The Director of Public Prosecutions v Vince
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males,Beatson LJ |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] EWHC 3014 (Admin) |
| Docket Number | Case No: CO/2622/2016 & CO/3473/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2016 |
[2016] EWHC 3014 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Mr Justice Males
Case No: CO/2622/2016 & CO/3473/2016
Mr Leslie Chinweze (of the Crown Prosecution Service) for the Director of Public Prosecutions
Mr Ashley Barnes (instructed by MAJ Law) for Ms Vince
Mr Taqdir Singh-Bains made submissions on behalf of Mr Kang with the permission of the Court
Mr Leslie Chinweze (of the Crown Prosecution Service) for the Director of Public Prosecutions
Hearing date: 22 November 2016
Approved Judgment
There are two appeals by way of case stated before the court. They were listed together because they appeared to raise a similar issue as to the admissibility of evidence of the amount of alcohol in a driver's breath when a test is carried out on an Intoxilyzer machine after the machine has recorded an "Ambient Fail" message on a previous test. Ultimately, however, it may be that the similarities were more apparent than real. It is convenient to deal first with the case of Kang, where there was a conviction after a trial. In the second case, Vince, the magistrates acceded to a submission of no case to answer at the conclusion of the prosecution case.
Kang — the facts
On 6 November 2015 the appellant, Balvinder Singh Kang, was in charge of a motor vehicle at Sandwell in the West Midlands when he was seen by a police officer, PC Smith. PC Smith asked Mr Kang to come to his police car and requested him to provide a specimen of breath on an approved device. Mr Kang complied. This roadside test produced a result of 157 mg of alcohol in 100 ml of breath. Mr Kang was arrested and taken to the Steelhouse Lane Police Station in Birmingham.
At the police station, PC Smith took Mr Kang to the area of the custody suite where the Lion Intoxilyzer 6000UK machine was situated and requested two specimens of breath. PC Smith had 16 years' experience of operating such machines. He checked the machine to satisfy himself that it was working properly and was correctly calibrated. However, before the test could be carried out, the machine recorded an "Ambient Fail" and the test was aborted. The District Judge (Magistrates Court) found that Mr Kang had caused this message to appear and the test to abort by holding the breathing tube in the vicinity of his mouth before providing the first specimen of breath for analysis.
As a result PC Smith terminated the procedure, re-started the machine and went through the procedure a second time. Again he ensured that the machine was correctly calibrated. Mr Kang provided two specimens of breath for analysis, the lower of which produced a reading of 143 mg of alcohol in 100 ml of breath, lower than the roadside reading (not surprisingly in view of the passage of an hour and a half) but still well over the legal limit.
PC Smith did not require Mr Kang to provide a sample of blood or urine instead of breath, nor did he offer him the opportunity to do so.
PC Smith did not complete the MG DD/A form at paragraphs A18 or A19 with details of the "Ambient Fail" but he attached the original printout from the machine along with the second printout with the details of the two specimens provided by Mr Kang.
Mr Kang was convicted of being in charge of a motor vehicle on a road after consuming so much alcohol that his breath exceeded the prescribed limit, contrary to section 5(1)(b) of the Road Traffic Act 1988.
The questions for decision
The case stated raises two questions for our decision:
1. Was the court entitled to conclude that the lower reading of 143 mg in 100 ml of breath provided by Mr Kang in the second part of the station procedure was reliable and admissible notwithstanding the "Ambient Fail" message and the decision of the officer to re-start the Intoxilyzer rather than offer Mr Kang the choice to provide a sample of blood or urine?
2. Was the court entitled to regard the evidence of the reading of 157 mg in 100 ml of breath provided by Mr Kang in the roadside test as evidence which supported the reliability of the station procedure?
Submissions
On behalf of Mr Kang it was submitted that PC Smith failed to follow the prescribed statutory procedure in three respects, with the consequence that the results were invalid and inadmissible. These were as follows:
1. continuing with the breath test procedure despite the "Ambient Fail" message instead of offering Mr Kang the option to provide a blood or urine sample;
2. failing to complete paragraph A18 of the MG DD/A form which requires reasons for an incomplete procedure to be set out; and
3. failing to complete paragraph A19 of the form which provides that where a breath testing device stops working or is working unreliably, details should be given.
In what was described as a supplementary skeleton argument provided on the day before the hearing, Mr Kang's solicitor submitted on his behalf that as a matter of fact Mr Kang could not have caused the "Ambient Fail" message to register by holding the breathing tube in the vicinity of his mouth and that the readings subsequently obtained were unreliable. We permitted Mr Kang's solicitor to develop these submissions orally, together with a submission that the District Judge (Magistrates Court) was not entitled to rely upon the preliminary roadside breath test which produced a reading of 157 mg of alcohol in 100 ml of breath.
Discussion
The District Judge (Magistrates Court) found as facts (1) that the cause of the "Ambient Fail" message was that Mr Kang had held the breathing tube of the machine in the vicinity of his mouth before providing the first specimen of breath for analysis, (2) that the machine was working perfectly, and (3) that its readings were reliable. These are findings of fact. Unless they can be successfully challenged, there is no doubt that Mr Kang was in fact well above the legal limit. There is an issue arising on the second of the two questions stated for our decision whether the District Judge was entitled to rely on the roadside test reading as evidence supporting the reliability of the police station procedure. I shall come to this in due course. However, that is the only issue raised by the case stated which goes to the reliability of the procedure. The more general submission that Mr Kang could not have caused the "Ambient Fail" message to register is not open to him on the facts found by the District Judge (Magistrates Court), who has found that Mr Kang did cause it in the manner described. Accordingly the only issues arising so far as the first question is concerned is whether in any of the three respects set out above PC Smith failed to follow the correct statutory procedure and, if he did, whether the consequence is that the results obtained are invalid and inadmissible as a matter of law. That question must be determined on the facts found by the District Judge, including the three findings referred to above.
Section 7 of the Road Traffic Act 1988 provides:
"(1) In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, 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.
(2) A requirement under this section to provide specimens of breath can only be made –
(a) at a police station, …
(3) 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) specimens of breath have not been provided elsewhere and 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 (1)(a) above has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, …
(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.
(7) A constable must, on requiring a person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."
Section 11(3) of the Road Traffic Act 1988 provides:
"A person does not … provide a specimen of breath for analysis unless his cooperation or the specimen –
(a) is sufficient to enable the test or the analysis to be carried out, and
(b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved."
PC Smith did require Mr Kang to provide two specimens of breath pursuant to section 7(1) of the 1988 Act. However, the first attempt to operate the machine was unsuccessful because Mr Kang held the breathing tube...
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