R (Coxon) v Manchester City Magistrates Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON,LORD JUSTICE LEVESON |
| Judgment Date | 11 March 2010 |
| Neutral Citation | [2010] EWHC 712 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2414/2009 |
| Date | 11 March 2010 |
[2010] EWHC 712 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Leveson
Mr Justice Cranston
CO/2414/2009
MISS S CALDER appeared on behalf of the Claimant
MR S BIGGS (instructed by CPS MANCHESTER) appeared on behalf of the Defendant
Introduction
This case constitutes a challenge to one of the devices used to measure the level of alcohol in the breath of drivers. The device involved is a Lion Intoximeter 6000 UK, with software version 2.34, connected with the LIBIS computer system. That connection is for the purposes of keying in the details of the person being breathalysed and receiving the results from the intoxilyser. The claimant contends that the device does not have the requisite type approval. His claim is by way of judicial review of the refusal of the District Judge to state a case for consideration by this court. Permission to apply for judicial review was granted by Laws LJ and McCombe J late last year.
Background
The claimant is a retired teacher but now does work as a freelance photographer. On 17 November 2008 he was convicted in the Manchester City Magistrates' Court of driving a motor vehicle in late June of that year when his alcohol level was 85 micrograms in 100 millilitres of breath. That exceeds the legal limit, and is an offence under section 5(1)A of the Road Traffic Act 1988. He was fined and ordered to pay costs, in total £530 and was disqualified from driving for three years.
At the trial, before District Judge Berg, the prosecution called one witness, Police Constable Oldham, the intoxilyser officer, who gave evidence in relation to the procedure and the results. The officer explained the function of the LIBIS device and confirmed the device had nothing to do with the Lion Intoxilyser device: “Only the results of that machine are transferred back.” She confirmed that the LIBIS device produced the relevant printout of the results. She had no technical knowledge.
Dr Mundy gave evidence for the claimant. He is an independent forensic scientist who was at one point in charge of the alcohol laboratory of the Metropolitan Police Forensic Science Laboratory. As a public official he was also involved in the approval and utilisation of earlier types of intoximeters. In a written report Dr Mundy explained that the objective of approval is to ensure that the device operates to the highest standard. Once an instrument has passed certain trials, approval is given. The Lion Intoxilyser 6000 UK with 2.33 software was approved initially. Subsequently, a Welsh version was approved with software 2.34.
In his report Dr Mundy set out how modifications are dealt with when notified to the Home Office. Apart from trivial changes, for example a change in the colour of the instrument, the modification may require further testing. The request is then passed to the Forensic Science Laboratory for assessment. The modification might be tested at the laboratory or at one or more of the other agencies. The report is then sent to the Home Office, which issues a letter of agreement or rejection. If the modification is major a full testing regime will have to be used and a new approval will have to be issued. The only time that occurred was following the upgrade of the Lion Intoxilyser 6000 UK version 2.33 to the Welsh language version 2.34.
Dr Mundy's report continued that Lion requested that Assessment Services test the combination of the Lion Intoxilyser UK and LIBIS to check for interference. That agency is one of those involved in the approval of instruments. Those tests were carried out in the first half 1997 on a Intoxilyser 6000 UK, with software 2.33 build 15. Assessment Services concluded that there was no interference with the Intoxilyser UK by LIBIS.
In the conclusion to his written report Dr Mundy explained that the LIBIS system disconnected the intoxilyser's keyboard and substituted its own for the starting of the test and the input of personal details. At that point the intoxilyser took over and performed the test cycle. When completed the results were sent to the LIBIS computer. There were many other functions of the intoxilyser and there was no information about whether these could be accessed through the LIBIS computer. However it was clear, in his opinion, that the intoxilyser was in a different computer mode when connected to LIBIS. In his opinion, LIBIS should be tested with the latest version of the Intoxilyser 6000 UK version, ie 2.34, as changes might alter the reaction of LIBIS to the instrument. He did not know whether such tests had been performed. He had never seen the type approval citing LIBIS, and in fact did not believe that there was such an approval.
Before District Judge Berg, Dr Mundy gave oral evidence in accordance with his written report. He stated that in his opinion the connection of the LIBIS device to the intoxilyser took the latter device out of the type approval order. It followed that in the absence of the testing of the LIBIS device, its attachment to the intoxilyser “might or might not” effect the reading produced as a result of the specimen of breath given.
On the basis of Dr Mundy's evidence the claimant submitted that the intoxilyser could not be said to give a reliable reading. Because of the connection with the LIBIS device, type approval should exist because the device itself was altered. It was therefore outside the scope of the type approval given. There will be no conviction on the basis of any reading it gave. As I have indicated the District Judge convicted the claimant.
On 11 December 2008 the District Judge set out his conclusions through a letter from his legal adviser. That stated that the District Judge had found as a matter of fact that he did not believe that the issue of type approval had been sufficiently raised by the defence. The evidence put forward by them to suggest that the device had been altered so significantly as to take it outside the scope of type approval was to a large extent based upon speculation. Therefore he rejected it. That finding was said to be based upon Dr Mundy's opinion that changes might have altered the reaction of the LIBIS to the instrument. In his letter the District Judge said:
“In the light of their being no direct evidence that the Lion Intoxilyser 6000 was altered so significantly as a result of the LIBIS connection, and bearing in mind Dr Mundy's “speculation” on this point referred to above, the judge found as a matter of fact that the device had not been taken outside of the scope of the type approval, and was an approved device.”
In his acknowledgment of service to the claim the District Judge explains that he rejected the claimant's submission. He enunciates the following reasons: first, there was a presumption that the intoxilyser device was reliable and he could only concern himself with the device in question. He did not consider that the presumption had been challenged by any relevant evidence. He had heard no evidence that the connection of the LIBIS device did effect the function of the Lion Intoxilyser UK 6000 device. The challenge by the claimant was based, inter alia, upon Dr Mundy's report, which seemed to have used on other occasions. Dr Mundy's oral evidence simply confirmed the contents of his report, but his conclusion was that the connection to the LIBIS device might or might not effect the results produced:
“In the circumstances and in the light of the evidence given, I concluded it was pure speculation that the intoxilyser device was unreliable and had been altered in such a way and to such an extent that it was taken outside the scope of its type approval.”
District Judge Berg was then asked to state a case for the opinion of this court with two questions: first, was he right to hold that the evidence of Dr Mundy was pure speculation, and secondly on the evidence of the case was he entitled to hold that the device was an approved device. In the circumstances, the District Judge held that he was entitled to refuse to state a case, since he considered that the application was frivolous, being both futile and misconceived. He considered that his decision was Wednesbury reasonable having regard to the evidence given. In his view any challenge that the LIBIS device should have been type approved by the Secretary of State was beyond his jurisdiction and a matter for the Secretary of State.
The Law
The Road Traffic Act 1988 creates offences of causing death by careless driving when under the influence of drink or drugs; driving or being in charge of a mechanically propelled vehicle whilst under the influence of drink or drugs; and driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit: sections 3A, 4 and 5.
In the course of an investigation as to whether a person has committed one of these offences section 7(1)(a) empowers a police officer to require the person to provide two specimens of breath for analysis by means of “a device of a type approved by the Secretary of State.” A requirement under the section to provide specimens of breath can be made, inter alia, at a police station: section 7(2)(a).
Thus, section 7(1)(a) refers to devices of a type approved by the Secretary of State. For these purposes, in June 2005 a junior minister, acting on behalf of the Secretary of State, made The Breath Analysis Devices Approval Order 2005. That approved, as from 1 July 2005, as a means by which specimens...
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Table of Cases
...Cox, DPP v [1996] RTR 123, DC! 483 ... Coxon v Manchester City Magistrates’ Court [2010] EWHC 712 (Admin), DC" 270 ........................................................................ Coyle, DPP v [1996] RTR 287, DC! 256 CPS, R on the application of, v Wolverhampton Magistrates’ Court .......
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Challenging the Breath Testing and Breath Analysis Devices
...to question 1 was yes. The answers to questions 2 and 3 were no. Appeal dismissed. Coxon v Manchester City Magistrates’ Court [2010] EWHC 712 (Admin), unreported, 11 March 2010, QBD (DC) On the facts, there was nothing to suggest that a Lion Intoxilyzer 6000, to which had been connected a L......