Challenging the breath testing and breath analysis devices
| Pages | 259-308 |
| Author | Pauline M. Callow |
Chapter 5
Challenging the Breath Testing and Breath
Analysis Devices
1. TYPE APPROVAL
See also Wright (Andrew James) v DPP [2005] EWHC 1211 (Admin), based
on the “statutory option” under s 8(2) Road Traffic Act 1988 (now repealed
– see page v), where it was not open to the motorist to adduce evidence to
show that the breath analysis device was not an approved device; DPP v
Memery [2002] EWHC 1720 (Admin), [2003] RTR 18, also based on the
“statutory option”: courts may not rule on the approval of the device; Grant
v DPP, page 16 – it was not open to the defendant to assert that the device
should not have been approved; Robertson (Eric) v DPP, page 206 –
software changes and the fact that the device did not detect mouth
alcohol did not take it outside the scope of the approval order; Parker v
DPP, page 293 – the Secretary of State had not acted ultra vires in
approving a device which timed readings in GMT only; DPP v McKeown,
DPP v Jones (Christopher), page 294 – the fact that the printout showed the
wrong time did not take the device outside its approval; DPP v Brown, DPP
v Teixeira, page 297 – there is a presumption of law that an approved device
is reliable; Fearnley v DPP, page 426 – it was for the appellant to adduce
evidence that the software was other than the specified software before the
prosecution came under a burden to prove the software; DPP v Wood, DPP
v McGillicuddy, page 428 – disclosure of material concerning reliability or
type approval of the breath analysis device should not have been ordered
where the defence statement did not raise either of those issues; and Murphy
(Gerard) v DPP, page 666 – where there was no evidence to the contrary,
the device was assumed to be type approved; the approval order does not
constitute expert evidence. See also the Scottish case of Brown (Gary) v
Procurator Fiscal, Falkirk High Court of Justiciary [2003] RTR 17 on the
Breath Analysis Devices (Scotland) (Approval) Order 1998.
260 5. Challenging the Breath Testing and Breath Analysis Devices
Bentley v Northumbria Police
[1984] RTR 276, 31 October 1983, QBD (DC)
A court may take judicial note of the approval of a breath testing device. On the
facts of this case (blood specimen identified by the defendant’s surname and
accompanied by a form giving a sample number), there was no evidential link
between the blood specimen taken and the specimen which was analysed.
A motorist had been charged with driving with excess alcohol in blood, contrary
to s 6(1), Road Traffic Act 1972. A roadside breath test was positive; at the police
station, a second screening test, using an “Alcolyser” device was also positive. A
blood specimen was provided; analysis revealed 247.6 mg alcohol in 100 ml blood.
At the hearing, the analyst gave oral evidence confined to the facts that he had
analysed blood from a phial marked “Bentley” which had been accompanied by
a form showing a sample number, and the alcohol level found; the prosecution
did not put a certificate of analysis in evidence.
The motorist submitted that there was no evidence that the Alcolyser was an
approved device and that the justices were not entitled to infer that it was; nor was
there any reliable evidence that the sample of blood analysed was that taken from
the defendant. The justices rejected these submissions and convicted the motorist,
who appealed.
QUESTION(S) FOR THE COURT: (a) Where there was no evidence that the breath
test device used in the second breath test under s 9, Road Traffic Act 1972 was an
approved device but only that it was an “Alcolyser” device, whether the court could
infer that it was an approved device; (b) where the evidence of the analysis of blood
was provided by the analyst in person rather than by means of a certificate of
analysis, whether the evidence from the analyst that the name “Bentley” was on the
phial of the blood analysed was sufficient evidence to identify the sample of blood
taken from the defendant as the sample of blood analysed.
HELD: “[On (a)] … the use of the Alcolyser was in fact approved by the Breath
Test Device (Approval) (No 1) Order 1979 … [the justices] were entitled to take
judicial note of the fact that it was an approved device …
“[On (b)] … [the justices] knew, simply, that a sample of blood had been taken
from the defendant … on the day … when the offence was alleged to have been
committed and that a sample of blood bearing the name of ‘Bentley’ was analysed
… the question [is] whether that evidence was sufficiently cogent to establish that
the sample analysed was none other than that taken from the body of the defendant.
“… it was not open to the justices upon such tenuous material to reach such a
conclusion. There was no evidential link between the sample taken and the sample
analysed … the sample taken may have become mixed up with other samples. There
may have been more than one by the name of Bentley from whom a blood sample
had been taken … A number of possible reasons can be envisaged why the sample
taken may not have been the sample analysed, none of which is fanciful.”
Appeal allowed.
Type Approval 261
Hayward v Eames; Kirkpatrick v Harrigan
[1985] RTR 12, 9 October 1984, QBD (DC)
The Secretary of State acted within his powers when approving the Lion
Intoximeter 3000 for the purposes of analysing breath specimens, and therefore
evidence obtained by using the device is admissible.
Motorists had been charged with driving with excess alcohol, contrary to s 6(1),
Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981.
Both had been tested on a Lion Intoximeter 3000 which showed excess alcohol.
Section 8(1)(a), Road Traffic Act 1972 as substituted by s 25(3) and Sch 8,
Transport Act 1981 authorises a constable to require breath specimens for
analysis by means of a “device of a type approved by the Secretary of State”. The
Breath Analysis Devices (Approval) Order 1983 stated that the Lion Intoximeter
3000 was approved for the purposes of s 8(1). In Hayward v Eames the motorist
had been convicted and appealed; in Kirkpatrick v Harrigan the charge had been
dismissed and the prosecutor appealed.
QUESTION(S) FOR THE COURT: Whether the Secretary of State was
empowered to approve the device by virtue of s 8(1)(a) and, if so, whether there
was proper evidence of the defendant’s breath alcohol exceeding the prescribed
limit (Hayward v Eames); whether the Home Secretary was acting within his
power – administrative or legislative – in giving his approval to the Lion
Intoximeter 3000 and accordingly whether the magistrate was right in refusing to
admit evidence relating to the machine (Kirkpatrick v Harrigan).
HELD: “The wording of section 8 states plainly, and without any ambiguity, that
a device of a type approved by the Secretary of State may be used for gauging the
proportion of alcohol on the subject’s breath. The Lion Intoximeter was so
approved. The fact that the approval was given before the coming into force of
that particular part of the Act does not mean … that the approval is any the less
real or any the less effective.”
The Secretary of State was empowered to approve the device by virtue of s 8(1)(a)
and there was proper evidence of the defendant’s breath alcohol content
exceeding the prescribed limit (Hayward v Eames).
The Home Secretary was acting within his power in giving his approval to the
Lion Intoximeter 3000, and the magistrate should not have refused to admit
evidence relating to that machine (Kirkpatrick v Harrigan).
The answers to both questions were “yes”. Appeal in Hayward v Eames
dismissed. Appeal in Kirkpatrick v Harrigan allowed.
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