The Director of Public Prosecutions v Vince & Ors [2016] EWHC 3014 (Admin)

Case No CO/2622/2016[2016] EWHC 3014 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/11/2016
Before
LORD JUSTICE BEATSONMR JUSTICE MALES
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSAppellant
Mr Leslie Chinweze (of the Crown Prosecution Service) for Director of Public ProsecutionsMr Ashley Barnes (instructed by MAJ Law) for Ms VinceMr Taqdir Singh-Bains made submissions on behalf of Mr Kang with the permission of the CourtMr Leslie Chinweze (of the Crown Prosecution Service) for Director of Public ProsecutionsHearing Hearing date: 22 November 2016
JudgmentMr Justice Males :
[1]There are two appeals by way of case stated before the court. They were listed together because they appeared to raise a similar issue as to the admissibility of evidence of the amount of alcohol in a driver’s breath when a test is carried out on an Intoxilyzer machine after the machine has recorded an “Ambient Fail” message on a previous test. Ultimately, however, it may be that the similarities were more apparent than real. It is convenient to deal first with the case of Kang, where there was a conviction after a trial. In the second case, Vince, the magistrates acceded to a submission of no case to answer at the conclusion of the prosecution case.

Kang – the facts

[2]On 6 November 2015 the appellant, Balvinder Singh Kang, was in charge of a motor vehicle at Sandwell in the West Midlands when he was seen by a police officer, PC Smith. PC Smith asked Mr Kang to come to his police car and requested him to provide a specimen of breath on an approved device. Mr Kang complied. This roadside test produced a result of 157 mg of alcohol in 100 ml of breath. Mr Kang was arrested and taken to the Steelhouse Lane Police Station in Birmingham.[3]At the police station, PC Smith took Mr Kang to the area of the custody suite where the Lion Intoxilyzer 6000UK machine was situated and requested two specimens of breath. PC Smith had 16 years’ experience of operating such machines. He checked the machine to satisfy himself that it was working properly and was correctly calibrated. However, before the test could be carried out, the machine recorded an “Ambient Fail” and the test was aborted. The District Judge (Magistrates Court) found that Mr Kang had caused this message to appear and the test to abort by holding the breathing tube in the vicinity of his mouth before providing the first specimen of breath for analysis.[4]As a result PC Smith terminated the procedure, re-started the machine and went through the procedure a second time. Again he ensured that the machine was correctly calibrated. Mr Kang provided two specimens of breath for analysis, the lower of which produced a reading of 143 mg of alcohol in 100 ml of breath, lower than the roadside reading (not surprisingly in view of the passage of an hour and a half) but still well over the legal limit.[5]PC Smith did not require Mr Kang to provide a sample of blood or urine instead of breath, nor did he offer him the opportunity to do so.[6]PC Smith did not complete the MG DD/A form at paragraphs A18 or A19 with details of the “Ambient Fail” but he attached the original printout from the machine along with the second printout with the details of the two specimens provided by Mr Kang.[7]Mr Kang was convicted of being in charge of a motor vehicle on a road after consuming so much alcohol that his breath exceeded the prescribed limit, contrary to section 5(1)(b) of the Road Traffic Act 1988.

The questions for decision

[8]The case stated raises two questions for our decision: 1. Was the court entitled to conclude that the lower reading of 143 mg in 100 ml of breath provided by Mr Kang in the second part of the station procedure was reliable and admissible notwithstanding the “Ambient Fail” message and the decision of the officer to re-start the Intoxilyzer rather than offer Mr Kang the choice to provide a sample of blood or urine? 2. Was the court entitled to regard the evidence of the reading of 157 mg in 100 ml of breath provided by Mr Kang in the roadside test as evidence which supported the reliability of the station procedure? Submissions[9]On behalf of Mr Kang it was submitted that PC Smith failed to follow the prescribed statutory procedure in three respects, with the consequence that the results were invalid and inadmissible. These were as follows: 1. continuing with the breath test procedure despite the “Ambient Fail” message instead of offering Mr Kang the option to provide a blood or urine sample; 2. failing to complete paragraph A18 of the MG DD/A form which requires reasons for an incomplete procedure to be set out; and 3. failing to complete paragraph A19 of the form which provides that where a breath testing device stops working or is working unreliably, details should be given.[10]In what was described as a supplementary skeleton argument provided on the day before the hearing, Mr Kang’s solicitor submitted on his behalf that as a matter of fact Mr Kang could not have caused the “Ambient Fail" message to register by holding the breathing tube in the vicinity of his mouth and that the readings subsequently obtained were unreliable. We permitted Mr Kang’s solicitor to develop these submissions orally, together with a submission that the District Judge (Magistrates Court) was not entitled to rely upon the preliminary roadside breath test which produced a reading of 157 mg of alcohol in 100 ml of breath.

Discussion

[11]The District Judge (Magistrates Court) found as facts(1) that the cause of the “Ambient Fail” message was that Mr Kang had held the breathing tube of the machine in the vicinity of his mouth before providing the first specimen of breath for analysis,(2) that the machine was working perfectly, and(3) that its readings were reliable. These are findings of fact. Unless they can be successfully challenged, there is no doubt that Mr Kang was in fact well above the legal limit. There is an issue arising on the second of the two questions stated for our decision whether the District Judge was entitled to rely on the roadside test reading as evidence supporting the reliability of the police station procedure. I shall come to this in due course. However, that is the only issue raised by the case stated which goes to the reliability of the procedure. The more general submission that Mr Kang could not have caused the “Ambient Fail” message to register is not open to him on the facts found by the District Judge (Magistrates Court), who has found that Mr Kang did cause it in the manner described. Accordingly the only issues arising so far as the first question is concerned is whether in any of the three respects set out above PC Smith failed to follow the correct statutory procedure and, if he did, whether the consequence is that the results obtained are invalid and inadmissible as a matter of law. That question must be determined on the facts found by the District Judge, including the three findings referred to above.[12]Section 7 of the Road Traffic Act 1988 provides: “(1) In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him –(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or(b) to provide a specimen of blood or urine for a laboratory test. (2) A requirement under this section to provide specimens of breath can only be made – (a) at a police station, … (3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless – (a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or (b) specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or (bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) 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, … (6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence. (7) A constable must, on requiring a person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.” (a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or (b) to provide a specimen of blood or urine for a laboratory test. (a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or (b) specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or (bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) 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, …[13]Section 11(3) of the Road Traffic Act 1988 provides:
“A person does not … provide a specimen of breath for analysis unless his cooperation or the specimen – (a) is sufficient to enable the test or the analysis to be carried out, and (b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.” (a) is sufficient to enable the test or the analysis to be carried out, and (b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.”
[14]PC Smith did require Mr Kang to provide two specimens of breath pursuant to section 7(1) of the 1988 Act. However, the first attempt to operate the machine was unsuccessful because Mr Kang held the breathing tube too close to his mouth, which resulted in the “Ambient Fail” message. There is no finding one way or the other whether he did so deliberately, but for present purposes this does not matter. The result was that PC Smith had to make a decision how to proceed.[15]One possibility was that, because what Mr Kang had done had prevented the test from being properly carried out, he was to be regarded pursuant to section 11(3) of the 1988 Act as not having provided a specimen of breath at all, in which case it remained open to PC Smith to require him to do so. This is in effect what PC Smith did. He was entitled to do this. The situation was similar in some ways to that which existed in Denny v Director of Public Prosecutions [1990] RTR 417, dealing with equivalent provisions under the predecessor 1972 Act. In that case a machine at a police station was not functioning properly and the defendant was taken to provide a breath specimen at another station where there was a functioning machine. It was submitted that upon the first machine becoming unreliable, the police officer could only request a blood or urine sample, not a further breath specimen. That submission was rejected. Hussain v Director of Public Prosecutions [2008] EWHC 901 (Admin) is a similar case. However, the present case is if anything a stronger case because the machine here was working properly, the failure of the first test being caused by Mr Kang’s failure to blow properly into the machine.[16]A second possibility was that PC Smith might require Mr Kang to provide a blood or urine sample. However, he could only do so at the police station if one of three conditions existed. The first, mentioned in subsection 3(a), was that there was reasonable cause to believe that for medical reasons a specimen of breath could not be provided or should not be required. Obviously that was not the position. The second, mentioned in subsection 3(b), was that a device or a reliable device was not available at the police station or that it was for any reason not practicable to use such a device. However, on the facts found, there was a reliable device which was available for use and which it was practicable to use. It was in fact used successfully with the results stated above. The third, mentioned in subsection 3(bb), was that a device had been used but PC Smith had reasonable cause to believe that the device had not produced a reliable indication of the proportion of alcohol in Mr Kang’s breath. Whether that condition was satisfied is questionable. While it might be said that the “Ambient Fail” message showed that the device had not produced a reliable indication, there was in fact nothing wrong with the machine. PC Smith’s evidence was that he knew this because he saw that the machine had recalibrated itself. The District Judge (Magistrates Court) accepted this evidence. In a sense the device had been used, but it had not been used properly. It is therefore questionable (but need not be decided) whether PC Smith had any power to require Mr Kang to produce a blood or urine sample at the police station, although he could have insisted that Mr Kang be taken to produce such a sample at a hospital. Alternatively he could have invited Mr Kang to produce a blood or urine sample voluntarily at the police station, although in that event Mr Kang would have been free to refuse.[17]I can see nothing in the legislation which required PC Smith to insist on a blood or urine sample instead of completing the breath test procedure as he did. Nor is there anything which entitles the person concerned to insist on providing a blood or urine sample instead of a specimen of breath.[18]Mr Kang’s argument is based, not on the legislation, but on the terms of form MG DD/A, a form used in the police station for dealing with those suspected of breaking the drink driving laws. It is not a promising start for this argument that the form begins with a statement, against the heading “Status of Form”, that:
“These forms are a ‘plain man’s guide’ to the operation of the drink and drug drive laws … Failure to comply is not fatal provided the law is complied with.”
[19]This is an accurate statement. What matters is whether the legislation is complied with. Here it was, as already indicated. Nevertheless I go on to consider Mr Kang’s argument further.[20]Paragraph A14 of the form deals with the position when an “Ambient Fail” message is produced. It states:
“(iv) Where a device produces an instrument message of • Ambient Fail (Lion Intoxilyzer only) this may indicate alcohol or some other substance in the environment. Whilst the instrument may be operating correctly it will not allow the test to continue. In these circumstances it will be usual to proceed to a requirement for blood or urine under section 7(3)(b) RTA.” • Ambient Fail (Lion Intoxilyzer only) this may indicate alcohol or some other substance in the environment. Whilst the instrument may be operating correctly it will not allow the test to continue. In these circumstances it will be usual to proceed to a requirement for blood or urine under section 7(3)(b) RTA.”
[21]It was because the machine would not allow the test to continue that it had to be aborted and started all over again. Although the form indicates that in such circumstances “it will be usual" to proceed by way of blood or urine sample, that is not stated to be mandatory but only to represent usual practice. That will be a wise course if there is any doubt about the reason for the “Ambient Fail” message, in particular about whether the machine is operating properly. A police officer who decides to continue using the machine to analyse a further breath specimen may in some circumstances take a risk that the machine is not operating properly and that the result obtained will be found to be unreliable. However, that is not this case where the reason for the “Ambient Fail” message was known and the machine was (and was known to be) operating correctly and reliably. Even applying the terms of the form, therefore, there was no breach of any procedure. In any event, as I have stated, the provisions of the form have no statutory force.[22]I would therefore reject Mr Kang’s first ground for saying that the statutory procedure was not correctly followed.[23]The second and third grounds can be taken together shortly. Paragraphs A18 and A19 of the MG DD/A form deal respectively with what should happen when the breath analysis procedure is not completed satisfactorily and when no reliable indication can be obtained of the proportion of alcohol in a person’s breath. They require reasons to be given on the form to explain why the procedure has not been completed or why it has not been possible to obtain such an indication. However, these paragraphs have no application in the present case. At the second attempt the procedure was completed satisfactorily and a reliable indication was obtained. In any event, by attaching the original printout from the machine to the form, PC Smith provided a complete and accurate record of what had happened. I would therefore reject these two latter grounds of challenge.[24]I would therefore answer the first question raised by the case stated as follows: 1. the decision of the officer to re-start the Intoxilyzer and to continue with analysis of a specimen of breath despite the “Ambient Fail” message; and/or 2. the failure of the officer to complete paragraphs A18 and A19 of form MG DD/A did not render the results thereby obtained invalid or inadmissible.[25]This is in effect an affirmative answer to the question posed, but I prefer to answer the question in this way because, even though these particular matters do not render the results invalid, when an officer decides to continue with the analysis of a specimen of breath despite an “Ambient Fail" message, the tribunal of fact will need to determine whether the machine was in fact reliable so that the results obtained can be regarded as accurate. Such a message may mean that the machine is not operating properly. In the present case, as already indicated, the District Judge (Magistrates Court) was able to determine that the machine was reliable.[26]That determination was based in part on the reading of 157 mg of alcohol in 100 ml of breath obtained on the roadside test. The second question raised by the case stated is whether the District Judge was entitled to rely on that evidence for that purpose.[27]In fact, as is apparent from the case stated, the District Judge relied on a number of factors in reaching his conclusion as to the reliability of the machine. These included not only the roadside test itself, but also(1) the consistency between the roadside test reading and the station test result,(2) the absence of any explanation why this should be so if the machine was defective,(3) Mr Kang’s demeanour both at the roadside (smelling of alcohol, eyes glazed, unsteady on his feet and leaning on PC Smith) and in the police station (unsteady on his feet, speech slurred, eyes heavily glazed),(4) rejection of Mr Kang’s evidence as to what he had drunk on the day in question,(5) the “entirely plausible” explanation for the “Ambient Fail” message being displayed, and(6) the evidence of PC Smith, a highly experienced officer, as to the checks carried out to ensure that the machine was working properly.[28]Section 6 of the Road Traffic Act 1988 empowers a constable to require a person in specified circumstances to provide a specimen of breath for “a breath test”, but the legislation makes clear that a test carried out at the roadside is merely a preliminary test for the purpose of obtaining an indication whether the proportion of alcohol in a person’s breath is likely to exceed the prescribed limit. The specimens of breath which establish whether or not a person has committed an offence are those provided at the police station pursuant to section 7 and not the preliminary roadside test: see Smith v Director of Public Prosecutions [2007] EWHC 100 (Admin), [2007] RTR 36 at [26]. On behalf of Mr Kang it is submitted that the results of the roadside test should be altogether inadmissible.[29]I can see no reason why the District Judge was not entitled to rely on the roadside test reading as one piece of evidence among others supporting the reliability of the station procedure. It is important to understand that the District Judge did not treat the roadside test as the basis for Mr Kang’s conviction. Mr Kang was convicted because of the reading obtained by a test carried out at the police station in accordance with the requirements of section 7. The only relevance of the roadside test was that it was one piece of evidence confirming the reliability of the results obtained at the police station. Accordingly I would answer the second question affirmatively. Even if this is wrong, however, so that this particular evidence has to be left out of account, there was abundant evidence which entitled the District Judge to conclude that the reading obtained at the station was reliable and accurate.

Vince – the facts

[30]In Vince the magistrates acceded to a submission of no case to answer at the conclusion of the prosecution case. The Director of Public Prosecutions appeals, contending that there was sufficient evidence to call for an answer and that the case should be remitted to a differently constituted panel. In effect, therefore, the proceedings would have to start again.[31]Except to the limited extent explained below, the case stated does not contain a statement of any facts found by the magistrates. There is, however, a summary of the prosecution evidence. To some extent this is understandable as the issue for the magistrates was whether, at the conclusion of the prosecution case, there was evidence capable of supporting a conviction. However, it is important in such a case that there should be a clear statement of the magistrates’ reasons for concluding that there was not.[32]The prosecution evidence was to the effect that on 14 December 2015 Mrs Celia Vince was driving a motor vehicle on the B1102 at Swaffham Bulbeck in Cambridgeshire when she was stopped by the police. A roadside breath test was positive. Ms Vince was arrested and taken to the Parkside Police Station in Cambridge. After initially agreeing to provide a breath specimen, Ms Vince changed her mind and expressed a wish to consult a solicitor. She also expressed doubts (the nature of which is not specified) about the procedure. However, she did then agree to provide a specimen, but the machine registered an “Ambient Fail”. The opinion of the custody sergeant was that this had occurred because Ms Vince had blown too close to the tube. (I understand this to mean that she had blown when she was close to the tube, but the mouthpiece was not in her mouth: at all events, the sergeant’s opinion appears to have been that it was the manner in which Ms Vince had blown into the tube which had caused the failure message). The breath analysis procedure was then recommenced, the first partially completed MG DD/A form was abandoned and PC Smith (not the same PC Smith as in the Kang case) began to complete a fresh copy of the form. At no point did the officers, PC Smith and PC Webling, contemplate seeking a blood or urine sample. In their opinion this was unnecessary. PC Smith warned Ms Vince that if she failed to provide two specimens of breath she would be liable to prosecution, but was unable to recall whether he did so by reading out the relevant part of form MG DD/A. Ms Vince did then provide two specimens of breath for analysis, the lower of the two readings obtained being 66 mg of alcohol per 100 ml of breath. The other officer present, PC Webling, also gave evidence, but the case stated gives no account of what he said.[33]At the conclusion of the prosecution case, after this evidence had been adduced, a submission was made on behalf of Ms Vince that she had no case to answer. It appears from the case stated that a number of overlapping submissions were advanced, some of which focused on what were said to be defects in the procedure followed in the custody suite, while others (in particular a submission that contradictory evidence had been given by the two police officers present) focused on the unreliability of the prosecution evidence. For the purpose of a submission of no case to answer, there is a material difference between these two submissions. The former assumes that the evidence most favourable to the prosecution may be accepted, but contends that, even so, the prosecution has failed in some material respect to make out its case. This is what is referred to as the first limb of R v Galbraith (1981) 73 Cr App R 74. The latter acknowledges that there may be some evidence to support the prosecution case, but contends that the evidence as a whole is so contradictory or unreliable that the court could not safely convict. This is the second limb of Galbraith.[34]When they came to their reasons for acceding to the submission of no case, the magistrates confined themselves to two broad findings. The first was that:
“In considering the manner in which the testing procedure was conducted we found the evidence of PC Webling and PC Smith to be inconsistent and contradictory. Both the first, abortive, MG DD/A form and the second MG DD/A form demonstrated errors and omissions. We noted in particular that PC Smith agreed that he had never noticed section A14 on the MG DD/A pro-forma and that although he received advice from the custody sergeant his attention was never referred to that part of the form. This is an illustration of just one fundamental error on the form; however we were left with the general overwhelming impression that the evidence obtained as a result of this procedure could not, and should not, be relied upon. In the absence of this evidence the prosecution had failed to adduce evidence of an essential element in their case.”
[35]The second was that:
“When considering whether or not there was a case to answer we found the prosecution had failed to satisfy us of an essential element of the alleged offence, namely that the procedure had been conducted in accordance with the procedures required by section 7 of the Road Traffic Act 1988 and thus there was insufficient evidence that the crime had been committed. Accordingly we found that there was no case to answer and dismissed the case.”
[36]Although at first sight the case appears to raise some similar questions to those discussed above in relation to Kang, it does so in a way which is much less clear-cut.

The questions for decision

[37]The magistrates stated two questions for the opinion of the court. These were: 1. Was the court right to exclude the evidence of the Intoxilyzer reading in light of the inconsistencies and contradictions in the evidence of PC Webling and PC Smith. 2. Was the court correct to conclude that the prosecution had failed to prove an essential element of the case, namely the level of alcohol in the defendant’s breath, and therefore that there was no case for the defendant to answer?

Submissions

[38]On behalf of the Director of Public Prosecutions Mr Chinweze submits, in summary, that there was no valid basis on which the magistrates could find that the evidence of PC Webling and PC Smith was inconsistent and contradictory, that any failing in the completion of form MG DD/A does not invalidate or render inadmissible the test result obtained, that there was nothing to prevent PC Smith from continuing with the breath test after the “Ambient Fail” reading without giving Ms Vince an opportunity to provide a blood or urine sample, that there was no valid basis for the magistrates’ “general overwhelming impression” that the test results evidence was unreliable, and that it was incumbent on them to give reasons for this conclusion.

Discussion

[39]Unfortunately the poor drafting of the case stated makes it difficult to give a clear answer to the questions posed. Rules 35.2 and 35.3 of the Criminal Procedure Rules set out the procedure which should be followed when a party applies for a case to be stated and deal with the way in which such a case should be prepared. We were told that a draft case was sent to the office of the Crown Prosecution Service which had prosecuted the case in the magistrates court, which is what would be expected. That office made no representations as to the contents of the draft case, as it could (and, I would add, should) have done pursuant to rule 35.3(6) if it was not satisfied by the way in which the case was drafted. Accordingly the case was finalised before it was seen by the separate office of the Crown Prosecution Service responsible for appeals by way of case stated. By then it was too late for any representations to be made. That failure by the Crown Prosecution Service to make representations as to the contents of the case forms the background to Mr Chinweze’s submissions that the magistrates failed to give reasons for their conclusions.[40]As to the first question, the inconsistencies and contradictions to which the magistrates refer are nowhere identified in the case stated. This was a serious error by the magistrates. As a result it is impossible to tell whether there were such inconsistencies and contradictions or, if there were, how significant they were. In any event the evaluation of inconsistent and contradictory evidence is a part of the fact-finding process which does not give rise to any question of law suitable for decision by way of case stated. Some inconsistencies in prosecution evidence may be so fundamental that the reliability of the evidence as a whole is called in question. Others may be the kind of points on which witnesses doing their best honestly to recall what had happened could be expected to differ. It is not apparent into which category any inconsistencies or contradictions in the present case fell. If the magistrates intended to say, as it appears that they may have done, that the prosecution evidence was so contradictory that it could not safely be relied upon, they were right to dismiss the case at the conclusion of the prosecution evidence. However, if that was what they intended to find, they should have explained their reasons for doing so. As it is, although the position is unsatisfactory, there is no material in the case stated from which it can be said that this was a conclusion which was not open to them.[41]As to the second question, the case stated does not explain in what respects the procedure adopted was not in accordance with what was required by section 7 of the 1988 Act. We are left to guess about this from the summary of the parties’ submissions as recorded in the case stated, some of which were broadly similar to those discussed above in relation to the Kang case. This is not an acceptable way to proceed. If the magistrates concluded, as they may have done (although the position is not clear), that upon obtaining an “Ambient Fail” message the police officers were obliged to obtain, or to offer Ms Vince an opportunity to provide, a blood or urine sample, that was an error of law for the reasons given above. Likewise if they concluded, as it appears that they did (see their finding quoted above that the form contained “fundamental” errors), that a failure to complete form MG DD/A properly was in itself sufficient to render invalid the analysis of the breath specimen eventually provided by Ms Vince.[42]On the other hand, if the position was that the warning required by section 7(7) had not been given, the magistrates would have been right to dismiss the case: see Murray v Director of Public Prosecutions [1993] RTR 209. It appears that there was a dispute about whether this warning had been given. PC Smith’s evidence was that it had, although it appears that this was challenged. Mr Ashley Barnes, appearing for Ms Vince, told us that this was the real issue in the case. If the magistrates intended to reject PC Smith’s evidence as incapable of belief at the conclusion of the prosecution case, they should have explained why they did so. Although they provided no such explanation, it may be that this was their view and that it was for this reason that they said that the procedure had not been conducted in accordance with the procedure required by section 7. If so, that would not involve any error of law on their part.[43]At all events, it does appear that the magistrates concluded that the test reading obtained was not reliable. They said that the evidence could not be relied on, rather than that it was reliable evidence which was rendered inadmissible by some defect in procedure. For example, although they recorded the custody sergeant’s opinion that the reason for the “Ambient Fail” message was the manner in which Ms Vince had blown close to the tube, they expressed no view as to the plausibility of this explanation in this particular case. In this respect the case stated may be contrasted with the case stated in the Kang case. If the magistrates did not accept this explanation (and it appears from the case stated that the custody sergeant may not even have been present in the room at the time) and considered that the prosecution had failed to adduce credible evidence as to the reliability of the test result, they were right to decide that Ms Vince had no case to answer. Again, although their reasoning is obscure, it is not possible to say from the case stated that they were wrong in law.[44]In these circumstances, despite the unsatisfactory drafting of the case stated and the uncertainty about the magistrates’ reasoning, I would dismiss this appeal. The alternatives – either to send the case stated back for re-drafting when no representations were made on behalf of the prosecution as to the contents of the case stated or to start again before a differently constituted panel – would be even less satisfactory.

Disposal

[45]Accordingly I would dismiss both appeals.

Beatson LJ

[46]I agree that, for the reasons given by my Lord, both appeals should be dismissed. I observe that what happened in Ms Vince’s case shows the importance of the parties to an appeal by way of case stated considering the draft case carefully, making representations if it is considered that the case is deficient. This is because on an appeal by way of case stated, the Administrative Court can only consider the facts stated in it. It is thus vital that the case contains all the matters that should be before that Court in order for it to decide the appeal. Evidence not referred to in the case may not be referred to, even if it was undisputed before the lower court. If the lower court refuses to amend the case, and the parties do not agree that it should be amended, an application for its amendment can be made under section 28A of the Senior Courts Act 1981. The result of the failure of the prosecution authorities to do this in Ms Vince’s case is that it is not possible to say that the magistrates erred in law in the disposal of her case.