Divisional Court
| DOI | 10.1177/002201839405800402 |
| Date | 01 November 1994 |
| Published date | 01 November 1994 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
PROOF OF EXCESS ALCOHOL IN BREATH
Thorn v
DPP
Section 16(1) of the Road Traffic Act 1988 provides that evidence of the
proportion of alcohol in a specimen of breath may be given by the
production of a document purporting to contain a statement automatically
produced by a device which measures the proportion of alcohol. The short
question raised by the appellant in Thorn v
DPP
[1994] RTR II was whether
these provisions require the production of the print-out obtained from a
Lion Intoximeter where the evidence of the proportion of alcohol to be put
before the court was obtained by means of that device. The question was
whether the section is mandatory or permissive. The appellant in that case
was charged under s 5of the 1988 Act with driving with excess alcohol in
his breath, on the basis of evidence given by a police constable and a police
sergeant that the Intoximeter had been properly calibrated and that it had
produced a result (which they precisely stated) which showed that the
defendant was well in excess of the limit. The defendant submitted that, as
the print-out had not itself been produced before the magistrates, they were
not entitled to convict, even though the defendant had (as required by the
Act) received a copy of the print-out and had raised no objection to its non-
production at the trial or to the results sworn to by the two officers. Indeed,
no objection was raised before the case reached the Divisional Court. That
court held that the section is permissive, for it does no more than provide
one method of proving the proportion of alcohol.
It
does not, either
expressly or by implication, prevent any other admissible evidence from
being adduced. The court held that the police officers were entitled to state
what they had read on the Intoximeter, just as they would be, if asked the
time of an event, to state what they had read on their watches.
The court has, indeed, on many occasions proceeded on this assumption,
the effect of which is summarised by Farquharson LJ in
DPP
v Hitchings
[1991] RTR 380,
384G-H:
it suffices that the police officer givesevidence of
what he saw on the screen, provided that it is also established that the
machine was properly calibrated. The authorities on which that proposition
is based were, however, all attacked by counsel in the present case on the
ground that they were decisions reached per incuriam and were wrongly
decided in that they were based on a misunderstanding of Owen v Chesters
[1985] RTR 196. There, too, it had been submitted that there was no case
to answer, by reason of the fact that the prosecution had failed to produce
the print-out from the Intoximeter. Counsel had accepted that the provisions
of the Act (which were the same as the present s 16, which were relevant in
the present case) were merely to make admissible as evidence documents
which might otherwise have been inadmissible; but he contended that the
Act, which introduced this change, did not permit the prosecution to prove
their case by evidence which he claimed was hearsay or, at least, secondary
313
Journal
of
Criminal Law
evidence. Watkins LJ expressed the court's opinion that, as the Act requires
a copy of the print-out to be given to the defendant, that must indicate that
the legislature intended the necessary proofto be that afforded by the print-
out. The court, on that occasion, however, declined to condemn the police
officer's evidence as hearsay; but it held none-the-less that that evidence 'did
not, and could not, come up to the standard of proof required by the
legislature'.
It
was therefore submitted by the appellant in the present case
that this must mean that the prosecution cannot rely on oral evidence, in
the absence of the print-out. The court, however, was of opinion that the
earlier court could not have reached that conclusion, 'because there is
nothing in the statutes to justify it'. Clarke Jstated the court's conclusion
that the earlier decision was not that oral evidence would be inadmissible to
prove the fact of the Intoximeter reading, but was based on the conclusion
that in that case the prosecution had not produced evidence that the machine
was properly calibrated and working. The court therefore held that the later
authorities were based on a proper understanding of the decision in Owen v
Chesters and, as the oral evidence in the present case clearly established the
reading and that the instrument was properly calibrated, the appeal was
dismissed.
PROOF OF DRIVING IN EXCESS OF SPEED LIMIT
Roberts v
DPP
Section 20 of the Road Traffic Act
1988
provides that on the prosecution of
any person for a road speeding offence, evidence of the measurement of any
speed by a device for measuring by radar shall not be admissible unless the
device isof the type approved by the Secretary of State. The question raised
in R v Roberts
[1994]
RTR
31
was as to the manner in which the required
statutory approval is to be established. The defendant was charged with
travelling at a speed in excess of 30 mph in a controlled area, his speed
having been checked by a radar device and recorded as 58 mph. A police
constable gave oral evidence of having seen the defendant driving over a
distance of 300 yards (which turned out, on later measurement, to be 187
yards) at a speed which he considered to be excessive; but no evidence was
given by the officer who had operated the device (or by any other officer)
that the device was one which came within s 20 of the 1988 Act. The
defendant's submission that he had no case to answer was rejected and he
was convicted, on the basis of a submission by the prosecution that the
justices could take judicial notice of the Secretary of State's approval of the
device without any certificate of approval being produced in court.
It
could
not be said that the defence put forward at the trial caught the prosecution
by surprise, for the defendant's solicitor had been most persistent in trying
to obtain the necessary information about the radar gun and had left the
prosecution in no doubt that the defence would be an attack upon the
instrument and upon its use by the police in the circumstances. When the
submission of no case to answer was made, the prosecution did not seek
leave to put further information before the court or for an adjournment for
314
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