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
		20th October 2009

1. LORD JUSTICE ELIAS: This is an appeal by way of case stated from a decision of Rugby Magistrates' Court. The appellant appeals against the decision of the Magistrates who, on 27th June 2008, convicted the appellant of driving with excess alcohol in his blood contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
2. I take the facts from the case stated by the Justices. The appellant was arrested following a positive roadside breath test. He was taken to Leamington Spa Police Station where PC Townsend conducted the intoximeter procedure on an Intox EC/IR device. Two specimens of breath were obtained about three minutes apart and showed readings of 63 and 52 micrograms of alcohol in 100 millilitres of breath respectively.
3. The printout, after the second reading, read "breath difference", which PC Townsend attributed to the appellant blowing too hard and fast. Having regard to guidance on the MGDDA form, he decided that although the device seemed reliable, it may not have produced a reliable indication of proportion of alcohol in the appellant's breath on this occasion. Accordingly, he required the defendant to provide a specimen of blood for analysis.
4. The sample was taken at about 3.00am on 10th September. It was put in a vial with the name Martin Taylor and the vial was placed in a tamper proof bag and put in a fridge. It was also given a serial number, which was recorded as being FSS000450406. Later on that morning, it was taken out of the fridge and sent at around 11 o'clock to Ms Sugden, who is an authorised analyst and forensic toxicologist. The number recorded by Ms Green, who took the sample from the fridge and sent it on, was 00004560460. The blood analysed by Ms Sugden was found to have 117 milligrams of alcohol in 100 millilitres of blood, which therefore exceeded the permissible limit and led to the defendant's conviction.
5. The Justices were satisfied beyond reasonable doubt, first, that the sample examined by Ms Sugden was that taken from Mr Taylor, notwithstanding the discrepancy in the serial number recorded; and, second, that the officer was entitled in the circumstances to require a blood test. This was justified in their view because of the reference to "breath difference" on the machine and the fact that there was a significant difference between the two readings.
6. The case stated for the opinion of the High Court is this:

"(1) The appellant having given 2 specimens of breath which were both analysed by the Intox EC/IR, was PC Townsend entitled to ask for a blood specimen on the basis that (a) although the machine appeared to be working properly, it having calibrated itself before and after the analysis, a reliable indication of the proportion of alcohol in the appellant's breath may not have been obtained because the printout said 'breath difference' and (b) in his opinion the reason for the 'breath difference' was that the appellant blew too hard on the second occasion.

(2) Was there any admissible evidence upon which a reasonable bench, properly directing itself, could have held on the criminal standard of proof that the blood analysed by Ms Sugden was in fact that of the appellant."

7. I turn to the first question. Section 7 of the Road Traffic Act as amended provides in subsection (3) as follows:

"(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless—

(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or

(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or

(bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned..."

8. The prosecution relied upon section (bb): the constable had reasonable cause to believe that the device had not produced a reliable reading. The defendant submits that there was no reasonable cause for that belief. In the absence of such a cause, the reading of the intoximeter must be adopted and no blood specimen can legitimately be taken.
9. Reliance is placed on the decision of the Divisional Court in McNeil v Director of Public Prosecutions [2008] EWHC 1254 (Admin); [2008] RTR 27. The defendant in that case had been tested by an intoximeter and said that he had burped when providing a second specimen. The officer administering the test considered, having regard to the MGDDA form, that this gave reasonable cause to believe that the intoximeter had not produced a reliable indication. The premise on which it was thought that the test would be unreliable was that a specimen of breath affected or potentially affected by reflux or regurgitation of the stomach, or burping, would not constitute a normal specimen of breath within the meaning of section 5 of the Road Traffic Act. The Divisional Court rejected that analysis. There is no justification for distinguishing breath so provided differently from any other breath. That principle had been established in the earlier case of Zafar v Director of Public Prosecutions [2005] RTR 220. Accordingly, since this was the only reason why a blood test had been caused, the conviction had to be quashed. The readings on the intoximeter should have been accepted and the guidance given to the prosecuting authorities to require a blood test in those circumstances was wrong and could not be relied upon.
10. Ms Calder, counsel for the appellant in this case, submits that the principles are equally applicable here. The fact that an officer simply follows the guidance given in the MGDDA form does not of itself demonstrate that he has reasonable cause to believe that the results may be unsatisfactory. On the contrary, she says that section 8 of the Act provides that where there is a difference in the readings from the two samples, the lower should be taken. In effect, the officer here was simply frustrating the intentions of Parliament by failing to do that.
11. I have not difficulty in accepting the proposition that as a matter of principle mere adherence to the guidance will not necessarily constitute reasonable cause. Plainly it is not for the executive, through guidance or otherwise, to alter the proper meaning of the law. If in law there is not reasonable cause to question the reliability of the results from the intoximeter, no blood test should be required and any guidance cannot dictate to the contrary.
12. The issue here, however, is whether there was reasonable cause. Here there were two related factors that were relied upon by the officer and were accepted by the court. One was the difference in the amount of alcohol recorded in the two tests and the other was the fact that it was of such a degree that the equipment registered the difference.
13. I would agree that the officer's evidence as to why a wide breath difference may have occurred, namely that the appellant had been blowing too hard or too fast, would not of itself constitute reasonable grounds for doubting the veracity of the test results. So, for example, if there had been no marked discrepancy in the two tests, I doubt whether the officer's own suspicion that there had been a breath difference would give reasonable cause for doubting the result. But that is not this case. The officer was not relying upon that factor as a justification for requiring the blood test. That was simply his explanation, possibly inaccurate, as to why the machine registered "breath difference" and why there was a significant difference in the two tests.
14. In my judgment, this case is similar to that in DPP v Smith (Robert James) [2000] RTL 341. There, the breath test on the intoximeter at the police station recorded 43 and 33 milligrams of alcohol in a 100 millimetres respectively in the two samples. As in this case, the calibration of the machine suggested it was functioning correctly but, relying on the guidance relating to breath difference ranges, the officer conducting the procedure concluded that the device had not given a reliable indication. The Justices disagreed and held the blood sample evidence to be inadmissible, but the prosecutor's appeal was allowed. The Divisional Court (Simon Brown LJ, as he was, and Turner J) were in no doubt that the officer was justified in those circumstances in following the advice given. Turner J observed that any reasonable person would consider that a discrepancy of some 30 per cent would tend to indicate that the device was unreliable. The discrepancy here is not as great, although it is still in the region of 20 per cent in a period of some three or four minutes between the two tests. In my judgment, that fully entitled the Justices to conclude that this factor, coupled of course with the fact that the printout from the machine itself referred to breath difference, constituted reasonable cause for the officer to determine that the blood test should be taken.
15. That is not in my view undermining the intention of Parliament in section 8, as Ms Calder submits. Section 8 requires a lower reading to be taken but it is implicit that the results taken from the intoximeter can be treated as reliable. The question was whether there was reasonable cause to doubt that they were reliable. There is a question for the Justices and in my view they had evidence from which they could conclude that it was reasonable for the officer to act as he did. Indeed, I suspect that in many circumstances where there is a significant discrepancy, if reliance were placed on the lower reading, the defence might then be run that, given the discrepancy, the lower reading itself was not a reliable indicator of the true level of intoxication.
16. Accordingly, my answer to the first question is that the Justices were entitled to find that PC Townsend had reasonable cause to believe that the device had not produced a reliable indication of the proportion of alcohol in the appellant's breath.
17. I now turn to the second question. The issue is whether the Justices could properly conclude that the specimen of blood analysed was that provided by the appellant. The appellant submitted that further details should have been provided, such as an indication of the date when the specimen was taken and the time, by whom and which officer was responsible. Furthermore, Ms Calder in her submissions placed significant emphasis on the fact that the serial numbers were different. This, she submits, is a special or unique number. In this case, there was a difference between the number recorded of the blood placed in the fridge and the number attached to the blood sample which was taken from it. She submits that this alone should be sufficient to demonstrate that there was not the continuity that would be required in law to entitle any court to conclude that they could be sure that the blood analysed was the same as the blood provided.
18. It is true, of course, that more information could have been provided and, had that been done, then it may well have narrowed the range for potential doubt or confusion as to whether the right sample was ultimately tested. But the issue is not whether more might have been done to eradicate uncertainty. The question here is whether on the information available to them the Justices could properly be satisfied to the criminal standard of proof that the blood provided was the sample that ultimately was tested.
19. In my judgment, the Justices could reach that conclusion. There were three factors in particular which were relied upon and which seem to me to support that conclusion. First, there was the fact that the sample bore the appellant's name. There was not just the name of Taylor but it was identified with the name Mark Taylor. Second, it was taken from the Leamington Spa Police Station. Third, the sample that was sent was taken from the fridge only some eight hours - probably less than that in fact - after a sample had been taken from the defendant, and both bore the name Martin Taylor. Plainly in such a short period it is highly unlikely that there would be a confusion resulting from there being two samples with exactly the same name.
20. Ms Calder relied on certain cases in which she submitted strongly supported her argument, particularly the case of Bentley v Chief Constable of Northumberland. In that case the Divisional Court (Watkins LJ and McCullough J) considered that there was not sufficient evidence to demonstrate that the sample taken was the same as that analysed in circumstances where the evidential link establishing continuity was limited to the name of the defendant and the police station at which the blood sample had been taken. Ms Calder says that in truth this case is weaker, first because the name of Taylor is more common than that of Bentley and second because we have the discrepancy in the serial numbers, which raises question marks as to whether the sample taken from the fridge is the same as the sample that had been deposited. In Paterson v Director of Public Prosecutions, the Divisional Court allowed an appeal in circumstances where the evidence from the analyst was that the blood sample had been received from a police station other than the one which had ostensibly sent it. In each of these cases, the court overturned the finding of the Justices and considered that there was not sufficient evidence of continuity to show that the sample analysed was necessarily the same as the sample which had been taken from the defendant.
21. These cases do not, however, establish principles of law; they are cases turning on their own facts. As to Bentley, it is, I think, pertinent to observe that the approach to this kind of legislation some 25 years ago was rather different from the approach today. In any event, it seems to me that there was more evidence available here than there was in that case. In addition to the name and the police station, there was, as I have said, the additional feature that there was only a very short period for which this specimen was left at the police station and therefore the opportunity of confusion arising from the existence of another sample withthe same name must have been very small. In my judgment, the Justices were entitled to conclude to the criminal standard of proof that in the circumstances the likelihood that the sample bearing the same name sent from the same station in those circumstances the sample obtained from the defendant was the sample analysed.
22. I note also that Ms Calder has emphasised that there was no direct evidence before the court that the sample that was analysed by Ms Sugden had any number on it at all. She did not in terms give evidence that it did not but it seems to me quite unrealistic to think that the vial sent from the same police station with the same name to the forensic science authorities for the purpose of analysing this specimen would be anything other than the specimen which Ms Green took out of the fridge at the police station.
23. I would only add this: although the serial number was not identical in this case, as I have indicated, it was very similar. The Justices did not specifically rely on this but it does seem to me that the discrepancy of the kind demonstrated here is the kind of every day error of transcription that will arise when individuals are putting down strings of numbers. Had the serial number been markedly different, then that might have raised greater doubts and it would have been a different case. On the basis of the information available to the Justices, I am satisfied that they were entitled to conclude that the specimen analysed was that provided by the defendant.
24. It follows that, notwithstanding the persistent submissions of Ms Calder, the appeal fails.