Rose v Director of Public Prosecutions [2010] EWHC 462 (Admin)

[2010] EWHC 462 (Admin)Case No CO/3241/2009
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/03/2010
Before
LORD JUSTICE WALLERMRS JUSTICE SWIFT
Between
David RoseAppellantDirector of Public ProsecutionsRespondent
Nigel Ley (instructed by Byrne Frodsham & Co) for AppellantAndrew Smith (instructed by CPS) for RespondentHearing Hearing date: 16 th February 2010
Approved Judgment
[1]This is an appeal by way of case stated from a decision of Warwick Crown Court, dated 8th December 2008.[2]On 16th October 2001 the appellant was driving a car in Rugby. He was stopped and breathalysed. His breath test proved positive and he was then taken to Rugby police station where he provided further samples of breath, which showed him to be nearly three times over the prescribed limit. He was charged with an offence under s.5(1)(a) of the Road Traffic Act 1988.[3]He was convicted on 19th August 2004 at the Stratford upon Avon Magistrates Court. He then appealed to the Crown Court against conviction. That appeal ultimately came on before the Warwick Crown Court, Judge Hodson and two justices, in September 2008. The appeal lasted some five days and judgment was handed down on 8th December 2008. [The circumstances in which an offence should take place in 2001, the trial should only be concluded in August 2004 and the Crown Court should only hear the appeal in 2008 will need some explanation and gives rise as will appear to one of the issues before the court].[4]The Crown Court has stated three questions for the opinion of this court. 1) On the facts found by the court could a reasonable bench, properly directing themselves, have held that the breathalyser machine used in this case was an approved device? 2) Was it Wednesbury unreasonable to have held that there was no abuse of process nor prejudice caused to the appellant by the respondent not disclosing to the appellant the digital reading of the roadside test and that a fair trial could take place? 3) Did the court err in law and/or was it Wednesbury unreasonable to have held that delay did not prevent a fair trial taking place? Logically question 3 comes first but as both sides dealt with it third I will do the same.[5]In relation to the first two questions the facts found by the Crown Court are as follows. By paragraph 6 the case stated that the court found the following facts. i) On the 16th day of October 2001 the appellant drove a motor car on a road in Rugby. ii) He was lawfully required to provide two specimens of breath for analysis at the police station. They were analysed by an approved device and found to contain an amount of alcohol in excess of the prescribed limit. iii) The breathalyser machine used in this case was an Intoximeter EC/IR and was a type-approved device. It was designed and approved to detect the presence of mouth alcohol and if detected it would abort the analysis. iv) The EC/IR machine used in this case was operating reliably on the night in question. v) Other and further findings of fact are set out in our written judgment, a copy of which is annexed hereto.[6]The further facts found in the judgment began with paragraph 9 which was in the following terms:
“At about 01.00hours on 16th October 2001 a CCTV operator working for Rugby Borough Council was monitoring the town surveillance CCTV and saw a male (who was Mr Rose) walking along the street in Rugby. The operator then switched on the recording mode of the machine and tracked Mr Rose as he made his way through Rugby to his car. We have watched the CCTV recording for ourselves and will deal with this later. Mr Rose walked through a number of streets and then got into his car and drove it away. At this point the CCTV operator notified the Police and shortly after his car was stopped by the police. The police required Mr Rose to give a breath test into the “breathalyser” device which they were carrying in their vehicle. He gave the sample and it proved to be “positive” and he was then taken to Rugby Police Station where, at 01:19 hours, he was required to give a sample of breath through the Intoximeter EC/IR device. Two readings were taken and the lower reading showed a concentration of 108 micrograms of alcohol in 100 millilitres of breath. The breath sample was given in a special room which is just off the custody suite in the police station. It was administered by PC Currie and he completed a form MGDDA during the procedure. We have been given a copy of the relevant MGDDA form. No challenge is made as to the validity of the road-side test, to the lawfulness of the arrest of Mr Rose or to the execution of tests for the samples of breath. The “read out” from the device given after the samples were provided recorded that there were “no errors”
. On the face of it this indicated that the machine operated correctly during the taking of the samples.”[7]The judgment records much of the evidence that was before the Crown Court, which I shall endeavour to summarise with findings as follows:- 1) The court heard evidence of how the defendant appeared to be under the influence of alcohol, both from the way he was walking through the streets on the way to his car and from the way he drove it. That evidence was confirmed by a CCTV film which was viewed by the court and in relation to which paragraph 11 of the judgment states as follows:- “The CCTV footage of Mr Rose’s walk through the streets of Rugby to his car and the departure of the car from the roadside was played to us as part of the evidence. We noticed that he did not always walk in a straight line, that he gave bollards a wide berth and did not smoothly negotiate kerbs. Once in the car he set off before turning his lights on and negotiated a corner by going substantially onto the offside of the road.” 2) The court had evidence that the device used at the police station was of a “type approved” by the Secretary of State in early 1998 and remained so as at 16th October 2001, in spite of some slight modifications to it since then. This evidence was not challenged. 3) The Crown Court had evidence that the device was designed to detect mouth alcohol. Indeed, one of the tests for type-approval was its ability to detect mouth alcohol, the court holding at paragraph 17 as follows:- “Mr Rudram [i.e. the prosecution expert] told us that one of the tests for type approval is the ability of the machine to detect mouth alcohol and that the slope parameters of the machine are used to assess at what level the machine should regard the alcohol as coming from deep lung air as opposed to the mouth. One of the changes that have been made to this type of machine (and to the machine in question) was an adjustment of the slope parameters. This was a change authorised by the Home Office in accordance with the procedure referred to in the preceding paragraph but which, in Mr Rudram’s view, throughout persistent cross-examination, did not take the machine out of type approval.” 4) The judgment recorded evidence by experts for the prosecution to the effect that on tests carried out on the actual device used at Rugby Police Station “it was reasonably good at detecting mouth alcohol” (see paragraph 18); and evidence by an expert for the appellant to the effect that the same tests showed that the Rugby machine only detected mouth alcohol in 50% of cases (see paragraph 21). 5) The Crown Court heard evidence from the officer who administered the breath test in the police station that he had no reason, that night, to doubt the accuracy of the Intoximeter machine and that if he had he would have requested a blood sample.[8]The submission on behalf of the appellant before the Crown Court and certain of the court’s conclusions on the same are summarised in paragraphs 22, 23 and 24 of the judgment, which it is convenient to quote:- “22. In the Magistrates Court and in the Notice of Appeal to this court one of Mr Ley’s points was that there was a real possibility that the specimens of breath that Mr Rose provided for analysis by the Intoximeter machine contained mouth alcohol and therefore provided a falsely high reading. Mr Ley was not able to maintain that submission before us because of the decision in Zafar v DPP [2004] EWHC 2468 (Admin) where the Divisional Court held that the meaning of the word ‘breath’ in s.5 of the Road Traffic Act 1988 and s.15(2) of the Road Traffic Offenders Act 1988 was not confined to deep lung air but it included all of that which was expelled.23. Mr Ley’s principal point to us in advancing Mr Rose’s appeal was that the Intoximeter EC/IR machine at Rugby Police Station was not type approved. He argued that as the type approval required the machine to detect mouth alcohol (and that is the case) and abort where such was detected a machine that did not do so was outside type approval. If his submission ended there it would have been immediately defeated by the decisions of the Divisional Court in DPP v Teixeira [2001] EWHC Admin 931 and DPP v Memery [2003] RTR p.249 where the court held that failure to detect mouth alcohol did not go to type approval but to reliability.24. Mr Ley continued, placing reliance on the subsequent decision in Zafar. He submitted that, as Zafar defined breath to include air which may have mixed with alcohol from the mouth, a machine that did not reliably detect mouth alcohol and abort may produce a far higher reading than it would have done if it operated to the standard of the approved machine and therefore should be regarded as outside the type approval. He pointed out that failure to detect mouth alcohol could lead to a conviction in circumstances where the machine, if it conformed to the type approval, should have aborted.”[9]The submissions of Mr Ley as identified in those paragraphs have, in effect, been repeated by Mr Ley before us.[10]Mr Smith’s response was also much as it was before the Crown Court and, again, it is convenient to quote a summary of his submissions as set out in the judgment at paragraph 25:- “Mr Smith, on behalf of the Respondent, submitted that the decisions in Teixeira and Memery are unaffected by the decision in Zafar and remain a correct statement of the law. He pointed to paragraph 79 in the judgment of Gibbs J in Memery where the learned judge made clear that it was not for the Crown Court to rule on the Secretary of State’s approval of the device and to the judgment of Cresswell J in Teixeira at paragraph 51 where he said:- The issue before the magistrates was not whether the particular device was functioning to the same standard as the device approved by the Home Office. Magistrates should not accept submissions to the effect “(a) the device in question did not function in all respects to the same standard as the device approved by the Home Office (b) therefore you should acquit”. It does not follow that if a particular device was not functioning to the same standard as the device approved by the Home Office, magistrates should necessarily acquit. The correct approach was as follows. The Intoximeter EC/IR was an approved device (see paragraph 39 above). There was thus a presumption of law that the device was reliable (see paragraph 43 above). The defence challenged the presumption. No question of mouth alcohol or alcohol vapour arose on the facts of Mr Teixeira’s case. The challenge by the defence to the technical reliability of the particular device was (as in Mr Brown’s case) confined to expert evidence as to its ability to detect mouth alcohol or alcohol vapour in the dead-space of the upper respiratory tract. No other technical defect was alleged. It was not suggested that there was any link between the alleged deficiency and any wider technical deficiency. The magistrates should have asked themselves at the conclusion of all the evidence (including the evidence of the prosecution and defence lay witnesses) are we satisfied that the device provided a reading upon which we can rely? If yes, there would be a conviction; if no, an acquittal.”[11]DPP v Brown, DPP v Teixeira [2001] EWHC Admin 931 (hereafter referred to as Teixeira) and DPP v Colin Memery [2002] EWHC 1720 (Admin) are authorities which support the proposition that(a) the approval granted by the Secretary of State to any particular device is not subject to challenge in a criminal trial and(b) however, the reliability of a particular device is open to challenge.[12]The position is encapsulated in paragraph 76 of Gibbs J’s judgment in Memery, where he says:- “I have also given attention in this case, in the broad legislative context, to whether the Crown Court was permitted to rule on the Secretary of State's approval of the device. In my opinion, the answer in the present case should also be no. The reasons for this view are apparent from the passages already cited and are principally as follows:(a) The point at issue is one of admissibility of the relevant evidence, i.e, of the intoximeter reading.(b) The reliability of the reading in a particular case is always open to challenge by admissible evidence and in the event of challenge it is for the prosecution to prove its actual reliability.(c) In the light of the legislative context when properly analysed, Parliament, in my view, cannot have intended every defendant to have the right to challenge the lawfulness of the Secretary of State's approval of the evidential device.(d) In any event, in the context of the reliability of the machine and the provisions of the statutory scheme when looked at as a whole, including all the procedural safeguards relating to the possibility of inaccurate readings due to mouth alcohol, the approval of the device cannot be described as irrational.(e) In the present case, the ability of the device to detect mouth alcohol was wholly irrelevant to the reliability of the evidence it provided against the respondent. Its accuracy in that context was not doubted by any of the experts.”[13]Mr Ley does not challenge the correctness of Memery on its facts which included the fact that the defendant in that case gave no evidence of the presence of “mouth alcohol” when the breath tests were administered. But he submits that the position was altered by the decision in Zafar v DPP [2004] EWHC 2468 (Admin). In that case the court held that “breath” meant all that was exhaled and was not limited to “deep lung air”. Mr Ley did not challenge the correctness of that decision and indeed he explained that although at the trial in the Magistrates Court which took place prior to the Divisional Court decision in Zafar, his client did give some evidence that “mouth alcohol” might have been present, at the Crown Court hearing his client gave no such evidence because that would not have assisted him in the light of the decision in Zafar.[14]His submission was that, prior to Zafar, and post-Memery it was open to a defendant to give evidence of the presence of mouth alcohol in order to persuade a court that the device was unreliable. The submission in such cases he suggested was that the device was meant to pick up the presence of mouth alcohol and, if it did so, it aborted. If thus it had not aborted but it showed a high degree of alcohol that taken with evidence from a defendant that his consumption of alcohol was very limited and that he tended to regurgitate leaving “mouth alcohol” present in the mouth, produced the foundation for a case that the machine was unreliable and that it was mouth alcohol which was responsible.[15]His submission was thus, that because to give evidence of the presence of mouth alcohol following Zafar no longer provided any defence, it was unfair post-Zafar for a breath test to be carried out by a machine that might be failing to detect mouth alcohol and on that basis the court should conclude that such a machine was not “approved”.[16]It seems to me that Mr Ley’s endeavour to get round Memery, which precludes the challenge to the approval of the Secretary of State in relation to a device is entirely misconceived. Although in Memery the defendant had not given any evidence of the presence of mouth alcohol, the decision that the approval of the Secretary of State was not open to a public law challenge in criminal proceedings did not depend on that fact. What that decision made clear was that a public law challenge to the approval was not available, but it left open a challenge to the reliability of the particular device.[17]I do not see how Zafar can be said to have altered the position nor can I follow why the same evidence cannot be given post-Zafar as pre-Zafar. The fact that giving evidence of the possible presence of “mouth alcohol” does not provide a defence since breath includes all that is exhaled, does not in any way limit the giving of that evidence to support a case that the device is unreliable if there is other evidence which would support that case. There was of course no such evidence in this case. Indeed the evidence was overwhelming that the device had recorded accurately that the appellant was well in excess of the limit.[18]The answer to the first question is in the affirmative. The only conclusion that any bench could have come to was that the breathalyser machine used in this case was an approved device.[19]I turn then to the second question. Before the Crown Court Mr Ley took, for the first time, a point relating to the disclosure of figures relating to the roadside test. It was during the hearing in the Magistrates Court in this case that it became apparent for the first time to all that the device used for measuring breath at the roadside stored in its memory figures as to the precise quantity of alcohol in the specimen of breath. Prior to that evidence the police and defence were unaware that those figures were obtainable. Even on that evidence, as I understand it, if the figures were to be obtained, they could only be obtained by returning the device to the manufacturers for them to retrieve that information. [The position is different now (as I understand it), the figures being routinely available to the police].[20]Mr Ley’s submission to the Crown Court was that it was an abuse of process for the police not to have provided the underlying figures. It seems that before the Crown Court he accepted that the prosecution were not required to put evidence of the roadside test in evidence, but it was Mr Ley’s submission that it was the duty of the prosecution to disclose the figures by virtue of s.3 of the Criminal Procedure Investigations Act 1996. Before us Mr Ley has sought to argue that by virtue of Section 15(2) of the 1988 Act the prosecution were bound to put such figures in evidence[21]The Crown Court rejected Mr Ley’s submission on the basis(1) that the material was not available to the police at the time, since they were unaware of its existence and(2) that the passage of time was such that it was almost certainly unavailable at the date of the hearing before the Crown Court.[22]The problem for Mr Ley’s submission before the Crown Court, and indeed his submissions before us, are the authorities in the Divisional Court, which have already dealt with this point.[23]In Murphy v DPP [2006] EWHC 1753 (Admin) amongst many other points raised by Mr Ley, on behalf of the appellant, was whether the DPP was compelled to adduce the result in figures of the breath analysis carried out at the roadside under s.52 of the 1998 Act. Mitting J, who gave the judgment of the court said this:- “35. Question (7) reads:
"(7) Did I err in law in holding that the Road Traffic Offenders Act 1998 section 15(2) did not compel the respondent to adduce the result in figures of the breath analysis carried out at the roadside by a Lion Alcometer device?" 36. Both sides made the following admissions for the purposes of the case: "(1) The Lion Alcometer SL400 series samples the breath specimen provided and stores the analytical result in digital form in its memory. (2) The memory of the Lion Alcometer SL400 machine is capable of storing a number of results not exceeding 150 in its memory. (3) When in operational use the machine is ordinarily set in 'ignore' mode. In this mode once memory capacity is reached, subsequent results overwrite earlier results in a chronological sequence beginning with the oldest. (4) Police are able to download results from the Lion Alcometer memory in indicative mode (pass/warn/fail). Police are unable to access any further information relating to the reading. (5) Only an authorised Lion Laboratories employee is able to download the digital results held in the memory of Lion Alcometer SL400 machine, using appropriate software tools." 37. Mr Ley submitted that section 15(2) of the Road Traffic Offenders Act 1988 required the prosecution to obtain and produce in evidence the analysis which had been stored in the memory of the Lion Alcometer by which the roadside test had been administered. The relevant statutory provision in the form in which it was at the relevant time is section 15(2) (in the form amended by the Road Traffic Act 1991) which reads: "(2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, including cases where the specimen was not provided in connection with the alleged offence, be taken into account, and subject to sub-section (3) below it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen." 38. Free of authority, I would hold that the evidence of the proportion of alcohol in a specimen there referred to meant, and meant no more than, evidence actually placed before the court by either party. If no evidence was adduced of the proportion of alcohol in a specimen, there is no requirement for a court to take it into account. Thus, though evidence of the proportion of alcohol in a specimen of breath provided in a roadside breath test still in the memory of the Lion Alcometer device is admissible in evidence if it is retrieved, if it is not there is no evidence to take into account. 39. Mr Ley submits that the reasoning of this court in Badkin v Director of Public Prosecutions [1988] RTR 401 compels a different conclusion. I disagree. In that case, the court was concerned with an evidential blood sample, lawfully obtained after a police officer concluded that the device by which the evidential breath tests had been administered was not reliable. Failure to analyse and call evidence of the results of the analysis "vitiated the prosecution case". 40. I understand and accept that conclusion on the unusual facts of that case. But nothing in the judgment of Glidewell LJ leads to the conclusion that in every case the prosecution must obtain from the manufacturers an analysis of the proportion of alcohol in the specimen provided in the roadside breath test and put that result in evidence. That conclusion, I believe at least tentatively, is reinforced by the current wording of section 6 and 7 of the Road Traffic Act 1988 (as amended by the Railways and Transport Safety Act 2003), which refers respectively to "preliminary tests" at the roadside, and "specimens of breath for analysis" in the police station or hospital. Only the latter need be put in evidence. Accordingly, I answer the seventh question, no. ” "(1) The Lion Alcometer SL400 series samples the breath specimen provided and stores the analytical result in digital form in its memory. (2) The memory of the Lion Alcometer SL400 machine is capable of storing a number of results not exceeding 150 in its memory. (3) When in operational use the machine is ordinarily set in 'ignore' mode. In this mode once memory capacity is reached, subsequent results overwrite earlier results in a chronological sequence beginning with the oldest. (4) Police are able to download results from the Lion Alcometer memory in indicative mode (pass/warn/fail). Police are unable to access any further information relating to the reading. (5) Only an authorised Lion Laboratories employee is able to download the digital results held in the memory of Lion Alcometer SL400 machine, using appropriate software tools." "(2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, including cases where the specimen was not provided in connection with the alleged offence, be taken into account, and subject to sub-section (3) below it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen."
[24]In Smith v DPP [2007] EWHC 100 (Admin), the question posed was “Was I right to hold that the prosecution did not have to adduce in evidence the result in figures of the roadside breath test obtained from the Alcometer SL400A device?” It would seem that a minor amendment to s.15(2) introduced by the Police Reform Act 2002 s.57(1), which inserted after the words “provided by” and “provided” the words “or taken from” allowed Mr Ley to re-argue what he had argued, unsuccessfully, in Murphy. Mr Ley again relied on Badkin v DPP [1988] RTR 401 as supporting his proposition that, under s.15(2) of the 1988 Act, there was an obligation to put in evidence the figures in relation to the roadside test.[25]Mr Ley’s submission in Smith was that the requirement to take into account a specimen of breath included a specimen of breath provided under s.6, i.e. the roadside test. Pill LJ refers to Mitting J’s judgment in Murphy (paragraph 19). He does not however seem to follow the same line of reasoning in relation to s.15(2) in its amended form. I cannot quite see how any amendment had made Mitting J’s reasoning less applicable but in any event Pill LJ in Smith held that s.15(2) did not relate to the roadside specimen. Thus the question posed was answered in the affirmative.[26]In addition, Pill LJ said this at paragraph 31:- “I would, however, consider it to be good practice, where equipment is in use which permits it easily to be done, for the reading in figures obtained from the roadside breath specimen to be disclosed to the defence. We are told that that has become general practice. It is a sound practice and one which may be required by Section 3 of Criminal Procedure and Investigations Act 1996, which deals with the prosecution’s duty to disclose material. While in most cases, the evidence, if adduced, is likely to support the prosecution case, there may be cases in which it can provide a basis for a challenge to the accuracy of the Section 7 specimens obtained.”[27]Smith was approved and followed in Breckon v DPP [2007] EWHC 2013 (Admin), where Nelson J said at paragraph 34:- “This issue has now been decided in the Administrative Court by the case of Smith v DPP [2007] EWHC 100, and for my part, I see no reason to depart from either its conclusions or its reasoning. Section 15(2) of the Road Traffic Offenders Act 1988 does not in my judgment apply to preliminary tests under section 6 of the Road Traffic Act 1988 or indeed to preliminary breath tests under its amendment by virtue of section 6A. The purpose of the preliminary test is to obtain an indication of whether the proportion of alcohol was likely to exceed the prescribed limit. It is not to determine whether the limit has in fact been exceeded, which is the function of the specimens taken for analysis under section 7. The latter part of section 15(2) clearly applies to section 7 specimens as Lord Justice Pill found in the case of Smith, and there is no basis for believing that the earlier part of the section refers to a different type of specimen. It cannot have been intended that the roadside breath test, which does not determine whether an offence has been committed, and is not subject to safeguards for the accused such as warning of the risk of prosecution, could be the specimen which has, under the assumption, to determine the lowest level of alcohol in the accused’s breath or urine.”[28]Mr Ley, before us, has put in a lengthy supplementary skeleton argument which seeks to re-open the question of whether s.15(2) would require the specimen of breath obtained at the roadside to be put in evidence by the prosecution. He submits that the view that s.15 only applies to a s.7 specimen has been overruled by R v Coe [2009] EWCA Crim 1452, where the Court of Appeal held at paragraph 33:- “Secondly, in our view, section 15 of the RTOA had no bearing on the admissibility of the evidence of analysis in this case. We accept that that section is capable of applying to a specimen of blood, whether it is provided or taken pursuant to section 7 or 7(a) of the RTA or, as here, taken as a matter of routine by a member of the hospital staff. That, in our view, follows from the bracketed passage in section 15(2) of the RTOA . . .”[29]I would accept that R v Coe shows that s.15(2) must apply both to s.7 specimens and to the specimens referred to in the bracketed portion of the sub-section. It does not however follow that s.15(2) applies to a specimen of breath taken under s.6, for which Murphy is still good authority.[30]In any event, I would prefer the view expressed by Mitting J at paragraph 38 of Murphy. S.15(2) is concerned with a situation in which evidence is placed before the court and is dealing with what that evidence will establish. It is not placing any obligation to place evidence before a court as Mr Ley would have to suggest.[31]In his submissions before us Mr Ley emphasised that paragraph 38 of Murphy started with the words “Free of authority” as if other authorities demonstrated a different view. So far as Mitting J was concerned, he was taking the view that there was no authority which dictated a different view and, in particular, that Badkin, relied on by Mr Ley, did not compel a different view.[32]Insofar as Smith or Breckon might suggest that s.15(2) did impose some obligation to put in evidence certain specimens, I would respectfully disagree and prefer the view expressed by the court in Murphy.[33]In my view, on the authorities, the position is clear. S15(2) does not apply so as to compel the prosecution to put in any evidence obtained at the roadside in evidence in the case.[34]As regards the quite separate question, whether the prosecution had a duty to disclose the figures, in this case no figures were available in 2004 and, as found by the Crown Court, the figures were unavailable in 2008. As at 2004 it was unknown to the prosecution that the figures could be obtained. By 2008 the figures were unavailable through any means. At no stage was there any duty on the prosecution to disclose, even if the figures could have assisted the defence. In any event, on the evidence, it is inconceivable the figures would have assisted the appellant’s defence.[35]I would thus answer the second question, that it was not unreasonable to hold there was no abuse of process or prejudice by not disclosing the digital reading of the roadside test and that it was not unreasonable to hold that a fair trial could take place.

Unreasonable delay and abuse of process

[36]It is unfortunate that we have no judgment from the Crown Court on this aspect and no facts found as part of the case stated that can assist in demonstrating the factors taken into account in refusing to accede to Mr Ley’s application to stay the case on the grounds of delay. It has been necessary therefore to work out the chronology for oneself and identify the factors on one side or the other.[37]In Murphy Mitting J was scathing about the delay which was much less than the delay in this case. But although scathing he upheld the decision of the lower court not to stay the proceedings on the grounds of that delay. One reason for that view was quite clearly that although the prosecution could not escape criticism, in quite considerable measure delays were due to the number of points being taken by the defence in the “breathalyser” context, some taken when authorities would seem to indicate the point was no longer open , and some taken and then abandoned with new ones appearing.[38]Thus although the delay in this case is on the face of it scandalous, it is necessary as it was in Murphy to look with some care as to whether it should lead to the conclusion that the appellant was entitled to have the proceedings before the Crown Court stayed. The question whether a fair trial was still possible is a key factor, but the court should also guard against complex but bad points being able to extend litigation to an extent that then enables applications to be made on the basis of abuse for delay.[39]I have appended to this judgment a chronology relating to this case. Because it seemed to me of some relevance I have included the dates and decisions in other cases in the bundles of authorities particularly as they play a part in the reason why points were taken and why delays occurred. In almost all those other cases Mr Ley appeared. It also enables one to obtain a picture of the way in which arguments have developed and a picture of how “breathalyser” litigation has become rather different from ordinary cases in the Magistrates Court.[40]It is important to appreciate first that this appellant’s case was originally joined with four others. It was regarded as a major case in which experts were to be called and points were being taken as to the reliability of the device for taking samples of breath in the Rugby police station. Thus although the offence took place in October 2001, the trial did not commence until 8th December 2003. Mr Ley informed us that he made an application for a stay on the grounds of delay at that juncture. That application failed and there was no challenge to that.[41]The case which had been estimated to last 5 days could not be completed in that timescale and it was adjourned. Finding a convenient date for a further lengthy period may not have been easy. We were told by Mr Smith that it was getting the experts back to a trial that was the main problem. The experts we were told were giving evidence in many other cases. That itself demonstrates the nature of the “breathalyser” litigation. Further days were arranged between 26th and 29th July 2004, 16th and 17th August 2004 and judgment was given on 19th August 2004 convicting the appellant.[42]I do not have the detail as to why the hearings took so long but one can surmise that many points were being run and that technical evidence was being given either (despite the decisions in Teixeira and Memery) to seek to demonstrate that the device in use was not approved, or despite the evidence on the CCTV as to the way the appellant walked to his car, that the device was unreliable. The case being made would be that the reading was high because of mouth alcohol, and that the crown could not thus prove that the appellant was over the limit never mind three times over the limit.[43]It was also during this hearing that cross examination of one of the witnesses revealed that the device used at the roadside actually stored in its memory figures. This had previously been unknown to the police and unknown to anyone acting for the defence. It was not a point relevant at that time to any defence being run, but Mr Ley was allowed to elicit the answers. The conviction of the appellant and rejection of the defences being run end the first chapter.[44]The appellant, with Ms Carruthers (one of the other four defendants in the Magistrates Court), decided to appeal. It seems that in the notice of appeal no point was taken as to the non-production of the figures stored in the memory of the roadside breathalyser, but at some stage in the appeal process, the point was taken that it was an abuse of process not to have provided these figures to the defence even though such figures were not in the possession of the police or the existence of the same even appreciated by the police in 2004. [See para 37 of the judgment of the Crown Court in this case].[45]On 1st November 2004 the decision in Zafar was given.[46]On 5th December 2005 the appeal before the Crown Court commenced. Once again experts had to be assembled. Once again it seems despite Teixeira and Memery and on the basis that Zafar had made a difference it was being put to experts for the Crown that the device at the police station was not approved and that there was a deficiency in the Crown case flowing from not being able to establish the use of an approved device. Alternatively the argument would have been that the device was unreliable, and that the appellant was not in fact over the limit.[47]By 12th December 2005 the case for the appellants had not even begun. Why the case should have taken so long is again difficult to say, but at that stage there were pending before the Divisional Court Murphy, Smith and Breckon (all cases in which Mr Ley was involved). The question arose as to whether it might not be sensible to await the outcome of decisions by the Divisional Court which might have an impact on the appeal. Mr Ley for the appellant was content with that and the appeal was adjourned until 2nd May 2006 all contemplating the Divisional Court would have delivered its decisions by that date.[48]The Warwick Crown Court made a number of inquiries of the solicitors acting for the appellant between December 2005 and May 2006 to see whether the Divisional Court had delivered judgments. Ultimately the appeal was listed for directions on 5th May 2006 and because no relevant decisions had been given by the Divisional Court, the appeal was adjourned sine die.[49]Murphy was decided by the Divisional Court on 20th June 2006. It held amongst many points that an argument that figures from the roadside breathalyser should have been provided under section 15(2) was ill founded. Neither prosecution nor those acting for the appellant attempted to re-list the appeal and, having regard to what happened in 2007, that would appear to be because at least the appellant’s side hoped that some other decision of the Divisional Court might help their arguments.[50]Smith was decided on 30th January 2007 and again upheld the view expressed in Murphy that section 15(2) did not require the roadside figures to be put in evidence and also that there was no duty during the period when the police did not obtain such figures to disclose them to the defence.[51]The prosecution made inquiries on 29th March 2007 about listing the appeal now that Smith had been decided and were told on 12th April 2007, that the appellant’s side wanted the decision in Breckon before re-listing the appeal. Breckon was decided by the Divisional Court on 22nd August 2007.[52]None of the decisions assisted the appellant, indeed they reiterated that an attack on approval was not permissible and they showed that an argument that the figures from the roadside breathalyser should either be put in evidence by virtue of section 15(2), or produced to the defence as part of the duty of a prosecutor to provide information in his possession if it assisted the defence case could not succeed in a case such as the appellant’s. Those acting for the appellant did not seek to re-list the appeal but neither did the prosecution.[53]Ultimately it was the Crown Court that listed the appeal for directions on 13th March 2008 and that lead to a re-listing for September 2008. By this stage the court which had commenced the hearing in 2005 was unavailable His Honour Judge Coles QC having retired and a new constitution had to be assembled.[54]The hearing in the Crown Court commenced on 22nd September 2008. The appellant as appears from the judgment had no difficulty in giving evidence as to what he said he had had to drink that evening seven years previously [see paragraph 13 of the judgment], but as his main point through Mr Ley he took the point that Zafar had made a difference to the question whether approval could be attacked. It was on that basis experts were called by both sides. The point was almost unarguable, but there was no difficulty through delay in articulating it and in the experts giving evidence about it. The alternative case that the device was unreliable was on the facts hopeless, but again the issue could be tried fairly. The point as to the duty to produce the roadside figure in evidence under section 15(2) and/or because of the prosecution’s duty to disclose not apparently taken in the notice of appeal but taken during the hearing, was also almost unarguable in the light of the authorities, but as a point unaffected by any delay.[55]In considering whether it was appropriate to stay proceedings on the grounds of delay, it is relevant to look at the whole picture, including the merits of the defendant’s case but at end the question is whether he can have a fair hearing. Criticism can certainly be made of the prosecution for certain periods of delay – for example for the period once Breckon had been decided. But overall, the picture is one of a defendant, like many others breathalysed, fighting a trial over many days taking a number of technical points, losing and then as appellant taking any point however unarguable and not resisting indeed acquiescing in delays in the appellate procedure. But the important point is that he could also still have a fair hearing in relation to the points he took.[56]The Crown Court was right not to stay the proceedings on the grounds of delay. A fair hearing was possible and the answer to the third question should be no. Chronology 16th October 2001 Date of the appellant (Rose)’s offence. 16th November 2001 Teixeira decision in Divisional Court (DC). 4th July 2002 Memery decision in DC. Mr Ley [NL] appeared. 8th – 11th Dec 2003 Trial in Rose commenced and adjourned. 26th - 29th July 2004 Further days of hearing in Rose. 16th, 17th August 2004 Further days of hearing in Rose. 19th August 2004 Rose and others convicted in Stratford upon Avon Magistrates Court. 1st November 2004 Zafar decision in DC; ruling breath includes all that is exhaled not limited to deep lung breath. 5th December 2005 Appeal in Rose commences. 12th December 2005 Appeal in Rose has not reached appellants’ case and is adjourned to 2nd May 2006 while further cases in DC heard. Between 15/12/05 and 5/5/06 Number of communications from court to see if DC cases heard. 5th May 2006 Judge directions hearing in Rose appeal and because DC cases unheard adjourns sine die. 20th June 2006 Murphy DC decision – deals with figures from roadside and many points; also critical of delay. 30th Jan 2007 Smith DC decision – again deals with roadside figures. 29th March 2007 CPS inquire of solicitors for Rose whether can now list in light of Smith. 12th April 2007 Solicitors answer “no” need outcome of “gas delivery case” i.e. Breckon. 14th June 2007 Letter sent to Crown Court by solicitors saying Breckon listed for 18th July and would advise of result. 57. No indication that either solicitors for appellant or prosecution contacted Crown Court with result. 13th March 2008 Crown Court Judge held directions hearing and appeal in Rose re-listed for September 2008 22nd-26th September 2008 Appeal hearing. Application to dismiss for abuse of process on grounds of delay dismissed. Point taken despite Teixeira and Memery that device not approved and despite Murphy, Smith, and Breckon that figures from roadside breath test should have been revealed. 8th December 2008 Judgment dismissing Rose appeal.