Kemsley v Director of Public Prosecutions

LORD JUSTICE BUXTON: This is an appeal by way of case stated from a conviction recorded against a Miss Fiona Kemsley at Ealing Magistrates' Court some considerable time ago. Originally, before the magistrate, it was thought to raise a significant number of questions of very wide general importance. As it has been narrowed down before us and in view of a number of developments in the law since the original trial, the issue is an extremely limited one.

The facts were simple and straightforward. In the early hours of 10th May 2001 the police were called to a road traffic accident outside Northfields Tube Station. There were a number of vehicles present. The defendant, Miss Kemsley, was asked by a police officer who attended whether she was the driver of a vehicle that had been involved in the accident, a Volkswagen Polo; she said that she was. She was breathalysed at the roadside. The specimen was positive. She was arrested and taken to the police station and provided a specimen of breath through the machine used at Ealing Police Station. The lower of her two readings was 96. That, it will be seen, went very significantly beyond the legally-permitted limit.

She was in due course convicted by the Ealing Magistrates' Court of driving a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.

The proceedings before the district judge were in two parts. First Miss Kemsley sought to exclude the evidence of her answer to the police officer that she had been the driver of the vehicle; that was an application made under section 78 of the Police and Criminal Evidence Act 1984. Originally it had two limbs to it. The first was that Miss Kemsley had not been cautioned before the constable spoke to her and, therefore, it was unfair or inadmissible for her answer to be used against her. Reference is made to the provisions of the Code of Practice including code C10.1.

We do not agree, in the circumstances, that the omission of a caution was fatal to the admission of her answer. This was a circumstance where the police arrived simply to try to sort out, in the first instance, what had happened, and it is understandable in those circumstances that they start by asking those present who had been involved with what vehicle. We are entirely satisfied that those questions, as then put, were not being put in an oppressive way; no suggestion has been made that they were. They were simply an attempt to elicit information. The district judge was, in our judgement, entirely within the broad ambit of his discretion under section 78 to allow that answer in evidence.

He identified another reason why that was the case. If there had not been particular statutory provisions in this area with regard to answering questions, then it might well be that the prosecution would have thought it prudent to re-interview Miss Kemsley as to her status as a driver, and elicit, or not elicit, an answer from her that was, as it were, fully admissible after caution. But in the present area there is of course section 172 of the Road Traffic Act 1988. Faced with any reluctance on Miss Kemsley's part to disclose whether she had been driving and, as we understand it, without there being any indication much prior to the trial that the matter would be disputed, the police could have made a formal application to her under section 172. It would be highly artificial in those circumstances, if an application under section 172 would have been legitimate and the reply admissible, for the admission that she made at the roadside not to be one that the court could rely on.

In a case earlier today, Hayes v Director of Public Prosecutions, Mr Ley, who appeared for Mr Hayes as he appears for Miss Kemsley, mounted a strong argument that section 172 was in breach of the European Convention on Human Rights, notwithstanding the recent judgment of the Privy Council in the case of Brown v Stott. We did not accept that argument in the case of Hayes and that state of affairs as Mr Ley of course recognised, binds him and us now.

That being so, no criticism can be made of the district judge in this case for having, to some extent, reinforced his view of the admissibility of this informal non-section 172 answer by the vulnerability of Miss Kemsley to a more formal enquiry under section 172. We therefore accept that the judge was justified in admitting that reply.

The rest of the case has potentially taken us into deep waters with regard to the use of results obtained via various types of intoximeters. The intoximeter used in this case was an intoximeter EC/IR and there is no reason to think, despite some evidence which we will come on to, that the particular intoximeter used at Ealing Police Station was malfunctioning or was constructed or used in a way different from the normal construction and use of that general type of intoximeter.

There was, however, a strong case advanced to the magistrate complaining of the status of this particular type of intoximeter, the EC/IR. Evidence was given by a Professor Makin who, we understand, has given evidence in many such cases. The burden of Professor Makin's evidence was that this type of intoximeter could not detect mouth alcohol, that is to say, did not, as we understand it, make sufficient allowance for possible readings obtained from alcohol that was on the breath or in the mouth, as opposed to having been ingested into the system. He told the district judge, as we understand he has told other judges, that he had drawn this to the Home Offices' attention on many occasions and nothing had been done about it. On the basis of such evidence it was argued before the judge that he ought to find that because of the general malperformance of the EC/IR intoximeter with regard to the detecting of the presence of mouth alcohol it was outside the specification laid down by the Home Office; or, alternatively, that that specification should not have been approved at all.

The district judge did not address the theory of the latter point because he said that since there was no evidence at all before him of how the Home Secretary had approved the EC/IR intoximeter he could not pass on whether the Home Secretary was right or wrong in so doing. The argument has rightly been abandoned before us, because Mr Ley very properly recognises the effect of the decision of this court in DPP V Memery CO/522/2002, a decision given on 4th July 2002. Put very briefly, the court confirmed that, despite the decision of the House of Lords in the case of Boddington, it was still not open to this court, and not open to district judges, to rule on whether the Secretary of State's approval of a particular device had been correct or not. The statutory presumption as to approval of a particular device was conclusive as to the correctness of that device. That point does not now appear in this case, and should not appear in any case in the future.

A secondary point was however apparent from Professor Makin's evidence and Mr Ley tells us, and we take it from him, that he put it to the judge. It is this. As I have said, it was not suggested that the particular machine used in Ealing was defective or performing other than such a machine should perform. Professor Makin's general criticism of it was that it, like all the other machines that he had seen, did not detect mouth alcohol and, as I have already indicated, that is not a ground, being a ground of criticism of the Secretary of State's approval, upon which this court could act.

Professor Makin however in his evidence, as understood and recorded by the district judge, went on to say something else:

Now that evidence, if correct, raises an entirely different point from those that I have already addressed. It is saying that the EC/IR as a type or category, or at least of the type or category used at Ealing, falls outside the Secretary of State's approval, because it is not a defective machine but a different machine from that which the Secretary of State as approved.

The judge said of that evidence in paragraph 7 of the case:

On the face of the case stated, therefore, it appears, that the judge accepted what Professor Makin told him: that is to say, accepted that this was not an approved device.

Both sides were concerned about the form of the case stated. No specific question for the opinion of this court was included as to this last point, as to whether the judge was right or wrong about it and what effect it had on the outcome. That was even though the prosecution were concerned because it was their view that the account in paragraph 6(1) of the case stated did not in fact reflect the evidence that Professor Makin had given; and no doubt were concerned also that the district judge appeared to have accepted it at face value without there being any detailed indication of what the guidance was based upon.

Mr Ley, for the applicant, very properly sought to clarify the point that he was concerned about, that is to say whether the question with which I am now dealing was properly before the court, by reference to this court, wanting, as he told us, to have the case stated amended so that it fully reflected the point that he had put to the district judge.

At a hearing before another division of this court the prosecution was represented by Miss Chanteau, who appears today, and she has told us that she indicated on that occasion the concern that the prosecution had about the accuracy of Professor Makin's evidence. She did not, however, make an application, if indeed she could have done, to remit the matter to the district judge for him to reconsider his account of the evidence. Nor was Mr Ley successful in securing the addition of the question that he wanted, but he tells us he was more successful than that, because the court ordered simply that there should be added a further question: was I entitled to convict on the evidence before me?

In the course of argument the earlier court indicated that the issue that Mr Ley wished to ventilate before this court was already addressed in the case stated and that he needed only to stand or fall on the evidence that the judge had set out.

We are, therefore, faced with an extremely short point. Was the judge entitled to convict this lady on the basis of the evidence that he had accepted? We are driven to conclude that he was not. The reason he was not is that he has to be interpreted as accepting that the device used to breathalyse her was not an approved device. That was fatal, rightly or wrongly, to the admissibility of the evidence that that device produced; irrespective of the reading it gave, which was very high; irrespective of the fact that it was substantially like an approved device. Therefore we have to say that this appeal must be allowed and the conviction quashed.

It is important to emphasise what this case does not decide. This case turns solely and only on the form of the case stated (which, at this stage, the matter having already been before this court, this court cannot go behind) and upon the district judge's acceptance, as he sets out, of the account that he gives of Professor Makin's evidence, whether or not that was right or wrong. It does not decide anything about breathalyser cases in general. It does not decide anything about whether the EC/IR machine in general is in fact a device approved by the Home Secretary. All that it does is say that on the evidence before the court in this case the court is obliged to proceed on the basis that in this case it has been found as a fact that the machine was not such a device.

In any future argument about the EC/IR this case should not be cited as any more than a decision on the particular evidence that was before it. In any future cases where it is sought to argue that the EC/IR had been changed so that it is different from that approved by the Home Secretary, those who seek to make that case will be well advised to produce a more circumstantial account than was produced in this case, and in particular to be in a position to demonstrate (because prosecuting authorities will be well entitled to require them to do so) how and in what respects the machine is different from that approved, and whether that difference is sufficient to make it of a different type: because, as has often been said in this court, the mere fact that there are some differences does not mean that the machine is of an unapproved type. The particularity of this case, and on the facts of this case only, is that the court was prepared to accept evidence that said, in effect, that it was of a different type.

With those limitations, which must be well borne in mind by anybody who is seeking to cite this case as an authority in the future, we allow this appeal and quash the conviction.

MR JUSTICE CURTIS: There are just two points I would wish to make: first, there was nothing the matter with the device used to test this appellant's breath at Ealing Police Station; secondly, I do not believe that the district judge at the magistrates' court meant to include in his summary of the evidence he accepted, which is very brief, the whole of paragraph 6(1) earlier in the case stated where he referred to the expert testimony. For the reasons explained by my Lord, Buxton LJ, there is nothing that can be done about it now. I agree with the judgment given.

MR LEY: My Lord, my client was legally aided in this court and she was legally aided for most of the magistrates' court, but I would seek an order that the costs prior to the grant of legal aid be paid out of central funds.

LORD JUSTICE BUXTON: You cannot resist that, can you?

MS CHANTEAU: My Lord, no.

LORD JUSTICE BUXTON: All right, so be it. Could you make sure that the registrar has a proper note of that when we have risen for the exact order. Yes, right. Thank you very much.