Richardson v Director of Public Prosecutions [2003] EWHC 359 (Admin)

Case No C0/5724/2002

[2003] EWHC 359 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 20th February 2003

Strand

London WC2

B E F O R E:

MR JUSTICE STANLEY BURNTON

ANDREW WAYNE RICHARDSON

(CLAIMANT)

-v-

THE DIRECTOR OF PUBLIC PROSECUTIONS

(DEFENDANT)

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Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

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MR N LEY (instructed by Byrne Frodsham & Co, 1-3 Deacon Road, Widnes, Cheshire, WA8 6EB) appeared on behalf of the CLAIMANT

MS A POWER (instructed by The Crown Prosecution Service, Kings House, Kymberley Road, Harrow, Middlesex, HA1 1YH) appeared on behalf of the DEFENDANT

J U D G M E N T

Between

RichardsonClaimant

Director of Public ProsecutionsDefendant

[1]MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated by Andrew Wayne Richardson who, on 22nd August 2002, was convicted by the justices for the Middlesex area of Greater London at Harrow Gore, sitting in Rosslyn Crescent, Harrow, of driving, having consumed 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 and schedule 2 to the Road Traffic Offenders Act 1988. Having been convicted on that date, 4th October 2002, he was sentenced to a community punishment order for 220 hours, ordered to pay £264 costs, and he was disqualified from driving for a period of four years, and his licence was endorsed.

[2]The certificate of analysis in this case shows that the level of alcohol was 93 microgrammes per 100 millimetres of breath, virtually three times over the limit prescribed in relation to a breath test. He had been driving on 11th January 2002 in Pinner, which was the occasion when the offence was alleged to have been committed, a blue Porsche Boxster motorcar. Having been stopped and arrested and taken to the police station, a breath sample was taken on what appears to have been an Intoximeter, which was treated by the police officers in question as an approved device. It recorded that very high level of alcohol in his breath, the 93 microgrammes being, in fact, the lower of the two analyses he gave. He asked to be able to give a blood sample. That request was refused by the police officers.

[3]When the matter came before the magistrates on 22nd August, an adjournment was requested on behalf of the appellant, who sought disclosure by the prosecution of the service history of the Intoximeter device in question. The magistrates refused the adjournment. The appellant gave no evidence, he called no evidence, and, not surprisingly, he was convicted in those circumstances. He now appeals against that conviction by way of case stated.

[4]The object of a case stated is to set out for the information of the court hearing the appeal the relevant evidence before the magistrates, the facts found by the magistrates, the relevant questions they determined, their answers to those questions, their reasons for giving those answers, and the questions which the court is asked to consider and answer in the light of the other information contained in the case stated.

[5]So far as the second issue Mr Ley has argued before me today is concerned, the case stated requires no comment; the issue is plainly raised. That is not the position in relation to the first issue, which relates to the evidence which might have been provided relating to the Intoximeter which gave the reading of 93 microgrammes per millilitre in the breath. In the course of these and other proceedings, persons accused of committing an offence of driving with excess alcohol have sought to raise a number of defences relating to Intoximeters, many of which are technical, many of which might be regarded as unmeritorious, but if good in law, they have merit in law.

[6]One issue that in the past has sought to be raised is that the Intoximeter should not have been approved by the Secretary of State. The Secretary of State has powers conferred on him by section 7(1)(a) of the 1988 Act to approve types of device for the use of police forces in England and Wales for the purposes of determining whether or not a person has committed an offence under section 5(1)(a) of that Act. In the past it has been sought to raise the issue whether a device is sufficiently reliable or otherwise appropriate to be so approved as a defence to criminal proceedings in either the Magistrates' Court or the Crown Court. It is quite clear from the Act itself, and now on authority, that the question of the approval of a type of device pursuant to section 7(1)(a) is a matter for the Secretary of State. Approval can, of course, be challenged by way of judicial review, but if not so challenged, it is effective. The device so approved is assumed to be an effective and sufficiently accurate device for the purposes of section 5(1)(a), and that is the end of the matter. The issue whether approval is apt or inapt is not for a criminal court. The question of whether the Home Secretary was right or wrong is not for a criminal court.

[7]Another issue which may be raised, and has been raised in the past, is as to whether a particular device is, for one reason or another, defective, and was so at the time that it provided a reading of the proportion of alcohol in the breath of the accused in question. That is a dispute which may be investigated by evidence of, for example, a blood sample taken at the same time, a urine sample taken at the same time, and possibly other evidence, such as oral evidence disputing that alcohol had been consumed in such quantities as could possibly have given the reading provided by the Intoximeter.

[8]The third issue which may be raised is whether the device used, which purported to be an approved device, was in fact approved. It may not be an approved device, in fact, because it has never complied with the description of the device contained in the approval order. It may be so because such alterations have been made to the device during the course of time as to take it out of the description in the schedule to the order. The schedule to the order in the present case, which is the Breath Analysis Device (No. 2) Approval 1998, describes the device as follows:

"The device known as the Intoximeter EC/IR, manufactured by Intoximeters Inc, of St Louis Missouri, composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR-UK5.23."

[9]On the face of it, therefore, it would seem that a device which did not include the Intoximeter EC/IR Gas Delivery System, by way of example, or the software version of which was not UK5.23, but some significantly different version, would not be an approved device. It does not follow from that that every modification to an Intoximeter takes it out of the approval. Far from it. The alteration must be such, in my judgment, that the description in the schedule to the order no longer applies to it.

[10]In the present case it would seem that all three of those arguments were intended to be raised on behalf of the appellant. That all three arguments were to be raised, however, was far from made clear to the prosecution, certainly until a late stage in the proceedings. The defence were armed, as a result of another case, with an expert's report on this particular Intoximeter, which had been examined some months before its use in relation to the appellant. That report took issue with the question of the approval of the device, but did not raise either of the other issues, other than the issue as to whether the device would produce a reliable reading in the event that the person breathing into it had taken mouth alcohol at, or momentarily before, providing the breath sample. Manifestly, that matter would only be relevant if there were evidence that the accused had so taken mouth alcohol. That has never been suggested in the present case.

[11]The position when the matter came before the magistrates was this:(1) there was no evidence before them that in fact there had been any such alteration as had taken the Intoximeter in question outside the description in the schedule; and

(2) it would appear to be the case -- and I put the matter so advisedly -- that the defence wished to investigate whether there had in fact been such alterations to the Intoximeter as would take it outside the description, although they did not, and could not, put before the magistrates, when the questions of adjournment arose, what modifications had taken place, and more obviously, since they could not do so, that any of those alterations were apt to take the Intoximeter outside the description in the schedule to the approval order.

[12]There was clearly argument as to whether the magistrates could, and should, investigate whether the device should have been approved by the Home Secretary, and whether it continued to merit its continued approval. That would seem to be the major issue as perceived by the prosecution. The magistrates refer to the preliminary point taken before them in paragraph 2 of the case stated as follows:

"A preliminary point was taken on behalf of the Appellant that the proceedings should be further adjourned as the prosecution had failed to provide full disclosure the service history of the Intoximeter device. It was contended on his behalf that modifications to the Intoximeter device had been such that it was no longer in the same condition as it had been when the Secretary of State's approval was given, and the Appellant's defence would be handicapped if fuller information were not available. We refused this application for reasons which are given in paragraph 7 (below)."

[13]It can be seen that that paragraph does not focus with any precision on the issues to which I have just referred. If the only contention on behalf of the accused, as he then was, was that the modifications to the Intoximeter device had been such that it was no longer in the same condition as it had been when the Secretary of State's approval was given, that could not amount to a defence. They had to be able to go further and show that the modifications were such that it was no longer an approved device. It is not clear from the case stated that the matter was put in that way to the magistrates. Moreover, notwithstanding the correspondence, this was an issue which had been raised late, and the magistrates would have been perfectly entitled to refuse the adjournment on the ground of its lateness, and the fact that there was no evidential basis put before them as to there being documents going to the issue as I have described it, that is to say whether there had been such modifications as took the Intoximeter out of the description in the schedule to the approval order. In those circumstances, the magistrates would have been perfectly entitled to reject the application for an adjournment in the exercise of their discretion, having regard to(a) the fact that it was to a significant extent on the material before them a fishing expedition, that is to say an attempt to elicit information from the prosecution when there was no real basis for considering that it existed, and

(b) because of the lateness of the raising of the issue, having regard to the fact that the offence had been committed on 11th January 2002.

[14]The first appearance of the appellant before the Harrow Magistrates' Court had been as long ago as 21st January 2002. He had requested an adjournment on that occasion and appeared again on 4th February 2002. The matter had then been fixed for trial on 22nd August, with a pre-trial review on 22nd March 2002. At that pre-trial review, the issue as to the cessation of the application of the schedule to the instrument had not been clearly raised. No application had been made to the Magistrates' Court before the trial date for the disclosure of relevant documents. There had, therefore, been no interlocutory hearing when the matter could properly be argued without an adjournment of the trial date. For all those reasons, it seems to me that they might quite reasonably have refused an adjournment. Having regard to the factual merits of the case, I have to say that in their position, it is likely that I myself would have refused such an adjournment.

[15]Having referred to the arguments, authorities and the facts, in paragraph 7, which was the paragraph referred to in paragraph 2 of the case stated, the magistrates said this:

"We were of the opinion that (a) We should refuse the request for an adjournment as the issue of approval of a device was a matter solely for the Secretary of State, and no useful purpose would be served by the disclosure of information calculated to suggest that the device should not continue to enjoy that approval."

That opinion of theirs in relation to the matters to which it referred was undoubtedly as a matter of law correct.

[16]As I said in the earlier part of this judgment, approval of devices as a matter of law are solely for the Secretary of State. Provided a device continues to be a device as described in the approval order, it is a matter for him to decide to vary or revoke the approval, and the effect of those changes, subject to the qualification referred to, is entirely a matter for him, and can be investigated only in proceedings for judicial review.

[17]In relation to the breath test, the question for the opinion of the High Court set out in the case stated is as follows:

"(a) Were we correct in ruling that the approval of the Intoximeter device could not be challenged in this court, and that the request for an adjournment should therefore be refused?"

[18]As I have already indicated, the indisputable answer to the first part of that question is "yes". The second part of the question is linked to the first part. It is that the request for an adjournment should, therefore, be refused, and be refused by reason of the fact that approval cannot be challenged in the Magistrates' Court. And so linked, the answer to that question is indubitably "yes".

[19]What that question does not address, just as paragraph 7 does not address, is the desirability or otherwise of adjourning with a view to investigating whether the device in question, when used in relation to the appellant, complied with the description set out in the schedule. I am clear that that issue is one which could only be addressed by this court if this case stated were remitted to the magistrates with a direction that they review the case stated, and a further question, or questions, for the opinion of the High Court. The position would then be as follows. It is now several months since the magistrates heard this matter. They would have to reconstitute their recollection of the arguments before them and of the issues as put to them. Responsibility for ensuring that the case stated, as it comes before the High Court, is sufficient to address the issues an appellant wishes to argue is the responsibility of the parties to the appeal, that is to say the appellant and, normally, the prosecution.

[20]The result of the case stated being inapt to focus on the question that Mr Ley now seeks to obtain a ruling on, namely whether this device had been modified so as no longer to comply with the description in the schedule to the approval order, is an issue which the appellant and those representing him should have ensured was fairly and squarely raised by this case stated. It is not.

[21]I understand, and I have sympathy with, the position of Mr Ley in that legal aid has only recently been granted. Nonetheless, the fact remains that this case was heard by the magistrates last August, and the inadequacies of the case stated were only accepted on behalf of the appellant once argument in this case had commenced. Its inadequacies were such that counsel for the Crown Prosecution Service, the respondents to this appeal, did not appreciate, as I understand it, what point was being raised under this head, so that the skeleton arguments on either side were to some extent like ships that pass in the night and never meet. The position therefore is as follows:(1) the High Court is able to, and indeed I already have in the course of this judgment, answer the question raised in paragraph 9(a) of the case stated; and

(2) the reading by the Intoximeter in this case was a factor above the legal limit, virtually three times. I have to say that in those circumstances the prospects of any particular inaccuracy in the machine being relevant are remote. The defence that is sought to be raised, therefore, is one which is highly technical. There was no evidence before the magistrates, and there is no evidence now, that this machine did not comply at the relevant time with the schedule to the approval order.

[22]The application for the redrafting of the case stated was made at a very late stage, and some considerable time after the matter had been considered by the magistrates. In those circumstances, I do not consider it right, or that justice requires, that this matter be remitted to the magistrates for the reformulation of the case stated on this issue.

[23]The second issue which has been raised relates to the denial of the taking of a blood specimen. Section 8 of the 1988 Road Traffic Act is as follows:

"(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded. (2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used."

Section 7(4) provides:

"If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine."

[24]In the present case the police officer refused permission for the provision of a blood sample because the specimen of breath with the lower proportion of alcohol contained very considerably more than 50 microgrammes of alcohol in 100 millilitres of breath. He was, therefore, under no obligation to replace that specimen by a specimen under section 7(4) of the Act, that is to say a specimen of blood or urine.

[25]For present purposes it may be assumed that he had a discretion to permit the appellant to provide blood. For the moment, I see no reason why an appellant should not offer himself to pay a doctor to come to the police station so that an appropriate sample of his blood or of urine may be taken. Clearly there, however, there was no breach of the provisions of the Road Traffic Act 1988 in this case. The officer did not fail to comply with any duty imposed on him by that Act.

[26]What is said, however, is that the refusal by the officer to permit blood to be taken was an infringement of the appellant's rights under

Article 6 of the European Convention on Human Rights

. Article 6(3) provides:

"Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence."

[27]What is said is that there were not adequate facilities for the preparation of the defence in this case because it was, in practice, impossible for the appellant to provide a sample of blood in circumstances where that sample could scientifically and reliably be taken as a sample of his blood at the relevant time, so that a reliable indication of the proportion of alcohol in it could be taken and used to demonstrate the inaccuracy of the breath sample.

[28]In the course of his submissions, Mr Ley referred me to a number of decisions in other jurisdictions in which it has been held that a refusal to permit a driver to give a sample of urine or blood is such an interference with his rights to a fair trial as to lead to his acquittal. For present purposes, the most important of those cases is R v Donaldson, a decision of the New Zealand Court of Appeal reported at

1995 3 NZLR 641

. In that case the appellant was a driver found asleep in the driver's seat of a motorcar with its lights on at a stop sign. She was asked to get out of the car. She appeared to the police to be under the influence of some substance, and she was arrested for driving under the influence. She was taken to a police station and told she would undergo an examination by a doctor. She then asked for a sample of her blood to be taken, and was told that one would not be taken. She consented to the doctor examining her, who formed the opinion that she was clinically under the influence drugs and alcohol and unfit to drive a motor vehicle safely. She was convicted, and appealed to the High Court.

[29]The New Zealand Bill of Rights Act 1990 contains a provision to all material purposes identical to the relevant part of

Article 6 of the European Convention on Human Rights

. The court held that the appellant's rights under the Bill of Rights Act had been infringed. In the course of the judgment the court said this:

"It is likely that there will in practice be a fine line between: (a) Requiring the police not to obstruct the preparation of a defence, which must be implied in the right recognised in section 24(d) [which is the relevant provision of the Bill Of Rights Act]; and (b) Imposing on the police a new and affirmative duty to assist in the collection of evidence useful for the defence. "

Omissions to obtain or preserve evidence likely to be material to the defence will fall on one or other side of the line according to a wide variety of factors. Clearly bad faith on the part of the police would point towards obstruction. In other cases the degree and foreseeability of materiality of the lost evidence, and the existence and extent of any practical difficulties in obtaining or preserving that evidence, will often be relevant. "It is unnecessary in this case to consider whether section 24(d) should be seen as imposing an affirmative duty on the police. There is much more to be said for the view that a more limited interpretation is likely to render the right ineffective in cases such as the present. For what real opportunity does a driver have to obtain his or her own blood test in the evening or night hours. For present purposes it is enough to hold that in the particular circumstances of the this case, although there is no suggestion of bad faith on the constable's part in refusing to arrange the taking of blood, her refusal to do so tipped the case at least into the category of obstruction of the right to prepare a defence and should be recognised as a breach of section 24(d). The case requires no further analysis then this, and we deliberately refrain from any. "Having reached that conclusion, we are satisfied that the proper remedy to affirm the right is to exclude the medical evidence. The result would be that the conviction could not stand."

[30]One of the questions asked on the appeal was this: if the enforcement officer does not comply with the obligations found by the court to exist, does this deprive the person making the request that a blood sample be taken of the right to adequate assistance to prepare a defence, and the right to present a defence at trial? The answer given by the court to that question was this:

"Failure may or may not amount to a breach of the right given by section 24(d).

(d) "

[31]It is to be noted that in that case there had not been a breath test, or any quantitative assessment of the alcohol or drug intake of the appellant. That case also differed from the present case in that a doctor was present when the refusal to take a blood sample was made. Effectively, the refusal was part of the examination of the appellant by the doctor on which the prosecution and her conviction were based. The Court of Appeal referred to the breach of section 24(d) in the New Zealand Act as having occurred "in the particular circumstances of this case". Quite what they meant by "the particular circumstances" is not made clear in the judgment, but I apprehend that the matters to which I have referred constituted some of them.

[32]The present case is very different:(a) the refusal was not made in the presence of a doctor; a doctor would have to be called to the police station;

(b) there had been a quantitative measurement of the extent to which the appellant had consumed excess alcohol; and

(c) that had been done in circumstances, and on the basis found by the magistrates, by the device which had been approved by the Home Secretary. The purpose of section 8(2) of the Road Traffic Act 1988 manifestly is to provide an accused person with the safeguard of a blood or urine sample in circumstances where it is considered that the proportion of alcohol in the breath is low enough to permit of a reasonable possibility of error. It is to be inferred, in my judgment, from section 8(2) that Parliament considered that where an approved device recorded a proportion of alcohol of more than 50 microgrammes of alcohol in 100 millilitres of breath, there was no reasonable requirement for some other form of sample.

[33]For present purposes the important words of Article 6 are that the accused person is to have "adequate facilities" for the preparation of his defence. Assuming, without deciding, that those facilities could include the creation of evidence such as a blood sample in circumstances such as the present, Article 6 does not require that to be done in every case. The facilities for the preparation of the defence need not be perfect. They must be adequate. The purpose of the test of adequacy is to ensure that there is no real risk of injustice if facilities other than those which are adequate are not provided. Parliament has in section 8(2), in my judgment, expressed the legislative opinion that where the proportion of alcohol in the breath is no more than 50 microgrammes of alcohol in 100 millilitres of breath, adequate facilities do require a second sample of blood or urine, but not where the sample of breath is greater. A sample of blood or urine is certainly not necessary where the sample is so greatly in excess of the 50 microgrammes of alcohol in 100 millilitres of breath stipulated in section 8(2), as in the present case.

[34]The provisions of Article 6 are, of course, mandatory, but in an area such as the question, it is well established that the European Court accepts that national legislatures, and indeed national courts, have a measure of discretion as to what is to be considered adequate, what is necessary, and what goes beyond the adequate and is unnecessary. That margin of appreciation applies to the provisions of section 8(2) of the Road Traffic Act 1988. There is no reason to believe on the material before me that the quantification and identification of the circumstances in which a second sample is required, stipulated by Parliament, are such as to lead to a risk of unfair trials. There is nothing in the present case, on the basis on which I am now considering this second issue, to indicate that there was any risk of a denial of the right to a fair trial in the circumstances where the 50 microgrammes of alcohol limit had not simply been exceeded, but exceeded by a very substantial margin.

[35]In those circumstances, in my judgment, the refusal of a blood specimen option to the appellant did not amount to a denial of a right to a fair trial. In those circumstances, I answer the questions posed in the case stated as follows: (9)(a) "yes", and (9)(b) "yes". The consequences of that is that this appeal will be dismissed.

[36]MS POWER: My Lord, I would make the following application by the Crown, given the fact that the appellant is publicly funded.

[37]MR LEY: I mention, why I should do work pro bono, please do not misunderstand me. The problem is not that the bar are unwilling to do pro bono work, it is that the client does not have the protection of a legal aid certificate, then the other side stand up and want costs. So one is often reluctant -- on is quite prepared, but the problem is that the client -- I am not referring to this case in any way at all -- the client would say, "Hang on, do not get us involved in any application which could go wrong and get costs until we have the protection of a legal aid certificate". I just mention that, my Lord.

[38]MR JUSTICE STANLEY BURNTON: I was not being critical of you personally, but this was, as you have seen, a very unsatisfactory way for a case to be considered. Cases stated are meant to be considered on the case stated, and not with all sorts of other documents, as had to be done in this case.

[39]Thank you both for your interesting arguments.

[40]MS POWER: Perhaps I should mention something. I believe the disqualification was suspended pending this appeal. I do not think your Lordship has to make any order that that starts again.

[41]MR JUSTICE STANLEY BURNTON: I do not think so. The consequences are automatic.

[42]MS POWER: I am grateful.

[43]MR LEY: My Lord, I will not today ask for your Lordship to grant a certificate, but if I was to draft -- I am not talking about the first point, purely on the second point -- would your Lordship be willing to consider, if a written application was made for a certificate in relation to second point, my Lord, namely the Article 6(3)(b) point, my Lord.

[44]MR JUSTICE STANLEY BURNTON: I will consider the certificate. If you formulate a question, I will consider the certificate, and at the moment it seems to me one that I would be prepared to certify, but I will refuse leave.

[45]MR LEY: With one exception, this court always refuses leave.

MR JUSTICE STANLEY BURNTON: I am not sure I have power to grant leave.

[47]MR LEY: You do have, my Lord, but the House of Lords normally says that the certificate is for you --

MR JUSTICE STANLEY BURNTON: And the appeal is for us.

[49]MR LEY: I am much obliged to your Lordship.

[50]MR JUSTICE STANLEY BURNTON: Just before I decide that, let me ask whether Ms Power has anything to say about that.

[51]MS POWER: My Lord, no.

MR JUSTICE STANLEY BURNTON: I would like to see the question formulated.

[53]MR LEY: If you decide to certify -- and this is if you decide to certify -- would you suspend his disqualification pending the hearing in the House of Lords, my Lord?

MR JUSTICE STANLEY BURNTON: No.

[55]MR LEY: As your Lordship pleases.

[56]MR JUSTICE STANLEY BURNTON: If you do formulate a question, please submit it to Ms Power and let me know whether it is agreed, and I will decide whether to certify it. I would like to think that a further hearing could be avoided.