Director of Public Prosecutions v Wood

These two appeals by way of case stated raise issues relating to disclosure obligations and the stay of proceedings as an abuse of process. Both relate to the disclosure of material concerning Intoximeters used for testing alcohol on the breath. They are brought by the DPP against the decisions of District Judges. The same broad issues were raised by the same solicitors in the two otherwise unrelated cases and have been pursued here. As the Respondent McGillicuddy has disappeared, the Attorney General has appointed Mr Andrew Bright QC to make submissions as a friend of the Court on any separate issues affecting McGillicuddy. We are grateful to him.

Each Respondent was charged with driving having consumed alcohol so that the proportion of it in the breath exceeded the prescribed limit of 35mg in 100ml of breath, contrary to s5(1)(a) of the Road Traffic Act 1988. This proportion had been measured in each case by a breath test consisting of two specimens of breath analysed on an Intoximeter, which the Crown contended was “a device of a type approved by the Secretary of State”; s7(1)(a) and s11 (2) of the RTA 1988. In Wood’s case the proportion in the lower specimen was alleged to be 136 mg: 100ml and in McGilllicuddy’s, 61mg:100ml. Blood or urine specimens were not taken. S16 of the Road Traffic Offenders Act 1988 made the statement automatically produced by the device admissible in evidence. S15 RTOA created a statutory assumption that the proportion of alcohol to breath was not less than the specimen thus evidenced. There is a common law presumption that the breath test device, if type approved, is reliable.

The device used in each case was an Intoximeter EC/IR, which received type approval under the Breath Analysis Devices (No.2) Approval 1998. The type approved in the Schedule was:

“The device known as the Intoximeter EC/IR, manufactured by Intoximeters Inc. of Saint Louis Missouri, composed of the Intoximeter EC/IR, the Intoximeter EC/TR Gas Delivery System and software version EC/IR – UK 5.23.”

The device at Worthing police station was used in Wood’s case and the device at Wandsworth Police Station in McGillicuddy’s.

In Wood’s case, the information was laid on 13^th January 2003. Following primary disclosure on 4^th February 2003, and the service of a Defence Statement in April 2003, which raised issues about type approval and reliability but said nothing about post driving drinking, there was further disclosure of material related to the device. Then a further defence statement was served and further disclosure related to the device, described as “further primary disclosure”, was provided. The material thus disclosed covered the service history of the machine, engineer’s reports for the relevant period, calibration certificates, and correspondence between Intoximeters UK Ltd and the Home Office/Forensic Science Service relating to type approval. A third Defence Statement, which expressly superseded the earlier ones, was served on 14th March 2004 for the purposes of an application for disclosure under s8 Criminal Procedure and Investigations Act 1996.

This third Defence Statement did not pursue the previous claim that the particular device in question was unreliable and raised for the first time the defence that the alcohol consumed before driving would not have led to an excess reading and, by implication from the accompanying letter, post driving consumption (approximately 2 bottles of wine) was relied on. But this Statement did retain the contention that the Worthing device was no longer type approved because it had been changed without the prior consent of the Secretary of State in its F11 settings (unspecified save for the slope parameters), a Pinning adjustment, fuel cell shunt, RTC Board, IR Detector and other unspecified components. The facts of these changes and the absence of approval save in relation to the RTC Board, were said to be supported by evidence given on behalf of the Crown in other cases. Calibrations were said to have been carried out in a way in which they should not have been. This led to a contested application under S8 CPIA 1996 for disclosure of a range of material, heard by District Judge Tain in Worthing on 15^th April 2004.

Disclosure was ordered by DJ Tain of: unedited F11 printouts for the machine until the first printout after the date of the offence, all engineer’s reports, service and calibration sheets, and a copy of the maintenance log. There is no record of that decision or its reasoning. But in the Case Stated, DJ Tain says that he ordered disclosure of all information about the machine, its settings and the F11 settings in particular, its service history and related documents.

The CPS contacted Intoximeters UK Ltd asking for the material so as to comply with the order. This led to further disclosure of earlier calibration certificates and engineer’s reports together with an edited version of the F11 printouts for the same period, edited to show only the slope parameters, and the software name as EC/IR-UK 5.23. Intoximeters UK declined to provide unedited printouts because they were commercially confidential, would not be understood without more material which would in its turn be confidential, and the checklist used by engineers also contained passwords which could not be disclosed. The defence was on a fishing expedition. The CPS then applied to the DJ for a variation of the disclosure order on the grounds that it could not supply more and that R v Alibhai [2004] EWCA Crim 681 had clarified the disclosure duties in relation to material in the hands of third parties such as Intoximeters UK was contended to be. The Respondent met that with an application for a stay of proceedings on the ground that in the absence of such material the trial would be an abuse of process.

On 13^th September 2004, DJ Tain held that there was a contract between Intoximeters UK Ltd to supply these devices to certain police forces, and that in the absence of other contractual information being provided by the Crown, Intoximeters UK was “part of the investigating authority” and therefore non-compliance with his Order was non-compliance by the “team” of police and prosecution. The information had been legitimately required in the light of errors on the machine both before and after this case. (This must relate to his experience of other cases, but it is not specified.) Alibhai was distinguishable as involving an independent victim and not someone with a contractual relationship with the state or prosecutors. There had been a fundamental breach of a Court Order. The case could not fairly be tried without such information; the prosecution was based entirely on the reading from a machine which had a significant potential for inaccuracy which the Respondent should have the right to investigate, and without which investigation it would be unfair for her to stand trial, nor could she receive a fair trial. Trial could not remedy the defects in a case in which the reading was so fundamental.

Accordingly, DJ Tain ruled that proceedings should be stayed as an abuse of process. It appears to have been common ground that the outstanding undisclosed material was in the possession of Intoximeters UK and not in the possession of the police or CPS.

McGillicuddy was charged on 8^th June 2003. On 23^rd June 2003, the CPS sent him a letter saying that “there was no prosecution material which requires disclosure to you” pursuant to s3 CPIA 1996. Disclosure, it said, would be reviewed in the light of a written defence statement. On 17^th September 2003, a schedule of unused material was sent by the CPS and nine days later the Defence Statement was provided. This timetable led to the arguments in this case about whether the secondary disclosure obligations under the CPIA ever arose.

On 10^th June 2004, DJ Grant at South Western Magistrates’ Court heard preliminary arguments about the adequacy of the Defence Statement in relation to a s8 CPIA application and whether the Defence Statement was out of time, as time for its service ran from 23^rd June 2003 rather than 17^th September 2003. No application had been made to extend time within fourteen days from 23^rd June 2003. He ruled that the Defence Statement was not out of time, as time did not start to run until service of the schedule of unused material.

The DJ must have regarded it as an adequate Defence Statement, but it was silent as to whether the Respondent took issue with driving or with having consumed alcohol at all or when, or whether there was any reason for mouth alcohol to have been present at the time of the test, e.g. regurgitation. It alleged that the Wandsworth machine was not reliable for five reasons: certain components performed unreliably, there was a high incidence of failures with the EC/IR device generally, it did not reliably detect mouth alcohol, it had been modified in a way which made it unreliable, and dry gas was used to calibrate the fuel cell. The device now fell outside its type approval because of changes made without the consent of the Secretary of State: manual as opposed to factory calibration, and the use of dry gas to calibrate the fuel cell.

On 12^th July 2004, DJ Bayne, in the substantive application under s8 CPIA 1996, ordered the CPS to disclose four items: complete and unedited printouts for the Wandsworth machine, the calibration and service sheets, engineer’s reports and the machine’s history. The CPS disclosed the engineer’s reports, and calibration certificates, and obtained F11 printouts similarly edited as in the case of Wood. The request for the history of the device was abandoned.

On 14^th October 2004, DJ Bayne ordered that the unedited printouts should be provided. She held that Intoximeters UK was not a third party but was instead “part and parcel” of the prosecution; there were contractual relations. Alterations could take a device out of type approval or make it unreliable. She said that there was evidence that the software had been amended, which the Case Stated says was conceded by the Prosecution, so the unedited printouts were relevant to that argument. She took the view that the full printouts would enable it be seen whether there were changes to the approved parameters of a nature which took the device outside the scope of the type approval. Intoximeters UK retained material on behalf of the police and could not itself decide on what to make available nor could it do so by reference to commercial confidentiality.

The CPS asked Intoximeters UK for the full printouts and its reply echoed that summarised in the Wood case.

On 4^th November 2004, DJ Grant heard an application that the case be stayed as an abuse of process following non-compliance with the Order of DJ Bayne. He held that it should be stayed, because the failure of the CPS to disclose the full printouts meant that McGillicuddy could not receive a fair trial. There would be prejudice so serious that a fair trial could not take place. Commercial confidentiality could not provide a basis for refusing disclosure. He granted the stay. As in Wood’s case, Intoximeters UK had possession of the printouts at issue, not the police or CPS.

I deal first with the DPP’s argument in McGillicuddy’s case that there was no defence statement within the provisions of CPIA 1996 so as to enable an application for disclosure to be made under s8. This involved two aspects: the lateness of service of the statement and its inadequacy to justify the disclosure ordered by reference to the defence issues raised in it. These issues could have arisen on the facts in Wood’s case as well

The duty of primary disclosure is set out in s3(1). The prosecutor must:

“(a)

disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor’s opinion might undermine the case for the prosecution against the accused, or

(b)

give to the accused a written statement that there is no material of a description mentioned in paragraph (a).”

S8(1) CPIA 1996, in its form before amendment by the Criminal Justice Act 2003 and as applicable here, permits an application for disclosure by an accused where he “gives a defence statement under section 5 or 6 and the prosecutor complies with section 7 or purports to comply with it or fails to comply with it.” S8(2) requires the defendant to have reasonable cause to believe that there is “prosecution material” “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement given under section 5…” in order to make the application for disclosure. This part of the DPP’s argument was concerned with the second part of that provision.

Compulsory disclosure by an accused is provided for in s5(1) CPIA 1996, where the prosecutor complies with his duties of primary disclosure “or purports to comply with it.” S5 (6) governs the content of the written defence statement. It must set out in general terms the nature of the defence, indicate the matters on which the accused takes issue with the prosecution, and for each such issue, why he does so. S5(9), s 12 and the CPIA 1996 (Defence Disclosure Time Limits) Regulations 1997 No.1997/684, provide for 14 days from compliance or purported compliance by the prosecutor with the duty of primary disclosure for the service of the defence statement. Time can only be extended by an application made within that period. S7 deals with secondary disclosure by the prosecution where a defence statement is given under s5.

The consequences of an accused not providing a defence statement or providing late or inconsistent ones are set out in s11. S11(1)(a) brings the absence of a statement within the scope of the section and (b) covers:

“ a defence statement under [section 5] but [given] after the end of the period which, by virtue of section 12, is the relevant period for section 5.”

Other subsections deal with inconsistent statements and so on. Similar language appears in relation to a statement under s 6 which is provided outside the time limits.

First, I reject the contention put forward by Mr Bright, in support of the DJ, that primary disclosure did not take place until the service of the schedule of unused material and that time for service of the defence statement therefore ran from that date. I am alive to the possibility that a prosecutor might send out a pro forma letter without applying his mind to the issue directed by s3. But I do not think that that possibility can be remedied by treating s3 as applying only when the schedule of unused material is served. The wording of s3 is too clear, and the very provision for the s5 obligation to be triggered by service of what purports to be in compliance with either limb of s3 shows Mr Bright’s argument to be wrong. The CPS letter of 23^rd June 2003 is quite obviously a written statement that there is no relevant material, or at least it purports to be, and that is all that is required for s5 to be triggered, and for time to start running. The significance of the schedule of unused material is dealt with in s4 and s24(3). Mr McGuinness QC was right to submit on behalf of the DPP that the effect of those provisions is that it is only where the prosecutor has the schedule of unused non-sensitive material when primary disclosure occurs, that it must be sent to the defendant at the same time. The schedule is not itself a necessary component of nor the mark of primary disclosure. Accordingly, the DJ was wrong to reject the prosecution argument that the defence statement was out of time.

But, second, I reject Mr McGuiness’ submission, which he made in the end rather tentatively having drawn s11 to our attention, that the defence statement was not a defence statement given “under” s5 or s6 because it was given late. That submission is at odds with the language of s11 which describes a defence statement as given “under” s5 or s6 even when given late. It can still be used to damage a defence case. The concept of a statement given “under” s5 or s6 must be the same for the purpose of applying s8. I find it also difficult to see that the late provision of such a statement could deprive a DJ of jurisdiction to hear a s8 application, in the light of R v Sekhon and Others [2002] EWCA Crim 2954, [2003 1 WLR 1655 and R v Soneji [2005] UKHL 49, [2005] 3 WLR 303.

Third, the prosecutor’s next argument, also rejected by the DJ, was that the defendant could not make a s8 application because the defence statement was not in substance a defence statement because it did not comply with the requirements of s5(6). Of course there can be so-called defence statements which are so deficient in their fulfilment of the requirements of s5(6) that they cannot properly be termed defence statements at all, but such “statements” would probably fall foul of s11(1)(a) and, say, (d), with the consequences which then follow. But there are real dangers of injustice in treating deficient written defence statements as so wholly ineffective as to be non-existent in reality and thus to remove the DJ’s jurisdiction to make a s8 order.

The problem of deficiencies in a defence statement used to ground an application for disclosure under s8, can usually be resolved within the disclosure process. One of the chief purposes of the defence statement is to provide the basis for further disclosure and R v Tibbs [2002] 2 Cr App R 309 at p315A-C emphasises the obligation to comply with all three components of s5(6)-(8). Likewise, Lord Bingham in R v H and C [2004] UKHL 3, [2004] 2 AC 134 at paragraph 35, whilst pointing to the need to avoid a restrictive analysis of such statements, said that they had to be carefully analysed to ascertain the specific grounds on which the charges are resisted:

“The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good.”

The allegations in the McGillicuddy defence statement about the reliability of the device and its type approval, whatever the disputed basis for making them or their limitations in founding a defence in law when analysed, went beyond the general allegations to which Lord Bingham referred. But disclosure of the material ordered by the DJ, if otherwise justified, should have been refused on the grounds that the defence statement, which was silent as to whether the defendant was the driver or had consumed alcohol or enough to be in excess of the prescribed limits, did not raise an issue to which reliability or type approval was relevant. Those matters had no free-standing relevance. The request for disclosure did not satisfy s8(2)(a).

That does not involve too restrictive a reading of the statement in this case, and any problem could readily have been solved by a further statement. In a case of this sort, the issue is often only that the amount of alcohol consumed could not have put the defendant over the limit and it is no great burden to require that to be stated if this sort of disclosure is sought. The other arguments against the adequacy of the defence statement are really facets of the argument that disclosure was not warranted because the attack was essentially on type approval which it was argued could not found a defence in law, to which I now turn. But disclosure should have been refused in McGillicuddy’s case because the defence statement raised no issue to which the items of which disclosure was sought could be relevant

Mr McGuinness next submitted that the material ultimately not disclosed could not be relevant to any defence because it went to type approval and not to the reliability of the device, however the argument for its disclosure might have been expressed. The lawfulness of type approval was not a matter which could be raised as a defence to an excess alcohol charge in the criminal courts.

I accept that as the starting point; it has been made clear in DPP v Memery [2002] EWHC Admin 1720, [2003] RTR 18, paragraphs 74-76 where the possible effect of Boddington v BTC [1999] 2 AC 143 on the earlier decisions in R v Skegness Magistrates Court ex p Cardy [1985] RTR 49, DPP v Browne and DPP v Teixeira [2002] RTR 395 and Brown v Procurator Fiscal [2003] RTR 239 was rejected. It was recognised in Cardy that machines or software are altered to improve performance; or it can happen e.g. simply for force name changes. It has to be shown for disclosure purposes that the alterations which are said to have occurred could mean that the device is no longer type approved. As Stanley Burnton J said in Richardson v DPP [2003] EWHC Admin 359, paragraph 6, type approval is confined to the components specified in the Schedule to the Type Approval Order, excluding the manufacturer’s name, and for these purposes any alteration to the components of the type approval had to be such that the description in the Schedule no longer applied to it. Not every alteration would be capable of taking a machine out of type approval.

This means that the contention that the type approved cannot measure mouth alcohol accurately and that the reading is therefore not from a reliable or legally approved device cannot provide a defence or justify disclosure. But that is not the same at all as saying that modifications are irrelevant simply because they may have been made to all or most devices. Conversely, a contention that the accused is only concerned with the performance of a particular device does not mean that the contention does not go to type approval.

Where the contention is that the device which was originally type approved has been altered without the Secretary of State’s written consent in such a way as to take it out of type approval, and disclosure is sought to further that contention, the DJ will require more than the asserted fact of unapproved modification to justify disclosure. There will have to be some material which explains how the alteration could go to loss of type approval in the Schedule and how disclosure could advance that point. A change to a parameter in the software which is still described as UK5.23 would not be such a change. Here the edited printouts still showed that the software was UK5.23 so the unedited ones would still show that the software was UK.5.23. There was nothing to suggest a change to the gas delivery system which took it out of type approval. It is difficult to see how allegedly defective maintenance practices could cause a device to lose its type approval, but they would have to be potentially of that gravity before becoming relevant to a loss of type approval argument.

Wood and McGillicuddy explicitly raised an argument about the loss of type approval. In Wood’s case, it is difficult to see from the Case Stated and the note of the abuse ruling how it was thought that the allegations went to loss of type approval and how the material, at lease that at issue by the time of the abuse hearing, could advance a loss of type approval defence. The McGillicuddy Case Stated, read with the written reasons of the DJ on disclosure, states that it was conceded that the Wandsworth device had been altered but it is clear that there was an issue about whether those changes were so fundamental as to be capable of removing the device from type approval. The unedited printouts were held to be necessary for the resolution of that issue. I cannot detect from the material how it was thought that the changes, agreed or asserted in relation to type approval, were capable of meeting the test as to their fundamental significance which DJ Bayne correctly identified, nor how the material at issue by the time of the abuse hearing could help to answer that point. I cannot see how the DJs’ disclosure orders were justified when measured against the defences advanced and the stringent test required to show loss of type approval. Wood’s case appears to have been that the high excess was caused by post driving drinking. McGillicuddy never said whether he had been drinking and if so how much.

Only McGillicuddy explicitly raised issues which went to the reliability of the particular device even if they might affect all machines which were type approved. These are not irrelevant arguments simply because they might be applicable generally. But their relationship to type approval arguments needs careful scrutiny in view of the irrelevance of arguments which in effect contend that the machine should not have been approved.

The McGillicuddy arguments about reliability which went to the ability of the device to detect mouth alcohol are clearly general and go to the approval of this type of device; disclosure based on those arguments should have been rejected. It is difficult in any event to see how they could justify disclosure in relation to a particular machine in the absence of any evidence that mouth alcohol was a problem through the manner of consumption, regurgitation or testing, and that the alcohol reading might have been so wrong as to show an excess where there might have in reality have been none on the Respondent’s case as to his consumption. There was no explanation of how the other alleged defects could have caused the excess reading to the extent that there might have been no prosecutable excess at all, or how the disputed and ultimately undisclosed items from Intoximeters UK might have advanced that point. That should have been very clear in view of the stay for abuse of process.

I emphasise that the material of which disclosure is sought must have some potential for bearing on the issue in respect of which is raised. The nature and degree of an alleged unreliability has to be such that it might be able to throw doubt on the excess in the reading to such an extent that the level of alcohol in the breath might have been below the level at which a prosecution would have been instituted. If on any view there would still be an excess leading to prosecution it is difficult to see how that could justify disclosure of the material sought to make an irrelevant point about reliability. This is where the nature of the defence claims as to what alcohol had been consumed, and when, may matter. In considering disclosure applications based on a claim about a particular machine’s unreliability, and its possible basis for a defence, the DJ needs explicitly to consider the effect of the safeguards provided by the taking of two specimens, the intervening clearances of the device and the evidential use of the lower specimen of the two, together with the opportunity to give specimens of blood or urine and the fact that there is leeway above the breath limit before prosecution takes place. They are relevant to whether the alleged unreliability could possibly advance the stated defence. Similarly the nature and extent of the possible changes to type had to be so fundamental that it could no longer be said that this was a type approved machine; that was the issue to which the disclosure material had to be addressed.

Although Mr Bright made pleas to equality of arms and to the limited opportunities open to defendants to challenge the output of the breathalyser devices, Mr McGuinness’ submissions about the safeguards in the legislation and in practice persuade me that there is no unfairness which requires to be remedied by taking an unduly broad approach to disclosure.

“Prosecution material” and third parties

I turn next to the main issue which the two cases have in common: whether, if otherwise justified, disclosure should have been ordered of the material at issue which was all in the hands of Intoximeters UK. It was the non-disclosure of this material which led to the stay in proceedings. The issue is whether the material was “prosecution material” within s8(3) and (4) CPIA 1996. The DJs accepted arguments to the effect that the disclosure obligations in the CPIA applied to this material because Intoximeters UK was part of the police or prosecution or investigating team, in part at least because of the contractual relationship which existed between the police and Intoximeters UK.

I reject the analysis which underlay the DJs’ conclusions. They were not empowered under s8 CPIA 1996 to order the disclosure of material in the hands of Intoximeters UK. Mr Bright rightly recognised the difficulties.

The relevant statutory provisions are those in the CPIA 1996, s21 of which makes it clear that the statutory disclosure provisions for summary trials contained in the Act displace completely the common law provisions for disclosure. S8(3) and (4) provide:

“(3)

For the purposes of this section prosecution material is material –

(a)

which is in the Prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused,

(b)

which, in pursuance of a code operative under Part II, he has inspected in connection with the case for he prosecution against the accused, or

(c)

which falls within sub-section (4).

(4)

Material falls within this sub-section if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.”

S2(3) defines the Prosecutor: “references to the Prosecutor are “to any person acting as a prosecutor, whether an individual or a body””.

The structure of s8(3)(a), which is the provision upon which the DJs relied, requires that the material of which disclosure is to be ordered be in the possession of the prosecutor and that it came into his possession in connection with the case for the prosecution against the accused.

It was never contended that the material ultimately at issue in the abuse proceedings was in the possession of the CPS. The only basis upon which it could be said that the material in question satisfied the requirement that it be in the possession of the prosecutor, was if the prosecutor was or at least included Intoximeters UK. That is an impossible contention. The prosecutor was the CPS. Intoximeters UK is not part of the CPS. There are other provisions which deal with material in the hands of those who are not the prosecutors, and the police and other third parties are dealt with differently. Intoximeters UK is not part of the prosecution team, a concept which itself is misleading and irrelevant in the light of the other specific provisions for disclosure. Intoximeters UK does not become part of the CPS because it has supplied the device to the police force and has certain continuing obligations to the police under that contract. The DJs have lumped together the CPS, the police and third parties who provide and maintain devices for the police to use in the investigation and proof of offences in a way which simply fails to respect the facts or the statutory provisions.

There are differences between the position of Intoximeters UK in this case and Microsoft Inc in Alibhai , but those differences do not justify the conclusion reached here about what constituted the prosecutor. The fact that upon request Intoximeters UK provided certain material voluntarily in these cases did not alter the relationship which it had with the CPS. The fact that it relied on commercial sensitivity and its view as to the application being a fishing expedition explained its unwillingness to do more voluntarily but could not be a matter which meant that it was part of the prosecutor. That is a matter to which I shall return when dealing with other limbs of s8(3), and (4).

There was a contract in respect of each device between the relevant police force and Intoximeter Inc which was made on the terms agreed between Intoximeter Inc and the Secretary of State for the Home Department in a Framework Arrangement of 1998. It governed the supply of the device and related services, including maintenance. The terms provided that after calibration repairs or regular service visits, a certificate of approval had to be left with the police force; and engineers’ service reports had to be left after other visits. These all had to be kept by the police with the device. This material was disclosed. A metrological log book which held details of service visits and repairs had to be held with the equipment by the police. This was not sought and would give rise to different issues. A record of repairs or calibrations had to be kept by Intoximeters UK and were open to inspection by specified people which did not include the CPS or police. The contract provided for expert evidence for the prosecution to be given, if required, about the design or function of and data stored within the device or its software. It also appears that, for obvious reasons, when a service or calibration visit took place, the device’s memory would be downloaded on to a printout and cleared, and the printout would be sent to the police. The police could access data in the device’s memory. There is nothing in that relationship which could justify the conclusion that Intoximeters UK or Inc was part of the CPS, any more than the close co-operation between the CPS and Microsoft turned Microsoft into part of the CPS in Alibhai, where extensive information was disclosed by Microsoft to the Crown and defence.

S8(3)(b) would not have assisted the Respondents’ applications either. There are three specific limitations which have to be satisfied before material becomes prosecution material under that provision. First, it must actually have been inspected by the prosecution. Second, any inspection must have been in pursuance of the CPIA Code and, third, the inspection must have been in connection with the prosecution case against the accused.

The Code provisions emphasise, in distinguishing between the “Investigator”, the “Disclosure Officer” and the “Prosecutor” the different roles which have to be performed and point away from the elision of them which in part underlay the DJs’ reasoning. The Code definition of “prosecutor” is: “the authority responsible for the conduct of criminal proceedings on behalf of the Crown. Particular duties may in practice fall to individuals acting on behalf of the prosecuting authority”. This again shows that Intoximeters UK cannot be the prosecutor or part of it.

The Code provisions for disclosure of material which has been inspected are:

“7.4

If the Prosecutor asks to inspect material which has not already been copied to him, the Disclosure Officer must allow him to inspect it. If the Prosecutor asks for a copy of material which has not already been copied to him, the Disclosure Officer must give him a copy. However, this does not apply where the Disclosure Officer believes having consulted the officer in charge of the investigation, that the material is too sensitive to be copied and can only be inspected.

10.1

If material has not already been copied to the Prosecutor, and he requests its disclosure to the accused on the ground that

- it falls within the test for primary or secondary disclosure, or

- the Court has ordered its disclosure after considering an application from the accused,

- the Disclosure Officer must disclose it to the accused.”

(The operative Code was the 1997 Code, although there is nothing in the 2005 which would have made a difference to this case).

I accept Mr McGuinness’ submissions that the material could not fall in either case within the scope of “prosecution material”, because it had not been inspected by the prosecutor, nor was it material which the Disclosure Officer could disclose to the prosecutor. S8 (3)(b) and the related provisions of the Code are plainly drafted on the basis that the Disclosure Officer has possession of the material. The provisions are simply unintelligible or unworkable otherwise. They reflect the function of the Disclosure Officer as the person responsible for examining material retained by the police during the investigation, revealing it to the prosecutor and disclosing it to the accused at the request of the prosecutor. Intoximeters UK could not be a Disclosure Officer.

Mr Bright then developed an argument not addressed to the DJs which sought to justify their disclosure rulings, by reference to s8(4) CPIA 1996. This treats as “prosecution material” that which the prosecutor must be given a copy of or allowed to inspect in connection with the prosecution case against the accused pursuant to the Code, if he asks for it. Mr Bright argued that there was a duty on the prosecutor to examine the Intoximeters UK printouts and not to delegate the assessment of their relevance to Intoximeters UK. Paragraphs 3.4 and 3.5 of the Code require an investigator to pursue all reasonable lines of inquiry, and if he believes that other persons have material relevant to the investigation which has not been obtained, the Disclosure Officer should be asked to invite them to retain it in case they receive a request for its disclosure. The Code also required the investigator to retain material which might be relevant to the investigation, paragraph 5; to list on sensitive and non-sensitive schedules, the potentially relevant retained material which the prosecution would not use, paragraph 6; and to provide those to the prosecutor, drawing attention to any other material which had been retained which might fall within the scope of the primary disclosure obligations, paragraph 7. The full unedited Intoximeters printouts became “prosecution material” once they were on the Schedule of material given to the prosecution or ought to have been. (Mr Bright drew attention to the description of some of the Wood case Intoximeters UK material as “further primary disclosure”. But that obvious casual misdescription cannot assist him). This material should have been listed, it was potentially relevant, the Disclosure Officer had asked for it to be retained because he had asked for it to be provided. The question was whether the contract between the police and Intoximeters UK, as summarised above, entitled the CPS or the police to access it. If this were not done there would be an inequality of arms in an Intoximeter case.

Mr Bright drew upon an analogy with the way in which prosecution experts must disclose, even in the absence of a defence request, tests or documentation which would assist the defence or undermine the conclusions to which they have come. The prosecution had to make inquiries of forensic experts to see if there was discoverable material; Archbold 10-68. The expert was analogous to the Intoximeter device.

I was not persuaded by these arguments. Intoximeters UK is not the CPS or part of it; neither is it a Disclosure Officer nor is it part of the police. Nothing in the contract lends support to that view. It provides a support service which means that certain documents are left with the police as operators of the device, which may be disclosable in any individual case. Intoximeters UK had no say over the disclosure of any of those which were in the possession of the police and did not try to affect their disclosure. It was a third party in relation to the material which it alone retained in its possession.

There is no provision in the contract between the police and Intoximeters Inc. giving the police or CPS any general right to inspect Intoximeters Inc or UK records, whether commercially confidential or not. The notion that the CPS or police somehow had a right to do so, or to do so in connection with a prosecution and that therefore one or other of them was in “constructive possession” of the records is wholly wrong. The record of calibration and repair is open to inspection by the Home Secretary and certain other bodies, but these do not include the CPS or police.

The potential role which Intoximeters UK might be asked to play in giving evidence cannot make it part of the prosecutor or investigator and to that extent the analogy with experts is misplaced. If it were to give evidence as an expert that might affect what it was obliged to disclose; but the prosecution was not obliged to make inquiries of it or to call evidence from it on the basis of the material provided by the Respondents here.

The CPIA and the Code are not directed to creating duties for third parties to follow and Intoximeters UK is a third party. The disclosure duties are created in respect of material which, put shortly, the CPS or the police have and which the CPS has inspected or must be allowed to inspect. The Code reflects that position. Paragraphs 7.4 and 10.1 clearly contemplate that this disclosure comes from material held by the investigator or by the Disclosure Officer. Material is not “prosecution material” within s8 (4) unless it is so held. Paragraphs 5 and 6, which lead to the obligations in paragraphs 7 and 10, are plainly directed to the retention and listing of material which the investigator or Disclosure Officer holds. There is no provision in the Code which imposes any obligation on third parties nor sensibly could there be. Paragraph 3 deals with how the investigator should approach third parties and “invite” them to retain material.

The Attorney-General’s Guidelines of 2000 (and the 2005 Guidelines do not materially alter the position) deal with the obligations on the prosecutor and investigator in relation to third party material in a way which again makes it clear that third party material is not “prosecution material” within the scope of the CPIA or Code. Under the heading “Material held by other agencies” i.e. non-government departments or other Crown bodies, paragraph 30 provides that where, say, a provider of forensic services has material which might be disclosable were it in the hands of the prosecution, and the material is likely to be relevant, steps should be taken by the prosecution to obtain the material. If the third party refuses to disclose it, and its production is still thought reasonable and the statutory requirements of the relevant Act are met, here s97 Magistrates’ Courts Act 1980, the prosecutor should seek a witness summons for its production.

For the purposes of Mr Bright’s argument, the significance of this analysis is that it shows that the approach which he urges in relation to third party material is contradicted by the provisions upon which he founds it. It ignores the language and structure of the Code and the Guidelines which differentiate between the prosecutor, police and third parties and do not create any obligation through the mechanisms he relied on. There is a mechanism which can be used in the right case for obtaining relevant material in the hands of third parties who are unwilling to make it available.

Accordingly, the material was not material which the Disclosure Officer was obliged to allow the prosecutor to inspect or copy. He did not have it in order to allow that obligation to arise. He was in fact never asked for it. No request could have been made which was pursuant to the Code.

This means that much of the disclosure should not have been ordered in the first place and the orders should have been varied as sought by the CPS. Inevitably it also means that the stays of proceedings were unjustified, since the very basis for their grants did not exist. There had been no unjustifiable failure to comply with the Courts’ Orders.

Mr McGuinness advanced broader submissions about what the DJs had done on the assumption that the material was relevant to an issue in the defence statement and was available to Intoximeters UK. Both stayed proceedings on the ground that the Respondents could not receive a fair trial and DJ Tain stayed the Wood case also on the grounds that it would not be fair to try Wood because of the disobedience of the prosecutor to the Court’s Order.

Mr McGuinness submitted that the DJs, before ordering a stay because Intoximeters UK had refused to disclose all that was ordered, should have considered whether or not the prosecutors should have sought or yet should seek witness summonses under s97 MCA 1980. The circumstances in which a failure to pursue a witness summons could ground an abuse claim are considered in Alibhai, which I would summarise as follows from paragraphs 55-65: the material has to be of significance in relation to a real issue, damaging to the prosecution case or helpful to the defence; the fact that material could not be obtained by the prosecutor from a third party did not show dishonourable conduct or abuse of power by the prosecutor as it was not under an absolute obligation to secure disclosure of the material; it would have to be shown that it had not acted in accordance within the permissible limits of the Attorney-General guidelines; there might be the possibility of an extreme case in which the refusal of co-operation by a third party would require proceedings to be stayed even if there had been no prosecutorial misconduct. The Court does not hold that any failure to comply with the Attorney-General Guidelines would of itself justify a stay. Rather, it would still have to be shown that the consequence of any failure was that the very strict test for a stay had been satisfied. In any event, the ability of the Respondents themselves to seek a summons would affect the extent to which any failure of the CPS to comply with the Attorney-General Guidelines could lead to a stay.

Neither DJ considered whether the prosecutor had failed to comply with any Attorney-General Guideline obligation to seek a witness summons, although the CPS raised the point that this was the correct question. Neither Respondent ever sought to argue such a point or to seek a summons themselves. This was the mechanism for obtaining material in the hands of a third party. Had such an application been made, it would have had the effect of permitting the interests of the third party in the confidentiality of the material to be raised as a reason for the refusal of the summons or as a “just excuse” and the true materiality of the documents in question to be more fully explained. It would have been quite wrong simply to say that commercial confidentiality was irrelevant to ordering disclosure of material in the hands of a third party. If the DJ accepted that, the DJ would then have had to take a view about whether or not a fair trial was possible. The basis for any decision on the fairness of trial would have been rather different from that upon which the two decisions at issues were reached.

The DJs were wrong in my judgment to find an abuse of process and to stay proceedings because a fair trial was impossible. They should each have considered the need for the prosecutor to use and the value in its using s97 MCA 1980.

Even if relevant material could not be obtained in that way, that would not have meant of itself that a fair trial could not be possible. The significance of the material withheld by the third party would have had to be set against a proper appreciation of the defence, other evidence as to the reliability of the device and the legal position about arguments over type approval. I do not accept Mr Bright’s submission that a reliability issue could not in reality be raised without access to the material which was not disclosed here, not least because the DJs do not explain clearly how the material actually sought could show unreliability of the degree necessary here to give rise to a defence, given that none of the material actually disclosed did.

DJ Tain also concluded that it would not be fair to try Wood. Mr McGuinness submitted that Wood’s case did not pass the very high threshold set in cases such as R vHorseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, R v Letif and Shahzed [1996]1WLR 104 and R (Ebrahim) v Feltham Magistrates Court [2001] 1 WLR 1293. The CPS on any view had tried albeit unsuccessfully to obtain from Intoximeters UK the material ordered. Mr Bright submitted that the DJ knew how these machines worked and was not irrational. In reality this is all part of the consequence of the DJ’s erroneous view that Intoximeters UK was part of the prosecutor. This criticism of the DJ proceeds on the basis that there was no deliberate breach of an order and that the CPS tried its best to comply with the order, whereas the DJ treated Intoximeters UK’s failure as that of the CPS. It is unnecessary to express a view about what the position would have been had the CPS failed in its disclosure duties but that would have been a very different basis from that upon which this argument proceeded before us. The fact is that there was no abuse of process because no proper order was breached.

In McGillicuddy, I would answer the 6 questions posed in the stated case as follows:

In Wood, I would answer the 4 questions posed in the stated case as follows:

I would therefore allow these appeals and remit the cases for hearing, before DJs other than DJs Tain, Bayne and Grant

Lord Justice Laws: I agree.