Ali v Director of Public Prosecutions

This is the judgment of the court.

This appeal raises questions as to the presumption of reliability of an alcohol breath test machine, and the burden and standard of proof to be applied when evidence of unreliability is sought to be adduced.

The Appellant, Hani Ali, appeals by way of Case Stated against the decision of

We are grateful for the able submissions of Mr Jeremy Benson QC for the Appellant and Ms Lucy Organ for the Respondent.

At around 11pm on Friday, 5^th April 2019, PC Warrillo spoke to the Appellant, who was sitting in the driver’s seat of his Range Rover on Richmond Way in Shepherds’ Bush. PC Warrillo suspected that the Appellant had driven whilst using a mobile phone. On questioning the Appellant, PC Warrillo became aware of the smell of alcohol on the Appellant’s breath. The officer observed that the Appellant’s eyes were glazed, his pupils were large and fixed and his speech was slurred.

PC Warrillo asked the Appellant if he had consumed alcohol. The Appellant replied that he had drunk one glass of wine at 8pm. At around 11.21pm, PC Warillo conducted two roadside breath tests. Both tests recorded a fail. PC Warillo arrested the Appellant who was then taken to Hounslow police station

At the police station, the Appellant was brought before Police Sergeant Burriss at 12.34am. PS Burriss started the drink and drug driving procedure at 12.44am. PS Burriss used an Evidential Breath Machine (“EBM”). The lower of two readings recorded by the EBM at 12.55am was 46 micrograms of alcohol in 100 millilitres of breath. This was above the prescribed legal limit of 35 mg of alcohol in 100 ml of breath. As he explained in evidence, PS Burriss had no concerns as to the functionality of the EBM, no error messages were recorded and it was within the calibration dates indicated by the sticker on the front of the machine.

The Appellant was charged under section 5(1) of the Road Traffic Act 1988 (“RTA 1988”) with driving a motor vehicle after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit. He pleaded not guilty to the offence. A trial took place over two days.

The Appellant gave evidence that he had consumed a medium glass of wine between 8 and 8.30pm. He denied that his speech was slurred or his eyes glazed. He adduced expert evidence to the effect that: (1) if he had drunk one glass of wine the recording would be zero, and (2) the EBM should have been serviced every 6-7 months, but the evidence had been that it was last serviced in June 2018, 10 months earlier. He also

The Deputy District Judge accepted PC Warrillo’s evidence that the Appellant smelt of alcohol and that his eyes were glazed. She considered that PC Warrillo was near the Appellant for a reasonable period of time, having conducted two roadside breath tests, and that she therefore had “ample opportunity to consider the smell of alcohol and demeanour” of the Appellant.

The Judge reminded herself that there was a presumption that the reading was accurate, but that this presumption was capable of rebuttal and cited Cracknell v. Willis[1988] AC 450 (see below). The Judge considered that the burden of proof was on the Appellant to rebut the presumption on the balance of probabilities. She rejected a submission that once evidence had been adduced to rebut the presumption the burden was on the prosecution to establish, to the criminal standard of proof, that the EBM reading was reliable. We return to this question below.

The Judge accepted the evidence of PS Burriss that the machine was within the relevant calibration period and found that the expert evidence as to calibration was speculative because it was based on a document that was 20 years old and related to unspecified devices. The Judge rejected the Appellant’s case that, at the time he provided the evidential breath specimen, he had had suffered from reflux which had caused mouth alcohol to be present.

The Judge found on the evidence that the EBM was working correctly and that the Appellant had therefore committed the offence. She stated her conclusions as follows:

There is a presumption that the machine is working correctly; the presumption is rebuttable. Essentially, other than Mr Ali’s claim that he did not drink enough to produce the reading that he did, there is no other cogent evidence before me to rebut the presumption. Therefore, on balance, I am not satisfied that the presumption has been rebutted. I am certain that the machine was working correctly.

Accordingly, I proceed on the assumption that the reading produced by the machine is reliable, that Mr Ali had a breach alcohol level of not less than 46 mcg in 100ml of breath. I find the case against Mr Ali proved beyond reasonable doubt.”

Was I entitled to accept the evidence of PS Burriss that the machine was operating correctly and to reject the evidence of Dr Mundy that the machine may not be reliable?

Did I err in law to find that there was a legal burden on the defendant to rebut the presumption of reliability of the breath test machine on the balance of probabilities?

Even if I did err, was I entitled to find, so that I was certain, that the EBM was operating correctly?

Was I entitled to convict the defendant?

It is common ground that there is a legal presumption that an EBM is working properly, that there is an evidential burden on a defendant to challenge this presumption by way of relevant evidence, but that once that burden is discharged (by adducing relevant evidence) the prosecution must prove to the criminal standard that the machine was reliable. The parties therefore agree that the Deputy District Judge erred in finding that the burden was on the Appellant to establish, on the balance of probabilities, that the EBM reading was unreliable.

Mr Benson, on behalf of the Appellant, contended as follows. Dr Mundy’s evidence was that the machine needed to be serviced and calibrated at particular dates to maintain reliability. It had not been serviced and calibrated within the timeframe indicated by Dr Mundy. The Respondent had not challenged Dr Mundy’s evidence. His expert evidence raised a “realistic possibility” that the machine might not be functioning properly. There was no proper basis for rejecting this unchallenged evidence. The Deputy District Judge was not therefore entitled to find that the EBM was operating correctly.

Ms Organ, on behalf of the Respondent, argued that the error of the Deputy District Judge in respect of the burden and standard of proof was immaterial, because the Judge in any event found, to the criminal standard, that the EBM was operating correctly. This was a finding that the Judge was entitled to make for the reasons she

Section 5(1) of the RTA 1988 provides:

drives or attempts to drive a motor vehicle on a road or other public place, or

is in charge of a motor vehicle on a road or other public place,

By section 11(2) of the RTA 1988 Act, the prescribed limit means (in respect of breath) 35 mcg of alcohol in 100 ml of breath.

Section 10 of the RTA 1988 provides:

In criminal cases, the burden of proof is on the prosecution to establish, beyond reasonable doubt, that a defendant is guilty of the offence charged.

In the context of driving with excessive alcohol, there are two presumptions or assumptions which are relevant. The first is the common law presumption of regularity that breath specimen machines are reliable. The second is the statutory assumption under section 10(2) of the RTA 1988 that the proportion of alcohol in the relevant specimen was not less than the proportion of alcohol at the time of the offence. Lord Griffiths observed as follows in Cracknell v Willis[1988] AC 450 (at 467-468):

Lord Goff emphasised the latter point in his judgment (at page 472):

The common law presumption of regularity requires a court to proceed on the basis that an EBM is in good working order and that its reading is reliable, unless sufficient relevant evidence to the contrary is adduced. However, where such evidence is adduced, the legal position is clear: as Lord Griffiths said, “the magistrates will have to be satisfied that the machine has provided a reading upon which they can rely” (see above).

It is, therefore, common ground between the parties that:

There is a presumption that a EBM reading is reliable;

The presumption is rebuttable;

If evidence that the reading is not reliable is adduced, the burden is on the prosecution to establish, to the criminal standard of proof, that the reading is reliable.

We agree that these three propositions are an accurate statement of the law. It follows that the answer to the Deputy District Judge’s second question is that she did err in finding that there was a legal burden on the Appellant to rebut the presumption of reliability of the EBM on the balance of probabilities. A defendant may adduce

In the present case, however, the Judge did go on to find, to the criminal standard of proof, that the reading was reliable. Unless the Appellant can show that this finding was flawed, the Judge’s error that there was a legal burden on the Appellant to rebut the presumption of reliability is of no effect.

A great deal of authority was cited to us on the question of whether the Deputy District Judge was entitled to find, to the criminal standard of proof, that the reading from the EBM was reliable. Much of that authority addressed the question of what might amount to sufficient evidence to rebut the presumption of reliability (which is not, directly, the focus of any of the stated questions before us).

Ultimately, however, the Judge’s conclusion that the EBM reading was reliable was a factual assessment based on the evidence that was before her. The evidence that the reading was unreliable consisted of:

The evidence from Dr Mundy that the EMB had not been calibrated within the required time period;

The evidence of the Appellant as to the quantity of drink he had imbibed.

As to Dr Mundy’s evidence, the Judge observed that Dr Mundy had not examined the EBM in question or its calibration records. Dr Mundy’s evidence was based on a Quality Framework document that the Judge found was 20 years old and did not refer to a specific device. As against that, there was direct evidence from PS Burriss that the machine was within its calibration dates.

The evidence given by Dr Mundy is quite different in nature from that given, for e.g., by the expert witness in Gregory v DPP [2002] EWHC 385 (Admin) relied upon by Mr Benson. In that case, the police analysis of the appellant’s blood sample suggested that it was marginally above the blood alcohol limit. A defence expert analysed the specimen of blood and gave evidence that the police’s method of analysing the blood sample would inflate the alcohol results by about 8 per cent. Forbes J found (at [14][15]) that this was unchallenged evidence which “was not merely hypothetical calculation, based on uncertain and unproven facts” but “was admissible opinion evidence… based on uncontroversial facts… which seriously called into question, in the circumstances of this particular case, the reliability and accuracy of the blood alcohol analysis which was the very foundation of the prosecution's case against this appellant”. He added:

As the Court in Gregory v DPP itself emphasised, the decision was highly fact sensitive and turned on the particular evidence (see e.g. per Keene LJ at [18]). In our view, this decision is of little assistance to the Appellant.

In the present case, the evidence and findings of the judge were very different. As regards the expert evidence, in contrast, Dr Mundy did not analyse the Appellant’s blood sample or the specific EBM that was in fact used. For the reasons she gave, the Judge was entitled to reject the evidence of Dr Mundy.

As to the Appellant’s evidence, the Judge found that the Appellant was an unreliable witness; he had not been forthcoming; his evidence was self-serving; and his evidence was inconsistent with the evidence of the police officers (which the Judge accepted).

As against the evidence of the Appellant, it was common ground that the Appellant had failed two roadside breath tests (a fact which is, in itself, capable of corroborating the EBM reading – see DPP v Brown and DPP v Teixeira [2002] RTR 23). Further, the Judge accepted the evidence of PS Burriss that (a) he was an experienced operator of the EBM, (b) he had no concerns as to the functionality of the device, (c) he saw no error messages and (d) he was satisfied that the particular device he used was within its calibration dates because he recalled seeing the sticker on the machine. Furthermore, PS Burriss noted that the machine was self-calibrating, so it checks calibration and informs the operator if a fault has developed. In addition, the Judge accepted the evidence of PC Warrillo that the Appellant had smelt of alcohol, and that his eyes were glazed. All of this evidence was consistent with the reading given by the EBM.

Mr Benson made two particular submissions. First, that the Judge was not entitled to reject the evidence of an expert where it was unchallenged by the prosecution. Second, that in any event, in order to rebut the presumption of reliability it was sufficient for a defendant to assert solemnly in evidence that they had not drunk enough alcohol to produce the reading in question. We disagree with both submissions which are heterodox and run counter to both principle and the authorities. It sufficient to cite three authorities by way of illustration.

First, as Moses LJ said in Pender v. Director of Public Prosecutions [2013] EWHC 2598 (Admin):

Second, as Mitting J said in Schneider v. Director of Public Prosecutions [2006] EWHC 1516 (Admin):

Third, as Lord Griffiths was careful to say in Cracknell v. Willis (supra, at p.468):

Mr Benson sought to pray in aid references in the Application for a Case Stated to aspects of Mr Mundy’s evidence which did not feature in the Case Stated itself. Ms Organ objected on the basis that Mr Benson did not have leave to amend the Case Stated. We uphold her objection (but observe that we do not think that the reference materially assists Mr Benson in any event).

Finally, Mr Benson sought to argue that the Judge has misdirected herself when she said in paragraph 89 of her judgment (quoted above) that “on balance” she was not satisfied that the presumption has been rebutted and she further argued this misdirection fundamentally undermined her subsequent finding that she was “certain” that the EBM was working correct. We agree that the use of the words “on balance” was infelicitous. However, it is important to read the judgment as a whole and to construe this passage in the context of the Judge’s earlier numerous, clear and detailed findings of fact. In our view, it is quite clear that the Judge was entirely satisfied (indeed, “certain”) on the evidence that the EBM reading was reliable and that the case against the Appellant was proved “beyond reasonable doubt”, i.e. to the criminal standard. Indeed, she said so in terms in her concluding paragraphs 89 and 90.

In our view, the Deputy District Judge was entitled to make the findings of fact that she did and, accordingly, to convict the Appellant.

For the reasons set out above, we answer each of the stated questions (see paragraph 3 above) in the affirmative:

Was I entitled to accept the evidence of PS Burriss that the machine was operating correctly and to reject the evidence of Dr Mundy that the machine may not be reliable?

Did I err in law to find that there was a legal burden on the defendant to rebut the presumption of reliability of the breath test machine on the balance of probabilities?

Even if I did err, was I entitled to find, so that I was certain, that the EBM was operating correctly?

Was I entitled to convict the defendant?

The appeal is therefore dismissed.