Hani Ali v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Mr Justice Johnson |
| Judgment Date | 27 October 2020 |
| Neutral Citation | [2020] EWHC 2864 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4848/2019 |
| Date | 27 October 2020 |
[2020] EWHC 2864 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Haddon-Cave
Mr Justice Johnson
CO/4848/2019
Jeremy Benson QC (instructed by Geoffrey Miller Solicitors) for the Appellant
Lucy Organ (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 13 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Lord Justice Haddon-Cave and
INTRODUCTION
This is the judgment of the court.
This appeal raises questions as to the presumption of reliability of an alcohol breath test machine, and the burden and standard of proof to be applied when evidence of unreliability is sought to be adduced.
The Appellant, Hani Ali, appeals by way of Case Stated against the decision of Deputy District Judge Minhas, sitting at Westminster Magistrates' Court on 22 nd October 2019, finding him guilty on summary conviction of an offence of driving with excess alcohol.
We are grateful for the able submissions of Mr Jeremy Benson QC for the Appellant and Ms Lucy Organ for the Respondent.
FACTUAL BACKGROUND
At around 11pm on Friday, 5 th April 2019, PC Warrillo spoke to the Appellant, who was sitting in the driver's seat of his Range Rover on Richmond Way in Shepherds' Bush. PC Warrillo suspected that the Appellant had driven whilst using a mobile phone. On questioning the Appellant, PC Warrillo became aware of the smell of alcohol on the Appellant's breath. The officer observed that the Appellant's eyes were glazed, his pupils were large and fixed and his speech was slurred.
PC Warrillo asked the Appellant if he had consumed alcohol. The Appellant replied that he had drunk one glass of wine at 8pm. At around 11.21pm, PC Warillo conducted two roadside breath tests. Both tests recorded a fail. PC Warillo arrested the Appellant who was then taken to Hounslow police station
At the police station, the Appellant was brought before Police Sergeant Burriss at 12.34am. PS Burriss started the drink and drug driving procedure at 12.44am. PS Burriss used an Evidential Breath Machine (“EBM”). The lower of two readings recorded by the EBM at 12.55am was 46 micrograms of alcohol in 100 millilitres of breath. This was above the prescribed legal limit of 35 mg of alcohol in 100 ml of breath. As he explained in evidence, PS Burriss had no concerns as to the functionality of the EBM, no error messages were recorded and it was within the calibration dates indicated by the sticker on the front of the machine.
The Appellant was charged under section 5(1) of the Road Traffic Act 1988 (“RTA 1988”) with driving a motor vehicle after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit. He pleaded not guilty to the offence. A trial took place over two days.
The Appellant gave evidence that he had consumed a medium glass of wine between 8 and 8.30pm. He denied that his speech was slurred or his eyes glazed. He adduced expert evidence to the effect that: (1) if he had drunk one glass of wine the recording would be zero, and (2) the EBM should have been serviced every 6–7 months, but the evidence had been that it was last serviced in June 2018, 10 months earlier. He also gave evidence that he had suffered from reflux which had caused mouth alcohol to be present at the time he was breathalysed.
THE FINDINGS OF THE DEPUTY DISTRICT JUDGE
The Deputy District Judge accepted PC Warrillo's evidence that the Appellant smelt of alcohol and that his eyes were glazed. She considered that PC Warrillo was near the Appellant for a reasonable period of time, having conducted two roadside breath tests, and that she therefore had “ample opportunity to consider the smell of alcohol and demeanour” of the Appellant.
The Judge reminded herself that there was a presumption that the reading was accurate, but that this presumption was capable of rebuttal and cited Cracknell v. Willis [1988] AC 450 (see below). The Judge considered that the burden of proof was on the Appellant to rebut the presumption on the balance of probabilities. She rejected a submission that once evidence had been adduced to rebut the presumption the burden was on the prosecution to establish, to the criminal standard of proof, that the EBM reading was reliable. We return to this question below.
The Judge accepted the evidence of PS Burriss that the machine was within the relevant calibration period and found that the expert evidence as to calibration was speculative because it was based on a document that was 20 years old and related to unspecified devices. The Judge rejected the Appellant's case that, at the time he provided the evidential breath specimen, he had had suffered from reflux which had caused mouth alcohol to be present.
The Judge found on the evidence that the EBM was working correctly and that the Appellant had therefore committed the offence. She stated her conclusions as follows:
“88. … I do not accept Mr Ali has been forthcoming with the Court or Doctors Mundy and Trafford about the amount of alcohol he drank. I find the evidence of Mr Ali to be self-serving. He was not willing to admit that he was driving until the CCTV evidence was adduced. He has every incentive to downplay the amount he drank that evening. In line with Cracknell v Willis, there is no compelling evidence before me to support what Mr Ali says he had to drink and in the absence of such evidence, I am entitled to be sceptical of his account. I also rely on the two roadside breath test procedures which Mr Ali failed, the fact that he smelt of alcohol and that his eyes were glazed. I accept that the roadside procedures are not evidential in themselves but in my view, they corroborate that he was over the legal limit and that the machine was operating correctly.
89. There is a presumption that the machine is working correctly; the presumption is rebuttable. Essentially, other than Mr Ali's claim that he did not drink enough to produce the reading that he did, there is no other cogent evidence before me to rebut the presumption. Therefore, on balance, I am not satisfied that the presumption has been rebutted. I am certain that the machine was working correctly.
90. Accordingly, I proceed on the assumption that the reading produced by the machine is reliable, that Mr Ali had a breach alcohol level of not less than 46 mcg in 100ml of breath. I find the case against Mr Ali proved beyond reasonable doubt.”
THE CASE STATED
The Deputy District Judge has, on the Appellant's application, helpfully stated the following four questions for the Court:
(1) Was I entitled to accept the evidence of PS Burriss that the machine was operating correctly and to reject the evidence of Dr Mundy that the machine may not be reliable?
(2) Did I err in law to find that there was a legal burden on the defendant to rebut the presumption of reliability of the breath test machine on the balance of probabilities?
(3) Even if I did err, was I entitled to find, so that I was certain, that the EBM was operating correctly?
(4) Was I entitled to convict the defendant?
SUBMISSIONS
It is common ground that there is a legal presumption that an EBM is working properly, that there is an evidential burden on a defendant to challenge this presumption by way of relevant evidence, but that once that burden is discharged (by adducing relevant evidence) the prosecution must prove to the criminal standard that the machine was reliable. The parties therefore agree that the Deputy District Judge erred in finding that the burden was on the Appellant to establish, on the balance of probabilities, that the EBM reading was unreliable.
Mr Benson, on behalf of the Appellant, contended as follows. Dr Mundy's evidence was that the machine needed to be serviced and calibrated at particular dates to maintain reliability. It had not been serviced and calibrated within the timeframe indicated by Dr Mundy. The Respondent had not challenged Dr Mundy's evidence. His expert evidence raised a “realistic possibility” that the machine might not be functioning properly. There was no proper basis for rejecting this unchallenged evidence. The Deputy District Judge was not therefore entitled to find that the EBM was operating correctly.
Ms Organ, on behalf of the Respondent, argued that the error of the Deputy District Judge in respect of the burden and standard of proof was immaterial, because the Judge in any event found, to the criminal standard, that the EBM was operating correctly. This was a finding that the Judge was entitled to make for the reasons she gave. She was, in particular, entitled to reject the evidence that had been given by the Appellant and Dr Mundy, and to regard the latter as “theoretical”.
THE LEGISLATION
Section 5(1) of the RTA 1988 provides:
“ 5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit
(1) If a person—
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.”
By section 11(2) of the RTA 1988 Act, the prescribed limit means (in respect of breath) 35 mcg of alcohol in 100 ml of breath.
Section 10 of the RTA 1988 provides:
“ Detention of persons affected by alcohol or a drug
(1) The following provisions apply with respect to proceedings for an offence under section 5 or section 6 of this...
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