DPP v Colin Memery

Thursday, 4th July 2002

This is an appeal by way of case stated by the Director of Public Prosecutions against the decision of

His Honour Judge Kilfoyle and two lay justices at the Warrington Crown Court on 7th August 2001.

The decision of the Crown Court was made upon an appeal against conviction by the respondent, Colin Memery, from a decision of the magistrates' court on 21st July 2000. By that decision, the respondent had been convicted of driving a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988. The date of the offence was 11th November 1999. The respondent's appeal against conviction was allowed by the Crown Court.

The case stated by the Crown Court disclosed that they had found the following basic facts relating to the events of 11th November 1999:

(1) On 11th November 1999 the respondent drove a motor vehicle on the public highway.

(2) Having driven aforesaid the respondent was lawfully arrested and taken to the Widnes Police Station where he arrived at about 12.25 midnight the next day.

(3) On arrival and in answer to questions from the custody sergeant, the respondent told the custody sergeant that he was asthmatic and was on medication for it (ventalin).

(4) At about 1.45 am, the respondent was required to provide two specimens of breath for analysis and was given the statutory warning of prosecution as required by section 7 of the Road Traffic Act.

(5)The respondent complied with that request and exhaled into an intoximeter EC/IR (serial number 03611).

(6) The said intoximeter, EC/IR purported to analyse the said specimens and printed out on paper the results as 49 and 46 milligrams of alcohol in 100 millilitres of breath.

(7)At about 12.55 a.m. the custody sergeant read to the respondent paragraph B5 of Cheshire Constabulary form MG.DD/B. The sergeant then said to the respondent: "You can accept the reading or give blood." The respondent declined to offer to provide a blood sample.

(8) The intoximeter EC/IR are not made by Intoximeter Inc, but by Alcotec Inc. Intoximeter sell the EC/IR retail and service that device if so required by its purchasers.

There was a further important finding, to which I shall refer later, namely that EC/IR was purportedly approved by the Home Secretary.

In addition, in giving the judgment of the court, Judge Kilfoyle made the following further findings of fact:

"We found the custody sergeant Prytherch to be a truthful, accurate, careful and reliable witness who we are sure would have noted anything and everything of significance and importance said to him, if said, by the appellant, in respect of medical or health matters; in particular, anything said directly and coherently to him by the appellant in respect of an alleged needle phobia. We are satisfied that unlike the appellant's direct and coherent information to the sergeant in respect of his asthmatic condition and the particular medication for that and like the custody sergeant's then full and accurate noting of that information and the questions and answers asked and given in respect of that medical aspect, the appellant did not bring any phobia or medical condition beyond or other than his asthmatic condition to the custody sergeant's attention and in particular, did not so tell the custody sergeant of any alleged claimed needle phobia.

So in respect of facts, we have an appellant who, at 11.55 pm on that night, was stopped when driving up a one way street in the wrong direction, who admitted in evidence that his last drink in a friend's house where they were working having come back from a college together, working on notes it seems, his last drink there was about 7.30, he having taken his first drink that early evening about 5 o'clock. His friend continually, he said, topped up his glasses of straight Teachers whisky and he remembers getting to about, he says, maybe five such glasses. That is the factual position as far as the appellant's condition is concerned. It is right to say that he was co-operative once the police officer stopped him, and throughout the proceedings.

Having dealt there with the purely evidential matter and found against the appellant, the respondent having proved to our satisfaction the contrary, as they have to, we move on therefore to the submissions made in respect of the reliability of the device employed in this procedure. We accept the evidence, as we were encouraged to do by both counsel, of the experts on both sides in this case, that mouth alcohol played no part in the consideration of the procedure in this case, since the factor of the time delay within parameters required means that no mouth alcohol could have been present in the sample. So in that sense we find therefore that the device used correctly and reliably registered mouth alcohol in that none was present, but we find later that the machine was incapable of measuring mouth alcohol had it been present."

Whilst the Crown Court took the view on the facts that the breathalyser procedure was, on the face of it, correctly administered, and that mouth alcohol could not have been present in the samples taken, it also found that the device used either was not validly approved or could not reasonably have been approved by the Secretary of State. It made that finding on the basis that the device was incapable of distinguishing or sufficiently distinguishing between alcohol in the mouth and alcohol produced upon exhalation of breath from the lungs. It was not, to use the expression adopted by the judge in his judgment, "able to detect mouth alcohol when it was used in the field."

It is convenient here to summarise the relevant statutory framework within which the charge against the respondent fell to be considered. The Road Traffic Act 1988 section 5(1):

"If a person drives a motor vehicle on a road, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limited, he is guilty of an offence."

By section 7(1) of the Act it is provided as follows:

"In the course of an investigation into whether a person has committed an offence under section 5 or section 6 of this Act, a constable may, require him—(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State."

Section 8 provides so far as material:

"(1) Subject to subsection 2 below, of any 2 specimens of breath provided … that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.

(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of the Act and if he then provides such a specimen neither specimen of breath shall be used."

Section 7(4) provides for replacement of the breath specimen by one of blood or urine. It is necessary here to cite the precise words of that subsection:

"(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section, the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.

In respect of proceedings for an offence under section 5 of the Road Traffic Act 1988:

"evidence of the proportion of alcohol … in a specimen of breath … provided by an accused shall, in all cases, be taken into account and … it shall be assumed that the proportion of alcohol in the accused breath … at the time of the alleged offence is not less than the specimen." [Road Traffic Offenders Act 1988 section 15(2)]

The statute plainly contemplates under section 7(1)(a) that it was to be the Secretary of State who would approve the type of device to be used for breath analysis. In exercise of his powers he approved as from 1st March 1998 as a means by which specimen of breath may be provided for analysis under section 7 the Intoximeter EC/IR for the use of the Police Force in England and Wales: see the Breath Analysis (No 2) Approval 1998 dated 25th February 1998. The documents are contained in the applicant's bundle at page 89, document 6.

Next I come to the reasoning, which includes certain further findings of fact, which led the Crown Court along a route which persuaded it to allow the appeal which was before it:

"(9) The intoximeter EC/IR calculates the amount of alcohol by means of a fuel cell. When alcohol enters the cell, the latter substance alters the electric charge in the fuel cell and a computer calculates from the change in the charge the amount of alcohol in the breath specimen.

(10) To obtain an accurate analysis, the intoximeter EC/IR must analyse only alcohol in alveolar (deep lung) breath and not that in the upper respiratory tract. If it were to analyze alcohol in the throat, it would give an erroneously low reading. Whilst if it were to analyze mouth alcohol, it would give a falsely high reading.

(11) The EC/IR was one of 3 breathalysers approved by the Home Secretary in 1998. They were all approved on the basis that...