DPP v Wood
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley:,Lord Justice Laws |
| Judgment Date | 19 January 2006 |
| Neutral Citation | [2006] EWHC 32 (Admin) |
| Docket Number | Case No: CO/6299/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 January 2006 |
[2006] EWHC 32 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice Ouseley
Case No: CO/6299/2004
Mr J McGuinness QC and Ms A Power on behalf of the DPP in Wood
Mr J McGuinness QC and Ms D Chanteau on behalf of the DPP in McGillicuddy
Mr A Bright QC and Mr P Lucas instructed by Mark and Co Solicitors on behalf of Wood
Mr A Bright QC and Mr P Lucas appointed by the Attorney General as friends of the Court in McGillicuddy
The Honourable Mr Justice Ouseley:
The facts
These two appeals by way of case stated raise issues relating to disclosure obligations and the stay of proceedings as an abuse of process. Both relate to the disclosure of material concerning Intoximeters used for testing alcohol on the breath. They are brought by the DPP against the decisions of District Judges. The same broad issues were raised by the same solicitors in the two otherwise unrelated cases and have been pursued here. As the Respondent McGillicuddy has disappeared, the Attorney General has appointed Mr Andrew Bright QC to make submissions as a friend of the Court on any separate issues affecting McGillicuddy. We are grateful to him.
Each Respondent was charged with driving having consumed alcohol so that the proportion of it in the breath exceeded the prescribed limit of 35mg in 100ml of breath, contrary to s5(1)(a) of the Road Traffic Act 1988. This proportion had been measured in each case by a breath test consisting of two specimens of breath analysed on an Intoximeter, which the Crown contended was "a device of a type approved by the Secretary of State"; s7(1)(a) and s11 (2) of the RTA 1988. In Wood's case the proportion in the lower specimen was alleged to be 136 mg: 100ml and in McGilllicuddy's, 61mg:100ml. Blood or urine specimens were not taken. S16 of the Road Traffic Offenders Act 1988 made the statement automatically produced by the device admissible in evidence. S15 RTOA created a statutory assumption that the proportion of alcohol to breath was not less than the specimen thus evidenced. There is a common law presumption that the breath test device, if type approved, is reliable.
The device used in each case was an Intoximeter EC/IR, which received type approval under the Breath Analysis Devices (No.2) Approval 1998. The type approved in the Schedule was:
"The device known as the Intoximeter EC/IR, manufactured by Intoximeters Inc. of Saint Louis Missouri, composed of the Intoximeter EC/IR, the Intoximeter EC/ TR Gas Delivery System and software version EC/IR – UK 5.23."
The device at Worthing police station was used in Wood's case and the device at Wandsworth Police Station in McGillicuddy's.
In Wood's case, the information was laid on 13 th January 2003. Following primary disclosure on 4 th February 2003, and the service of a Defence Statement in April 2003, which raised issues about type approval and reliability but said nothing about post driving drinking, there was further disclosure of material related to the device. Then a further defence statement was served and further disclosure related to the device, described as "further primary disclosure", was provided. The material thus disclosed covered the service history of the machine, engineer's reports for the relevant period, calibration certificates, and correspondence between Intoximeters UK Ltd and the Home Office/Forensic Science Service relating to type approval. A third Defence Statement, which expressly superseded the earlier ones, was served on 14th March 2004 for the purposes of an application for disclosure under s8 Criminal Procedure and Investigations Act 1996.
This third Defence Statement did not pursue the previous claim that the particular device in question was unreliable and raised for the first time the defence that the alcohol consumed before driving would not have led to an excess reading and, by implication from the accompanying letter, post driving consumption (approximately 2 bottles of wine) was relied on. But this Statement did retain the contention that the Worthing device was no longer type approved because it had been changed without the prior consent of the Secretary of State in its F11 settings (unspecified save for the slope parameters), a Pinning adjustment, fuel cell shunt, RTC Board, IR Detector and other unspecified components. The facts of these changes and the absence of approval save in relation to the RTC Board, were said to be supported by evidence given on behalf of the Crown in other cases. Calibrations were said to have been carried out in a way in which they should not have been. This led to a contested application under S8 CPIA 1996 for disclosure of a range of material, heard by District Judge Tain in Worthing on 15 th April 2004.
Disclosure was ordered by DJ Tain of: unedited F11 printouts for the machine until the first printout after the date of the offence, all engineer's reports, service and calibration sheets, and a copy of the maintenance log. There is no record of that decision or its reasoning. But in the Case Stated, DJ Tain says that he ordered disclosure of all information about the machine, its settings and the F11 settings in particular, its service history and related documents.
The CPS contacted Intoximeters UK Ltd asking for the material so as to comply with the order. This led to further disclosure of earlier calibration certificates and engineer's reports together with an edited version of the F11 printouts for the same period, edited to show only the slope parameters, and the software name as EC/IR-UK 5.23. Intoximeters UK declined to provide unedited printouts because they were commercially confidential, would not be understood without more material which would in its turn be confidential, and the checklist used by engineers also contained passwords which could not be disclosed. The defence was on a fishing expedition. The CPS then applied to the DJ for a variation of the disclosure order on the grounds that it could not supply more and that R v Alibhai [2004] EWCA Crim 681 had clarified the disclosure duties in relation to material in the hands of third parties such as Intoximeters UK was contended to be. The Respondent met that with an application for a stay of proceedings on the ground that in the absence of such material the trial would be an abuse of process.
On 13 th September 2004, DJ Tain held that there was a contract between Intoximeters UK Ltd to supply these devices to certain police forces, and that in the absence of other contractual information being provided by the Crown, Intoximeters UK was "part of the investigating authority" and therefore non-compliance with his Order was non-compliance by the "team" of police and prosecution. The information had been legitimately required in the light of errors on the machine both before and after this case. (This must relate to his experience of other cases, but it is not specified.) Alibhai was distinguishable as involving an independent victim and not someone with a contractual relationship with the state or prosecutors. There had been a fundamental breach of a Court Order. The case could not fairly be tried without such information; the prosecution was based entirely on the reading from a machine which had a significant potential for inaccuracy which the Respondent should have the right to investigate, and without which investigation it would be unfair for her to stand trial, nor could she receive a fair trial. Trial could not remedy the defects in a case in which the reading was so fundamental.
Accordingly, DJ Tain ruled that proceedings should be stayed as an abuse of process. It appears to have been common ground that the outstanding undisclosed material was in the possession of Intoximeters UK and not in the possession of the police or CPS.
McGillicuddy was charged on 8 th June 2003. On 23 rd June 2003, the CPS sent him a letter saying that "there was no prosecution material which requires disclosure to you" pursuant to s3 CPIA 1996. Disclosure, it said, would be reviewed in the light of a written defence statement. On 17 th September 2003, a schedule of unused material was sent by the CPS and nine days later the Defence Statement was provided. This timetable led to the arguments in this case about whether the secondary disclosure obligations under the CPIA ever arose.
On 10 th June 2004, DJ Grant at South Western Magistrates' Court heard preliminary arguments about the adequacy of the Defence Statement in relation to a s8 CPIA application and whether the Defence Statement was out of time, as time for its service ran from 23 rd June 2003 rather than 17 th September 2003. No application had been made to extend time within fourteen days from 23 rd June 2003. He ruled that the Defence Statement was not out of time, as time did not start to run until service of the schedule of unused material.
The DJ must have regarded it as an adequate Defence Statement, but it was silent as to whether the Respondent took issue with driving or with having consumed alcohol at all or when, or whether there was any reason for mouth alcohol to have been present at the time of the test, e.g. regurgitation. It alleged that the Wandsworth machine was not reliable for five reasons: certain components performed unreliably, there was a high incidence of failures with the EC/IR device generally, it did not reliably detect mouth alcohol, it had been...
To continue reading
Request your trial
-
Director of Public Prosecutions v Manchester and Salford Magistrates' Court John Blakeley (Interested Party)
...could only come within s8(4) if they were held by the Investigating Officer or by the Disclosure Officer; see the reasoning in DPP v Wood and McGillicuddy [2006] EWHC 32 (Admin), [50 and 55]. Once it is accepted, as it was here, that they are in the possession of the police, it was not sugg......
-
R (Cunliffe) v West London Magistrates' Court; R (Cunliffe) v Ealing Magistrates' Court; R (Cunliffe) v Hastings Magistrates' Court
...evidence per se: see R v Derby Magistrates' Court ex-parte B (supra). 24 Mr McGuinness also pointed out that in the recent case of DPP v Wood and DPP v McGillicuddy [2006] EWHC 32 (Admin) consideration was given to the question whether the Crown was under an obligation to disclose to the de......
-
Lee Siew Boon Winston v PP
...bin Jamaludin v PP [2012] 1 SLR 615 (refd) Cheong Chun Yin v AG [2014] 3 SLR 1141 (refd) Dennis Reid v R [1980] AC 343 (refd) DPP v Wood [2006] ACD 41 (refd) HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 (refd) Juma'at bin Samad v PP [1993] 2 SLR (R) 327; [1993] 3 SLR 338 (refd) Muhammad bin Kad......
-
Defence Disclosure In The Magistrates'; Court
...statement begins to run from the time the letter is served and not from the time when the schedule(s) are received: DPP v Wood [2006] EWHC 32 (Admin), at It is worth noting here that the sending of disclosure material or a letter telling the defendant that there is no material to disclose w......
-
Disclosure of Foreign Intelligence Material: CPIA, Norwich Pharmacal and the War on Terror
...once again, to satisfying the test of relevance imposed under CPIA and Codes of Practice.31 CPIA, s. 3(3)(a).32 CPIA, s. 3(3)(b).33 [2006] EWHC 32. Officer. Material is not “prosecution material” within s 8(4) unless it is so held’.34However, this is a question which may require further exa......
-
Table of Cases
..., 385 ..................................... Winfield-Grant, DPP v unreported, CO/3243/1999, DC! 501 Wood, DPP v; McGillicuddy, DPP v [2006] EWHC 32 (Admin), ..................................................................................... ! (2006) 170 JP 177! 403 , 599 ......................
-
Evidence
...not prejudice the appellant was plainly right. …” Appeal dismissed. Witness Summonses and Disclosure DPP v Wood; DPP v McGillicuddy [2006] EWHC 32 (Admin), (2006) 170 JP 177, 19 January 2006, QBD (Admin) Disclosure of material concerning reliability or type approval should not have been ord......