United Kingdom House of Lords Decisions

Director of Public Prosecutions v. McKeown and Jones [1997] UKHL 4; [1997] 1 All ER 737; [1997] 1 WLR 295; [1997] 2 Cr App Rep 155; [1997] Crim LR 522 (20th February, 1997)

LORD GOFF OF CHIEVELEY

My Lords,

          I have read in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow the Director's appeals in both cases.

LORD MUSTILL

My Lords,

          I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives I would allow the Director's appeals in both cases.

LORD STEYN

My Lords,

          I have read in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow the Director's appeals in both cases.

LORD HOFFMANN

My Lords,

          These two appeals concerning convictions under the Road Traffic Act 1988, one for driving with an excessive proportion of alcohol in the breath and the other for failing without reasonable excuse to provide a specimen of breath, both arise out of the fact that in late July 1992 the computer clock in the Lion Intoximeter 3000 in use at Widnes Police Station was displaying a time about an hour and a quarter slow. In neither case was there any dispute about the correct time at which the Intoximeter was used; in fact, the precise time was not a matter of any importance. In the one case the Intoximeter recorded that the motorist had twice the prescribed limit of alcohol in both specimens of her breath; in the other, the first specimen was more than four times the prescribed limit, after which the motorist deliberately refused to provide a second. Nevertheless the Divisional Court accepted that the inaccuracy of the clock reading vitiated both convictions and against that decision the Director of Public Prosecutions appeals to your Lordships' House.

          By section 5(1) of the Act of 1988 it is an offence to drive a motor vehicle on a road after consuming so much alcohol that the proportion in his breath exceeds the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath. By section 7(1), a constable investigating whether a person has committed an offence under section 5 may require him to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State and by section 7(6) a person who without reasonable excuse fails to provide a specimen when required to do so pursuant to subsection (1) is guilty of an offence.

          The Lion Intoximeter 3000 is a device approved by the Secretary of State for the purposes of section 7(1). It consists of an analyser which measures the alcohol content of the breath by means of an electrical signal; a computer which converts the signal into digital form with a visual display on which the result of the test is shown and a printer on which it can be printed out; and a breath simulator which provides air containing a measured quantity of alcohol so that the constable operating the machine may check whether it is calibrating correctly. The standard procedure is for the machine to be tested before and after the analysis of the two specimens provided by the motorist.

          The usual way in which evidence of the proportion of alcohol in the breath is proved in court is by certificate under section 16 of the Road Traffic Offenders Act 1988. This provides as follows:

"(1) Evidence of the proportion of alcohol . . . in a specimen of breath . . . may, subject to subsections (3) and (4) below . . . be given by the production of a document or documents purporting to be . . . (a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the accused at the date and time shown in the statement . . .

"(3) Subject to subsection (4) below--(a) a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in subsection 1(a) above is admissible in evidence on behalf of the prosecution in pursuance of this section only if a copy of it either has been handed to the accused when the document was produced or has been served on him not later than seven days before the hearing . . . .

"(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed."

          The section is a specialised exception to the hearsay rule which, on compliance with its conditions, enables evidence which the constable could have given orally to be given instead by a certificate admissible on mere production. But the requirement that the certificate and statement be served on the accused and that they should not be admissible if the accused gives notice that he requires the constable who signed the certificate to attend the hearing means that the procedure is for practical purposes consensual. If such notice is given, or the prosecution is unable to comply with the conditions, the prosecution must prove its case by other admissible evidence.

          This will in practice mean calling the officer who operated that Intoximeter to testify to the results of the test by reference to what he saw on the visual display and what the machine printed out. Such first-hand evidence of what was displayed or recorded on a mechanical measuring device is real evidence admissible at common law: see Castle v. Cross [1984] 1 W.L.R. 1372, applying The Statue of Liberty [1968] 1 W.L.R. 739. But when the measuring device, as in this case, includes a computer, the evidence is not admissible unless it satisfies the requirements of section 69 of the Police and Criminal Evidence Act 1984:

"(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown -

 (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; (b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents."

          These provisions are supplemented by paragraph 8 of Schedule 3:

"8. In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above, a certificate--

  (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters mentioned in subsection (1) of section 69 above; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the computer, shall be evidence of anything stated in it; and for the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."

          That is the statutory background to the two cases under appeal. Although both are concerned with the effect of the inaccuracy of the time display upon the validity of the conviction, the offences charged were different and the legal issues are not the same. I shall therefore consider first the case of Ms McKeown, who was convicted under section 5(1) and then that of Mr. Jones, who was convicted under section 7(6).

          Late on 21 July 1992 Ms McKeown was observed to be driving erratically in Liverpool Road, Widnes, arrested on suspicion of being over the limit and taken to Widnes Police Station. There she was required to take a breath test. The Lion Intoximeter 3000 was operated by Sergeant O'Dell. He tested the machine and it calibrated correctly. By this time it was about a quarter after midnight; the sergeant's watch said 00.13 a.m. But the time display on the machine read 23:00. Part of the discrepancy was explained by the fact that, as the print-out made plain, the machine was set to GMT. But there was no explanation of the balance. Ms McKeown provided the required two specimens, both of which registered 78; well in excess of the prescribed limit of 35. Afterwards Sergeant O'Dell tested the machine again and once more it calibrated correctly. He filled in the standard form of witness statement for use in such cases, attaching the print-out from the Intoximeter but noting on his statement 'Time shown on print out is 1 hr 13 mins slow".

          Ms McKeown was charged under section 5(1). She was served with the statement of Sergeant O'Dell and also a statement of Dr Paul Williams, a director of Lion Laboratories Ltd, which supplies the Intoximeter to the police. It said that the alcohol analytical system and breath sampling system were separate from the circuitry which controlled the accuracy of the clock. Inaccuracy in the time display could have absolutely no effect on the accuracy of the readings obtained on breath samples.

          On 27 November 1992, shortly before the case was due to be heard, Ms McKeown's solicitors wrote to the Crown Prosecution Service saying that the statement of Dr Williams "cannot be accepted." They also asked to be supplied with "all relevant design documents and the circuit diagram." On 7 December 1992 the CPS wrote back saying that Dr Williams would give evidence but refusing to produce diagrams or documents. In the event the case did not come on till 20 April 1993, but there was no application until the hearing, when the defence applied for an order that Dr Williams should produce the documents and diagrams. The justices refused the application.

          As the time inaccuracy meant that Sergeant O'Dell was unable to certify, in accordance with section 16 of the Road Traffic Offenders Act 1988, that the statement automatically produced by the Intoximeter related to "a specimen provided by the accused at the date and time shown in the statement", he was called to give evidence and testified to the conduct of the test and the readings on the visual display and print-out which I have described. Dr Williams also gave evidence. He said that he was not an electronics expert and did not understand the circuitry of the Intoximeter clock but that the clock had no bearing on the accuracy of the breath readings. The justices accepted this evidence and found, as later recorded in the case stated, that the Intoximeter was not affected by the clock and that the statements as to the breath readings it produced were accurate.

          It is convenient at this stage to deal with two procedural questions which were raised by the justices in the case stated. The first was whether they were right to refuse the application for production of documents. The application was made under section 97(1) of the Magistrates' Court Act 1980:

"Where a justice of the peace. . . is satisfied that any person . . . is likely to be able to . . . produce any document . . . likely to be material evidence . . . at the summary trial of an information . . . and that that person . . . will not voluntarily produce the document . . . the justice shall issue a summons directed to that person requiring him to attend before the court . . . to produce the document. . . "

It has repeatedly been said that there is no provision for discovery of documents for a summary trial in a magistrates' court and that section 97(1) should not be used as a disguised attempt to obtain discovery: see Reg. v. Skegness Magistrates' Court, Ex parte Cardy [1985] R.T.R. 49. The circuit diagrams would have been meaningless without explanation and Dr Williams, who disavowed any expertise in electronics, would not have been able to explain them. The proceedings would have had to be adjourned for the documents to be examined by an expert on behalf of the accused. Whether they would then have had any relevance is entirely speculative: the defence made no attempt to lay a foundation for their application by evidence of how a circuit diagram might demonstrate that, contrary to Dr Williams's empirical observations, the inaccuracy of the time reading did in fact have some effect on the breath analysis. I think that the justices were right to reject the application.

          The second question is whether, given Dr Williams's lack of expertise in electronics, his expert evidence was admissible on the question of the reliability of the device In my view Dr Williams was entitled to give this evidence by reason of his familiarity with the working of the Lion Intoximeter 3000. It is notorious that one needs no expertise in electronics to be able to know whether a computer is working properly. Dr Williams was qualified to say that he was familiar with Intoximeters which displayed the time incorrectly but nevertheless produced correct breath analyses. Sergeant O'Dell, who tested his Intoximeter to see whether it was calibrating correctly, was able to give evidence to the same effect. This was evidence on which the justices were entitled to make their finding that the statements produced by the device were accurate.

          This brings me to the chief question in Ms McKeown's case, which is whether the evidence of the Intoximeter's breath analysis satisfied the requirements of section 69(1) of the Police and Criminal Evidence Act 1984. If it did not, there was no other evidence of the alcohol content in her breath and her conviction cannot stand. It will be recalled that section 69(1) deals with the admissibility of "a statement in a document produced by a computer" as evidence of "any fact stated therein." In order for the statement to be admissible, it must be shown, in accordance with in subsection (1)(b):

"that at all material times the computer was operating properly, or of not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents."

          A "statement" has the same meaning as in section 10(1)(c) of Part I of the Civil Evidence Act 1968, where it includes "any . . . device in which . . . data . . . are embodied so as to be capable . . . of being reproduced therefrom." This would include the memory of a computer.

          I shall for the moment assume that the inaccuracy in the time display meant that "the computer . . . was not operating properly." The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents." If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.000 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document.

          In my view, however, the paragraph was not intended to be read in such a literal fashion. "[T]he production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule.

          The first thing to notice is that section 69 is concerned solely with the proper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer.

          The purpose of section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states.

          The language of section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence.

          Paragraph (a) of section 69(1), which deals with improper use of the computer, clearly has this meaning. The statement is inadmissible only if there are reasonable grounds for believing that the improper use has caused the statement tendered in evidence to be inaccurate. It was argued that because paragraph (b) uses different language and speaks of the "production of the document or the accuracy of its contents" rather than being concerned, as in paragraph (a), with the accuracy of "the statement," it must have a different meaning. I shall not speculate on the reasons why the draftsman thought it necessary to deal with improper use of the computer separately from the question of whether it was in proper working order. But there cannot have been any difference in the purpose of the two paragraphs: in both cases the legislature was concerned with the reliability of the statement tendered in evidence as a properly processed and reproduced piece of information. On the point now in issue I think it would be quite irrational if the effect of the two paragraphs was not the same.

          The justices had before them a certificate signed by Sergeant O'Dell under paragraph 8 of Schedule 3 stating that to the best of his knowledge and belief the requirements of section 69(1) had been complied with. In the absence of contrary evidence, they were entitled to accept this certificate as sufficient to satisfy section 69(1). The question is then whether they were obliged to regard the inaccuracy of the clock display as contrary evidence. The justices also had evidence from Dr Williams and Sergeant O'Dell, which they were entitled to accept, that the clock display was not affecting the proper functioning of the computer in processing the information from the breath analyser. Having accepted this evidence, there was in my view nothing to displace the effect of Sergeant O'Dell's certificate.

          I have considered the matter on the assumption that the error in the clock display showed that the computer was not operating properly. I should say, however, that I am not satisfied that this conclusion should have been drawn. Computer clocks, like any others, have to be set to the correct time and the most obvious explanation for the 15 minute discrepancy was that someone had made a mistake when he last set the clock. This would not have anything to do with the computer not operating properly. Furthermore, if the error lay in the clock mechanism itself, I doubt whether it would constitute part of "the computer" for the purposes of section 69(1). The section, as I have said, is concerned with the processing and storage of information and not with the accuracy of the information supplied. The clock, although no doubt physically in the same box as the computer, is something which supplies information to the computer rather than being part of the processing mechanism. But I do not explore this question any further because there was no evidence about why the time was inaccurate and I prefer to base my decision on the construction of section 69(1). In my view, there was admissible evidence upon which the justices were entitled to convict Ms McKeown and the Director's appeal in her case should be allowed.

          Mr. Christopher Jones was brought into Widnes Police Station about a week after Ms McKeown. He had driven his car onto a roundabout and appeared to be very drunk indeed. He provided one specimen of breath which registered 148; more than four times the prescribed limit. He then did not blow hard enough to provide a second specimen. The visual display and print out indicated that the test had aborted. The officer who operated the machine and gave evidence at the trial was Sergeant Draycott. Like Sergeant O'Dell, he noted that the time display was inaccurate by his watch; in his case, by an hour and 15 minutes, but the discrepancy of two minutes from the evidence in the earlier case is as likely to have been in the policemen's watches as an indication that the computer clock had fallen further behind.

          Mr. Jones was charged under section 7(6) with failing without reasonable excuse to provide a specimen of breath when required to do so in pursuance of section 7(1). At the trial he gave evidence that he had tried his best but was overcome by a fit of coughing. The justices rejected his explanation, found that he had deliberately refused to blow into the machine as instructed and convicted.

          It was submitted on behalf of Mr. Jones that he could not lawfully be required to provide breath for an Intoximeter with an inaccurate clock. But section 7(1) says only that a constable may require a person under investigation to "provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State." There is nothing about the approved device having to have an accurate clock. The Lion Intoximeter was an approved type of device and it seems to me impossible to argue that, by reason of the inaccuracy in its clock, the device at Widnes Police Station could no longer be described as a Lion Intoximeter. The point is reinforced by subsection 3(b), which says that a constable may not require a specimen of blood or urine to be provided at a police station except in specified circumstances, one of which is that ". . . a device or a reliable device of the type mentioned in subsection 1(a) is not available at the police station. . . ." This clearly contemplates, as one would expect, that a device may be "unreliable" and yet of the type approved by the Secretary of State.

          Secondly, it was argued that the inaccuracy in the clock was a "reasonable excuse" for Mr. Jones's failure to provide a specimen. The difficulty about this argument is that Mr. Jones never claimed to have the slightest notion that there was anything wrong with the time on the clock. His defence before the justices, on which he was disbelieved, was that the inadequacy of the specimen had not been his fault. It is therefore hard to see how the clock could have been an "excuse" for his failure to provide a specimen. I do not say that an excuse must be something which the accused had in mind when he failed or refused to provide the specimen. It would, for example, have been an excuse that he was unconscious when the request was made. But the concept of an excuse requires that it must have been a reason why the specimen was not provided. There must have been some causal connection between the excuse and the failure to provide the specimen. In this case, there was none.

          In any case, even if Mr. Jones had noticed that the clock was slow, I do not think that this would have been an excuse. If it was obvious that the device was in no state to analyse his breath correctly, he might reasonably have objected to going through a pointless exercise. But this would have been far from obvious and the evidence before the justices showed that it would have been wrong.

          Finally, it was submitted for Mr. Jones that the only admissible evidence that his second breath specimen was inadequate was the computer reading showing that the test had aborted. If this was inadmissible for failure to comply with section 69(1), he could not be convicted. The arguments against the admissibility of the computer evidence were the same as those which I have already rejected in the case of Ms McKeown. It follows that in my view this point also fails and the Director's appeal in Mr. Jones's case should also be allowed.

LORD CLYDE

My Lords,

          I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives I would allow the Director's appeals in both cases.