Smith v DPP

This is an appeal by way of case stated against the decision of District Judge Loosley sitting at Stratford-upon-Avon Magistrates’ Court on 28 June 2004. The appellant, Stephen John Henry Smith, was convicted of having driven a motor vehicle in a public place on 12 July 2003 after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to Section 5(1)(a) of the Road Traffic Act 1988 (“the 1988 Act”).

A motor car driven by the appellant was involved in a collision with another vehicle in Rugby on the late evening of 12 July 2003. A police officer smelt alcohol on the appellant’s breath and required him to provide a roadside breath test on an Alcolmeter SL 400A device, which proved positive. The appellant was arrested and taken to Rugby police station, where he provided two specimens of breath on an Intoximeter EC/IR device. The lower reading showed that the appellant had 62 mg of alcohol in 100 ml of breath, the limit being 35 mg.

The device in use at Rugby police station was an approved device. The District Judge found that, although it had been modified since installation, none of the modifications had taken the device outside the scope of the relevant Approval Order dated 25 February 1998. The Alcolmeter SL 400A device used at the roadside was in 2003 capable of providing a breath/alcohol reading in figures but none was obtained.

Two questions are posed for the opinion of the court. The first question is:

“Was I right to decline to hear evidence and argument on an application for a witness summons to obtain disclosure of the ‘F11 settings’?”

Issue of the summons could have led to evidence as to whether the Intoximeter EC/IR device used at Rugby police station, having been modified, was an approved device. It is claimed that, in holding that it was an approved device, the District Judge relied on expert evidence he had heard in an earlier case, described as the Rose/Carruthers case. He refused an application by Mr Ley, who appeared on behalf of the appellant, to issue a summons to enable the “F11 settings” to be disclosed. He held that disclosure would establish only whether certain parameters had been altered and that, even if they had been, such alterations did not take the device outside the scope of the Approval Order.

Mr Ley submitted that it was not open to the District Judge to rely on evidence given in another case. On further enquiry in this court, it emerged that what Mr Ley sought to challenge, on behalf of the appellant, was not whether the device came within the scope of the Approved Order, but whether this particular Intoximeter EC/1R device on this particular occasion had functioned properly. The second question may be relevant to that issue but the complaint that the judge should have issued a witness summons rather than rely on evidence in an earlier case does not. That being so, the court does not propose to answer the first question posed for consideration. It is irrelevant to the issues raised at the trial.

I turn to the second question posed in the stated case:

“Was I right to hold that the prosecution did not have to adduce in evidence the result in figures of the roadside breath test obtained from the Alcolmeter SL 400A device?”

The District Judge’s relevant findings were:

“7.

At the close of the case it was contended by the appellant, inter alia, that the prosecution were under an obligation to adduce in evidence the result in figures of the roadside breath test and as they had not done so I should dismiss the case. The appellant referred me to Section 15(2) of the Road Traffic Offenders Act 1988 which provides ‘Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall in all cases … be taken into account’ and the case of Badkin v DPP [1988] RTR 401.

8.

It was contended by the respondent that the prosecution were only under an obligation to adduce in evidence the lower of the two readings obtained from the Intoximeter EC/IR device in use at Rugby Police Station.

9.

I was of the opinion that the prosecution were not under an obligation to adduce in evidence the result in figures of the roadside breath test. I found that the use of the word ‘specimen’ in Section 15(2) of the Road Traffic Offenders Act was a reference to those specimens which can be adduced in evidence to prove an offence under Section 4 or 5 of the Road Traffic Act 1988 as opposed to those which are merely obtained from ‘screening devices’. As is clear from Section 6 of the Road Traffic Act 1988 the purpose of ‘roadside’ devices such as the Alcolmeter SL400A is merely to assist a police officer in deciding whether or not he should arrest somebody who is under suspicion of some form of drink/driving offence. It is not intended that the results of Section 6 roadside devices should be used in evidence in figures as the next section of the Road Traffic Act 1988, namely Section 7, deals with the ‘Provision of specimens for analysis’ which have to be ‘by means of a device approved by the Secretary of State’. Accordingly I convicted the appellant. ”

The two stage procedure, tests at roadside and then at the police station, has been a feature of the legislation since the offence was introduced into the law. There have, however, been stages in the developments of the device used at the roadside, as counsel, experienced in these matters, agreed. At first, the device at the roadside provided simply a positive/negative answer. The second stage was when the device stored a figure but the figure was extractable only by a technician and not by the officer conducting the test. The third, and for most police forces the current stage, is that the officer conducting the test is able to obtain from the machine a breath/alcohol reading in figures.

For the appellant, Mr Ley submits that the prosecution were obliged to adduce in evidence the breath/alcohol reading obtained at the roadside breath test in figures. Alternatively, he submits that, on a request from the defence, they are obliged to disclose the figure. Had the figure been disclosed, it may have supported the case that the device used at the police station was not working satisfactorily so that the figure on which the conviction was based was unreliable.

Section 15(2) of the Road Traffic Offenders Act 1988 provides:

“(2)

Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.”

Sub-section (3) has no bearing on the present issues.

Mr Ley submits that the requirement to take a specimen of breath into account includes a requirement to take the specimen obtained at the roadside into account. The procedure in force at the material time provided, at Section 6, that a constable in uniform may, in certain circumstances, require a driver “to provide a specimen of breath for a breath test”. That is as much a specimen under Section 15(2) as the specimen later obtained at the police station, it is submitted.

Since the alleged offence, Section 6 has been amended. As enacted since 30 March 2004 it describes the roadside test as a “preliminary test”. Section 6A, while continuing to use the expression “a specimen of breath”, refers to the roadside procedure as “a preliminary breath test”. Mr Ley submits that the use of the word “preliminary” does not affect the meaning of the word “specimen”. It appears unlikely, he submits, that the changes made to Section 6 were intended to, or do in fact, affect the outcome of the basic issue raised in this case as to the meaning of the word specimen.

Mr Ley relies on the decision of this court in Badkin v DPP [1988] RTR 401. At a police station, the defendant provided two specimens of breath. The device used failed to provide a printout and the constable operating it decided that it could be unreliable. He required the defendant to provide a specimen of blood, which the defendant did. The part-specimen of blood retained by the police was analysed but no evidence of the blood analysis was produced at the trial. No notice of analysis results was given to the defendant.

An appeal against conviction was allowed, the court holding that once the constable decided that the device analysing breath was not reliable, any prosecution could be based only the subsequent blood analysis. However, Glidewell LJ, with whom McNeill J agreed, stated at page 409a:-

““Secondly, … the failure by the prosecution to give notice to the defendant of the results of the blood analysis, and to call evidence of the results of that analysis, is a breach of the requirement in Section 10(2) of the [predecessor] Act that ‘Evidence of the proportion of alcohol … in a specimen of … blood … provided by the accused shall in all cases be taken into account …

It follows, therefore, that even if a prosecution for driving with excess alcohol in the breath could properly proceed in the circumstances of the present case (which I do not accept), it was still necessary for the results of the blood analysis to be put in evidence. The failure to do so, in my judgment, vitiated the prosecution case.”

Mr Ley submits that, at least, the appellant in the present case should have been told the breath/alcohol reading in figures resulting from the roadside breath specimen. The appellant had given evidence, supported by an expert witness, that the amount of drink he had consumed could not have taken him above the legal limit. Mr Ley accepts that the District Judge was entitled to apply a presumption that the devices used were working correctly, but he refers to cases in which that presumption has been displaced. In O’Sullivan v DPP (unreported)(27 March 2000), there was a very large difference between Intoximeter readings taken at 1 am and a reading taken less than two hours later. Having considered the evidence, Butterfield J stated:

“There was something surprising, to say the least, and very unusual about the results produced by the Intoximeter on this night.”

An appeal against conviction was allowed, Butterfield J, with whom Kennedy LJ agreed, holding that the prosecution had failed to prove affirmatively that the particular Intoximeter device was reliable. In Parrish v DPP [2000] RTR 143, a conviction was quashed because the magistrates had declined to allow an adjournment to enable expert evidence to be called to contradict the evidence of scientific analysis of a blood sample.

In Lomas v Bowler [1984] Crim LR 178, on the other hand, it was held that the trial court was entitled to be satisfied of the defendant’s guilt on the evidence as a whole. It included not only that of the forensic scientist but also that relating to the manner in which the defendant had been seen to drive and the positive breathalyser test obtained thereafter.

These cases demonstrate, submits Mr Ley, that the fact-finding tribunal must consider the evidence as a whole. The consideration must include, it is submitted, the breath/alcohol reading at the roadside test in figures, now that technical advances have enabled that figure to be produced easily.

For the prosecution, Mr Munro submits that the specimen of breath, blood or urine contemplated in Section 15(2) of the Road Traffic Offenders 1988 Act does not include the roadside specimen. The specimens referred to are those for analysis specified in Section 7 of the 1988 Act. Section 7(1) provides:-

“7.

(1) In the course of an investigation into whether a person has committed an offence under Section 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”

Section 7(2) provides that a requirement under the section to provide specimens of breath can only be made at a police station:

Mr Munro relies on the analysis of the language by Mitting J, with whom Maurice Kay LJ agreed, in Murphy [2006] EWHC Admin 1753. Mitting J referred to the decision in Badkin and added:

“But nothing in the judgment of Glidewell LJ leads to the conclusion that in every case the prosecution must obtain from the manufacturers an analysis of the proportion of alcohol in the specimen provided in the roadside breath test and put that result in evidence. That conclusion, I believe at least tentatively, is reinforced by the current wording of Section 6 and 7 of the Road Traffic Act 1988 (as amended by the Railways and Transport Safety Act 2003), which refers respectively to ‘preliminary tests’ at the roadside, and ‘specimens of breath for analysis’ in the police station or hospital. Only the latter need be put in evidence.”

As to disclosure, Mr Ley relies on the citation by Lord Bingham of Cornhill in Brown v Stott [2003] 1 AC 681, 695 of the judgment of the ECtHR in Fitt v United Kingdom (2000), 30 EHRR 4890, 510:

“In addition Article 6(1) requires, as indeed does English law . . . that the prosecuting authority should disclose to the defence all material evidence in their possession for or against the accused. . . ”

In O’Sullivan v DPP [2005] EWHC Admin 564, following a routine procedure at a police station, the police took a specimen of breath over two hours after those used for analysis to see if the defendant was then fit to drive. It showed a reading consistent with the analysis of the earlier sample and was allowed in as evidence of such consistency.

Mr Ley submits that, if the prosecution can make use of specimens other than those taken under Section 7(1) to support their case, they are under an obligation to put in evidence, or at least to disclose, the reading in figures for the roadside specimen.

In DPP v Hill [1991] RTR 351, this court directed a conviction where the justices had accepted the defendant’s evidence that he had drunk only half a pint of lager and had gone on to infer that the Intoximeter had been unreliable. Neill LJ, with whom Leonard J agreed, stated, at page 356L:

“In this case it seems to us that if the defendant were to be believed, however credible a witness he appeared to be and however well he gave his evidence, it would involve three very surprising consequences: (1) that the Intoximeter itself was faulty, (2) not only was that faulty but the Draeger Alert device also was faulty and, finally, that there was some explanation other than drink to account for the evidence of glazed vision, which was not only given by the police, but was accepted by the justices . . . On the facts of this particular case it really was quite impossible to come to the conclusion that the justices reached in this case.”

In relation to the second question posed by the District Judge, I do not consider that either the case of Badkin or that of Parrish creates a general principle in the appellant’s favour. The combination of circumstances in Badkin was such that it was not at all surprising that the court was unable to uphold the conviction. Parrish goes only so far as to confirm a defendant’s right to call relevant expert evidence.

Cases are to be decided on the basis of the evidence adduced. Mr Ley’s submission is that the requirement to take into account evidence of the proportion of alcohol in a specimen of breath imposes a requirement on the prosecution to adduce in evidence the result of the roadside breath test in figures.

As a matter of statutory construction, I cannot accept that submission. The specimens of breath which establish whether or not a defendant has committed an offence under Section 5(1) of the 1988 Act, are those which may be required of a defendant at the police station under Section 7 of the Act, the two specimens of breath mentioned in Section 7(1)(a). The requirement under Section 15(2) of the Road Traffic Offenders Act 1988 to “take into account” a specimen of breath is, in relation to the roadside test, no more than a requirement to ensure that the Section 6 procedure which led to the arrest, and to the Section 7 requirement, has been correctly followed. The bracketed words now included in Section 15(2) broaden the range of specimen to be taken into account but do not extend the purpose of the roadside test.

I do not consider that the statutory scheme in relation to specimens has been fundamentally changed by the amendment to the 1988 Act which took effect in 2004. However, the use in the current Section 6 and 6A of the Act of the expressions “preliminary test” and “preliminary breath test” confirm the purpose of the roadside test. The roadside procedure, as Section 6A provides, is a procedure by which an “indication” whether the prescribed limit is likely to be exceeded is obtained, and the specimen has no greater status.

Further, the assumption in the last part of Section 15(2) plainly applies to the Section 7 specimens which provide the evidence for the Section 5 offence. It would defeat the scheme of the Act (often to the detriment of defendants) if the assumption were to be based upon the roadside breath test.

When the 1988 Acts took effect, the device used in the roadside test provided only a threshold test. Technology has advanced and a reading in figures can, with modern equipment, readily be obtained. That change in technology has not, in my view, affected the statutory procedure to the extent that the prosecution are obliged to put that figure in evidence in every case.

While Mr Ley has told the court of difficulties he claims to have encountered in drafting a case in a form acceptable to him, no correspondence to establish such difficulty has been placed before the court. I propose to approach the appeal within the confines of the stated case. The District Judge stated, at paragraph 7, that the present point was raised only “at the close of the case”. The case does not incorporate an assertion that application had been made at an earlier stage for the disclosure of the roadside breath specimen reading in figures. That is why the question has been posed as it has. For the reason given, I would answer question 2 in the affirmative.

I would, however, consider it to be good practice, where equipment is in use which permits it easily to be done, for the reading in figures obtained from the roadside breath specimen to be disclosed to the defence. We are told that that has become general practice. It is a sound practice and one which may be required by Section 3 of Criminal Procedure and Investigations Act 1996, which deals with the prosecution’s duty to disclose material. While in most cases, the evidence, if adduced, is likely to support the prosecution case, there may be cases in which it can provide a basis for a challenge to the accuracy of the Section 7 specimens obtained.

I would dismiss this appeal

I agree.