DPP v Kennedy [Qbd, 24/10/2003]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE ROYCE |
| Judgment Date | 24 October 2003 |
| Neutral Citation | [2003] EWHC 2583 (Admin) |
| Docket Number | C0/2863/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 October 2003 |
[2003] EWHC 2583 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Kennedy
Mr Justice Royce
C0/2863/2003
MR S NEALE (instructed by Crown Prosecution Service) appeared on behalf of the CLAIMANT
MR S EVERETT (instructed by Messrs Freeman & Co, Rhodesia House, 52 Princess Street, Manchester M16JX) appeared on behalf of the DEFENDANT
This is a prosecutor's appeal by way of case stated from a decision of justices for Greater Manchester sitting at Trafford, who on 2nd April of this year dismissed an information which alleged that on 8th August 2002 the respondent had driven a Porsche motor car on a road in Sale, Greater Manchester, after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
At about 12.45am on 8th August 2002 the respondent was stopped by a police officer, PC Tolan, who was of the opinion that the respondent had exceeded the speed limit. When the officer approached the respondent, he smelt intoxicants on the respondent's breath. He required the respondent to provide a specimen of breath at the roadside, as he was entitled to by section 6(1) of the 1988 Act. The officer's colleagues were summoned and they attended with the equipment, a Lion Alcometer SL400A.
As the justices found, the respondent blew into the device on at least two occasions, the earlier attempt or attempts providing, it seems, insufficient breath for a sample:
"The officer admitted in cross-examination that he did not change the mouthpiece between the first and second attempt, and he accepted that he should have changed it if the indicator was illuminated in the first test, as it indeed was".
Eventually, the respondent was informed that he had provided a positive breath test. He was arrested and taken to a police station where he provided two more samples of breath, both of which were positive.
In the magistrates' court, after all of the evidence had been heard, the advocate for the respondent drew the attention of the court to paragraph 4.92 in Volume 1 of Wilkinson's Road Traffic Offences (20th Edition) which sets out the operating instructions for the Alcometer SL400 (and the prosecution accepted that the same instructions apply to the SL400A, as indeed the textbook makes clear). The paragraph in Wilkinson quotes what is an instruction card supplied with the device. The case stated refers only to step 7 set out on the card but, to set it in context, I begin at step 4:
"4. Instruct the Subject
Tell the subject he will have to take in a deep breath, place the mouthpiece in his mouth, seal his mouth around it and blow continuously through the mouthpiece until you tell him to stop.
Tell him to keep his hands down: if he holds unit he may obstruct your view of the lights.
5. Take Breath Sample
The subject must now blow as instructed: strongly enough to bring on 'Flow' and sound continuous beep —and long enough to bring on 'Analysing' and sounds the double beep.
If he does not bring on 'Analysing' he has failed to provide a suitable sample of breath for analysis.
6. Note Alcohol Reading
When 'Analysing' goes off and 'Wait' comes back on, note subject's breath alcohol level. The display clears automatically after a preset time.
The display light readings are to be interpreted as follows: …
7. Discard mouthpiece
Remove mouthpiece and dispose of properly. Do not reuse, on either the same or different subjects.
8. Switch off, or Wait
If you wish to test another subject straight away, wait for 'Ready' to come back on: then proceed from '3'. If no other subject is to be tested straight away, switch unit off."
The advocate for the respondent then referred to some authorities in support of his submission that, first of all, the failure to change the mouthpiece constituted incorrect assembly of the device and invalidated the test. It was conceded that no authority was directly in point. Secondly, that because there was no valid roadside test the power of arrest in section 6(5) of the 1988 Act did not arise. Thirdly, that evidence as to what happened thereafter should be excluded by the exercise of the court's discretion pursuant to section 78 of the Police and Criminal Evidence Act 1984.
The justices found "as a matter of law" that failure to change the device constituted incorrect assembly of the device and that there was no roadside breath test and "the arrest was as a result unlawful." In paragraph 11, the case stated continues as follows:
"We were satisfied that the failure to change the mouthpiece was more than a mere technicality, and went to the heart of the procedure for dealing with motorists suspected of driving with alcohol above the prescribed limit. We considered that the evidence of the roadside breath test and the subsequent police station procedure would have such an adverse effect on the fairness of proceedings that we ought not to admit it. To find otherwise would result in a conviction arising from a procedure tainted by a fundamental error in its execution. As a result, we had no evidence to consider regarding the alcohol content of the respondent's breath, and we therefore reached a verdict of not guilty."
Two questions are posed for the consideration of this court. First: whether the justices were correct in deciding as a matter of law a fresh mouthpiece should be used for each breath test administered when using the Lion Alcometer SL400A device for the provision of a breath test pursuant to section 6(1)(a) of the Road Traffic Act 1988; second, whether there was any basis on which a Bench of justices properly directed on the facts and the law could have exercised a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence of the specimens of breath provided for analysis pursuant to section 7(1) of the Road Traffic Act 1988.
The question of whether there was a failure to comply with the manufacturer's instructions and, if so, what, if any, effect that had on the accuracy and reliability of the test result, was never raised, as it should have been, as it seems to me, at a pretrial review, or by service of a defence case statement. It was only raised by cross-examination of the police officer, during the course of the hearing and at the end of the case. That inevitably put the advocate who appeared on the behalf the prosecution at something of a disadvantage. And, as Mr Neale for the appellant has pointed out this morning, had that advocate not been at such a disadvantage he or she would no doubt have been able to draw the attention of the magistrates to what appears in the handbook relating to this particular machine, which we have now in the bundle before us.
At paragraph 4.6 in the handbook there appears this passage:
"If the subject stops blowing before ANALYSING has come on, no sample will have been taken for analysis: this will be indicated by a beep warning. In such a case, depending on the circumstances, the subject may be offered a second attempt, using either the same or a fresh mouthpiece. When WAIT goes off and READY has come back on you may proceed by telling the subject to blow again."
And to the same effect, at paragraph 4.10, the handbook says:
"If the operator decides to allow the subject to repeat the...
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Evidence
...a situation such as this, an [ad]mission must be excluded.” The answers to the questions were yes; appeal dismissed. DPP v Kennedy [2003] EWHC 2583 (Admin), (2004) 168 JP 185, 24 October 2003, QBD (DC) Where the mouthpiece on the roadside breath testing device was not changed between attemp......
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Table of Cases
...! DC! 365 , 368, 371, 374 ................ Kennedy, DPP v [2003] EWHC 2583 (Admin), (2004) 168 JP 185, DC! 356 .................................................................. Key v CPS [2013] EWHC 245 (Admin)! 491 ............. Khan, R on the application of, v DPP [2004] EWHC 2505 (Admin......