Grant v Director of Public Prosecutions

On 31 October 2001 the appellant, Steven Grant, was convicted by a District Judge sitting in the South East Essex Magistrates' Court at Southend of failing without reasonable excuse to provide a specimen of breath contrary to section 6(4) of the Road Traffic Act 1988 ("the 1988 Act") and of driving while the proportion of alcohol in his blood exceeded the prescribed limit contrary to section 5(1)(a) of the 1988 Act. The offences occurred on 10th April 2001 at Boreham in Essex.

The proportion of alcohol in the appellant's breath was 58 micrograms of alcohol in 100 millilitres of breath. He was fined £100 and his licence was endorsed for the first offence and he was fined £600, ordered to pay £750 costs and disqualified for three years for the second offence. By consent the period of three years was ordered to be reduced to 27 months if the appellant successfully completed a drink driving rehabilitation scheme by 31st December 2002.

The appellant appealed to the Basildon Crown Court, where his appeal was heard by His Honour Judge Yelton and two justices on 24th and 25th April 2002. The appeal was dismissed for reasons given in a written judgment read on 26th April 2002.

The appellant asked the Crown Court to state a case, which it did on 17th May 2002, although it formulated its own questions and did not ask all the questions suggested to it on behalf of the appellant. This is therefore the appeal by way of case stated.

The case stated appended the written judgment and posed two questions for the opinion of the High Court, which I shall consider separately.

The Crown Court (which I shall call "the court") heard evidence from PC Lucas and Sergeant Clark of the Essex Police, from the appellant himself and from Dr Trafford, who was an expert called on his behalf. It is convenient to refer to the court in the plural because it comprised three members and is referred to in the plural in the case. The court expressly held that the police officers were wholly reliable and honest witnesses on whose evidence they could rely, whereas the appellant was not a witness whose evidence they could accept save when corroborated by the testimony of others. They took the view that the appellant was not telling the truth about many material facts.

The facts found in the case which are relevant to question 1 are these:

In subparagraphs (H) to (O) the court set out their findings of fact with regard to what happened at the police station. In short, they found that the appellant did much to avoid having to take a breath test. He did, however, ultimately do so with the result I have mentioned. The court noted that according to Dr Trafford a reading of 58 micrograms of alcohol in 100 millilitres of breath was consistent with the appellant having consumed about five pints of Guinness. The court accepted that evidence.

The court recorded in paragraph 7 that Mr Ley made a number of submissions of law none of which, as they put it, was "encumbered by merit", but again, as they put it, each of which must be given proper consideration and, if correct, given due force.

Mr Ley took the same point before the court as he has done before us, namely that PC Lucas was not entitled to require the appellant to undergo a breath test because, contrary to the instructions of the manufacturers of the breathalyser, 20 minutes had not elapsed from the time of the appellant's last drink and that the officer knew that.

The court referred to DPP v Carey [1970] AC 1072, to which I will return in a moment. In paragraph 9 they again said that the appellant was clearly not telling the truth about when he had last drunk, and in paragraphs 10 and 11 they said this:

Mr Ley submits that it was unlawful for PC Lucas to require the appellant to take a breath test at the roadside when he did. His submissions may be summarised as follows:

It may be noted that an application was made to this court for a direction that the court should state further facts, including the speed at which the appellant was driving on the A12 and the time for which PC Lucas followed him. That application was refused by Jackson J on the ground that further facts were not necessary in order to enable the court to answer the questions posed.

Section 6 of the 1988 Act provides so far as relevant:

Moreover, on the court's findings of fact there is no doubt that PC Lucas had reasonable cause to suspect both that the appellant was driving with alcohol in his body and that he had committed a moving traffic offence, namely speeding.

It follows that on the plain words of the section the officer was entitled to require the appellant to provide him with a specimen of breath for a breath test. However, Mr Ley relies on the decision and reasoning of the House of Lords in DPP v Carey [1970] AC 1072, and specifically upon the opinion expressed by Viscount Dilhorne at page 1084H to 1085A and Lord Diplock at page 1095C to D.

In the 20th edition of Wilkinson's Road Traffic Offences at paragraph 4.84 the editor summarised the decision in DPP v Carey as follows:

It seems to me that DPP v Carey is indeed authority for those propositions, and I did not understand either counsel to submit to the contrary.

The question here is whether PC Lucas acted bona fide in requiring the appellant to take the breath test when he did. In particular, did he have reasonable cause to suspect that the appellant had been drinking in the 20 minutes before he was required to take the test?

The court addressed those very questions in paragraph 10, which I have already quoted, but which it is convenient to set out again:

The conclusion there expressed was reached in the context of their earlier conclusion that the appellant was not telling the truth about when he had last taken drink, vis that he was not telling the truth when he said that he had had a drink within the previous five minutes.

The court was, to my mind, entitled to hold that that was a clear lie, by which they must have meant clear both to the officer and to the court. There was no need for the officer to be asked further questions, although no doubt counsel for either side could have asked the officer further questions if he or she had wished. The officer had just followed the appellant for four miles. There was no suggestion that the appellant had consumed alcohol while driving the car. In these circumstances the court were entitled to conclude that the appellant was clearly lying when he said that he had had a drink within the previous five minutes, especially when the appellant said to the officer that he knew his rights and that the officer needed to wait 20 minutes from his last drink. Once that was held to be a lie, there was no other basis on which the officer could be held to have reasonable cause to suspect that the appellant had consumed alcohol within the preceding 20 minutes.

In these circumstances, I would reject Mr Ley's submission that there was no evidence on which the officer could have reasonable grounds for disbelieving the appellant. The officer was not obliged to ask the appellant when he had had his last drink. I, for my part, would draw no inference from the failure of counsel for the prosecution to ask further questions. There was, to my mind, nothing irrational in the conclusions of fact reached by the court. They asked the correct questions and arrived at conclusions of fact which cannot be challenged as wrong in law.

I would therefore answer the first question, "Yes".

Before the court Mr Ley challenged the approval of the intoximeter device known as ECIR for three reasons: (1), it was Wednesbury unreasonable for the Secretary of State to approve it in the first place; (2), it was Wednesbury unreasonable for the Secretary of State not to have revoked its approval; and, (3), the alterations to it had caused it to lose its seal of approval.

The court rejected all three submissions. Mr Ley in effect renews those submissions in this court. I will briefly consider, first, submissions (1) and )2) together before turning separately to submission (3).

It is common ground that the device was approved by the Secretary of State. As appears from paragraph 39 of the judgment of Cresswell J in DPP v Brown, DPP v Texeira, unreported 16th November 2001, the relevant approval was contained in the Breath Analysis Devices (No 2) Approval Regulations 1998 dated 25th February 1998, made pursuant to powers conferred by section 7(1)(a) of the 1988 Act. In that case this court, Pill LJ and Cresswell J, underlined the general principle that it is not open to defendants to assert that the intoximeter EC/IR should not have received the approval of the Secretary of State: see, for example, per Cresswell J at 42 and 48(1).

In paragraph 42 Cresswell J stressed the view expressed by Robert Goff LJ in R v Skegness Magistrates' Court ex parte Cardy [1985] RTR 49 at 61 that representations that the device should not have been approved or that the Secretary of State should have withdrawn approval in respect of the device should be addressed to the Secretary of State. Equally, Pill LJ said at paragraph 52:

In paragraph 48(1) Cresswell J, with whom Pill LJ expressed his agreement, said this:

In the instant case, the court expressed their conclusions thus in paragraph 15 of their judgment:

In this appeal Mr Ley again seeks to rely upon Boddington v British Transport Police [1999] 2 AC 143. However, before considering his submissions I should refer to a further decision of this court in DPP v Memery, unreported, 4th July 2002, in which Gibbs J gave the leading judgment with which Rose LJ agreed. In that case the Crown Court had concluded that the intoximeter EC/IR was not a validly approved device or if it was that it was unreasonable for the Secretary of State to have approved it since it was a device which detected mouth alcohol, i.e. was liable to give a false reading by failing to distinguish mouth alcohol from the alcohol in the exhaled alreolar (deep lung) breath: see paragraph 17.

In paragraphs 43 to 47 Gibbs J summarised the procedure adopted by the Secretary of State for approving the type of device and the procedure laid down for subsequently checking the device. In paragraphs 48 to 56 he considered the reliability of the device in the event of mouth alcohol being present, but also the facts relating to mouth alcohol as found by the Crown Court in that case. Gibbs J then considered in paragraphs 58 to 67 the Skegness Magistrates' Court case and DPP v Brown and DPP v Texeira, to which I have referred, and a Scottish case, namely Brown v Procurator Fiscal, unreported 8 March 2002. In paragraph 67 Gibbs J observed that the factual strand common to all those cases was that in none of them, on the evidence, was there any causal connection between any defect in the device's abilities to detect mouth alcohol and the requirement of the reading presented in evidence.

In Memery the respondent was represented by Mr Ley, as the appellant is here. Mr Ley took the same point based upon Boddington as he seeks to take today. The point can be illustrated by one sentence from the speech of Lord Irvine LC at page 162G, where he said:

Mr Ley also relies upon other passages in the same speech (see 152F and 161C) which are quoted by Gibbs J in paragraph 69 and 70 in Memery. See also Lord Steyn at page 173F quoted by Gibbs J at paragraph 72.

In Memery this court expressly rejected Mr Ley's submissions relying on Boddington, indicating that Brown and Texeira was wrongly decided because it did not have regard to Boddington or the principle contained in it. Gibbs J described Mr Ley's submissions thus in paragraph 73:

This court, however, held that the approach in both Brown and Texeira and the Scottish case of Brown v Procurator Fiscal was consistent with the principles in Boddington. Gibbs J expressed his conclusions in that regard in this way at paragraph 75 and 76:

As I have already indicated, Mr Ley submits that that reasoning is wrong because it failed to follow the approach in Boddington, namely that Parliament must use clear words to exclude a defence of this kind, whereas in this context there are no words of any kind, let alone clear words.

For my part, I would not accept that submission for two reasons. The first is that this court has only very recently decided the very point raised by Mr Ley and in my opinion we should, as a matter of principle, follow it. There are circumstances in which a Divisional Court will not follow an earlier decision of a Divisional Court. A Divisional Court exercising its appellate jurisdiction in criminal cases will adopt the same approach as the Criminal Division of the Court of Appeal to its previous decisions: see R v Manchester Coroner ex parte Tal [1985] 1 QB 67 per Robert Goff LJ giving the judgment of the court at page 79C.

The relevant principles applied by the Court of Appeal Criminal Division are stated in R v Taylor [1952] 2 KB 368 per Lord Goddard CJ at page 371 and R v Gould [1968] 2 QB 65 at pages 68-69 per Lord Diplock. The Court of Appeal Criminal Division will only depart from an earlier decision where in that earlier case the law has been misapplied or misunderstood. That does not, to my mind, mean that it is appropriate to depart from a decision recently arrived at after full argument of the same point save perhaps in exceptional circumstances. To allow Mr Ley to argue the very same point now which he lost only six months ago before another Divisional Court when nothing has changed in the meantime would make the business of the court almost impossible to conduct.

The second reason is that I agree with the reasons given in Memery as set out above. To my mind, the question is essentially one of construction of the relevant statute in its statutory context, and I would reject Mr Ley's submissions in substance essentially for the same reasons as Gibbs J did in Memery.

Mr Ley submitted to the Crown Court that the particular intoximeter had been altered or modified so that it was no longer an approved device. In this regard the court said this in paragraph 16:

Mr Ley's submissions in this regard may be summarised as follows: (1) Young v Flint [1987] RTR 300 shows that alterations to an intoximeter can be so fundamental that they can cause an approved device to lose its approval or at least to lead to the conclusion that the device is no longer an example of the device as approved; (2) the court was wrong to hold that this was an issue which could not be raised; (3) because of that ruling the court did not have to consider the evidence on the point; (4) in any event (a) the burden was not on the appellant to prove there to have been the relevant modifications, he merely had to raise the issue, it was then on the DPP to approve either, one, that there were no modifications or, two, that any such modifications did not effect the approval (see Woolmington v DPP [1936] AC per Lord Sankey LC), (b) the situation is analogous to where a motorist challenges the accuracy of the intoximeter, namely that there is only an evidential burden on him (see O'Sullivan v DPP, unreported 27th March 2000), (c) if a court is going to reject expert evidence it must give proper reasons (see R v Harrow Crown Court ex parte Dave [1994] 99 Cr App R 114 especially per Pill LJ giving the judgment of this court at pages 121-122 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 especially per Lord Phillips MR giving the judgment of the court at paragraph 20, (d) an expert is permitted to give second hand information (see R v Somers [1963] 3 All ER 808); (5) the court did not apply the burden of proof correctly and did not give sufficient reasons.

As I understand it, Mr Caudle accepts, at any rate for the purposes of this appeal, Mr Ley's submissions (1), (2) and (4)(a) to (d), although he draws attention to the way in which Pill J expressed the principle in ex parte Dave at pages 121-122 as follows:

In the light of Mr Caudle's approach, I therefore assume for present purposes, one, that alterations to a device can be so fundamental that they cause the device to be such that it is not longer the device approved and, two, that once the issue is sufficiently raised the burden is on the Crown to prove beyond reasonable doubt that the device is an approved device. However, I would not accept Mr Ley's submissions that the court did not consider the relevant evidence, which was that of Dr Trafford, and reach a conclusion about it even though the court also said in paragraph 16 that if they had formed a different view this was a matter into which they should not require following, as they put it, the analogy of Brown and Texeira.

For my part, I would not readily accept that Brown and Texeira has that effect. To that extent I would accept Mr Ley's submission, at any rate as presently advised. However, as the court says expressly in paragraph 16, they permitted Mr Ley to ask appropriate questions of Dr Trafford designed to show that the devices had been modified, but they plainly rejected Dr Trafford's evidence that there had been such a modification. They took the view that Dr Trafford's evidence was founded upon some speculation and second hand information. We were told by Mr Ley that he invited Jackson J to direct the court to give further reasons, but he declined because he took the view that it was not necessary to do so in order to resolve the issues raised which the case. In my view, Jackson J was entitled to take that view.

It is plain that the court took the view that Dr Trafford's evidence was to a significant extent founded upon speculation. That was the principal basis upon which they rejected it. The court was entitled to reject it on that basis and, although the court could certainly have given more reasons, and I would encourage courts in the future to give somewhat more extensive reasons, I do not think that either party can have been in any doubt that the court's view was that Dr Trafford's evidence was based on speculation. It seems to me that that was a sufficient reason and one which the court was entitled to reach as a matter of fact.

Having reached that conclusion, I see no reason to conclude that the court was not sure that the device used was indeed an approved device. I would therefore reject this submission of Mr Ley.

In all the circumstances, I would answer the second question, if it is posed without the words "and/or that it had been modified", "yes".

As to the point raised by the question with the words "and/or it had been modified", I would not answer the question, "yes", but I would hold that having regard to the conclusions of fact reached by the court there is no basis upon which this appeal could be allowed or the conviction quashed.

I would therefore dismiss the appeal and uphold the conviction.

MR JUSTICE JACK: I agree.

MR CAUDLE: My Lord, I do have an application for costs in the sum of £750.

LORD JUSTICE CLARKE: I should not think that you can resist that, Mr Ley.

MR LEY: My client has the benefit of a legal aid certificate, my Lord, so I would ask for the usual football pools order.

LORD JUSTICE CLARKE: I think that must follow.

MR CAUDLE: I was not aware of that, he had not been up to now.

LORD JUSTICE CLARKE: Then we will make the order in its usual form. Your client will have to provide the court with the original certificate.

MR LEY: I have a photocopy, I understand my instructing solicitor has the original.

LORD JUSTICE CLARKE: I understand the original is required.

Thank you very much. It is, as ever, a great interest this area of the law, Mr Ley.