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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Smith [1999] EWHC 836 (Admin) (25 November 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/836.html Cite as: [1999] EWHC 836 (Admin), [2000] RTR 341

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		25th November 1999

1. MR JUSTICE TURNER: This is an appeal by way of case stated from the decision of the justices for the North East London Commission Area sitting for the Petty Sessional Area of Havering, in respect of their adjudication as a Magistrates' Court at The Court House in Romford, on 25th May 1999, when they upheld a submission made on behalf of the respondent that there was no case to answer.
2. The proceedings arise out of an incident which occurred on 28th September 1998 at Elvet Avenue, Romford. The respondent was charged with an offence of driving a motor vehicle on a road after consuming so much alcohol that the proportion of it in the blood exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act of the same year.
3. The hearing of the case occupied two days in the Magistrates' Court, the 27th April and the 25th May. The justices set out in the case the facts which they found. I keep them as short as is necessary for the proper determination of this appeal.
4. Having been stopped by the police while driving his car, the respondent provided a specimen of breath which was positive. He was arrested and taken to Romford Police Station. At the police station, a further breath check was carried out with a Lion Intoximeter machine. A calibration check was carried out both before and after the breath testing procedure, which showed that the machine appeared to be functioning correctly. Two specimens of breath were obtained. The first, at 23.40, showed a reading of 43 microgrammes of alcohol in 100 millilitres of breath, and the second, taken a minute later, showed a reading of 33 microgrammes in the same quantity of breath. Thus, it can be seen that the first reading was in excess of the prescribed limit, whereas the second was below it. Perhaps of greater significance is that those two readings showed what is known as a "blow difference" of some 30.3 per cent.
5. After the two samples of breath had been obtained, the police officer conducting the procedure purported to conform to two sheets of instructions or advice known as Drinks/Drugs Procedure General, bearing a code reference MG DD/A and B, version for 3rd January 1998. Annexed to those sheets there is a table of breath difference ranges which suggests that with an old generation device (that is to say, the Lion Intoximeter) where there is a difference of more than 20 per cent between the lowest and highest readings, the conclusion may be that while the device may be operating reliably, it has not produced a reliable indication.
6. The findings of fact continue that:

"As a result of referring to the table annexed to the forms and for no other reason, the police officer conducting the procedure concluded that the difference between the two readings meant that the Lion Intoximeter was not operating reliably."

At paragraph 13 of the form, the police officer recorded that fact.

7. As a result of that, the officer referred to the Form B and considered the matter further. On that form he struck out the words in relation to the device "not operating reliably" but retained the words "unreliable indication obtained". He thus retained the words on the document:

"There is reasonable cause to believe that the device used has not produced a reliable indication of the proportion of alcohol in your breath."

So it was that the police officer required the respondent to provide a specimen of blood. That he did at 29 minutes past midnight on the next day. Analysis of that specimen revealed what the relatively low breath specimens had already revealed: the respondent's blood alcohol was just over the prescribed limit of 80 per 100 millilitres of blood, namely 87 milligrammes.

8. The justices record that it was the officer's evidence that throughout the procedure the respondent remained calm and collected and gave no overt signs of being affected by alcohol. Indeed, he was described by the officer as having been a "model customer". It is accepted by the officer that had he not referred to the table, he would not have required the respondent to provide a sample of blood.
9. In their findings, at letter "U", the justices state:

"The decision to require a specimen of blood to be provided was taken by PC Mayers because he concluded that the machine was not operating reliably. Critically, he formed that conclusion solely on the basis of the information contained in the 'Table of Breath Difference Ranges - 20% Old Generation Device' contained in form MG DD/A."

And at:

"V. Had PC Mayers conducted the breath specimen procedure prior to 1st April 1998, respective readings of 43 and 33 microgrammes of alcohol in 100 millilitres of breath would have resulted in his releasing the respondent and not requiring him to provide a specimen of blood."

10. The law underpinning that last finding of fact is to be found in section 7(3)(bb) of the Road Traffic Act 1988, which was added by way of amendment by virtue of the Criminal Procedure and Investigations Act 1996. The commencement date of those provisions was 1st April 1999.
11. Submissions were made on behalf of the appellant and the respondent, which are recorded by the justices as follows:

"It was contended by the appellant that the evidence established that the requirements of section 7(3)(b) and (bb) of the Road Traffic Act 1988 were satisfied. PC Mayers had formed the belief by reference to paragraph A13(ii)(b) and the Table of Breath Difference Ranges - 20% Old Generation Device in form MG DD/A, that either the machine was not operating reliably or alternatively it had not produced a reliable indication of the proportion of alcohol in the breath of the respondent. The belief he held was based on a reasonable cause, namely the contents of and instructions contained in form MG DD/A.

It was contended by the respondent that the legality of form MG DD/A was in issue. If the court concluded that the reason why PC Mayers required the respondent to provide a specimen of blood was because of his reliance on form MG DD/A and the court concluded that form MG DD/A was unlawful then the evidence relating to the specimen of blood should be excluded. Alternatively, if the legality of form MG DD/A was not in question, the evidence relating to the specimen of blood should be excluded under section 78 of the Police & Criminal Evidence Act 1984. In any event, a belief based on reliance on the contents of and instructions contained in form MG DD/A was not capable of constituting a reasonable cause for belief for the purposes of section 7(3)(b) and (bb) of the Road Traffic Act 1988."

12. In paragraph 6 of their case, the justices state that they were:

"... of the opinion that the decision of PC Mayers to require the respondent to provide a specimen of blood was based on his belief that either the Lion Intoximeter 3000 machine was not operating reliably or it had not produced a reliable indication of the proportion of alcohol in the breath of the respondent. We were of the view that his belief was based solely on the contents of and instructions contained in form MG DD/A in respect of which he had no formal training and the genesis of and scientific basis of which no evidence had been placed before the court. We were of the opinion that, in the circumstances, the basis of PC Mayers' belief was not capable of constituting a reasonable cause for his belief, and that the evidence relating to the specimen of blood was inadmissable. Accordingly, we dismissed the information."

13. The question the justices posed for this court is:

"[Whether they were] right to hold that the decision of PC Mayers to request that a sample of blood be taken was not founded upon a reasonable cause for belief on his part that a reliable device was not available (section 7(3)(b) Road Traffic Act 1988), and/or was not founded on a reasonable cause for belief that the device had not produced a reliable indication ... section 7(3)(bb) Road Traffic Act 1988), based as it was on automatic adherence to a form in which he had received no formal training, and the genesis and scientific basis of which there was no evidence before the court?"

14. Shortly before the hearing of this appeal, the respondent, who had been in receipt of legal aid, suffered the misfortune of having that legal aid withdrawn from him. We have, however, had the benefit not only of access to the skeleton argument which had been prepared on his behalf by counsel who had until yesterday been instructed, but we have also had such assistance as was entirely properly given by Mr McGuinness, on behalf of the appellant. He has made clear in this case the points, which had he been appearing on behalf of the respondent, he would have been minded to take.
15. As is well known, in the procedures which must be complied with before a lawful conviction can take place for driving with excess alcohol, a number of legal requirements have to be satisfied. Those are provided in sections 6 and 7 of the 1988 Act, and in this case we are particularly concerned with the provisions of subsection 3 of section 7 which provides, so far as material:

"A requirement under this section to provide a specimen of blood or urine can only be made at a police station ... 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) 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 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 ...

But may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath."

16. Experience of these cases and the technicalities of the procedures which the Act and its forerunner set up, no doubt called for, and still calls for, a simple step by step procedure guide for those police officers who are called upon to operate the procedures set out in the Act.
17. I have examined the forms MG DD/A and B and conclude that they are, in essence, no more than what I would describe as the "plain man's guide" to a simple understanding of the procedures provided by the 1988 Act to ensure, in a practical way, that those called upon to operate the procedures do not omit a relevant step; that at stages where there is a choice of steps, they appreciate that such a choice exists, and it also offers quite clearly common sense guidance as to the way in which choices should be exercised when they fall to be made.
18. Standing back from the forms themselves, and going back to the facts of this case: as the result of the pre and post breath procedure calibrations on this particular device show, it can be seen that the device itself was not unreliable. The calibration checks showed that to be the position. If then, two breath specimens are taken within the space of a minute or so, which showed a disparity in reading (the higher being some 30.3 per cent higher than the lower) any reasonable person would be minded to conclude that the indication given by the device was unreliable. I can read no more into the form than that common sense approach to the practical problem which confronted PC Mayer on the night of 28th/29th September 1998.
19. The skeleton submissions on behalf of the respondent describe the issues raised in the present appeal as follows:

"2.1 whether the Prosecution were obliged to call evidence as to the provenance of the Form MG DD/A ... which contained a number of assertions of both law and science.

2.2 Accepting that the Appellant concedes [in his skeleton argument] that there was no evidence that the machine itself was unreliable, whether PC Mayers should have exercised his discretion not to require a sample of blood.

2.3 Whether PC Mayers had reasonable cause to believe that the machine had not produced a reliable indication of the proportion of alcohol in the breath of the respondent."

20. For my part, I would answer those questions as follows:

2.1, there was no obligation on the prosecution to call evidence as to the provenance of the form: it was, as I have already indicated in my judgment, no more than a plain man's common sense guide to the procedures contained in the Act.

2.2, the exercise of the officer's discretion: that was a matter entirely up to him.

2.3, whether or not the officer had reasonable cause to believe that the machine had not produced a reliable indication: I have already indicated that, given the simple facts of this case, in my judgment, he did. The form suggested that he understood it and applied it correctly.

21. I would just add that throughout the statement of the case, the justices refer to the form as giving "instructions" to the person who is operating the procedure. That is a simple misreading of what the form purports to do, which is no more than to offer "advice" to those who are operating within this field.
22. For my part, I would answer the question posed by the justices, "were we right to hold that the decision of PC Mayers to request that a sample of blood be taken was not founded upon on a reasonable cause for belief on his part?" in the negative, and I would allow this appeal.
23. LORD JUSTICE SIMON BROWN: Like my Lord, I have no doubt that the question posed by the case stated must be answered in the negative and that the appeal must accordingly be allowed. It seems plain to me that the advice contained in the form MG DD/A gave the officer perfectly reasonable cause to believe that the device had not produced a reliable reading within the meaning of section 7(3)(bb) of the 1988 Act as amended. But, for my part, I regard this as one of those highly exceptional cases in which, despite such a conclusion, this court can now properly exercise its discretion not to remit the matter for further hearing by the magistrates.
24. To my mind, two important considerations lead to this conclusion. First, by the time of any future rehearing, this case would really have grown somewhat stale; it is already 14 months old. Secondly, and perhaps more importantly, the fact is that this respondent's alcohol level was on any view only very marginally in excess of that prescribed by law. He had proved "a model customer" and, as my Lord has outlined, the facts reveal that he could well be regarded as unluckier than the great majority of those who come to be prosecuted under this legislation. I repeat, it is the combination of these considerations which leads me to conclude that the matter should now be left where it stands. This decision ought not to encourage other unsuccessful respondents to hope for any such result.

Yes, Mr McGuinness?

MR MCGUINNESS: My Lord, I did have instructions on costs but I have no application.

LORD JUSTICE SIMON BROWN: Quite right. I do not know how much of that you followed, Mr Smith. We have formally allowed the appeal but we have decided, highly exceptionally, not to make the order which ordinarily results from such a decision: not to remit the matter to the justices for a further hearing. So as far as you are concerned, that, in fact, will be that. You may count yourself a touch fortunate. Be that as it may, no order for costs is to be made. Very well, thank you very much.

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