Andrew Wayne Richardson v DPP
|England & Wales
|MR JUSTICE STANLEY BURNTON
|20 February 2003
| EWHC 359 (Admin)
|Queen's Bench Division (Administrative Court)
|20 February 2003
 EWHC 359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Stanley Burnton
MR N LEY (instructed by Byrne Frodsham & Co, 1-3 Deacon Road, Widnes, Cheshire, WA8 6EB) appeared on behalf of the CLAIMANT
MS A POWER (instructed by The Crown Prosecution Service, Kings House, Kymberley Road, Harrow, Middlesex, HA1 1YH) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated by Andrew Wayne Richardson who, on 22nd August 2002, was convicted by the justices for the Middlesex area of Greater London at Harrow Gore, sitting in Rosslyn Crescent, Harrow, of driving, having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988. Having been convicted on that date, 4th October 2002, he was sentenced to a community punishment order for 220 hours, ordered to pay £264 costs, and he was disqualified from driving for a period of four years, and his licence was endorsed.
The certificate of analysis in this case shows that the level of alcohol was 93 microgrammes per 100 millimetres of breath, virtually three times over the limit prescribed in relation to a breath test. He had been driving on 11th January 2002 in Pinner, which was the occasion when the offence was alleged to have been committed, a blue Porsche Boxster motorcar. Having been stopped and arrested and taken to the police station, a breath sample was taken on what appears to have been an Intoximeter, which was treated by the police officers in question as an approved device. It recorded that very high level of alcohol in his breath, the 93 microgrammes being, in fact, the lower of the two analyses he gave. He asked to be able to give a blood sample. That request was refused by the police officers.
When the matter came before the magistrates on 22nd August, an adjournment was requested on behalf of the appellant, who sought disclosure by the prosecution of the service history of the Intoximeter device in question. The magistrates refused the adjournment. The appellant gave no evidence, he called no evidence, and, not surprisingly, he was convicted in those circumstances. He now appeals against that conviction by way of case stated.
The object of a case stated is to set out for the information of the court hearing the appeal the relevant evidence before the magistrates, the facts found by the magistrates, the relevant questions they determined, their answers to those questions, their reasons for giving those answers, and the questions which the court is asked to consider and answer in the light of the other information contained in the case stated.
So far as the second issue Mr Ley has argued before me today is concerned, the case stated requires no comment; the issue is plainly raised. That is not the position in relation to the first issue, which relates to the evidence which might have been provided relating to the Intoximeter which gave the reading of 93 microgrammes per millilitre in the breath. In the course of these and other proceedings, persons accused of committing an offence of driving with excess alcohol have sought to raise a number of defences relating to Intoximeters, many of which are technical, many of which might be regarded as unmeritorious, but if good in law, they have merit in law.
One issue that in the past has sought to be raised is that the Intoximeter should not have been approved by the Secretary of State. The Secretary of State has powers conferred on him by section 7(1)(a) of the 1988 Act to approve types of device for the use of police forces in England and Wales for the purposes of determining whether or not a person has committed an offence under section 5(1)(a) of that Act. In the past it has been sought to raise the issue whether a device is sufficiently reliable or otherwise appropriate to be so approved as a defence to criminal proceedings in either the Magistrates' Court or the Crown Court. It is quite clear from the Act itself, and now on authority, that the question of the approval of a type of device pursuant to section 7(1)(a) is a matter for the Secretary of State. Approval can, of course, be challenged by way of judicial review, but if not so challenged, it is effective. The device so approved is assumed to be an effective and sufficiently accurate device for the purposes of section 5(1)(a), and that is the end of the matter. The issue whether approval is apt or inapt is not for a criminal court. The question of whether the Home Secretary was right or wrong is not for a criminal court.
Another issue which may be raised, and has been raised in the past, is as to whether a particular device is, for one reason or another, defective, and was so at the time that it provided a reading of the proportion of alcohol in the breath of the accused in question. That is a dispute which may be investigated by evidence of, for example, a blood sample taken at the same time, a urine sample taken at the same time, and possibly other evidence, such as oral evidence disputing that alcohol had been consumed in such quantities as could possibly have given the reading provided by the Intoximeter.
The third issue which may be raised is whether the device used, which purported to be an approved device, was in fact approved. It may not be an approved device, in fact, because it has never complied with the description of the device contained in the approval order. It may be so because such alterations have been made to the device during the course of time as to take it out of the description in the schedule to the order. The schedule to the order in the present case, which is the Breath Analysis Device (No. 2) Approval 1998, describes the device as follows:
"The device known as the Intoximeter EC/IR, manufactured by Intoximeters Inc, of St Louis Missouri, composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR-UK5.23."
On the face of it, therefore, it would seem that a device which did not include the Intoximeter EC/IR Gas Delivery System, by way of example, or the software version of which was not UK5.23, but some significantly different version, would not be an approved device. It does not follow from that that every modification to an Intoximeter takes it out of the approval. Far from it. The alteration must be such, in my judgment, that the description in the schedule to the order no longer applies to it.
In the present case it would seem that all three of those arguments were intended to be raised on behalf of the appellant. That all three arguments were to be raised, however, was far from made clear to the prosecution, certainly until a late stage in the proceedings. The defence were armed, as a result of another case, with an expert's report on this particular Intoximeter, which had been examined some months before its use in relation to the appellant. That report took issue with the question of the approval of the device, but did not raise either of the other issues, other than the issue as to whether the device would produce a reliable reading in the event that the person breathing into it had taken mouth alcohol at, or momentarily before, providing the breath sample. Manifestly, that matter would only be relevant if there were evidence that the accused had so taken mouth alcohol. That has never been suggested in the present case.
The position when the matter came before the magistrates was this: (1) there was no evidence before them that in fact there had been any such alteration as had taken the Intoximeter in question outside the description in the schedule; and (2) it would appear to be the case —and I put the matter so advisedly —that the defence wished to investigate whether there had in fact been such alterations to the Intoximeter as would take it outside the description, although they did not, and could not, put before the magistrates, when the questions of adjournment arose, what modifications had taken place, and more obviously, since they could not do so, that any of those alterations were apt to take the Intoximeter outside the description in the schedule to the approval order.
There was clearly argument as to whether the magistrates could, and should, investigate whether the device should have been approved by the Home Secretary, and whether it continued to merit its continued approval. That would seem to be the major issue as perceived by the prosecution. The magistrates refer to the preliminary point taken before them in paragraph 2 of the case stated as follows:
"A preliminary point was taken on behalf of the Appellant that the proceedings should be further adjourned as the prosecution had failed to provide full disclosure the service history of the Intoximeter device. It was contended on his behalf that 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, and the Appellant's defence would be handicapped if fuller information were not available. We refused this application for reasons which are given in paragraph 7 (below)."
It can be seen that that paragraph does not focus with any precision on the issues to which I have just referred. If the only contention on behalf of the accused, as he then was, was that the modifications to the Intoximeter device had been...
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