Breckon v DPP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nelson,Lord Justice Sedley |
| Judgment Date | 22 August 2007 |
| Neutral Citation | [2007] EWHC 2013 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9303/2005 |
| Date | 22 August 2007 |
[2007] EWHC 2013 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Sedley
Mr Justice Nelson
Case No: CO/9303/2005
Nigel Ley (instructed by Vickers & Co) for the Claimant
Alan Blake (instructed by CPS Buckinghamshire) for the Defendant
Hearing dates: Wednesday 18 th July 2007
Judgement
This is an appeal by way of case stated from the decision of Deputy Judge Wicks, sitting at Milton Keynes Magistrates' Court on 23 November 2004, convicting him for an offence of driving a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.
The Facts.
On 25 January 2003 the Appellant was found by police at the scene of a road traffic accident with his vehicle on its roof in the middle of the road. No other vehicle was involved. The Appellant admitted that the vehicle was his and stated that he had 'just lost it'. A road side breath test was administered by a police officer using an alcotest SL 400 hand held device. The test proved positive and the Appellant was conveyed to the police station where the substantive breath test procedure was carried out on an EC/IR Intoximeter device. The Appellant provided two specimens of breath, the lower of which produced a reading of 58 mcg alcohol/100 ml breath, the legal limit being 35 mcg.
At trial the Appellant contended that there was insufficient evidence to show that the Intoximeter EC/IR device used in this case was an approved device. Reliance was placed upon the fact that the Guide to Type Approval relating to the device provided that the 'gas delivery system shall comprise an automatic change-over valve', whereas the device in question had a manual change-over valve. Additionally, it was contended that the failure by the Crown to adduce evidence of the proportion of alcohol obtained from the road side breath test was fatal to the prosecution case, having regard to Badkin v DPP [1988] RTR 401, and section 15(2) on the Road Traffic Offenders Act 1988. For the Respondent it was contended that the defence advanced by the Appellant amounted to a general challenge to type approval which was impermissible. The machine approved by the Secretary of State, and intended to be approved by him, had a manual change-over valve which, it was agreed, had no effect on its ability to detect breath alcohol. Furthermore, the Respondent contended that it was never Parliament's intention that evidence from the roadside breath test device would be placed before a court. The references in section 11(2) of the Road Traffic Act 1988 and section 15(2) of the Road Traffic Offenders Act 1988 could only refer to specimens taken for analysis. The District Judge rejected the Appellant's submissions and convicted him. He was fined £300, ordered to pay costs of £546 and disqualified from driving for 12 months.
The case stated.
The District Judge found that prior to driving the Appellant had consumed alcohol, which he told the police amounted to four pints. After the roadside test had been administered to him in accordance with the prescribed procedure and was positive, the Appellant was arrested and taken to Milton Keynes police station. The correct procedure was followed there, where he provided two specimens of breath on the Lion Intoximeter machine EC/IR number 01620, the lower reading from which recorded 58 micrograms of alcohol per 100 millilitres of breath. The presence of a manual change-over valve, and not an automatic change-over valve, in the Intoximeter machine did not affect its reliability. The Guide to Type Approval referred to the incorporation of a gas delivery system with automatic change-over valve, but the District Judge found that the type of valve which was in existence in all machines at the time of the signing of the Type Approval Order was a manual valve. The machine intended to be approved had a manual valve.
The roadside breath testing machine, the SL 400, stores in its memory a reading indicating the alcohol level in figures of each preliminary breath test. The police were not, in January 2004, able to obtain a printout of those figures direct from the roadside breath testing device; at that time this could only have been secured through the police submitting an individual machine to Lion Intoximeters. By the time of the trial, however, the police could obtain the figures direct from the machine themselves by a memory stick.
In rejecting the Appellant's argument as to the approval of the device, the District Judge found that the evidence of the Appellant's expert on this issue was speculative, based upon a perusal of documents and did not form a permissible foundation for the challenge to be advanced. It was in reality a non evidentially based argument whereas the only evidence which the District Judge considered he could place reliance upon was from that of the Prosecution expert, Dr Munday, who said that the type of change-over valve installed in the EC/IR machines at the time of the Type of Approval Order was a manual valve, and that this was what the committee responsible for granting such approval had accepted. The District Judge encapsulated his view on the issue of the approval of the device by saying that the formula expressed in the Guide to Type Approval referring to an automatic valve rather than a manual valve was 'descriptive and not prescriptive'. He said he was reinforced in his conclusion by the evidence of both expert witnesses that the reliability of the machine was unaffected by whether the change-over valve was automatic or manual. He therefore rejected the argument that the EC/IR was not an approved device.
The District Judge found that section 15(2) of the Road Traffic Offenders Act 1988 did not apply to roadside breath tests, but to the two specimens taken for analysis under section 7 of the Road Traffic Act 1988. The wording of section 15(2) was not apt to apply to the preliminary breath test, which was taken for the purpose of obtaining an indication whether the proportion of alcohol was likely to exceed the prescribed limit under section 6 of the Road Traffic Act. The use of a reading from a preliminary breath test could render unworkable the provisions in the latter half of section 15(2) whereby an assumption was made that the proportion of alcohol in the accused's breath at the time of the offence was not less than in the specimen, meaning the specimen taken under section 7 for analysis. There were safeguards built into the section 7 tests which were not present for the preliminary roadside tests. Furthermore, there was no automatic production of any statement measuring the proportion of alcohol in the specimen of breath produced by the roadside breath test machine at the time of this offence, and hence no such document as is referred to in section 16 of the Road Traffic Offenders Act. The District Judge concluded that the case of Badkin did not assist in the resolution of the case. The submission that a print out of the roadside breath test result was required to be taken into account in every case was misconceived and absurd.
The submissions.
I have been greatly assisted by the detailed written submissions as well the oral submissions in this case.
The Appellant.
i) The approval of the device.
Mr Nigel Ley submitted that the device which was approved consisted of three components as set out in the Schedule to the Approval. These were the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR – UK 5.23. The Approval was signed by the Minister of State of the Home Office on 25 February 1998. Some two weeks before, on 12 February 1998, the Secretary of State for the Home Department had entered into an agreement with Intoximeters Inc. the manufacturers of the Intoximeter EC/IR. The Agreement was signed by Mr Nick Montgomery-Pott in the presence of Mrs Carol–Ann Sweeney on behalf of the Home Office. This agreement referred to the same three components set out in the schedule, including the Gas Delivery System. Paragraph 13 of the Agreement said that Intoximeter Inc. "Shall comply with the general requirements set down in section 3 of the document – Evidential Breath Alcohol Testing Instruments: A Guide to Type Approval Procedures for Evidential Breath Alcohol Testing Instruments used for Road Traffic Law Enforcement in Great Britain".
Paragraph 16 of the Agreement stated that the Agreement should have effect "only for so long as the device is approved by the Secretary of State..". This paragraph demonstrates, Mr Ley submits, that the Agreement and hence the Guide both form part of the Approval, and set out the necessary specification,
Under General Requirements of the Guide to Type Approval Procedures paragraph 3.7 stated:—
"..For the Gas Simulator this shall be the Gas Simulator Unit comprising of the pressure reduction valve, automatic change-over valve and the associated pipe work."
Under para 4.12.1 the Guide stated:—
"Gas Simulator Unit
The gas simulator unit shall comprise a pressure reduction valve and an automatic change-over valve enabling two cylinders to be connected to the instrument at one time."
Mr Ley submitted that the device which was approved was the one specified in the Guide. It was therefore essential that it had an automatic change-over valve not a manual valve.
It was later decided that two cylinders were not required and correspondence to this effect in November 2003 was before the court. This correspondence repeated para 4.12.1 thereby demonstrating, Mr Ley...
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