.
18. LORD JUSTICE MAURICE KAY: Thank you very much. We return to the question of the penalty.
19. MR LEY: This is a man on social security and therefore of very limited means. It he takes six years as a fixed rate to pay off the penalty, then that must be Wednesbury unreasonable.
20. LORD JUSTICE MAURICE KAY: Why must be it be Wednesbury unreasonable? He was fined £500, which, on this offence, is certainly not excessive. Paying it by instalments he would pay that off within two years, or so, which is broadly the guidelines of the Court of Appeal for financial penalties.
21. MR LEY: If it was merely £500--
22. LORD JUSTICE MAURICE KAY: The costs which have made his position very much worse result from his choice to run these defences. Why should he not pay towards the costs of the prosecution?
23. MR LEY: If I can answer it this way, my Lord? He was legally aided in the lower court. His means are such that no recoupment order could be made. He was below the £24,000. Therefore, if Parliament clearly thinks somebody who earns less than £24,000 a year cannot afford to make a contribution towards his own costs, how can he afford to pay the prosecution costs? Therefore, I submit that when considering whether it is reasonable I say the £500 I do not think I can argue about, as such, my Lord. It may be a bit steep. So far as the rest of it is concerned, first, it is wrong, as your Lordship said, two years will be acceptable, six years is not acceptable for a penalty to be made. It should be done within no more than two years.
24. Secondly, Parliament is clearly of the view that he cannot afford to pay for his own defence. Why is there going to be a recoupment, because he is below the limit where money is recouped from him?
25. LORD JUSTICE MAURICE KAY: If it turns out he genuinely cannot pay, there are remedies that he can seek by way of relief.
26. MR LEY: I accept, yes, the magistrates have a discretion to remit it. It is the fact it takes six years.
27. LORD JUSTICE MAURICE KAY: The fine presumably has a default term attached to it. The costs order will not have a default term attached to it.
28. MR LEY: There is no default order attached to the fine, as the judge did not make one. The way it works is the Magistrates' Court do not, when they impose a fine, have power to impose a sanction like five weeks in prison. They then have, if it is not paid, a means inquiry and decide what to do. As a last resort they can impose. Because the Crown Court's power on sentence was the same as the Magistrates' Court, they cannot also lay down default terms when hearing an appeal from the Magistrates' Court. Their jurisdiction is restricted to that of the Magistrate. Therefore, they cannot impose a default term.
29. LORD JUSTICE MAURICE KAY: So there is no default term in this case attached to either the fine or the costs?
30. MR LEY: That is right, my Lord. Taking six years, I would submit, is Wednesbury unreasonable. Also, his legal aid position. If he cannot afford to pay the legal aid, how can he afford--
31. LORD JUSTICE MAURICE KAY: I remind myself that all we are concerned about, at this stage, is whether we should remit it to the Crown Court to amend--
32. MR LEY: The judge was asked to include this in his case stated, but declined to do so. An application was made promptly for it to be remitted.
33. LORD JUSTICE MAURICE KAY: The judge did include the evidence as to his means in the facts found.
34. MR LEY: He did, my Lord, yes. I would submit you cannot get blood out of a stone. It is unreasonable to expect somebody -- I am repeating myself. I would say the power argument is the legal aid position. Clearly Parliament wants to get as much of the legal aid back as possible. If a person cannot afford to pay legal aid, how can he afford to pay for the other side?
35. LORD JUSTICE MAURICE KAY: Mr Ewing, what do you want to say?
36. MR EWING: Without wishing to argue the merits what I would say is this that there is an argument in my submission that where unmeritorious appeals are argued (?) the public have to bear the cost of them. I remind your Lordships that this was a case that required expert evidence called by both the defence and prosecution at both the court below and at the Crown Court as well. A large portion, as I understand, of the costs' bill comes, in fact, from the expert evidence from the prosecution witness who was not agreed.
37. LORD JUSTICE MAURICE KAY: Was the trial longer in the Magistrates' Court than in the Crown Court?

MR EWING: I do not immediately recollect--

MR LEY: No, my Lord, they both occupied one day. The Magistrates' Court would start earlier. Unless I am mistaken, they were both one-day trials.

LORD JUSTICE MAURICE KAY: It might have been higher because of pre-trial costs. Usually they are higher than pre-appeal costs.

MR LEY: That is right. The Magistrates' Court's costs will be far higher than the Crown Court's costs. All the preparation will have been done by the solicitors.

LORD JUSTICE MAURICE KAY: It means, for example, the expert would be the same one as before the magistrates, but he had to attend to give evidence.

MR LEY: At least they did not have to pay for a second report.

38. LORD JUSTICE MAURICE KAY: Thank you very much. We will go out and consider this.
39. Judgment on Costs
40. LORD JUSTICE MAURICE KAY: We now turn to the question of the fine and costs orders that were made in the Magistrates' Courts and the Crown Court. In the Magistrates' Court the magistrates imposed a fine of £500 and ordered the appellant to pay £1,000 towards the costs of the prosecution. In the Crown Court those previous orders stood and there was added a further order that the appellant pay a further £875 towards the costs of the prosecution, that representing costs of the appeal. Thus, the total bill for the appellant (if I can put it that way) became £2,375.
41. When an application was made to the Crown Court to state a case for this court, it included a request to include a question about the totality of the financial orders, which are to be paid at £25 per month, the appellant being unemployed and living on benefits. The Crown Court Judge declined to pose a question about that. A timely application was made to this court for an order remitting the matter to the Crown Court for the case stated to be amended. That application was made last June, but it has never been the subject of a ruling, the view having been taken that it could await the present hearing. The one thing that can be said is that the appellant is not to blame for the fact that it has not been resolved earlier.
42. Mr Ley now invites us to remit the case stated to the Crown Court for the addition of a third question, broadly in the terms of whether the totality of the financial orders was Wednesbury unreasonable. He observes that if the appellant's financial circumstances do not change it will take some six years to discharge the total liability of the £2,375. He submits that that is Wednesbury unreasonable, or arguably so, and that we should have regard to the fact that the financial circumstances of the appellant were such, and are such, that the legal aid recoupment provisions prevented any recovery from him in relation to his defence costs, which were incurred on legal aid.
43. The fine of £500 was, it seems to us, entirely unremarkable, notwithstanding the appellant's financial circumstances. The Court of Appeal (Criminal Division) often operates a rule of thumb that fines to be paid by instalments should be fixed at a level which can be completed within two years. The fine could be so discharged in the circumstances of this case. That same principle does not necessarily apply to costs orders. The fact of the matter is that large costs were incurred in this case because of the nature of the defence that the appellant chose to place before the court. It was not a meritorious defence and it has failed at each and every stage. We do not consider that the orders made in the courts below were Wednesbury unreasonable, or arguably so. The appellant does have protection against true hardship if his financial circumstances remain unchanged, and he is genuinely unable to discharge the liabilities. Those remedies lie in the Magistrates' Court, as Mr Ley acknowledges. We do not consider the position in relation to his legal aid to be determinative of the liability to pay costs towards the prosecution. What has happened is that the Crown Prosecution Service has had to conduct a case at public expense in the Magistrates' Court and the Crown Court in circumstances where, as we have said, there was no meritorious defence.
44. In our view, the order was appropriate and if genuine hardship is the result, then the remedy lies elsewhere. It is common ground that this court cannot itself amend the case stated (see section 28A of the Supreme Court 1981). The only course would be to remit. In our view, to remit would simply incur further costs in circumstances where there would not be a successful outcome for the appellant. Accordingly, we refuse that application.
45. MR LEY: I am not talking about the merits of this case. I do not know whether your Lordship would say anything about whether or not, as a normal rule, applications to remit -- I am not talking about this case -- should be dealt with in a separate hearing. It could often be that the application to remit could concern maybe facts found or not found.
46. LORD JUSTICE MAURICE KAY: You want me to say that normally the Administrative Court Office should ensure that timely applications to amend the case stated should be ruled upon at an earlier stage? I agree with that. I should add a paragraph to that effect.
47. I add as a postscript that in the present case it would have been far better if the timely application to remit the case stated for amendment had been ruled upon by a judge of the Administrative Court many months ago, rather than left to the hearing. We hope that in similar cases in the future the court will arrange for such applications to be processed at an earlier stage of the proceedings.
48. Thank you both very much.
49. MR EWING: I ought to mention the costs of today. They are £1,500 and.
50. LORD JUSTICE MAURICE KAY: Are you legally aided here?
51. MR LEY: Yes, granted by Collins J. If we make an order against the appellant on the usual principle, there would be attached to that order the usual condition that would protect him.
52. MR LEY: That is right. There will be a football pools order.
53. LORD JUSTICE MAURICE KAY: It is not quite that these days, but it has the same effect.
54. MR LEY: Just one matter, no schedule of costs was ever served. If your Lordship has had time to read the judgment in Darwin relating to the costs, it is clear that this court was telling the CPS that they cannot supply a schedule of costs 24 hours (inaudible) by the Rules. They are not likely to get their costs in future.
55. LORD JUSTICE MAURICE KAY: Where do I see that in Darwin? Is it in the post-judgment?
56. MR LEY: It starts at paragraph 47, my Lord. This is not a case where my learned friend will be taken by surprise. Darwin was in the list of authorities.
57. LORD JUSTICE MAURICE KAY: I can see why, in the absence of the schedule, one should not simply accept the suggested fee figure, but I am not sure why that should be an end of the matter. What the court did in Darwin was to do what one normally does on summary assessment and come up with a figure.
58. MR LEY: I am not a solicitor and I have no idea about solicitor's costs. Basically I ask for costs not to be enforced without the leave of the court and leave everything to be sorted out later in the day.
59. LORD JUSTICE MAURICE KAY: On the face of it, there is no reason why the prosecution's costs should be significantly greater here than in the Crown Court.
60. MR LEY: That is right and here no experts have been called.
61. LORD JUSTICE MAURICE KAY: There may not have been the totality of the costs in the Crown Court, it may simply have been the amount of the costs that he was ordered to pay.
62. MR LEY: It was all the costs they requested. I cannot remember the breakdown.
63. MR EWING: If I can simply say this? Part of the difference is that any fee for the appearance today is going to be greater than it would be on appeal against conviction at the Crown Court. Your Honour, my fees are being met under the very high cost case scheme which means £330 for today, plus £80 in preparation, plus travelling costs. My quick calculation suggests that my fee alone is going to come to over a £1,000, on that basis. I do have an instructing solicitor present. The simple reason for that is in case matters arose which had not been foreseen.
64. LORD JUSTICE MAURICE KAY: We come to the conclusion that we ought to make the same order that was made in Darwin. In the absence of a schedule we summarily assess the costs at £900, being entirely satisfied that they can be no less than that, on any reasonable basis. However, there will be attached to that order the usual order in the civil courts relating to enforcement.
65. To that extent your client is protected.
66. MR LEY: I am much obliged, your Lordship.
67. LORD JUSTICE MAURICE KAY: One other thing, Mr Ley, and we are troubled by it: when did Collins J grant you legal aid?
68. MR LEY: He granted it in June, definitely after the case of Darwin.
69. LORD JUSTICE MAURICE KAY: After Darwin? Was his attention drawn to Darwin?
70. MR LEY: I assumed Collins J, as a lead judge, keeps his eye on all cases going through here. I assumed, I hope rightly, that he was aware.
71. LORD JUSTICE MAURICE KAY: That is an absurd suggestion of any judge. There are 12,000 cases a year in the Administrative Court.
72. MR LEY: Sorry I was thinking about case stated cases, I apologise. But a High Court judge--
73. LORD JUSTICE MAURICE KAY: How was he to know about Darwin unless his attention was drawn to it?
74. MR LEY: I have no idea what papers were before him when he granted legal aid. It is not something--
75. LORD JUSTICE KAY: Was there anything in your application that contained any reference to Darwin? The answer is, "No, it was an application for an appeal by case stated", and I am just looking at the application.
76. MR LEY: You mean for leave to appeal? You mean the Notice of Appeal, my Lord.
77. MR JUSTICE WALKER: You lodged an appeal notice, did you not pursuant to--
78. MR LEY: Darwin had not been heard then. Darwin will not have been mentioned because it had not been heard. I cannot say what was before the judge, because I have no idea what legal aid paperwork was sent to him. The solicitor will not normally instruct me until I have a Legal Aid Certificate, and then it arrives--
79. LORD JUSTICE MAURICE KAY: There would have to be an opinion from you, surely, to say that the case merited legal aid?
80. MR LEY: I cannot see on my brief. I better be sure what I say. I may have written an Opinion, but it is not on my brief. The opinion on appeal is heard by the Crown Court Legal Aid team. All my papers in the Crown Court cases have gone back. My solicitors, no doubt, will have a complete set of papers. I cannot say because my Opinion is not here. It would be with the Crown Court. The Crown Court Legal Aid, as your Lordship knows, covers advice on appeal. I almost certainly would have written Advice. What it says and is in it, I don't know. It was over a year ago. I will not have a copy of it with me.
81. LORD JUSTICE MAURICE KAY: Mr Ley, it seems to me that at some stage, whether it was before the application for legal aid was decided, or after it was decided, you ought to have drawn the attention of the Administrative Court to the fact that there was an authority that was bang against you.
82. MR LEY: I cannot say what I did. I do not have the papers here. Can I say that I will definitely bear in mind what your Lordship says for future occasions?
83. LORD JUSTICE MAURICE KAY: I hope you not only bear it in mind, but act upon it. Thank you very much.