Factual and Procedural Background
The Appellant was convicted at a Magistrates' Court of driving a motor vehicle in a public place with a breath alcohol concentration exceeding the prescribed limit, contrary to Section 5(1)(a) of the Road Traffic Act 1988. The incident arose from a collision involving the Appellant’s vehicle on 12 July 2003. A police officer detected alcohol on the Appellant’s breath and conducted a roadside breath test using an Alcolmeter SL 400A device, which gave a positive result. The Appellant was then taken to a police station where two further breath specimens were taken using an Intoximeter EC/IR device, which showed a breath alcohol concentration above the legal limit. The District Judge found that the Intoximeter device, despite modifications, remained an approved device under the relevant Approval Order. The Appellant appealed by way of case stated, raising two questions regarding evidential procedures related to breath test results.
Legal Issues Presented
- Whether the District Judge was correct to refuse to hear evidence and argument on an application for a witness summons to obtain disclosure of the "F11 settings" of the Intoximeter device.
- Whether the prosecution was obliged to adduce in evidence the numerical result of the roadside breath test obtained from the Alcolmeter SL 400A device.
Arguments of the Parties
Appellant's Arguments
- The Appellant challenged the District Judge’s reliance on expert evidence from a previous case (the Rose/Carruthers case) rather than allowing a witness summons to disclose the "F11 settings" of the Intoximeter device used at the police station, arguing this was necessary to determine whether the device functioned properly on the occasion in question.
- Mr Ley, representing the Appellant, contended that the prosecution was required to produce the numerical breath/alcohol reading from the roadside breath test, or at least disclose it upon request, as it could bear on the reliability of the police station device’s readings.
- The Appellant’s evidence, supported by an expert, suggested his alcohol consumption could not have exceeded the legal limit, and thus the roadside reading was relevant to challenge the prosecution’s case.
- Reliance was placed on case law, including Badkin v DPP, O'Sullivan v DPP, and Parrish v DPP, to argue that evidence of all relevant specimens should be considered and that expert evidence could displace presumptions of device reliability.
- Mr Ley argued that the statutory term "specimen" in Section 15(2) of the Road Traffic Offenders Act 1988 includes the roadside breath specimen and that technological advances enabling numerical readings at roadside tests require the prosecution to adduce or disclose such figures.
Prosecution's Arguments
- The prosecution submitted that the term "specimen" in Section 15(2) does not include roadside breath specimens, which are preliminary tests under Section 6 of the Road Traffic Act 1988, intended only to assist in deciding whether to arrest a suspect.
- Only specimens taken at the police station or hospital, as specified in Section 7 of the 1988 Act, are required to be adduced in evidence.
- Reliance was placed on the statutory language and judicial analysis, including the decision of Mitting J in Murphy, which distinguished preliminary roadside tests from specimens for analysis.
- The prosecution contended that there was no general obligation to obtain or present the numerical roadside breath test results in evidence.
- Regarding disclosure, the prosecution recognized the duty to disclose material evidence but maintained that the roadside figures were not required to be disclosed as a matter of law.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Badkin v DPP [1988] RTR 401 |
Requirement to adduce evidence of analysis results of specimens of breath or blood; failure to do so vitiates prosecution case. |
Distinguished as relating to circumstances where breath analysis device was unreliable; no general principle requiring roadside breath test figures to be adduced. |
| O'Sullivan v DPP (unreported, 27 March 2000) |
Reliability of Intoximeter devices can be challenged where significant discrepancies exist between readings. |
Referenced to show that expert evidence may displace presumptions of device reliability, but not to impose a general evidential obligation on roadside test results. |
| Parrish v DPP [2000] RTR 143 |
Defendant's right to call expert evidence to contradict scientific analysis. |
Confirmed the right to expert evidence but did not create a general rule about roadside test evidence. |
| Lomas v Bowler [1984] Crim LR 178 |
Trial court entitled to convict based on evidence as a whole, including driving behavior and breathalyser results. |
Supported the proposition that convictions can rest on comprehensive evidence, not solely on scientific analysis. |
| Brown v Stott [2003] 1 AC 681 |
Prosecuting authority’s duty to disclose all material evidence under Article 6(1) ECHR and English law. |
Referenced to support good practice in disclosure, but did not mandate disclosure of roadside breath test figures. |
| DPP v Hill [1991] RTR 351 |
Presumption of reliability of breath analysis devices unless evidence displaces it. |
Illustrated that courts may reject defendant’s evidence if it would require implausible conclusions about device reliability. |
| Murphy [2006] EWHC Admin 1753 |
Distinction between preliminary roadside tests and specimens for analysis at police station. |
Supported the view that only specimens taken under Section 7 need be adduced in evidence. |
Court's Reasoning and Analysis
The court addressed two principal questions. Regarding the first question about the witness summons for disclosure of the "F11 settings," the court found it irrelevant to the issues at trial because the Appellant’s challenge was not to the device’s approval status but to its proper functioning on the occasion. The District Judge’s reliance on prior expert evidence was therefore not improper, and the court declined to answer the first question.
On the second question concerning whether the prosecution was obliged to adduce the numerical roadside breath test result, the court undertook a detailed statutory construction analysis. It emphasized the two-stage testing procedure established by the Road Traffic Act 1988: preliminary roadside tests under Section 6, intended only to indicate whether arrest is warranted, and definitive specimens for analysis taken at the police station under Section 7.
The court interpreted the term "specimen" in Section 15(2) of the Road Traffic Offenders Act 1988 as applying to specimens taken for analysis at the police station or hospital, not to the preliminary roadside breath specimens. It reasoned that the statutory scheme, including amendments, confirms the roadside test’s status as a preliminary indication rather than evidential proof. The assumption of breath alcohol proportion in Section 15(2) applies to the Section 7 specimens, not to roadside tests, thus preserving the statutory evidential framework.
The court acknowledged technological advances permitting numerical readings at roadside tests but held that such advances do not impose a legal obligation to adduce these figures in every case. However, it recognized that good practice, and possibly the prosecution’s disclosure duties under the Criminal Procedure and Investigations Act 1996, support disclosure of such figures where available, as they may assist in challenging the reliability of subsequent specimens.
The court considered relevant authorities but found no general principle requiring the prosecution to adduce or disclose the roadside breath test figures. It stressed that cases must be decided on the evidence adduced and that the statutory scheme remains intact despite technological changes.
Holding and Implications
The court’s final ruling was to DISMISS THE APPEAL.
The direct effect of this decision is to uphold the conviction based on the police station breath specimens without requiring the prosecution to adduce or disclose the numerical results of the roadside breath test. The court emphasized that the statutory framework distinguishes between preliminary roadside tests and evidential specimens taken later, and this distinction was not altered by technological advances. While good practice encourages disclosure of roadside figures when available, this decision does not establish a new legal precedent mandating such disclosure or evidential use. The ruling clarifies the evidential status of roadside breath tests within the statutory scheme but does not affect the defendant’s right to challenge reliability through expert evidence.