DPP v Brown
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE CRESSWELL,LORD JUSTICE PILL,MR JUSTICE CRESSWELL |
| Judgment Date | 16 November 2001 |
| Neutral Citation | [2001] EWHC 931 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3794/2001 & CO/3710/2001 |
| Date | 16 November 2001 |
[2001] EWHC 931 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice,
Strand, London WC2
Lord Justice Pill
Mr Justice Cresswell
CO/3794/2001 & CO/3710/2001
Mr. Richard Whittam instructed by the Crown Prosecution Service appeared on behalf of the Director of Public Prosecutions.
Mr. Francis Gilbert instructed by Hodge, Jones & Allen appeared on behalf of Mr. Brown.
Mr. Keith Hadrill instructed by Marlows appeared on behalf of Mr. Teixeira.
The Director of Public Prosecutions appeals by way of case stated from the decisions of magistrates in two cases. In both cases the respondent was acquitted of driving a motor vehicle with excess alcohol in his breath, following challenges to readings obtained from the Intoximeter EC/IR.
Mr. Brown's case
Mr. Andrew Brown was acquitted by the Waltham Forest Magistrates on 15 May 2001 of an information that he on 24 June 2000, at Stanley Road, London E10 drove a motor car on a road after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit.
The magistrates found the following facts:-
At 2.35 a.m. on 24 June 2000, police officers stopped a Volkswagen motor car on Stanley Road, London, E10 in respect of a traffic offence. The driver of the motor vehicle was Mr. Brown. The police officers required the respondent to provide a specimen of breath for a roadside breath test, which indicated that the proportion of alcohol in his breath exceeded the prescribed limit. He was arrested and taken to Edmonton Police Station. Approximately one hour and ten minutes following his arrest, the respondent was required to provide two specimens of breath for analysis by means of an Intoximeter EC/IR, number 01384. The respondent provided the first specimen of breath for analysis at 3.35 a.m. and the second at 3.38 a.m.; the lower proportion of alcohol contained 64 microgrammes of alcohol in 100 millilitres of breath.
The device properly carried out self calibration checks before and after the two breath specimens had been analysed.
On 9 November 2000, Professor Hugh Makin, Dr. David Trafford and Dr. John Mundy attended at Edmonton Police Station to examine the device. Professor Makin and Dr. Trafford (in the presence of Dr. Mundy) carried out a series of experiments on the device. Dr. Trafford provided two specimens of breath for analysis by means of the device —both of which resulted in a zero reading indicating that he did not have alcohol in his breath. He then filled his mouth with diluted whisky, spat it out and provided a specimen of breath for analysis which gave a result that he had 84 microgrammes of alcohol in 100 millilitres of breath. Dr. Trafford then filled his mouth with diluted whisky again, spat it out and provided a second specimen of breath for analysis which gave a result that he had 96 microgrammes of alcohol in 100 millilitres of breath. In relation to the last two specimens of breath referred to above the device did not show the message “mouth alcohol —unacceptable specimen”, did not detect the presence of mouth alcohol and accepted both specimens as if measuring the proportion of deep lung alcohol in the breath. Dr. Trafford then rinsed his mouth out with water and provided two specimens of breath for analysis —both of which resulted in a zero reading indicating that he did not have alcohol in his breath.
A fourth experiment performed by Dr. Trafford in which he did not replenish the mouth alcohol between the provision of the first and second specimens of breath resulted in the device showing the message “breath difference” and giving results of 82 microgrammes and 48 microgrammes of alcohol in 100 millilitres of breath respectively.
Mouth alcohol is not always detected by the Intoximeter EC/IR breath testing instrument number 01384. When the test is carried out close to when alcohol is introduced into the mouth there is a large difference between the results for the two breath specimens —with the second specimen being lower than the first. If the difference exceeds 15% of the lower result or 5 milligrams (whichever is the greater) the instrument shows the message “breath difference”.
Finally, Dr. Trafford filled his mouth with diluted whisky, spat it out and provided a specimen of breath for analysis by blowing normally into the same device which gave a result that he had 79 microgrammes of alcohol in 100 millilitres of breath. He then filled his mouth with diluted whisky again, spat it out and provided a second specimen of breath for analysis by the device which gave a result that he had 76 microgrammes of alcohol in 100 millilitres of breath.
Dr. Mundy then dosed his mouth with the same diluted whisky and blew strongly into the same device which showed the message “mouth alcohol —unacceptable specimen” and did not provide a result.
The tests for mouth alcohol that can be carried out on the Intoximeter EC/IR breath testing instrument are numerous and results may be affected by the sensitivity of the instrument to mouth alcohol, the flow rate into the instrument and the concentration of alcohol in the mouth.
On 24 June 2000 the respondent provided two specimens of breath for analysis by means of the device at least 1 hour and 10 minutes after he had ceased to drink —and he would not have had enough alcohol in his stomach after this period to elevate the results on the device.
Before the magistrates it was contended by the respondent inter alia that the failure to detect mouth alcohol took the device outside the required specification standard (as set out in paragraph C11 of the Home Office and Forensic Science Service document issued in 1994). The device was not therefore to be treated as a ‘device approved by the Secretary of State’. Where an individual device does not comply with type approval standards its use is unlawful and evidence derived from it is inadmissible.
The magistrates were of the following opinion.
(1) Each Intoximeter EC/IR breath testing instrument should detect mouth alcohol when it is present in a specimen of breath being provided —and show a message to that effect —and not record a result of breath/alcohol levels.
(2) In this case the device in question, although capable of detecting mouth alcohol, did not do so at all during the initial experiments carried out by Professor Makin and Dr. Trafford on 9 November 2000.
(3) The failure by the device to detect mouth alcohol also occurred in the fourth experiment carried out by Dr. Trafford when he did not replenish diluted whisky in his mouth prior to providing a second specimen of breath —although on this occasion the device showed the message “breath difference” while recording a result of breath/alcohol levels which were substantially different.
(4) All of these experiments led to the conclusion that the particular device could not be relied upon to both detect mouth alcohol and show a message to that effect when it should do so.
(5) In such circumstances the device would go on to record results of breath/alcohol levels as if it has measured the proportion of deep lung alcohol in the breath.
(6) The device self-calibrated to indicate that it was working correctly.
(7) There was no direct evidence presented that the device malfunctioned or was defective on 24 June 2000.
(8) The general presumption of reliability had been rebutted by the evidence of Professor Makin. The device was not meeting required specification standards in relation to the detection of mouth alcohol (as referred to in paragraph C11 of the Home Office and Forensic Science Service document issued in 1994) as opposed to deep lung alcohol and was therefore defective in its material function and unreliable.
The magistrates dismissed the information.
The question for the opinion of the Court is:
Were the magistrates entitled to find that Intoximeter EC/IR serial number 01384 was defective in its material function and unreliable —and to dismiss the information?
Mr. Whittam for the Director of Public Prosecutions submitted as follows. On 24 June 2000 the respondent failed the roadside breath test. The device was properly calibrated. The respondent provided two specimens of breath for analysis at least one hour and ten minutes after he had ceased to drink, and therefore would not have had enough alcohol in his stomach to elevate the results on the device. The respondent did not assert that he had mouth alcohol or alcohol vapour in the dead space of the upper respiratory tract generated from his stomach contents (regurgitation or eructation). There was no evidence that the device was unreliable in any relevant respect.
Mr. Gilbert for the respondent submitted as follows. The magistrates were entitled to find that the instrument in question was unreliable. By not meeting the required specification standards in relation to the detection of mouth alcohol, instrument number 01384 did not conform to the standard required for the granting of type approval. In these circumstances it was open to the magistrates to find that device number 01384 was defective in its material function and unreliable. It was open to the magistrates to dismiss the information given that device 01384 had been proved to provide readings which could not be relied on.
Mr. Teixeira's case
Mr. Jose Teixeira was acquitted by the Kingston-upon-Thames magistrates on 27 June 2001 of a charge that he on 4 June 2000 drove a Toyota motor car on the A3, Hook Underpass, Chessington, Surrey after consuming so much...
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