McNeil v Director of Public Prosecutions [2008] EWHC 1254 (Admin)

Case No CO/9946/2007[2008] EWHC 1254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 28 April 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
MR JUSTICE UNDERHILL
Between
MCNEILClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Nigel Ley (instructed by Byrne Frodsham) appeared for ClaimantMr Andrew Clarke (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE UNDERHILL: This is an appeal by way of case stated against the appellant's conviction by the Halton Justices for the offence of driving with excess alcohol in his blood, contrary to Section 5 (1) (a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.[2]The facts can be summarised as follows.[3]The appellant was stopped when driving in a street in Runcorn in the small hours of 3 November 2006. A preliminary breath test proved positive. He was accordingly arrested and taken to a police station.[4]At the police station an officer, PC Edwards, went through the standard procedure prescribed in the form MG DD/A (Version 4.3) with a view to administering an Intoximeter breath test. As part of that procedure PC Edwards asked the series of questions prescribed at step A13 in the form, which included whether the appellant had in the last 20 minutes "brought anything up from your stomach": he answered "No". PC Edwards then went through the procedures to ascertain the reliability of the operation of the machine (step A16). The appellant then gave two specimens of breath into the Intoximeter. They showed readings of between 58 and 59 micrograms per 100 millilitres.[5]The next step prescribed by the procedure in the form is step A17, which requires the officer to ask:
"Q Before you used the instrument, I asked you whether you had brought anything up from your stomach. Have you brought anything up from your stomach since I asked you that question?"
The reason for that step is indicated in a note to step 18, which reads so far as relevant as follows:
"(ii) ..... ..... (d) ..... where an Intoximeter EC/IR user is suspected of bringing something up from the stomach during or immediately prior to the use of the EC/IR then whilst the device may be operating reliably a reliable indication of the proportion of alcohol in a person's breath may not have been obtained, and it will be usual to proceed to a requirement for blood or urine under Section 7 (3) (bb) RTAct 1988."
The appellant was duly asked that question and gave an answer which was understood as "Yes." (What PC Edwards recorded on the form was:
"Male stated on second sample he burped and brought contents of stomach."
The appellant's evidence was that that was not exactly what he said. He said that he simply told the officer that he had burped, which he did not regard as the same as bringing something up from his stomach: he brought up no liquid. The justices made no finding on exactly what he had said, but I think that we should accept the appellant's version, which seems the more probable. The phrase used by PC Edwards in his note is likely to have been simply an attempt to connect the actual language used to the language of the form.)[6]The form states that if the answer given to the question at A17 is "yes", then "there will be a reasonable cause to believe that the instrument has not produced a reliable indication". The officer is directed in such a case to proceed to require a specimen of blood or urine. This reflects the provisions of Section 7 of the 1988 Act which provide at subsection (3) that a blood or urine test can only be required at a police station in limited circumstances, one of which is - see at (bb) - that an Intoximeter has been used but - " ... the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned".[7]PC Edwards said in cross-examination, as recorded in the case stated - " ..... that his personal belief was that the device used to take the breath specimens was working perfectly. There were no problems or surges of the machine from his point of view. He also said that he did not see the applicant burping and did not know if it was possible to burp and blow at the same time. He went on to state that he did not have an opinion he just went through the form as directed, the form is set out the way it is and he followed the procedure and guidance given. He presumed the question at A17 was asked, as if anything is brought up it may affect the reading and this is because of alcohol content in the stomach. Under re-examination he stated that he went on to take the blood sample because he was instructed to do by the MG DD/A form."[8]The appellant went on to give a blood sample which provided a reading of 95 micrograms per 100 millilitres. It was on the basis of that result that he was convicted.[9]It is the appellant's case that the taking of the blood sample was unlawful because PC Edwards had not had reasonable cause to believe that the Intoximeter had not produced a reliable indication. There are two elements to that case. First, Mr Ley submits that the officer did not believe that the Intoximeter had produced an unreliable indication. Secondly, he submits that even if he did so believe, or if his subjective belief is immaterial, there was in fact no reasonable cause for any such belief.[10]It is convenient to take the second question first. It may at first sight be attractive to say that there was plainly reasonable cause for PC Edwards' belief because it was based on what he was told on an official form. However, it is not as straightforward as that. Mr Ley submits that the note in the form which we have set out incorporates a view of the law which has been shown to be wrong by the decision of this court in Zafar v Director of Public Prosecutions [2004] EWHC Admin 2468, since endorsed in other cases, in particular Woolfe v Director of Public Prosecutions [2006] EWHC Admin 1497. On the basis of those authorities it is now settled that a specimen of breath affected, or potentially affected, by reflux or regurgitation from the stomach is not to be treated in any way differently: it is simply "breath" within the meaning of the statute. Mr Ley submits that it follows that a sample cannot be treated for the purpose of Section 7 (3) (bb) as an unreliable indication of the proportion of alcohol in the appellant's breath simply because it may have been so affected. The same must apply to the case of specimens potentially affected by burping or, to give it a more dignified name, eructation. Zafar had not been decided at the time the form used by PC Edwards was drafted: it bears a mark showing that it was drafted in January 2004, whereas Zafar was not decided until the end of that year. Thus, says Mr Ley, it was drafted on a basis which reflected an understanding of the law which has now been shown to be incorrect.[11]I can see no answer to that submission. No blame attaches to the officer personally for following the procedure specified by the form. But the fact remains that the cause which he thought that he had to believe that the breath samples tested on the Intoximeter did not give a reliable indication of the proportion of alcohol in the appellant's breath - namely having been told that the appellant had recently burped - was not in law capable of rendering that indication unreliable. In those circumstances the subsequent request for a blood sample was not one which the officer was entitled to make. The conviction based on that sample cannot be sustained.[12]Having reached that point, I need not consider Mr Ley's first ground as advanced before us. This was not in fact argued in any detail, and although reference was made to the authorities of Davis v Director of Public Prosecutions [1988] RTR 156 and Dixon v Director of Public Prosecutions [1993] RTR 22 it is unnecessary to consider the extent to which there may be a difficulty in reconciling those two decisions or deciding how they are to be applied in a case falling under Section 7 (3) (bb).

LORD JUSTICE LATHAM: I agree. So Mr Ley the appeal is allowed.

[14]MR LEY: I would ask for costs out of central funds.

LORD JUSTICE LATHAM: Costs from central funds.

Cited in 1 later judgment