Christopher John Derham v DPP
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE CRESSWELL |
| Judgment Date | 19 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0519-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/4122/95 |
| Date | 19 May 1998 |
[1998] EWCA Civ J0519-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
and
Mr Justice Cresswell
CO/4122/95
MR NIGEL LEY (instructed by Messrs Byrne Frodsham & Co, Cheshire WA8 6EB) appeared on behalf of THE APPELLANT
MR JOHN McGUINNESS (instructed by The Crown Prosecution Service, West Mercia) appeared on behalf of THE RESPONDENT
Tuesday 19 May 1998
This is a defendant's appeal by way of case stated against a decision of the Hereford and Worcestershire Justices who, following a trial at Kidderminster on 21 September 1995, convicted the defendant of driving a motor vehicle on Worcester Road, Bromsgrove after consuming so much alcohol that the proportion 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.
The justices found the following facts. The appellant Mr Derham was driving a Ford Escort with a defective light at about 10.40am on 28 March 1995. He travelled from Market Street, Bromsgrove into Worcester Street and then he turned into the car park of a public house. He was stopped by a woman police constable who was driving a marked police car and who asked the appellant to step out of his motor vehicle. He did so and she smelt alcohol on his breath and noticed that his speech was slurred, giving her the impression that he was drunk. He was asked to provide a roadside specimen of breath, which he did, and that proved positive. He was arrested and taken to Bromsgrove Police Station, where the facts were related to Sergeant Higgins, the custody officer, in the presence of the appellant. Sergeant Higgins required the appellant to provide two specimens of breath on the Lion Intoximeter breath testing machine and explained the proper procedure to him. The appellant agreed to provide the specimens and did so. The lower of the specimens provided by him showed a reading of 64 microgrammes of alcohol in 100 millilitres of breath, which is above the permitted level. He was charged with the offence.
The justices accepted that the procedure took five minutes to conduct. They accepted the evidence of Sergeant Higgins that it was the first time the device had been used that morning and they also accepted the sergeant's evidence that at 11.16am he looked at his watch which he had not checked that day but which he expected to be accurate because he always checked it once a month against the speaking clock. The justices accepted that there were no routine checks of the device but that the officer always checked the display before using it. They also accepted the evidence of the officer that the time displayed on the device was accurate to plus or minus four minutes. They furthermore accepted his evidence that if it was not a reliable machine he would not have used it.
A number of arguments were advanced on behalf of the appellant before the justices, but the contention which is relevant for the purposes of this appeal was that the Lion Intoximeter was not an approved and reliable device under section 7 of the 1988 Act. This was because, as it was argued, it was shown by the uncontradicted evidence of Sergeant Higgins that the machine was only accurate to plus or minus four minutes. Therefore it was said that the device could not be said to be working properly and accordingly the evidence of the printout reading was inadmissible under section 69(1)(b) of the Police and Criminal Evidence Act 1984. It is noteworthy that in that summary of the submissions made on behalf of the appellant no reference whatever was made to the calibration of the machine, which would be recorded on the printout.
On behalf of the prosecutor it was contended that Sergeant Higgins was a trained operator familiar with the use of the Lion Intoximeter 3000 machine, who could give evidence of its reliability. It was said to be a question for the justices whether the device was operating accurately, but it was urged that there was no evidential basis for finding that the machine was inaccurate. The justices were referred to a number of cases, none of them being those upon which Mr Ley who represents the appellant now relies.
The relevant conclusions of the justices were that the intoximeter device was operated by a trained person, Sergeant Higgins, who was able to decide at the time whether the device was reliable and who reasonably believed it to be reliable, otherwise he would not have used it. They concluded that the evidence of the machine being accurate to plus or minus four minutes was not sufficient for them to conclude that it was not an accurate and reliable device, and accordingly the justices concluded that the intoximeter machine was operating properly and that the evidence produced by it was admissible under section 69(1)(b) of the 1984 Act. The justices convicted the appellant and sentenced him accordingly.
Three questions were posed for the opinion of this court. The first and third of those questions raise issues which are now accepted as being unarguable. The second of the three questions was:
"Could a reasonable bench properly directing themselves have held on the evidence that the Lion Intoximeter machine used in this case was an approved and reliable device?"
To that question I would answer "Yes". The only basis upon which it is now suggested that any other answer could be given is that there was no evidence before the lower court that the machine was properly calibrated. The position, as clearly explained by Glidewell LJ in Mayon v DPP [1988] RTR 281, 285, is that if oral evidence is given then it is necessary for the witness to establish that the machine has been properly calibrated, but that if the prosecution are in a position to rely on a printout, and that printout contains all the evidence it should, then such oral evidence is not called for.
The plain fact in this case is that no point was raised before the justices as to the calibration of the intoximeter machine for the very obvious reason that the printout was before the justices and no point was taken that it did not contain the information it should relating not only to the readings of breath, but to the purges of the machine and to its two calibrations. In short, the point which it is now sought to argue is one which is not raised by the case and which was not argued below and which is in any event unarguable. For those reasons I would answer the question in the manner indicated.
I agree.
MR McGUINNESS: My Lord, the Director seeks her costs again on the usual terms if the appellant is legally aided.
Mr Ley?
MR LEY: This gentleman is legally aided, my Lord.
Very well, we shall make the usual order, the Director to have her costs, such order not to be enforced without leave of the court or further order.
MR LEY: And a legal aid taxation?
And a legal aid taxation of the appellant's costs. Mr Ley, was an opinion...
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