Evidence
| Author | Pauline M Callow |
| Pages | 326-409 |
CHAPTER 8: EVIDENCE
Chapter 8
Evidence
See s 16(1), Road Traffic Offenders Act 1988 – evidence of the proportion of alcohol or a drug in a specimen may be given by producing a printout from the breath analysis device or a certificate signed by an authorised analyst; s 16(2) – evidence that a blood specimen was taken with consent may be given by production of a certificate to that effect, signed by a medical practitioner; and s 16(3) – the printout or certificate is admissible if a copy has been handed to the accused when produced or a copy served no later than seven days before the hearing. See also the cases in Chapter 3, under the heading “Certificates”, page 177.
1. The Printout
See also the cases under the heading “Oral Evidence”, page 386 below, on the admissibility of oral evidence of the contents of the printout.
Gaimster v Marlow
[1984] QB 218, [1984] 2 WLR 16, [1985] 1 All ER 82, [1984] RTR 49, [1984] Crim LR 176, 8 December 1983, QBD
A test result and certificate produced by a breath analysis device constituted a statement within s 10(3)(a), Road Traffic Act 1972 and were to be taken together, not compartmentalised. An officer may give evidence to interpret the record.
A motorist had been charged with driving with excess alcohol, contrary to s 6(1), Road Traffic Act 1972 as substituted by s 25 and Sched 8, Transport Act 1981. The magistrates dismissed the charge on the basis that the test record produced by the Lion Intoximeter was not a “statement within the meaning of s 10(3)(a) of the Road Traffic Act 1972 as amended”, and was therefore inadmissible as evidence. Their reasons were, inter alia, that a statement must be understandable by an ordinary person; the test record in question was not understandable without explanation; a statement under s 10(3)(a) had to contain all the facts to prove the entire matter in s 10(3); evidence by the police officer who conducted the test was inadmissible hearsay.
The prosecutor appealed.
Question(s) for the Court: Whether it was correct to treat the test record as inadmissible as evidence in that it was not a statement within s 10(3)(a), Road Traffic Act 1972; whether it was correct to exclude the evidence of the police
The Printout
officer who conducted the test to explain or interpret the meaning of the contents of the document.
Held: “… It was not clear from the case stated whether the justices had seen the whole of the document produced by the Intoximeter; they should have done. The document is not to be compartmentalised into the part containing the test result (the statement) and the part containing the explanation (the certificate), so that only the first part is admissible. The one document contains in its second part the explanation and meaning of the first part … The fact that to some people, or even to most people, it may not be immediately intelligible without explanation does not prevent it being a statement.
“… if the officer is shown to be a trained operator of the machine and knows what the meaning of these signs is, and that is proved by way of evidence, then it seems to me there is no reason why he should not give evidence.”
The justices were incorrect on both points. Appeal allowed.
Chief Constable of Surrey v Wickens
[1985] RTR 277, 14 November 1984, QBD (DC)
Where the copy printout handed to the motorist had not been signed by the officer, the copy was nevertheless served.
Magistrates had dismissed a charge, under s 6(1), Road Traffic Act 1972, as substituted by s 25(3) and Sch 8, Transport Act 1981, of driving with excess alcohol. The copy of the breath analysis test record and certificate handed to the motorist had been signed by the motorist but not by the officer conducting the breath test. The justices concluded that that document was not a “copy” and not therefore admissible in evidence under s 10(5), Road Traffic Act 1972 as likewise substituted (printout admissible only if a copy of it has been handed to the accused when produced, etc). They found the police officer’s own evidence of the Intoximeter reading unreliable. The prosecutor appealed.
Question(s) for the Court: (a) Whether the prosecution has failed to comply with the requirement in s 10(5) to serve a “copy”; (b) whether the prosecution was prohibited from giving evidence of the proportion of alcohol in breath by calling oral evidence from a trained operator of the Intoximeter as to the reading given on the visual display unit, without relying on the printout.
Held: “We would answer the first question in the negative … An unsigned copy is a copy, and that is all that subsection (5) requires. If the legislature had intended that the copy as well as the original of the document must be signed, it would have said so.” The second question did not, in the light of that, need to be answered. Appeal allowed.
Walton v Rimmer
[1986] RTR 31, 4 February 1985, QBD (DC)
Leaving a copy of the printout on the counter at which the defendant was standing did not constitute handing it to him.
Magistrates had dismissed a charge, under s 6(1), Road Traffic Act 1972, as substituted by s 25(3) and Sch 8, Transport Act 1981, of driving with excess alcohol. Analysis of two breath specimens was positive, but the magistrates
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CHAPTER 8: EVIDENCE
found that the Intoximeter printout could not be relied on in evidence by the prosecutor because a copy had not been handed to or served on the motorist in accordance with s 10(5), Road Traffic Act 1972, as substituted. The printout had been produced in triplicate; the motorist had signed two copies; the third had simply been left on the counter at the police station. The prosecutor appealed.
Question(s) for the Court: Whether the printout was admissible in evidence on behalf of the prosecution as having been “handed to the accused when the document was produced” if, when the document was produced in triplicate by the approved device, all three copies thereof, duly certified by a constable, were placed on a counter at which the defendant was standing, and the contents thereof having been explained to him he then and there signed at least two of them.
Held: “… the Act of 1972 should not and cannot be so construed that a defendant can render the evidence inadmissible by refusing to take a document … which is handed to him. But it does not follow that if he signs a document it must previously have been handed to him … What happened in this case was that the documents were put down on a counter at which [the driver] was standing, and he was asked to sign them. There is no finding that it was indicated to him in any way that one of those copies was for him to take away … [The printout] should be either handed – that is to say, tendered to – the defendant at the time of production, or served thereafter. In this case … the facts as found … did not show that the document had been handed to the defendant”.
Appeal dismissed.
R v Tower Bridge Magistrates’ Court ex p DPP
[1988] RTR 193, [1987] Crim LR 693, 13 May 1987, QBD (DC)
Where the defendant had pleaded guilty, the court’s insistence on the production of the printout was an improper exercise of discretion.
A motorist had been charged with driving with excess alcohol in breath, contrary to s 6(1)(a), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981. He had appeared before the justices unrepresented and pleaded guilty. After hearing the facts, the justices adjourned the case for 24 hours for the original breath analysis printout to be put before the court. At the resumed hearing, the original printout was still not available; the magistrate invited the motorist to change his plea to not guilty, which he did. The magistrate then invited the prosecutor to proceed; he was unable to do so and the magistrate dismissed the case for want of prosecution.
The prosecutor applied, by way of judicial review, for orders of certiorari to quash the dismissal of the case, and mandamus to direct the magistrate to hear the case; and for declarations that the decision to insist on the original printout was an improper exercise of discretion, and that the decisions to order a change of plea, refuse an adjournment and dismiss the charge were improper exercises of discretion.
Ground(s) for appeal: That the magistrate acted in breach of natural justice, exceeding his jurisdiction by requiring the original printout to be produced upon an unequivocal plea of guilty.
The Printout
Held: “ … it is the practice at Tower Bridge Magistrates’ Court, where an offence is charged against section 6 … to inspect the printout … in order to check that the calibration is accurate and the readings correct, and to see whether there is any vast discrepancy between the higher and lower readings and so on … There was no need for the original document, since there had been a plea of guilty. The court on the first day – or on the second – could and should have proceeded to sentence … the decision to insist upon production of the original printout … was an improper exercise of discretion in the circumstances … the decisions to order a change of plea, to refuse an adjournment and to dismiss the charge were improper exercises of the magistrate’s discretion …”
Order of certiorari granted.
Hasler v DPP
[1989] RTR 148, [1989] Crim LR 76, 17 May 1988, QBD (DC)
Where the printout was not adduced and there was no oral evidence of matters such as the calibration of the device and of the breath-alcohol reading, the magistrates should not have rejected the submission of no case to answer.
A motorist had been charged with driving with excess alcohol, contrary to s 6(1)(a), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981. At the hearing, the police officer who had administered the breath testing procedure gave oral evidence that the breath analysis printout was available in court should the justices wish to see it; he did not adduce it as evidence; and gave no oral evidence concerning calibration.
The defence submitted there was no case to answer, on the ground that...
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