DPP v Walsall Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May,Lord Burnett of Maldon CJ |
| Judgment Date | 05 December 2019 |
| Neutral Citation | [2019] EWHC 3317 (Admin) |
| Date | 05 December 2019 |
| Docket Number | Case No: CO/1798/2019 & CO/3716/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE Mrs Justice May
Case No: CO/1798/2019 & CO/3716/2019
Simon Heptonstall (instructed by DPP) for the Appeallant 1 & 2
Non-Attendance on behalf of Respondent 1 & 2
Jeremy Benson QC (instructed by Geoffrey Miller Solicitors) for the Interested Party 2
Hearing date: 23 October 2019
Approved Judgment
The Rt Hon the Lord Burnett of Maldon CJ and the Hon
Introduction
These proceedings concern two applications for judicial review, arising out of prosecutions for driving with a breath alcohol level in excess of the statutory limit, contrary to section 5(1) of the Road Traffic Act 1988 (“the RTA”). In both cases, following the service of a defence statement, the District Judge allowed a defence application for disclosure pursuant to section 8 of the Criminal Procedure and Investigations Act 1996 (“the CPIA”), ordering the Crown to make disclosure of the further material sought. The DPP seeks to review the decision of the District Judge in each case and asks us to quash the orders for disclosure.
Since both cases raise very similar issues they were joined and came before us on a “rolled-up” hearing to determine permission and, in the event of permission being granted, the judicial review itself. At the end of the hearing we announced our decision giving permission, allowing the applications for judicial review and quashing the orders for disclosure, with reasons to follow. These are our reasons.
Factual background
Drivers who are stopped on suspicion of driving with excess alcohol are generally tested first using a breathalyser at the roadside. If the roadside test gives a positive result, the driver is taken to a police station where an “evidential” procedure follows, using a breath-testing device approved by the Secretary of State for the purpose of prosecutions under section 5 of the RTA.
The device used in the two prosecutions the subject of these proceedings was the Lion Intoxilyser 6000UK (“the Intoxilyser”). The Intoxilyser is one of three breath-testing devices approved under the Breath Devices Analysis Approval Order 2005. It uses infra-red spectroscopy, which can identify the presence and amount of ethanol in breath. Ethanol (the principal active constituent of alcoholic drinks) is identified by the way the infra-red light is absorbed; the amount of ethanol in a sample can be measured by the extent of the absorption. The person being tested is asked to supply two samples of breath by blowing into the chamber of the machine, where infra-red spectroscopy identifies the proportion of ethanol (alcohol) in each of the samples, provided as microgrammes of alcohol in 100 millilitres of breath (μg/100ml). An offence is committed under section 5(1) of the RTA when the level of alcohol in the lower of the two samples exceeds the prescribed limit of 35μg/100ml.
The first case before us concerned the prosecution in the Walsall Magistrates' Court of Mr Ramchandra Bhusal.
On 21 October 2018 at around 9.15pm PC David Wild and PC Bethany Smith were on uniformed mobile patrol when they encountered a queue of stationary traffic on Newhampton Road East, Wolverhampton. Upon investigation they found that the cause of the queue was a black Kia Picanto, stopped in the middle of the road. The lights were on and the engine was running. Mr Bhusal was in the driver's seat, there was no one else in the car with him. The car's progress was prevented by a woman standing in front of the vehicle.
PC Wild instructed Mr Bhusal to move the Picanto from the road as it was obstructing the flow of traffic. Mr Bhusal reversed the car from the road into an alley and onto a driveway of a house which he said was his home. He told PC Wild that he had been trying to park behind other cars but the woman had not let him. PC Wild noticed no smell of alcohol on Mr Bhusal's breath nor any indication that he was intoxicated. However, PC Smith reported the woman as saying that Mr Bhusal had been drinking. When asked if that was correct Mr Bhusal said that he had drunk “about two pints a couple of hours ago”. He was tested using a roadside device which gave a reading of 47μg/100ml. Mr Bhusal was arrested and taken to Wolverhampton police station where the investigative evidential breath procedure commenced at 9.56pm using an Intoxilyser. At 10.04pm Mr Bhusal provided a specimen of breath for analysis by the Intoxilyser, giving a reading of 57μg/100ml. At 10.05pm he provided a second specimen of breath, producing a reading of 55μg/100ml. The Intoxilyser printout showed no error message and no indication of any incorrect operation. Upon request Mr Bhusal signed the printout. At 11.29am the next morning Mr Bhusal was charged with an offence of driving or being in charge of a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1) of the RTA.
The Crown evidence consisted of statements from PC Wild, PC Smith, the drink drive procedure documents, CCTV of Mr Bhusal in the custody suite and undertaking the Intoxilyser procedure, together with a certificate showing that the Intoxilyser's calibration had been certified for the relevant period.
At the first hearing in the Magistrates' Court the parties completed a Preparation for Effective Trial [“PET”] form; at that stage the matters identified on Mr Bhusal's behalf were (i) that Mr Bhusal was only driving as directed to by a police officer as he had not intended to drive and the engine was only running to keep him warm and (ii) the breath test procedure was in dispute and would be challenged, by reference to the authority of Cracknell v Willis [1988] AC 450, since he had consumed only two cans of lager some hours previously and did not believe he would be over the limit. The court was told that Dr Mundy would be asked to produce a “Widmark” report (“Widmark” being the name given to a particular method of calculation used to estimate alcohol levels in the breath) based on Mr Bhusal's reported alcohol consumption and to comment on whether he would have been over the drink-drive limit at the relevant time.
A trial date was fixed for 10 April 2019. On 27 March Mr Bhusal's representatives served a report from Dr Mundy dated 24 March 2019. Dr Mundy calculated that, on the basis of Mr Bhusal's height, weight, age and reported consumption of two 500ml cans of Carling lager between 4pm and 6pm, the breath alcohol level at 10.05pm would have been around 0μg/100ml but could have been as high as 5μg/100ml. On 29 March Mr Bhusal's representatives served a document entitled “Defence Statement and Rolled-Up Section 8 C.P.I.A. 1996 Application for Disclosure”. We shall refer to this document as Mr Bhusal's defence statement. Mr Bhusal's defence statement repeated and augmented the issues previously raised in the PET form, including in particular taking issue with the reliability of the breath alcohol reading. Reference was made to Dr Mundy's report; it was asserted that the roadside reading was incompatible with the subsequent Intoxilyser readings, implying that either or both had provided unreliable results. The defence statement continued:
“…it is submitted that the Lion Intoxilyzer 6000 evidential breath testing instrument may give incorrect readings notwithstanding the fact that the printout does not reveal any errors on the face of the document for the following reasons:
a). No evidential breath testing instrument is infallible and it is not to be regarded by the court as being “virtually infallible”. Cracknell v Willis 1988 HL, R (DPP) v Manchester and Salford Magistrates' Court 2017.
b). If the Lion Intoxilyzer is working correctly it is supposed to be able to detect a certain number of pre-programmed errors. The reliability of the breath testing instrument is challenged in this case by relevant evidence. If the instrument is not working properly it may not be able to detect these errors and the court will not be able to draw any inferences from the apparent absence of an error message on the face of the printout.
c). The Instrument is programmed to detect only pre-defined errors in certain limited scenarios. If the instrument encounters a problem which it is not programmed to recognise, the printout may not give any indication that a problem has occurred.
d) If the true concentration of the gas in the gas cylinder is actually below 32μg% (for example because the cylinder has expired, or for other reasons) the court will not be able to rely on the simulator check results on the printout because they have been incorrectly measured by the evidential breath testing instrument. In these circumstances the defendant's recorded breath alcohol levels will be too high. On the face of the printout there will be no indication that the instrument is giving falsely high readings.
e) The simulator check results are based on an analysis of dry gas. The defendant's breath is a wet gas. Evidential breath test machines measure wet gas and dry gas differently. If the instrument is not making an appropriate allowance for this factor, the defendant's breath alcohol levels may be incorrectly recorded on the instrument even though the simulator check results appear to be correct.
f) The response of the Lion Intoxilyzer 6000 is not linear. Therefore, even if the simulator check results on the printout are reliable, it does not follow that the instrument is correctly calibrated at...
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