Sneyd v Director of Public Prosecutions [2006] EWHC 560 (Admin)

Case No CO/4397/2004[2006] EWHC 560 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 24 February 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE RICHARDS
MR JUSTICE DAVID CLARKE
Between
SNEYDApplicant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS CALDER appeared for APPLICANTMR HOWARD appeared for RESPONDENT
J U D G M E N T

LORD JUSTICE RICHARDS:

This

[1]is an appeal by way of case stated from a decision of the Mid-North Essex Justices, sitting at Witham Magistrates' Court on 9th June 2004 (though the case stated refers to 8th June) by which they convicted the appellant, Mr Sneyd, of an offence of driving a motor vehicle having consumed excess alcohol, contrary to section 5(1(a) of the Road Traffic Act 1988.[2]The reason for the delay between the date of that decision and the hearing before this court is that first there was a successful application by the appellant in December 2004 to remit the case stated to the justices for amendment; and, secondly, a hearing of the substantive appeal took place before Walker J on 26th April 2005, but before handing down the judgment he directed that the case be adjourned and relisted for hearing before a divisional court, though not before late October 2005. It is pursuant to his direction that the matter has now come for hearing before us.[3]The information preferred against the appellant was that on 2nd February 2004 he had driven a Jaguar motor car in Braintree after consuming so much alcohol that the proportion of it in his breath, namely 52 microgrammes in 100 millilitres of breath, exceeded the prescribed limit.[4]The facts as found by the justices are set out as follows in the case stated:
"(a) That at approximately 23.51 hours on 3rd February 2004, PC Rowland saw two vehicles, one of which was the appellant's Jaguar, leaving the car park of the public house known as the Hare and Hounds. He decided to stop both vehicles and did in fact do so in Broad Road. At this point PC Rowland asked the appellant whether he had been drinking. "(b) Following the appellant's answer PC Rowland carried out a roadside breath test. This proved positive and the appellant was arrested, cautioned and then conveyed to the police station. "(c) PC Fraser carried out the Intoximeter procedure at the police station in accordance with the form MGDDA. PC Rowland was also present throughout. PC Fraser asked the appellant set questions. His replies were noted on the form MGDDA by PC Rowland. The machine had been checked and no problems were present. PC Fraser explained the procedure for providing the specimens and the appellant duly provided two specimens of breath. The machine provided a computer print-out showing two readings, the lower of which was 52 microgrammes in 100 millilitres of breath. PC Fraser told the appellant he was therefore over the prescribed limit."
[5]There follows in the case a short statement of the evidence, which I shall also read since it is material to the arguments before us:
"PC Rowland gave evidence as follows: He stopped the appellant's vehicle on the night of 2nd February 2004 on Broad Road, Braintree, after he had seen him leaving the car park of the Hare and Hounds public house. He did so because he suspected the appellant, who was the driver of the vehicle, had been drinking and wanted confirmation. "
The appellant was asked whether he had been drinking. His response was that he had consumed 3 pints. "The officer explained that as a result he required a specimen for analysis and warned the appellant that failure to provide would make him liable for arrest. The appellant provided a roadside breath specimen, which showed as a failure. He was then arrested, cautioned and conveyed to the police station at Braintree. "The appellant asked the officer, 'What happens now?' and was advised that he would be required to produce two specimens of breath at the police station for evidential purposes. The appellant was booked in at the police station. PC Rowland was present throughout when the device was operated by PC Fraser. "In cross-examination PC Rowland stated that he decided to stop the appellant's vehicle as he suspected the appellant had been drinking and wanted confirmation. He confirmed that the appellant cooperated throughout the process. "The officer confirmed he could smell intoxicating liquor when he was at the rear of the vehicle on the way to the police station." "PC Fraser gave evidence as follows: The Intoximeter procedure, which measures the amount of alcohol in breath was carried out at the police station. He took the appellant through the procedure using form MGDDA asking each of the set questions. PC Rowland recorded the answers on the form. "The appellant's eyes were glazed and his speech was slurred. "He checked the Intoximeter machine to make sure it was working correctly. The machine indicates when it is ready and signals if there are any errors. He typed the appellant's details into the machine. The procedure was commenced and the machine automatically purged itself. This was followed by taking a sample from the air in the room to provide a standard to compare to the appellant's breath. "The appellant provided a specimen of breath, stopping as required when the machine signalled by 'bleeping', indicating a satisfactory specimen had been provided. "The machine purged itself again in preparation for a second sample of breath to be taken. It again indicated when it was ready. The appellant once again provided a satisfactory sample of breath. The machine provided a computer print-out showing two readings. The lower of these was 52 microgrammes. The appellant was told that he was over the prescribed limit. "When cross-examined, the officer confirmed that until he saw the print-out he was unable to tell the result of the breath test. He confirmed PC Rowland went from the MGDDA booklet whilst he was in the room operating the machine. He confirmed he was present throughout whilst the process of questions and answers were carried out. "The appellant did not give evidence."[6]There was no submission of no case to answer, but in her closing submissions Miss Calder, who appeared before the justices as she does before us, raised a number of legal issues on the appellant's behalf. First it was contended that there had been a breach of Code C of PACE through the failure to caution the appellant before inviting him to incriminate himself by asking him if he had been drinking and also through a failure to make a note of the questions and answers. The submission made was that this rendered evidence of what occurred at the police station inadmissible or that the court should exercise its discretion under section 78 of PACE to exclude such evidence.[7]The second argument was that since the print-out had not been produced there was no admissible evidence of the reading from the Intoximeter. Further it was submitted that there was no evidence at all that the machine had calibrated itself and was functioning correctly.[8]The justices rejected all three submissions for the reasons set out in the case stated. I need not read those reasons in full but I do need to touch on them since they include further reference to findings of fact. The justices found that prior to asking the defendant if he had been drinking, PC Rowland did not have a sufficient suspicion that an offence had been committed and there had been no breach of Code C. They found that PC Fraser had been able to give direct evidence of what he had seen on the print-out. He had carried out the procedure in accordance with the form MGDDA. This is a form that sets out all the relevant steps, including those relating to the reliability of the machine itself. They held that they were entitled to accept the officer's evidence. They found him a credible witness and accepted what he said. They said that his evidence that the machine had been checked and was found to be working correctly was sufficient for them to find as a fact that the machine was working correctly and was calibrated properly.[9]They rejected the contention that the absence of a print-out gave rise to disproportionate prejudice against the appellant and was in breach of Article 6 of the European Convention on Human Rights.[10]They took into account the fact that the officer's evidence had not been challenged and that the appellant's case had not been put at any stage during evidence. Finally they took account of:
"... the rights of the public to be protected from drink-drivers and the purpose of the legislation pertaining to this case."
[11]That is the background against which the justices have stated the following questions for determination by this court:
"(a) Were we right in law to hold that there had been no breach of Code C of the Police and Criminal Evidence Act 1984 Codes of Practice? "(b) Were we right to determine that there was admissible evidence on which we could conclude the proportion of alcohol in the appellant's breath is 52 microgrammes in 100 millilitres of breath and exceeded the prescribed limit? "(c) Did we err in law in rejecting the appellant's contention that they were not entitled to convict because there was no evidence of calibration of the Intoximeter machine? "(d) Were we entitled to take into account the purpose of the drink-drive legislation when considering the evidence and the conduct of the appellant's cross-examination of the witnesses during the trial?"
Question (a), breach of Code C.[12]Paragraph 10.1 of Code C provides that a person whom there are grounds to suspect of an offence must be cautioned before any questions about an offence are put to him, if either the suspect's answers or silence may be given as evidence to a court in a prosecution.[13]Paragraph 11.1A provides that an interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution. Paragraphs 11.7 and 11.15 provide that an accurate written record must be made of each interview, and unless it is impracticable the person interviewed must be given the opportunity to read that record and to sign it as correct or to indicate the respects in which he considers it inaccurate.[14]As I have indicated, the requirement to caution exists under paragraph 10.1 where there are "grounds to suspect of an offence". It should be noted that the test for administering a breath test is different. Section 6(1)of the Road Traffic Act 1998 as it applied at the material time provided:
"Where a constable in uniform has reasonable cause to suspect (a) that a person driving a motor vehicle on a road or other public place has alcohol in his body he may, subject to section 9 of this Act require him to produce a specimen of breath for a breath test."
[15]Miss Calder submits that PC Rowland, when he saw the appellant driving the car out of the public house car park at a late hour, formed a suspicion that the appellant might have been drinking and that looking at the matter objectively he had grounds to suspect that the appellant had had too much to drink and had committed an offence. He would not otherwise have stopped him. It would have been oppressive and unfair to do so. On the other hand, merely to be leaving a public house car park at that time could not itself provide reasonable cause for the purposes of section 6 of the Road Traffic Act 1988. It was to obtain reasonable cause and to elicit an answer whereby the appellant might incriminate himself that the officer asked the appellant whether he had been drinking. It was only the answer to that question that enabled the officer to proceed further.[16]So it is submitted that at the point when the question was asked, paragraph 10.1 of Code C applied. The appellant should have been cautioned and what followed constituted an interview within paragraph 11 so that a record should have been made and shown to the appellant. There was a failure to comply with those requirements. To elicit from the appellant, in breach of the Code, an answer which was an essential step in engaging the breath test procedure was unfair and should have led to the evidence of what followed being excluded, at least as a matter of discretion under section 78.[17]I would reject those submissions. PC Rowland said that when he stopped the appellant, he suspected that the appellant had been drinking; but to drink is not in itself a criminal offence and the officer did not say that he suspected that the appellant had committed or was committing an offence, nor in my view did he have grounds to suspect the appellant of an offence. The mere fact that the appellant was driving out of a public house car park at a late hour was not sufficient for that purpose. Accordingly, at the point when the officer asked the appellant if he had been drinking, paragraphs 10 and 11 of Code C were not engaged.[18]Nor indeed were they engaged by the appellant's response that he had drunk 3 pints. The significance of that response was that it gave the officer reasonable cause to suspect that the appellant had alcohol in his body, which was sufficient to entitle him under section 6(1) of the Road Traffic Act 1988 to require the appellant to provide a specimen of breath. It was only once the breath test showed a positive result that the officer had grounds to suspect the appellant of an offence, so as to require the caution to be administered under paragraph 10.1 of Code C before any further questioning. It was at that point that a caution was duly given.[19]For those reasons I agree with the conclusion reached by the justices on this issue. There was no breach of Code C. The exercise of a discretion to exclude under section 78 did not arise. I would answer question (a) in the affirmative. Questions (b) and (c).[20]It is convenient to take these questions together.[21]Miss Calder submits first that there was no admissible evidence upon which the justices could find that the proportion of alcohol in the appellant's breath exceeded the prescribed limit. It was not open to them to make a finding of fact that the print-out showed two readings, the lower of which was 52 microgrammes in 100 millilitres of breath.[22]She submits that there are two ways in which evidence of the results of a breath test can be given. First, by section 16(1) of the Road Traffic Offenders Act 1998, evidence of the proportion of alcohol in a specimen of breath may be given by a print-out, or, as the statute says, by a statement automatically produced by the device by which it was measured, together with a certificate signed by a constable that the statement relates to a specimen provided by the accused at the date and time shown in the statement.[23]The admissibility of the print-out is however subject to conditions laid down by section 16(3), whereby a document purporting to be such a statement or certificate is admissible in evidence on behalf of the prosecution in pursuance of section 16 only if it has been handed to the accused when the document was produced or has been served on him not later than 7 days before the hearing. It has been held that that precondition in section 16(3) or the predecessor provisions cannot be waived.[24]The second means by which admissible evidence can be given, submits Miss Calder, is by oral evidence of the police officer who was present at the time of the procedure and who saw the results on the screen of the device. She submits that it is only if he has seen the results on the screen and not if his knowledge of the results is limited to what he saw on the print-out that the officer can give admissible oral evidence.[25]What is said about this case is that the print-out itself was not produced in evidence and would not have been admissible under section 16 because the relevant conditions of section 16(3) had not been fulfilled or at least there was no evidence that they had been fulfilled. PC Fraser was not giving evidence of what he had seen on the screen, but only of what he had seen on the print-out which is provided by the device. His evidence on that was inadmissible. It was at best secondary evidence of the contents of the print-out and it cannot be right to admit secondary evidence of that nature in circumstances where the document itself is inadmissible for non-compliance with section 16(3).[26]Miss Calder places reliance on, amongst other authorities, the decision in Owen v Chesters [1985] RTR 191, in which Watkins LJ said as follows, referring to a predecessor of section 16(3):
"It was clearly the intention of the legislature, in enacting subsection (5), that the defendant should be provided in advance of the hearing with the information recorded on the automatically produced statement. This information includes not only the results of the measurement effected by the instrument of the two specimens of breath -- results of which the defendant might otherwise have only an imperfect recollection -- but also, and of even greater importance, the results of the self-calibrating exercise which the instrument carries out both before and after the two specimens of breath are provided. If the measurement produced by the instrument is to be relied on by the prosecution, it is clearly vital for the prosecution to establish that the instrument was properly calibrated. "
The case stated is silent as to whether, as a matter of fact, copies of the Intoximeter statement or print-out and supporting certificate were handed to or served upon the defendant as required by subsection (5). The prosecution, as we have said, simply elected not to rely upon the statement. By so doing, in our judgment, the prosecution failed to establish matters vital to the establishment of the defendant's guilt. We would not regard the evidence of the police sergeant as inadmissible under the hearsay rule: it was direct evidence of what he had seen recorded on the instrument. The ground upon which we would uphold the decision of the justices is that the oral evidence of the police sergeant did not, and could not, come up to the standard of proof required by the legislation."[27]It is submitted that the analysis in the present case was admissible only if the print-out was properly served, which it was not, and for the officer merely to state the result of the analysis in the witness box in order to get around the requirement of the service would make a nonsense of the statutory provisions.[28]Miss Calder makes similar points as regard the absence of evidence of calibration. She submits that the prosecution must establish that the machine was properly calibrated so as to show that the device was reliable. The print-out gives the calibration results and its importance in this respect was emphasised in Owen v Chesters, in the passage I have just quoted.[29]In Denneny v Harding [1986] RTR 350 it was said that although a police officer was able to give evidence about what he saw on the machine's display panel, the evidence of the officer in the case went no further than the evidence of the readings of alcohol in the appellant's breath. In order to prove that the machine was producing reliable evidence:
"... it had to be accompanied by evidence of the calibration of the machine, both before and after the specimen of breath had been provided by the defendant and of the date and time when the test was taken. The witness also had to be in a position to inform the justices that the figures for calibration which he saw, if he did, on the display panel were within permissible limits and that therefore the device was functioning properly. "
A police officer is not in a position to give this evidence unless he is one who has been trained upon the use of this device and its manner of performance. Put another way, he has to be one who understands the calibration process and recognises that unless the result of the process lies with accepted limits the machine is not calibrating as it should and is therefore unreliable.[30]InMayon v Director of Public Prosecutions[1988] RTR 281, it was held that in the absence of evidence of calibration either before or after the second specimen was produced, there had been a failure to prove the precondition that the machine was working satisfactorily.[31]Miss Calder submits that in the present case there was no evidence of calibration at all, nor was there evidence that PC Fraser was a trained operator capable of explaining the calibration process. The only evidence he gave concerning the correct working of the machine related to the period before the specimens were taken. He did not check anything after they had been taken. His reference to the print-out readings was to the readings of the specimens of breath and he had made no mention of calibration readings.[32]For my part I am wholly unpersuaded by Miss Calder's submissions, which seem to me to be contrary to a long run of authority. First, it is well established that evidence both as to the results of the analysis and as to the reliability of the machine can be given either in the form of a written print-out or orally by the officer who carried out the procedure. Even Owen v Chesters and Denneny v Harding, upon which Miss Calder relies, support that proposition, but it is clearer still from later cases that consider and explain the earlier authorities.[33]It suffices to refer to two cases from early 1993, Thom v Director of Public Prosecutions[1994] RTR 11 and Greenway v Director of Public Prosecutions[1994] RTR 17. In Thom, no print-out was produced but there was oral evidence from the officers who carried out the procedure that the machine was calibrated properly and working properly and what the readings were. That evidence, and it is not clear from the context whether it was evidence of what was on the screen or what was on the print-out, was held to be admissible and sufficient both as a matter of principle and by reference to the previous authorities. The reason for the decision in Owen v Chesters was stated to be not that oral evidence was inadmissible but that on the facts of that case the prosecution failed to adduce evidence that the machine was calibrated and working properly.[34]In Greenway the court was faced with, and emphatically rejected, submissions that have a surprisingly close resemblance to those advanced by Miss Calder in the present case. It was argued that the print-out had not been put in evidence and the oral evidence of the officers, which in the context appears to have been oral evidence of the readings on the print-out, was not sufficient.[35]Paragraph 3 of the case stated recorded that the officer had given evidence that at the time of the test all of the readings showed that the machine was working properly. That evidence was not challenged by the defence and Buckley J stated at page 21C:
"For my part I would accept that as clearly sufficient evidence, albeit perhaps in shorthand, that he had considered the calibration readings amongst others, and was telling the court that the machine was reliable and was working properly and he went on to give the actual reading of 51 microgrammes. The time for the defence to challenge that aspect of the case, that is, the reliability of the machine, if they had any basis at all for doing so, was then. They did not do so and that evidence went unchallenged."
[36]He then considered earlier authorities before continuing at page 21L to 22E:
"It seems that the position is clear. Section 16 of the Road Traffic Offenders Act 1988 enables, and it is a permissive section, the prosecution to rely on the documents produced by the machine provided they do so in the prescribed fashion. But it is clear that the prosecution may also rely on the direct evidence of the officer who administered the breath test at the police station to give the reading based on his observation of the figures on the machine. If he is going to do that, he must give evidence that the machine was working properly and appeared to be reliable at the time. That is a matter of basic common sense which the courts have underlined. "
The question for us is whether there was sufficient evidence in this case that that occurred. In my judgment there clearly is. That is to be found in the finding at paragraph 3 of the case ..."[37]Staughton LJ expressed agreement and added at 22E:
"We have been referred to three cases where this court has said that, if a police officer gives oral evidence of the result of a Lion Intoximeter test but does not identify the print-out and produce it to the court, he must give evidence of the calibration of the machine both before and after the test was taken. Those cases are Owen v Chesters, Morgan v Lee and Denneny v Harding. In my judgment it does not follow that the officer must in terms give evidence of what the actual calibration results were. Here the officer's evidence-in-chief is summarised in paragraph 3 of the case as follows: 'He stated that at the time of the test all of the readings showed the machine was working properly.' That is no doubt a summary. We do not know the actual words used by the officer giving evidence, but we must accept it as an accurate and comprehensive summary. If the defence wanted to test that evidence, they should have explored the point in cross-examination. It would seem that, if the defence had done so, the sergeant could have given some answers. He had the print-out with him, but no questions were asked. In my judgment on the sergeant's evidence here there was a case to answer and the justices were entitled to find the offence proved. "
It was argued by Mr Sapsard in reply that the sergeant's evidence was defective in another respect in that it did not disclose his experience of using the Lion Intoximeter and his knowledge of its operation. There is, however, nothing whatever in the case to show that this point was taken in the Magistrates' Court. It does not feature in the question which the justices stated for the opinion of the court. We have no idea whether the sergeant gave any evidence on that topic or, if he did, what his evidence amounted to. It is too late to take that point now."[38]It seems to me that in the present case, oral evidence was given by the officer who carried out the procedure, evidence which was supported by the other officer who was present throughout. There was no challenge to that evidence in cross-examination. No objection was taken to its admissibility at the time and no challenge, indeed, to its correctness. Miss Calder has indicated that she was waiting to object to the production of the print-out but the print-out was never produced so no question of objecting to it ever arose. But the oral evidence that was given covered in clear terms the results produced by the machine, amply supporting the justice's finding that the print-out showed two readings, the lower of which was 52 microgrammes in 100 millilitres of breath. In that connection I see no problem of oral evidence of the results shown on the print-out and no difference in principle between that and oral evidence of the results on the screen of the machine. These are just two different ways by which the machine displays its results. The same thing appears on both. In neither case, in my judgment, is oral evidence inadmissible hearsay.[39]The evidence before the justices also covered in sufficiently clear terms the reliability of the machine, amply supporting the justices' finding that the machine was working correctly and was calibrated properly. As in Greenway, it was unnecessary for the officer to deal expressly with the calibration figures. If the machine was working correctly it follows that it was calibrated properly. It was for the defence to raise an issue concerning the calibrations by way of cross-examination of the officer if they had anything to raise.[40]What makes Miss Calder's submission all the more surprising on the face of it is that, as appears from the case stated, she had raised on a pre-trial review an intention to challenge the reliability of the Intoximeter machine but had decided not to pursue it and as a consequence neither party had called expert evidence at trial on the issue. I would not place weight on that point, however, in the light of the explanation she has subsequently given the court.[41]In all the circumstances, and particularly in the absence of any challenge to the officer's evidence, the justices were in my view entitled to conclude that the machine was working correctly and had been calibrated properly.[42]No issue as to the qualifications of PC Fraser was raised before the justices, nor is the point raised in the case stated. As in Greenway, it is too late to raise the point now. But I would add in any event that, in the absence of any suggestion that PC Fraser lacked the requisite expertise in relation to the use and understanding of the machine and having heard him give evidence of the procedures followed, the justices were in my view entitled to decide for themselves what weight to place on his evidence and whether to accept it as establishing the reliability of the machine.[43]Since the print-out was not admitted in evidence, and did not need to be admitted in evidence, nothing turns on the fact that the precondition in section 16(3) to its admissibility was not satisfied.[44]In conclusion, I am satisfied that the there is no merit in the arguments advanced by Miss Calder in relation to the justices' findings concerning the breath test procedure. Fortunately the justices were not misled by such arguments but dealt with the case sensibly and robustly, making findings properly open to them on the unchallenged evidence they had heard.[45]I would therefore answer question (b) in the affirmative: the justices were right to determine that there was admissible evidence on which to conclude that the limit had been exceeded. I would answer question (c) in the negative: they did not err in law in rejecting the appellant's contentions concerning calibration of the machine. Question (d).[46]I can deal with this very briefly since in my view nothing turns on the justices' observations about the rights of the public to be protected from drink-drivers and the purpose of the legislation. I accept, of course, Miss Calder's submission that it is for the prosecution to prove its case. I have indicated why, in my judgment, the justices were entitled to find the case proved on the evidence here. It is right that the matters to which the justices referred could not assist them on the question of admissibility of the evidence in question, but their decision on admissibility was correct for the reasons I have given and it was in no way tainted by reference to the additional considerations to which they referred.[47]In the circumstances I think it unnecessary to answer question (d).[48]In conclusion, for the reasons I have given, I would emphatically dismiss this appeal.

MR JUSTICE DAVID CLARKE: I agree.

LORD JUSTICE RICHARDS: The disqualification stood and was not suspended; is that right? So it has probably been served by now.

[51]MISS CALDER: It was served before the first hearing even. Could I mention one thing for the sake of having the matters correct?

LORD JUSTICE RICHARDS: Yes.

[53]MISS CALDER: I know that Mr Howard mentioned that there was supposed to be a challenge to the machine. I think that that was something that was misleading and a red herring. That is why I wanted to put the matter straight. Of course, these justices were not involved in that in any way and knew nothing about it, but they have pre-trial reviews in these cases and originally at the pre-trial review when one is asked about issues, an issue that was put before the justices, but really the court clerk who was dealing with it, was that as the case of Brown was mentioned in my skeleton argument, and I think Mr Howard said that was dealing with a different matter, it was mentioned in the closing argument in terms that the judge found that the machine calibrated itself before and after the breath specimens had been analysed. That was a case where there was a challenge to the -- whether the machine was still an approved device because there had been alterations, modifications to the machine and also to its general reliability. That was a matter which initially the solicitors who instruct me were anxious to put in this case.[54]However, the clerk who sat was so -- what can I say -- scathing about it: "Oh, they all lose in this area" which was not correct because I knew one that had not lost, it was considered that one had a defence in any event that was quite capable of being followed, without pursuing this long-winded defence which would have entailed a lot of expert evidence.

LORD JUSTICE RICHARDS: So you are saying this was a different aspect of reliability?

[56]MISS CALDER: Yes, completely different. Also, it was abandoned long before. It was only put to the court that this was going to be -- when they ask for the issues, this was an issue we decided quite early on and we never got anywhere because we then said we did not wish to pursue that line of defence and so therefore Mr Howard probably relied on it, saying: we are now considering there is no challenge to anything, the machine was working correctly or not working correctly is totally irrelevant and is misleading. The fact that your Lordship referred to it I wondered whether it might not be more appropriate to review that because it is not relevant to this at all.

LORD JUSTICE RICHARDS: Well, you have made your point and it will be on the transcript.

[58]MISS CALDER: Thank you.

LORD JUSTICE RICHARDS: Is there any application?

[60]MR HOWARD: My Lords, I am not instructed on that matter.

LORD JUSTICE RICHARDS: Thank you very much.

Cited in 1 later judgment