Mercer v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHFORD |
| Judgment Date | 03 February 2003 |
| Neutral Citation | [2003] EWHC 225 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4178/2002 |
| Date | 03 February 2003 |
[2003] EWHC 225 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Pitchford
CO/4178/2002
MISS P MULHERN (instructed by Bobbetts Mackan) appeared on behalf of the CLAIMANT
MR A LARGE (instructed by CPS Taunton) appeared on behalf of the DEFENDANT
Monday, 3rd February 2003
This is an appeal by way of case stated from a decision of the Justices for the Commission of Avon and Somerset and for the Petty Sessional Division of Sedgemoor, sitting at Bridgewater, on 20th May 2002.
The Justices convicted the appellant upon a charge that on 1st July 2001 at Cheddar he drove a motor vehicle on Wells Road having consumed so much alcohol that the proportion of it in his breath (that is 52 micrograms of alcohol in each 100 millilitres of breath) exceeded the prescribed limit contrary to section 5(1)(a) Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders Act 1988.
The material facts as found by the Justices and recorded in their statement of case are as follows.
Mr Mercer, the appellant, shortly after 5 o'clock on the evening of 1st July 2001, was stopped while driving his BMW motor vehicle along the A371 Wells Road in Cheddar by Police Constable Gillett. He was administered a roadside breath test, which was positive. That led to his arrest and he was taken to Bridgewater Police Station where the breath test procedure commenced.
Constable Gillett was a qualified user of an instrument called the Lion Intoxilyser 6000. That was the instrument which was used in this case for testing the appellant's breath at the police station.
The Lion Intoxilyser 6000 is a self-calibrating instrument which, it is accepted on behalf of the appellant, was approved for the purposes of section 7 Road Traffic Act 1988 by the Minister of State on 25th October 1999 for use as from 2nd November 1999. The Lion Intoxilyser 6000 is a successor, if not the successor, to the Lion Intoximeter 3000.
With the full co-operation of the appellant, the procedure commenced. The machine drew in a sample of air to make sure that it was fully purged at 18:28:48 (recorded, I note, on the reading subsequently produced as Blank 1). At 18:29:18 it drew in a sample of alcohol and produced a reading of 36, which was within the required parameters. This was called simulator check 1 and is known in short as the calibration. At 18:29:50 it performed a second purge (described on the printout as Blank 2). The appellant was therefore asked to give his first breath specimen. That was provided at 18:30:12, somewhat under one minute since the calibration had taken place. The instrument measured the percentage alcohol content of the breath specimen as 52 micrograms. The instrument purged itself for a third time at 18:30:43 (the procedure described as Blank 3 on the printout) and prepared itself for the appellant's second specimen, which was taken at 18:32:37. It then emitted a beep sound and recorded "interfering substance" on its display.
The design of the Lion Intoxilyser 6000 is such that such a reading automatically ceases the cycle in which the specimen of breath is taken. It then provides a printout and goes back, as the Justices found, to "standby". It finally records in respect of the second specimen of breath "unsatisfactory specimen 2".
An interfering substance can be one of a number of substances, for example, acetone or food vapour. That apparently can affect the alcohol reading and thus render it unreliable.
Police Constable Gillett gave evidence, accepted by the Justices, that he believed the machine was not defective but that it was simply "not happy with what was blown in". He decided to take a further set of breath specimens rather than seek a sample of blood or urine. The appellant was content with that decision.
An interval of between three and four minutes took place between the conclusion of the first cycle and the commencement of the second. The instrument began as it had during the first cycle. The self-calibration check took place at 18:35:51 and a further breath specimen was provided by the appellant at 18:37:13. This time the measurement was 53 micrograms. The appellant provided a second reading during the second cycle, following which the machine recalibrated itself. As the lower reading was over 51, the appellant was charged with driving with excess alcohol in his breath.
There were thus three specimens of breath accepted by the instrument; the first during the first cycle and the second and third during the second cycle.
The machine was checked by an expert, a Mr Peter Craig, a gentleman with the title "breath test liaison officer", on 28th June and 5th July 2001. His evidence, accepted by the Justices, was that on both occasions the instrument was working satisfactorily. On 31st October 2001 Mr Craig downloaded all the appellant's test results together with the test immediately preceding it and the test he had checked on the earlier dates, and his conclusion was that there were no indications at any point to suggest that the machine was unreliable or defective.
The Justices received evidence about the Lion Intoxilyser 6000 machine about which they made these findings: first, that it was fully approved; second, that it had taken the place of the Intoximeter 3000, which had been neither so accurate nor advanced as the Lion Intoxilyser 6000; and, third, all such machines in the United Kingdom are set and operated in the same way —they are bound to operate in that way otherwise they would fall outside the approval of the Minister of State.
The difference between the intoximeter machine and the intoxilyser machine was that the former would complete a sample even if there was what is now known as an interfering substance within the specimen taken, whereas the Intoxilyser 6000 was designed to cease the existing cycle without recalibrating itself when met with an interfering substance.
The Justices found that the instrument used to test the appellant's breath was operating properly at all relevant times. That is a concession made by Miss Mulherne, who represents the appellant before me. That concession does not imply an acceptance by the appellant that the machine in the particular circumstances of this case was capable of meeting the statutory procedure, for a reason to which I will come in a moment.
The Justices found, after argument, that the Lion Intoxilyser was working in precisely the way it was programmed to work under its Home Office approval. They found that there was no suggestion that at the times material to this decision it was working other than properly. They noted that at the commencement of the second cycle the machine had to self-calibrate and that that was within four minutes of the end of the first, and they noted that it self-calibrated at the end of the second cycle. There were, in other words, three satisfactory self-calibrations spanning a period of a few minutes during two cycles of operation.
Being satisfied that the machine was operating properly, the Justices found that the prosecutor was entitled to rely upon the first specimen taken during the first cycle and the first specimen during the second cycle in order to prove the charge. They convicted the appellant and at a subsequent hearing disqualified him from driving.
The appellant's case at the hearing before the Justices was that in order to establish two valid readings the prosecution was required to prove that the readings were taken in a cycle which included a self-calibration by the instrument before the first and after the second reading. That was designed to take place in one cycle, subject to the appearance of the words "interfering substance". In the event that the officer was required to utilise two cycles in order to produce two results, then what was required at the end of the first cycle was a recalibration repeated at the second cycle. Since the Lion Intoxilyser 6000 self-calibrated only before the first reading and at the commencement of the cycle before the second reading, and after the third reading at the conclusion of the second cycle, but not after the first reading, the prosecution had failed to establish that the machine self-calibrated before and after each operating cycle on which the prosecution relied.
Thus, Miss Mulherne submitted, as she has submitted in the appeal, section 7(3)(ii)(bb) of the Road Traffic Act 1988 applied. Section 7(1) of the Road Traffic Act 1988 reads in its material parts:
"In the course of an investigation into whether a person has committed an offence … a constable may, subject to the following provisions of this section … require him:
(a) To provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) To provide a specimen of blood or urine for a laboratory test."
Section 7(3)(ii) provides:
"A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless:
(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or
(bb) a device of the type mentioned in subsection...
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