Third Party Disclosure
| Date | 01 October 2006 |
| DOI | 10.1350/jcla.2006.70.5.377 |
| Author | Chris Taylor |
| Published date | 01 October 2006 |
| Subject Matter | Divisional Court |
The present case does demonstrate that while the 2003 Act has
sought to remove the technical arbitrariness of the common law rule
against hearsay, it has replaced it with a statutory regime which is not
uncomplicated. It appears that both the magistrates and the Admin-
istrative Court ultimately arrived at a sensible outcome, but via an
inappropriate route.
Ben Fitzpatrick
Third Party Disclosure
Director of Public Prosecutions vWood; Director of Public Prosecutions v
McGillicuddy [2006] EWHC 2986, [2006] All ER (D) 101
The accused were charged with drink/driving, contrary to s. 5(1)(a) of
the Road Traffic Act 1988. In each case, the charges had followed a
positive intoximeter test administered by the police. Each positive test
was based on the evidence of two specimens of breath analysed with an
intoximeter machine, supplied to the police by Intoximeters UK Ltd,
which was ‘a device of a type approved by the Secretary of State’ (Road
Traffic Act 1988, ss 7(1)(a) and 11(2)). In neither case was a blood or
urine sample taken, leaving the intoximeter results as the sole evidence
of intoxication. Section 16 of the Road Traffic Offenders Act 1988
provides that the statement automatically produced by such a device is
admissible in evidence and s. 15 creates a statutory assumption that the
proportion of alcohol to breath is not less than the specimen analysed.
There is also a common law presumption that an approved breath test
device is reliable (Kemsley vDirector of Public Prosecutions (2004) 169 JP
148; DPP vMemery [2002] EWHC 1720, [2003] RTR 18).
As part of their defence, both accused made applications under s. 8 of
the Criminal Procedure and Investigations Act 1996 for disclosure of
material in the possession of Intoximeters UK Ltd and the district judges
(magistrates’ courts) ordered disclosure. In order to comply with the
order, the Crown Prosecution Service contacted Intoximeters UK Ltd to
obtain the material, however the company declined to provide some of
the requested information, inter alia, on the basis that it was commer-
cially sensitive. On learning of this refusal, the district judges ruled that
this refusal on the part of the company represented non-compliance by
the prosecution, as Intoximeters UK Ltd was part of the investigating
authority. Consequently, the proceedings were stayed on the ground
that, without the requested material, the respondents would not receive
a fair trial and therefore any trial would constitute an abuse of process.
The prosecution appealed by way of case stated, arguing that the
material held by Intoximeters UK Ltd was not subject to disclosure as it
was not ‘prosecution material’ as defined by s. 8(3) of the Criminal
Procedure and Investigations Act 1996 (CPIA) which provides:
For the purposes of this section prosecution material is material:
Third Party Disclosure
377
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