Fearnley v Director of Public Prosecutions

MR JUSTICE FIELD: This is an appeal by way of case stated against the conviction of the appellant by the Ealing Justices on 19th May 2004 for driving a motor vehicle whilst having alcohol on his breath that exceeded the prescribed limit. The appellant also contends that the combination of the fine of £1,500 and the costs order of £2,500 imposed by the Justices was Wednesbury unreasonable.

At about 0240 hours in the morning of 22nd February 2002, the appellant was stopped by the police whilst driving his car in London NW10 because the lights were not on. The officers noticed that the appellant's eyes were glazed and that there was a strong smell of alcohol coming from inside the vehicle. The appellant was twice asked if he had consumed any alcohol and he replied in the negative on both occasions. In fact, as he admitted at the trial, between the hours of 2230 and 0130 he had drunk six pints of lager. He took a roadside breath test which was positive and was then taken to Ealing Police Station where he provided two specimens of breath.

The machine used for the taking of these specimens was an Intoximeter EC/IR, serial number 03043. It is referred to hereafter as the "Ealing device". The lower of the two readings was 90 microgrammes of alcohol in 100 millilitres of breath. The appellant was accordingly charged with driving with excess alcohol and bailed to appear at court, which he did on 27th February 2002 when he pleaded not guilty and the case was adjourned.

As is well known, by section 7 of the Road Traffic Act 1988, the specimens of breath that a constable may require a person to provide must be for analysis by a device of a type approved by the Secretary of State, and by section 16 of the Act, evidence of the proportion of alcohol in a specimen of breath may be given by a statement automatically produced by the device used to measure the proportion in that specimen. By the Breath Analysis Devices Number 2 Approval Order of 1998, the Secretary of State approved the device known as the Intoximeter EC/IR manufactured by Intoximeters Inc, composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR UK 5.23.

On 1st December 2003 the prosecution served on the appellant a statement made by Mr David Rudrum, a type approval manager employed by the forensic science service who was involved in the type approval procedures for Evidentiary Breath Testing Instruments ("EBTIs"). In this statement, Mr Rudrum described how the approval system operates and, in particular, the schemes for dealing with proposals made by the manufacturers for changes to approved EBTIs. Where the change would affect the fundamental operation of the EBTI, a new type of approval order has to be made. Where the change has no effect on the fundamental operation of the EBTI, the change is authorised by the Home Office without there having to be a new type approval order.

Mr Rudrum's statement also sets out the agreed changes to the Intoximeter EC/IR that had not required a new type approval order. These include a change that reduced the number of gas cylinders from two to one, provided the unused connector was blanked off.

The appellant was informed that the prosecution were not proposing to call Mr Rudrum but were tending him to the defence.

On 12th December 2003, the appellant served a defence statement which, in addition to averring that the appellant had not consumed sufficient to put his breath alcohol concentration above the prescribed limit, disputed the accuracy of the breath analysis on the grounds that the Ealing device could not detect mouth alcohol and that tests carried out both by the defence expert and the Home Office forensic science service show that when people have exhaled into three of the approved breath test devices, the Intoximeter EC/IR type of device gives a higher reading than the other two. Paragraph 4 of the defence statement averred:

The trial finally began on 18th May 2004. After adducing evidence of how the appellant came to be stopped the night in question and taken to the police station, the prosecution called Inspector Marriot who had carried out the breath test procedures at the police station. At the end of this evidence, the appellant applied for a witness summons to be served on Mr Rudrum. Mr Rudrum had indicated that he was willing to give evidence and was available the following day but, being a civil servant, he could only attend court if he was served with a witness summons. The appellant's counsel, Mr Ley (who has also appeared on the appeal), told the Magistrates that the fact the prosecution were not going to call Mr Rudrum had been overlooked until mid-April and contact had only been established with the witness at the beginning of May 2003 because he had been away.

The appellant's application was not opposed by the prosecution but they did query the relevance of any evidence Mr Rudrum could give. Having considered the matter, the Justices refused the application on the ground that it was made at a very late stage and there had been ample opportunity for the appellant to make the application earlier.

The appellant then applied to have two letters written to a Sergeant Antell of the Thames Valley Police's Roads Policing Department admitted under as business records under section 24 of the Criminal Justice Act 1988. The letters related to an Intoximeter EC/IR with the number 3355 in use at Banbury Police Station. The author of one of the letters was Mr Rudrum; the author of the other was Mr Paul Cunliffe, a representative of Intoximeters UK Ltd, the suppliers of the EC/IR number 3355. Mr Ley submitted that although the letters were not written about the Ealing device but were written about the device used at Banbury police station, they were relevant because they related to all EC/IR devices. The Justices refused to admit the letters, holding that they were not relevant to the machine used to provide the reading that was the basis of the charge they were trying. Copies of the letters were handed to their clerk but the Magistrates declined to read them.

The prosecution's next witness was Dr John Mundy who testified that until 1999 he had worked for the Metropolitan Police Forensic Science Laboratory in the field of detecting mouth alcohol. He told the court that he had visited Ealing Police Station together with Professor Makin and a Dr Trafford on 29th June 2001 to test the Intoximeter EC/IR's ability to detect mouth alcohol. The Professor and Dr Trafford had filled their mouths with diluted vodka, spat it out and, having waited one minute, blown into the EC/IR. The result was that no mouth alcohol was detected. If the machine detects mouth alcohol it records this on a printout and does not carry out any further analysis because alcohol in the mouth can lead to an unreliable analysis of alcohol that has been consumed and is in the breath.

Dr Mundy testified that each breath test device is tested every six months to comply with the type approval requirements and that following the Andover case, every EC/IR device had been examined by Intoximeter engineers to ensure that the software version specified in the Home Office approval order, version UK 5.23, was installed. In cross-examination, Dr Mundy accepted that he himself had not checked to see if the EC/IR had a manual changeover valve and he did not personally know what software was installed in the EC/IR. Dr Mundy also told the court that if a person's stomach contents included alcohol and that person suffered from reflux, whereby the stomach's contents were brought up into the mouth, this could cause mouth alcohol to be present.

Dr Mundy agreed that, based on what the appellant said he had drunk, the breath alcohol level at the relevant time of an average person could have been anywhere between 23 microgrammes and over 100 microgrammes of alcohol per 100 millilitres of breath, the most likely level being 49 microgrammes. The breath alcohol level depended on a number of unknown variables.

Dr Mundy was also asked in cross-examination about Intoximeter EC/IR machines having dual gas cylinders or a single cylinder or an automatic changeover valve or a manual changeover valve. In his view, whether the machine had one or two cylinders and whatever the type of valve, its function and performance was unaffected. Dr Mundy was asked these questions with a view to submitting that the Ealing device was not an approved device because it did not have the approved gas delivery system.

The appellant's case was opened on 19th May 2004. The appellant gave evidence in the course of which he admitted that he had drunk six pints of lager before being stopped by the police. He had had his last drink at 0130 hours in the morning. He said in terms, "I am guilty of drink driving as such" and went on to state that he could not remember whether he had reflux or any indigestion problem on 22nd February 2002.

The next witness was Professor Hugh Makin who had taken part in the detection of mouth alcohol test referred to in the evidence of Dr Mundy. Professor Makin was a Consultant in Forensic Science having had more than 30 years experience of practical analytical biochemistry and research and been involved in blood/urine analysis for nearly 20 years. The Professor stated that the Intoximeter EC/IR could not consistently detect mouth alcohol. He also testified that if reflux were to affect a breath reading there would have to be alcohol in the stomach contents. In his view, given the time that the appellant took the last drink, it was likely that that alcohol would still be present in his stomach when his breath was tested at the police station. If the appellant had suffered from reflux and if the EC/IR had not detected the presence of mouth alcohol, one would get a significantly higher reading. It was unlikely that the level of concentration in this case could give a reason from 39 microgrammes to 92 microgrammes per 100 millilitres. However, it could not be excluded.

Professor Makin also said that a blanking plug blocks the connection of one cylinder and this system is an approved device.

After Professor Makin's evidence-in-chief but before his cross-examination, the prosecution applied to admit in rebuttal an Intoximeter service engineer's report on the Ealing device pursuant to sections 24 and 27 of the Criminal Justice Act 1988. The evidence it was desired to rebut had been given the previous day and included, in particular, the cross-examination of Dr Mundy which dealt with what software was installed in the Ealing device and whether that device had dual gas cylinders or a single one and, if the latter, whether a blanking plug had been fitted. The engineer's report recorded that on 22nd October 2001 the Ealing device was tested and found to be fully operational. It also recorded that the software was UK 5.23 and that a blanking plug had been fitted.

The Justices allowed the application, holding that the evidence sought to be admitted was relevant to the very device used in this case and that it went to allegations that had not been identified in the defence statement but which had been put in cross-examination.

In his closing submission, Mr Ley for the appellant submitted to the Justices that the prosecution had not proved to the requisite standard that the Ealing device was an approved device. He further contended that the Ealing device could not detect mouth alcohol and that mouth alcohol would give a highly false reading. In addition, he submitted that six pints of lager would not inevitably put a person over the legal limit and that there was a possibility that the appellant had suffered from reflux and that it was for the prosecution to prove that mouth alcohol played no part in the test.

The prosecution relied on the reading from the Ealing device and contended that the device was of a type approved by the Secretary of State, even if it sometimes could not detect alcohol. The prosecution also submitted that there was a presumption in law that the Ealing device was both approved and reliable and that therefore the court could rely on the reading.

The Justices found that the charge was proved and convicted the appellant. In paragraph 6 of the case stated they say:

The first question posed in the case stated for this court is:

Miss Chanteau referred us to paragraph 114 of the judgment of Judge LJ in Jisl [2004] EWCA 2004 Crim 696, an authority concerned with the case management of criminal trials. In that paragraph Judge LJ said that the sensible use of time requires judicial management and control. It was not a concomitant to the entitlement to a fair trial that either or both sides are entitled to take as much time as they like or, for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. For my part, I do not find these observations to be of assistance in this appeal since, as I have said, the granting of a witness summons did not mean that the trial would be prolonged. The indications were that Mr Rudrum could attend the following day. If this turned out not to be the case, the Justices could have properly refused an adjournment. Instead they refused to issue a witness summons which meant that even if Mr Rudrum were available the following day, he could not be called by the appellant, notwithstanding that the prosecution had disclosed his statement to the defence and did not oppose the application.

The fact that the Justices were wrong not to issue a witness summons does not necessarily mean that the appellant's conviction should be set aside. I shall deal with the consequences of the answer to question 1 later in my judgment.

Question 2 is in these terms:

In DPP v Brown and DPP v Teixeira [2001] EWHC 931 Admin; 116 JP 1, the Justices had heard evidence from Dr Mundy and Dr Trafford to the effect that the Intoximeter EC/IRs employed at the relevant time at Kingston Police Station did not consistently detect the presence of mouth alcohol and on the basis, principally, of this evidence, found the device in question was unreliable and dismissed the informations charging the respondents with driving with excess alcohol. The DPP appealed by way of case stated to this court which allowed the appeals. The principal judgment was delivered by Cresswell J. The other member of the court, Pill LJ, agreed with Cresswell J. In paragraph 47 of his judgment, Cresswell J said:

In my opinion, it is clear from Cresswell J's observations that the Justices were entitled not to look at the two letters de benne esse and to refuse to admit them on the ground that they did not deal with the Ealing device but with the Intoximeter EC/IR in use at the Banbury police station in November 2003.

Mr Ley has sought to argue that the letters did relate to the Ealing device. He submitted that the letters record what was the gas delivery system and would afford a basis for a submission that the system in fact in operation was outside the approval requirements. Mr Ley accepted that if the engineer's report was properly admitted then he could not have taken the point he wished to take successfully on the letters. As I shall be saying later in this judgment, I am of the view that the engineer's report was properly admitted. Therefore, even if the Magistrates had erred in not looking at the letters and not admitting them, I am of the clear view that such a failure should not lead to setting aside the conviction of the appellant.

It is convenient to take the third, fourth and fifth questions together. They ask:

Mr Ley also submits that the Magistrates could not have been satisfied that the copy of the engineer's report produced to the court had been authenticated under section 27 of the 1988 Act and that they failed to have regard to the matters set out in section 25(2)(a) to (d) as required by section 25(1) of that Act.

Section 25(1) and (2) of the 1988 Act provide:

Whilst the defence statement purports to put the prosecution specifically to proof that the software was UK 5.23, this did not mean that the prosecution had specifically to prove this matter. This is because of the general presumption that flows from the fact that the machine was of a type that had been approved, this being a presumption which in my view is plainly consistent with Article 6 ECHR. Thus, it was for the appellant to adduce some evidence that the software was otherwise than the specified software before the prosecution came under a burden to prove the software. At no stage did the appellant raise or adduce such evidence and therefore he can have no substantial complaint that the prosecution were allowed to provide specific proof of the software through the engineer's report.

As to that part of the report that proved that a blanking plug had been fitted, the defence statement did not allege that the Ealing device lacked approval because no such plug had been fitted but made a wholly generalised allegation that the device was not approved because changes other than software changes or changes akin to software changes had been made, such as a new circuit board. The cross-examination of Dr Mundy as to whether the Ealing device had one or two gas cylinders therefore did, in my opinion, go to an issue that had not been identified in the defence statement.

Even if the report was not strictly rebuttal evidence, the Justices had a discretion to allow the prosecution to adduce evidence after the close of its case so long as they had proper regard to interests of justice overall and the risk of prejudice to the appellant. In my judgment, the Justices' exercise of discretion in this case cannot be successfully challenged. Their conclusion that to admit the evidence would not prejudice the appellant was plainly right. Prejudice in this context is concerned with whether the appellant can fairly deal with the evidence.

The Justices were told by prosecuting counsel that the report had been sent by fax by Intoximeters UK Ltd to the CPS room at the Ealing Magistrates' Court. The Justices saw the document which had on it the fax header. A fax is obviously a copy of the document placed in the sending fax machine. Accordingly, the Justices were well entitled to be satisfied as to the authenticity of the document produced to the court.

The report clearly satisfied the requirements of section 24 of the 1988 Act since it was a copy of a document created by a person in the course of trade or business and the information it contained was supplied by a person, the engineer, who had personal knowledge of the matters dealt with.

In my judgment, there is no material before the court to support the contention that the Justices did not have regard to the matters set out in paragraphs (a) to (d) of the 1988 Act. I am also of the clear opinion that there are no grounds for interfering with the discretion exercised by the Justices under this subsection. The decision was far from being obviously unfair or unjust. As I have said, prejudice to the defendant means in this context his ability to deal with the evidence. In my view, there was no such prejudice that required the Justices to refuse to admit the report.

Mr Ley cited O'Sullivan v DPP, an unreported decision of this court. This was a very different case from the one we are considering. The question it raised was whether the decision of a Crown Court not to admit the appellant's medical records under section 24 and section 25(2) of the 1988 Act was a wrongful exercise of discretion. The court refused to admit the records on the basis that the doctors who made them should be subject to cross-examination. This court held that there were no grounds for interfering with that exercise of discretion. O'Sullivan v DPP is therefore no more than an example of a court of review upholding a particular exercise of discretion and is accordingly of no assistance on this appeal.

Mr Ley placed reliance on that part of the speech of Lord Rogers in R (on the application of) D v Camberwell Green Youth Court [2005] UKHL 4 where Lord Rogers quoted with approval from the judgment of the European Court of Human Rights in Kostovski v Netherlands [1990] 12 EHRR 434 at paragraph 41:

In my opinion it is plain beyond argument that section 24 to section 27 of the 1988 Act are consistent with Article 6 of ECHR. The court is specifically enjoined by these provisions to have regard to matters going to the fairness of admitting documentary hearsay, including the impact on the defendant of not being able to cross-examine the maker of the statement.

I also have no doubt that the inability in this case of the appellant to cross-examine the engineer did not require that the document be excluded. The report was crystal clear as to the software installed, the fitting of a blanking plug and that on 22nd October 2001 the Ealing device was tested and found to be fully operational. The appellant was in no position to challenge the accuracy of these statements. Moreover, the evidence constituted by the report was not crucial to the prosecution given that it was for the appellant to adduce some evidence that the machine had the wrong software, or lacked a blanking plug or otherwise was not operating as an approved machine should and, as I have said, the appellant had no such evidence available to him.

I would therefore answer questions 3, 4 and 5 "No".

Question 6 is in these terms:

Question 7: "Was it Wednesbury unreasonable to have convicted the appellant?" is no longer pursued.

I therefore turn to question 8 which asks:

Question 9 asks:

The last question, question 10, asks:

Finally, I deal with the question whether the appellant's conviction should be set aside because the Justices wrongly refused to issue a witness summons in respect of Mr Rudrum. If such a summons had been issued and Mr Rudrum had given evidence, he would have been the appellant's witness not the prosecution's. Mr Ley was asked what evidence he was in a position to elicit from Mr Rudrum that could have assisted the appellant's case or undermined that of the prosecution. Mr Ley told us that he would have relied on that part of Mr Rudrum's statement that dealt with slope parameters. He also said that he would have relied on another part of Mr Rudrum's statement that referred to the delivery of a number of machines by the manufacturers that had not been approved by the Home Office. In my judgment, these two matters would not have taken the appellant's case any further. Mr Rudrum was clearly of the view that any changes affecting the parameters had been authorised and did not take the machine outside the type approval. It is also worthy of note that the police inspector who operated the machine was not asked any questions by Mr Ley as to the inability of the machine to take the sample of breath properly because of any changes to the slope parameters. Moreover, it is entirely a matter of speculation as to whether any of the unapproved machines referred to by Mr Rudrum in his statement had ended up in the Ealing police station. There was a legal presumption that that machine was reliable and approved. It was for the appellant to adduce some evidence to call that into question. Mr Rudrum was in no position to produce evidence that would have thrown a burden upon the prosecution.

It follows that, for the reasons I have given, I would answer the questions posed to the court in the manner I have identified in this judgment and I would uphold the appellant's conviction.

I should add that shortly before the court sat, Mr Ley referred us to a decision of the Court of Appeal concerned with the impact of Article 6 ECHR on the admission of a statement by a witness which had been produced for the purposes of the proceedings and which was admitted under section 23. That decision is R v Sellick [2005] EWCA Crim 651. The Court of Appeal held that wherever there is the admission of a hearsay statement, Article 6 may be engaged but on the facts of that case, Article 6 had not been breached. For the reasons I have already given, I am of the clear opinion that the admission of the engineer's report in no way infringed the right to a fair trial. Accordingly, this decision, interesting though it was, does not persuade me in any way to change the views that I have expressed.

LORD JUSTICE BROOKE: I agree. The appeal is therefore dismissed. The answer to questions 2, 3, 4, 5 and 7 posed by the Justices are "No". The answers to questions 6, 8 and 10 are "Yes". The answer to question 1 is "Yes" but the appellant was not materially prejudiced as a result and the answer to question 9 is "No" but the appellant was not materially prejudiced as a result.

MR LEY: My Lord, it is with grade trepidation that I rise to address you. I entirely accept all the law on the facts your Lordships found but I submit that on the facts and judgment you have found, the judgment should be for my client. That may sound very odd but can I explain why I say that?

LORD JUSTICE BROOKE: This is an appeal. It is either allowed or not.

MR LEY: I would say that the appeal would have to be allowed, my Lord in view of Field J's judgment. If I could be allowed to explain. This is a statutory appeal. Your Lordship could only decide the matter on the facts on the case stated and the facts before the Justices. If the Justices had seen the witness statement of Mr Rudrum, even if it was not in the case stated, I would raise no objection to the case being formally amended in this court by having a witness statement attached to it. But the Justices never saw the witness statement. Therefore it is not permissible to take into account matters which were not before the Justices.

LORD JUSTICE BROOKE: Mr Ley, you are waiting until after judgment has been given and then taking a point which was never taken in the course of argument.

MR LEY: My Lord, I have --

LORD JUSTICE BROOKE: It is simply out of bounds to behave like that.

MR LEY: I apologise, my Lord.

LORD JUSTICE BROOKE: Let us continue. Are there any ancillary applications to be made?

MISS CHANTEAU: My Lord, I am instructed to apply for the respondent's costs of the application.

MR LEY: My Lord, I would say again that in view of what your Lordship said on the last occasion about schedules of costs, it was said there should be a schedule of costs.

LORD JUSTICE BROOKE: What we said on that occasion was that the CPS needed extremely fast to make clear for every representative of CPS that if they were going to ask for costs they should have a schedule of costs, and we ordered a significant payment on account. Knowing the speed with which the CPS moves, I am not at all surprised that that urgent direction has not yet got through.

MR LEY: Also, my Lord, if you are going to make a costs order I will address you on it.

LORD JUSTICE BROOKE: What has been filed with the court? A representation order?

MR LEY: Yes, it has, my Lord.

LORD JUSTICE BROOKE: Miss Chanteau, the decision of Thomas LJ which disqualified the CPS from receiving any costs at all because they failed to comply with the mandatory requirement in the practice directions. I have not been quite as brutal on the last occasion. The sooner the CPS instructs counsel who is instructed to ask for costs with the material which the practice direction makes mandatory, the happier we will all be.

MISS CHANTEAU: My Lord, I will draw it to their attention immediately.

LORD JUSTICE BROOKE: Yes, Mr Ley. He has said to be earning £50,000 per annum plus overtime. He has a company car and health insurance, he works as a hardware engineer and/or computer engineer and he has housing costs of £350 per month.

MR LEY: I would submit, my Lord, for two reasons. First of all, he may well not keep his employment. He needs his car in order to drive round on site. If he lost his licence he would lose his employment. Secondly, may I hand up a case called Scott Thomas. I have only photocopied the relevant part about costs, my Lord. (Handed)

LORD JUSTICE BROOKE: Yes.

MR LEY: Paragraph 18.

LORD JUSTICE BROOKE: Yes. What did they do? Did they leave in place the order for compensation of £1,500 and the prosecution costs of £500 imposed?

MR LEY: That is right. They did not interfere with the judgment of the court below.

LORD JUSTICE BROOKE: So he had £2,000 to pay as a result of the order below.

MR LEY: Yes, my Lord.

MR JUSTICE FIELD: Yes, I see. Do you have any observations to make?

MISS CHANTEAU: My Lord, no.

LORD JUSTICE BROOKE: We take the view that in view of the appellant's means, the fact that he has a substantial amount to pay below, that he had pyrrhic victory on two of the points, and that loss of his licence may imperil his earnings, it would be inappropriate to make an order to pay the defendant's costs. In the view of his means, we do not make an order that he should contribute to his own defence costs.

MR LEY: I am much obliged, my Lord.

LORD JUSTICE BROOKE: Mr Ley, this does raise a point of great importance. We have been extremely unimpressed with the lack of merit in a lot of the points you have taken. The taxpayer has to pay for the cost of this exercise. We all know that public funds within the control of the Department of Constitutional Affairs in criminal cases are under the most great stresses that they have ever been and it behoves counsel who is going to look to the taxpayer for remuneration, and look to his own client for remuneration, to be moderate and sensible about the points of law he takes and not take points which are patently without merit. The next time I see you in the Divisional Court if this problem re-arises I may have to give a reminder of this conversation.