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
		11th March 2010

1. MR JUSTICE CRANSTON:

Introduction

This case constitutes a challenge to one of the devices used to measure the level of alcohol in the breath of drivers. The device involved is a Lion Intoximeter 6000 UK, with software version 2.34, connected with the LIBIS computer system. That connection is for the purposes of keying in the details of the person being breathalysed and receiving the results from the intoxilyser. The claimant contends that the device does not have the requisite type approval. His claim is by way of judicial review of the refusal of the District Judge to state a case for consideration by this court. Permission to apply for judicial review was granted by Laws LJ and McCombe J late last year.

Background

2. The claimant is a retired teacher but now does work as a freelance photographer. On 17 November 2008 he was convicted in the Manchester City Magistrates' Court of driving a motor vehicle in late June of that year when his alcohol level was 85 micrograms in 100 millilitres of breath. That exceeds the legal limit, and is an offence under section 5(1)A of the Road Traffic Act 1988. He was fined and ordered to pay costs, in total £530 and was disqualified from driving for three years.
3. At the trial, before District Judge Berg, the prosecution called one witness, Police Constable Oldham, the intoxilyser officer, who gave evidence in relation to the procedure and the results. The officer explained the function of the LIBIS device and confirmed the device had nothing to do with the Lion Intoxilyser device: "Only the results of that machine are transferred back." She confirmed that the LIBIS device produced the relevant printout of the results. She had no technical knowledge.
4. Dr Mundy gave evidence for the claimant. He is an independent forensic scientist who was at one point in charge of the alcohol laboratory of the Metropolitan Police Forensic Science Laboratory. As a public official he was also involved in the approval and utilisation of earlier types of intoximeters. In a written report Dr Mundy explained that the objective of approval is to ensure that the device operates to the highest standard. Once an instrument has passed certain trials, approval is given. The Lion Intoxilyser 6000 UK with 2.33 software was approved initially. Subsequently, a Welsh version was approved with software 2.34.
5. In his report Dr Mundy set out how modifications are dealt with when notified to the Home Office. Apart from trivial changes, for example a change in the colour of the instrument, the modification may require further testing. The request is then passed to the Forensic Science Laboratory for assessment. The modification might be tested at the laboratory or at one or more of the other agencies. The report is then sent to the Home Office, which issues a letter of agreement or rejection. If the modification is major a full testing regime will have to be used and a new approval will have to be issued. The only time that occurred was following the upgrade of the Lion Intoxilyser 6000 UK version 2.33 to the Welsh language version 2.34.
6. Dr Mundy's report continued that Lion requested that Assessment Services test the combination of the Lion Intoxilyser UK and LIBIS to check for interference. That agency is one of those involved in the approval of instruments. Those tests were carried out in the first half 1997 on a Intoxilyser 6000 UK, with software 2.33 build 15. Assessment Services concluded that there was no interference with the Intoxilyser UK by LIBIS.
7. In the conclusion to his written report Dr Mundy explained that the LIBIS system disconnected the intoxilyser's keyboard and substituted its own for the starting of the test and the input of personal details. At that point the intoxilyser took over and performed the test cycle. When completed the results were sent to the LIBIS computer. There were many other functions of the intoxilyser and there was no information about whether these could be accessed through the LIBIS computer. However it was clear, in his opinion, that the intoxilyser was in a different computer mode when connected to LIBIS. In his opinion, LIBIS should be tested with the latest version of the Intoxilyser 6000 UK version, ie 2.34, as changes might alter the reaction of LIBIS to the instrument. He did not know whether such tests had been performed. He had never seen the type approval citing LIBIS, and in fact did not believe that there was such an approval.
8. Before District Judge Berg, Dr Mundy gave oral evidence in accordance with his written report. He stated that in his opinion the connection of the LIBIS device to the intoxilyser took the latter device out of the type approval order. It followed that in the absence of the testing of the LIBIS device, its attachment to the intoxilyser "might or might not" effect the reading produced as a result of the specimen of breath given.
9. On the basis of Dr Mundy's evidence the claimant submitted that the intoxilyser could not be said to give a reliable reading. Because of the connection with the LIBIS device, type approval should exist because the device itself was altered. It was therefore outside the scope of the type approval given. There will be no conviction on the basis of any reading it gave. As I have indicated the District Judge convicted the claimant.
10. On 11 December 2008 the District Judge set out his conclusions through a letter from his legal adviser. That stated that the District Judge had found as a matter of fact that he did not believe that the issue of type approval had been sufficiently raised by the defence. The evidence put forward by them to suggest that the device had been altered so significantly as to take it outside the scope of type approval was to a large extent based upon speculation. Therefore he rejected it. That finding was said to be based upon Dr Mundy's opinion that changes might have altered the reaction of the LIBIS to the instrument. In his letter the District Judge said:

"In the light of their being no direct evidence that the Lion Intoxilyser 6000 was altered so significantly as a result of the LIBIS connection, and bearing in mind Dr Mundy's "speculation" on this point referred to above, the judge found as a matter of fact that the device had not been taken outside of the scope of the type approval, and was an approved device."

11. In his acknowledgment of service to the claim the District Judge explains that he rejected the claimant's submission. He enunciates the following reasons: first, there was a presumption that the intoxilyser device was reliable and he could only concern himself with the device in question. He did not consider that the presumption had been challenged by any relevant evidence. He had heard no evidence that the connection of the LIBIS device did effect the function of the Lion Intoxilyser UK 6000 device. The challenge by the claimant was based, inter alia, upon Dr Mundy's report, which seemed to have used on other occasions. Dr Mundy's oral evidence simply confirmed the contents of his report, but his conclusion was that the connection to the LIBIS device might or might not effect the results produced:

"In the circumstances and in the light of the evidence given, I concluded it was pure speculation that the intoxilyser device was unreliable and had been altered in such a way and to such an extent that it was taken outside the scope of its type approval."

12. District Judge Berg was then asked to state a case for the opinion of this court with two questions: first, was he right to hold that the evidence of Dr Mundy was pure speculation, and secondly on the evidence of the case was he entitled to hold that the device was an approved device. In the circumstances, the District Judge held that he was entitled to refuse to state a case, since he considered that the application was frivolous, being both futile and misconceived. He considered that his decision was Wednesbury reasonable having regard to the evidence given. In his view any challenge that the LIBIS device should have been type approved by the Secretary of State was beyond his jurisdiction and a matter for the Secretary of State.

The Law

13. The Road Traffic Act 1988 creates offences of causing death by careless driving when under the influence of drink or drugs; driving or being in charge of a mechanically propelled vehicle whilst under the influence of drink or drugs; and driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit: sections 3A, 4 and 5.
14. In the course of an investigation as to whether a person has committed one of these offences section 7(1)(a) empowers a police officer to require the person to provide two specimens of breath for analysis by means of "a device of a type approved by the Secretary of State." A requirement under the section to provide specimens of breath can be made, inter alia, at a police station: section 7(2)(a).
15. Thus, section 7(1)(a) refers to devices of a type approved by the Secretary of State. For these purposes, in June 2005 a junior minister, acting on behalf of the Secretary of State, made The Breath Analysis Devices Approval Order 2005. That approved, as from 1 July 2005, as a means by which specimens of breath may be provided at a police station in accordance with section 7(2)(a) for analysis under section 7(1)(a), each of the types of device set out in the schedule. Three devices are named in the schedule. The third device is identified as follows:

"The device known as the Lion Intoxilyser 6000 UK, manufactured by Lion Laboratories Limited composed of the Lion Intoxilyser 6000 UK, the Lion Intoxilyser UK gas delivery system type A, B or C, and software version 2.33 or 2.34."

16. At least four recent authorities have addressed the issue of type approval. The first in time is Brown v Procurator Fiscal of Falkirk [2003] RTR 17, a decision of the High Court of Justiciary. There the schedule to The Breath Analysis for Scotland Approval 1998 for the purposes of section 7(1)(a) of the Road Traffic Act referred to "the device known as the Intoximeter EC/IR manufactured by Intoximeters Inc, of St Louis, Missouri, United States of America, composed of the Intoximeter EC/IR, the Intoximeter EC/IR gas delivery system by BOC limited the software version EC/IR UK 5.23." The Sheriff held that the device conformed to type approval in terms of the manufacture, although it had not been manufactured by Intoximeters Inc of St Louis. Giving the judgment of Lord Hamilton, Lord Morison and himself, Lord Cameron of Lochbroom held that the Sheriff correctly determined that whether or not the particular device was approved did not turn on the identity of the manufacturer.
17. In the course of his judgment in Director or Public Prosecutions v Richardson [2003] EWHC 359 Stanley Burnton J considered the issue of type approval of a breath analysis device, in fact the same type of device as before the High Court of Judiciary. He said that a device may not be an approved device because it never complied with the description of the device contained in the approval order. Alterations may have been made to it during the course of time as to take it out of the description in the schedule to the order: paragraph 8. It would seem that a device which did not include the intoximeter EC/IR gas delivery system, by way of example, or a software version which was not a UK 5.23, but some significantly different version, would not be an approved device: paragraph 9.

"It does not follow that from every modification to an Intoximeter takes it out of approval, far from it. The alteration must be such in my judgment that the description in the schedule of the order no longer applies to it."

18. Later in his judgment Stanley Burnton J said that if the only contention was that the modifications to the Intoximeter device had been such that it was no longer in the same condition as it had been when the Secretary of State's approval was given that could not amount to the defence. It had to be shown that the modifications were such that it was no longer an approved device: paragraph 13.
19. In Fearnley v the Director of Public Prosecutions [2005] EWHC 1393 (Admin), the device at issue was again an intoximeter EC/IR. There were a variety of challenges to the device. In the course of his judgment in this court, Field J said that while the defence statement purported to put the prosecution specifically to proof that the software was UK 5.23, that did not mean that the prosecution has specifically to prove this matter. That was because of the general presumption which flowed from the fact that the machine was of a type that had been approved, this being a presumption which was plainly consistent with Article 6 ECHR. Thus it was for the appellant to adduce some evidence that the software was otherwise than the specified software. At no stage did the appellant adduce such evidence and therefore he could have no substantial complaint that the prosecution were allowed to provide specific proof of the software through the engineer's report: paragraph 34.
20. The last of the authorities is Breckon v Director of Public Prosecutions [2007] EWHC 2013 (Admin); [2005] RTR 8. Again, an intoximeter EC/IR device was at the centre of the argument. Reliance was placed on the fact that the guide to type approval relating to the device provided that the gas delivery system should comprise an automatic change over valve, whereas the device in question had a manual change over valve. Giving the first judgment of the court Nelson J said there was no reference in the schedule to the approval to the guide, and he could not see no reason that it had been incorporated within the approval. The definition of the device stood by itself in the schedule of the approval and did not admit a further identification or specification, paragraph 29. At paragraph 31 Nelson J said:

"[If] for example the Intoximeter EC/IR had no gas delivery system or had 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 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 deliver system."

Sedley LJ agreed.

21. Building on these authorities, my view is that type approval is concerned with description. The issue is whether a device meets the description set out in the schedule. That is a separate issue from reliability or quality. Description means the essence or identity of the device. That is a broad common sense test. It will turn very much on the build and function of a device and the circumstances in which type approval is given. The issue then arises whether collateral attributes of the device go to its description affecting, in other words, its essence or identity so that the device can no longer be regarded as of that description. Even if a specific manufacturer is part of a type approval, that may not be part of its description because it is not part of its essence or identity. Similarly, with the modification of the device the issue is whether the modification is such that the device no longer matches the description in the type approval. That demands a common sense judgment as to whether the build and function of the device is such that it still has, in fact, the essence or identity of the device specified in the type approval.

The claimant's case

22. On behalf of the claimant Miss Calder in her written submissions and before us today contends that the decision of the District Judge not to state a case for the opinion of this court was flawed. Before the District Judge, Dr Mundy had given evidence that the connection of the Intoxilyser 6000 UK 2.34 to the LIBIS computer was a fundamental change of the system, which had not been tested or approved. The Intoxilyser 6000 UK 2.34 had another computer attached to it. That was not a mere formality. The readings obtained from an unapproved device might be unreliable. The prosecution had called no evidence to refute the evidence of Dr Mundy, or to show that the Intoxilyser with the LIBIS device attached was of a type approved by the Secretary of State. Indeed, the prosecution did not address the court about that matter.
23. The device involved was a Lion 6000 UK 2.34 linked by cable to another computer, LIBIS, which assumed some of the latter's functions. Dr Mundy's evidence was that the LIBIS disconnected the Intoxilyser keyboard and took over the input of data and then produced the printout. In Miss Calder's submission Dr Mundy was a reputed expert who was involved in the process of type approval of these devices. The issue was not one of reliability, although in her contention the District Judge confused the reliability and approval. The District Judge was not in a position to come to any conclusion that the device had not been altered in such a way or to such an extent that it was taken out of its type approval. The device was either approved or it was not. Linking the Lion Intoxilyser to another computer must be a significant alteration.
24. It was a matter of common sense, in Miss Calder's submission, that the approval order, which specified the device and its software, did not authorise the use of additional software of the LIBIS computer. For approval one had to show that the device did not conform to the schedule. In this case, it was self evident. The District Judge misdirected himself through his focus on reliability. It was agreed and accepted by him that the LIBIS computer was attached to the Lion Intoxilyser on this occasion. In her submission that took it outside the approval order.

Conclusion.

25. In my view the the issue for the District Judge was whether this Lion Intoxilyser 6000 UK 2.34 with the LIBIS connection was a device to which the description in the 2005 type approval order applied. As I explained earlier, in my view a description of a device relates to the essence or identity of that device. Whether this device met that description demanded a broad, common sense judgment by the District Judge. As set out in his letter of 11 September, he found as a matter of fact that there was no direct evidence that the Lion Intoxilyser 6000 UK was altered so significantly as a result of the LIBIS connection to take it outside its description. Bearing in mind Dr Mundy's speculation on this point, the District Judge says in his 11 December letter that he found as matter of fact that the device had not been taken outside the scope of type approval and was still an approved device.
26. In his acknowledgment of service the judge, on a number of occasions, dealt with the issue of reliability, and Dr Mundy's evidence on this. However, he also addressed in his acknowledgment of service, and addressed squarely, the issue of type approval. He found that there was no change of function as a result of the LIBIS connection and that the device still met the description in the type approval order. The District Judge's remarks that any challenge to the type approval of the LIBIS device was a matter beyond his jurisdiction and for the Secretary of State. This must be seen in context, namely, that there had been no evidence to suggest that the difference between the LIBIS interaction with version 2.33 and its interaction with 2.34 was sufficient to take the device outside type approval.
27. The District Judge was entitled to conclude that Dr Mundy had not given evidence that the use of LIBIS with the Lion Intoxilyser 6000 UK and software version 2.34 was use of a device which was not of an approved type. The District Judge refers in his acknowledgment of service to the presumption as to reliability. That must be seen in the context of his coupling of that presumption of reliability with the presumption of approval. In my view it is clear from the December 11 letter, and from the acknowledgment of service as a whole, that the District Judge was referring to both.
28. In my view, the District Judge applied the correct test in law. He concluded that the claimant had not raised any evidence that the device was not of an approved type. That meant that the appellant had not discharged the evidential burden. In my view, the District Judge having found that there was no evidence that the device fell outside type approval, an application to state a case on that premise would have been, indeed, frivolous. I refuse this application for judicial review.
29. LORD JUSTICE LEVESON: I agree.
30. MISS CALDER: Could I mention one thing, my Lord, and that was there was an ancillary matter in the claim form because the District Judge, sometime after the hearing, disallowed Dr Mundy's claim for expenses. I made a mistake in my skeleton argument initially when I referred to the law on that. It is a Prosecution of Offences Act 1985 Section 19(3) gives the Lord Chancellor power to make regulations authorising the repayment out of central funds of witness expenses, and it is also regulation 19(3) of the Costs in Criminal Cases General Regulations 1986. It then goes on to say expenses properly incurred by a witness are to be allowed out of central funds unless the court otherwise directs. This applies whatever the outcome of the proceedings are. In this case Dr Mundy did not claim for his report, which the District Judge referred to in his reasons, but he did claim, and you have that at the end of the bundle, for the expenses going to Manchester. In my submission, his claims were in fact quite modest. They are in the bundle.
31. MR JUSTICE CRANSTON: Page 43.
32. MISS CALDER: Thank you. I notice my learned friend did actually comment upon this, but normally--
33. LORD JUSTICE LEVESON: It is not terribly surprising, because it is not actually part of the judicial review. It is said to be an ancillary application, but it is not, an ancillary application is rather lining the application which you made before the Deputy Judge to lift the disqualification. This is a separate issue, is it not? Was the judge Wednesbury unreasonable to refuse to allow costs out of central funds, is that not the point?
34. MISS CALDER: Well it has been raised. Would your Lordship then give me leave to amend the grounds to include that as a ground?
35. LORD JUSTICE LEVESON: Let me just see.
36. MISS CALDER: It is whether the case is one or lost the witness is entitled to expenses. Dr Mundy has never had any refused before, in fact no witnesses I have come across has ever had any refused. The District Judge did not say at the time. He only said after we had applied for judicial review that he was not allowing the expenses. In view of the fact your Lordship has referred throughout to Dr Mundy's evidence how could he say it was not relevant?
37. LORD JUSTICE LEVESON: What you would have to do is challenge page 44.
38. MISS CALDER: Could I amend the grounds to include that?
39. LORD JUSTICE LEVESON: I just do not know. It is actually not just in this case, it is in another case as well.
40. MISS CALDER: It is in another case?
41. LORD JUSTICE LEVESON: So it appears from page 44. Invoicing cases of.
42. MISS CALDER: I have never come across another case, and Dr Mundy has not had one. Both cases, a Michelle Crane, they were the two cases heard on this occasion, that is why there are two.
43. LORD JUSTICE LEVESON: Same day, I see.
44. MISS CALDER: They appeared together.
45. LORD JUSTICE LEVESON: I did not know that. It is not a matter of course for the interested party. He is not interested in that at all, presumably.
46. MR BIGGS: Unless I can be of assistance.
47. LORD JUSTICE LEVESON: All right, we will rise a moment.
A Short Adjournment.
48. LORD JUSTICE LEVESON: In section 7 of the claim form for judicial review which seeks an order that the District Judge state a case, the claimant also seeks to make application for an order that the defendant court to pay out of central funds the witness expenses of Dr John Mundy for his attendance at the trial. That application was not developed and is entirely freestanding to the application with which the court has just dealt.
49. In the statement supporting the application the claimant's solicitors merely assert that the District Judge was in error when responding to a letter to the effect that he exercised his discretion to decline to award the sums from central funds and had wrongly interpreted the legislation. Save for that observation there is no other elaboration of that ground; indeed, the solicitor goes on to identify only one ground on which the court is entitled to refuse to state a case and seeks to apply for judicial review for an order directing Manchester Magistrates' Court to state a case for the opinion of this court. Nobody has sought elaboration from the District Judge or required him to acknowledge an application by way of judicial review of his decision in relation to costs. It is now too late so to do, and we decline to grant relief in relation to this application.
50. MR BIGGS: My Lord, my application is for the Crown Prosecution Service costs for preparation and attendance at this hearing.
51. LORD JUSTICE LEVESON: Has a schedule been served?
52. MR BIGGS: A schedule has not been served.
53. LORD JUSTICE LEVESON: Yes?
54. MISS CALDER: I would like to oppose the application. We have not had a schedule, of which I think there are the rules of the court that it has to be served before hand. The claimant has subsequently lost his employment and is somebody of not very great means to be able to pay extra costs.
55. LORD JUSTICE LEVESON: Is he in receipt of legal aid?
56. MISS CALDER: We are not --
57. LORD JUSTICE LEVESON: Publically funded?
58. MISS CALDER: No. He has lost the job since we had the case going.
59. LORD JUSTICE LEVESON: He did not seek legal aid?
60. MISS CALDER: Not at that stage. The thing is my instructing solicitor does not do legal aid so he would have had to go elsewhere.
61. LORD JUSTICE LEVESON: I see. All right, did you have some other application?
62. MISS CALDER: Yes. My Lord, although I have not got any question formulated at the moment, if in the next week I formulated a case, I would like to ask for a certificate to go to the Supreme Court. If the question was suitable would your Lordship consider it?
63. LORD JUSTICE LEVESON: We could think about the drafting later Miss Calder. What is the thrust of the question?
64. MISS CALDER: The thrust of the question would be on type approval. Whether the burden that is on the prosecution to prove it was type approved, the issue having been raised. I would have want to think about it.
65. LORD JUSTICE LEVESON: Well, obviously how it is drafted could be considered. What is the position about the fact there is no schedule Mr Biggs?
66. MR BIGGS: The position is this: until it became clear it was potentially more than just the judicial review of the refusal to state a case, it might go in to judicial review of the full decision, or the stated case itself, the Crown Prosecution Service did not instruct anybody and wrote saying we are the interested party, and if it is only being sent back to the District Judge we have no submissions. When it became clear following the most recent hearing that was not the case I was instructed this week. A schedule has not been put together, but the costs are, I can say, £1005, which covers the preparation, my attendance today, and three hours work on the case. I apologise there is no schedule.
67. LORD JUSTICE LEVESON: Miss Calder, what do you say about that?
68. MISS CALDER: I did not hear the amount.
69. LORD JUSTICE LEVESON: The amount was £1,000.
70. MISS CALDER: I know the claimant has been paying periodically to the solicitors, and as I say, he has difficulties. We made the an application for judicial review of the conviction on the basis that we were really invited to, to some extent, by the order of His Honour Judge Thornton when he looked at the application.
71. LORD JUSTICE LEVESON: Yes.
72. MISS CALDER: He said we should consider doing that, and as as a result of that, otherwise we would not have done.
73. LORD JUSTICE LEVESON: All right. We will just rise a moment.
A short adjournment.
74. LORD JUSTICE LEVESON: We understand why the application for costs is made, but in the light of the circumstances and in light of the encouragement of the circuit judge, we make no order for costs.
75. MISS CALDER: I am obliged.
76. LORD JUSTICE LEVESON: Miss Calder, in relation to the certificate we presently cannot conceive of a question that would generate sufficient public importance to justify a certificate. If in the next week you would like to formulate one, you can provide it to us in writing, and we will respond in writing.
77. MISS CALDER: Yes, thank you.
78. LORD JUSTICE LEVESON: Thank you very much.