B e f o r e :
LORD JUSTICE PILL
MR JUSTICE CRESSWELL
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| | BETWEEN: |
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| | JOHN ROBERT WILLIAMS
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| First Defendant
Second Defendant
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| | and
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| | DIRECTOR OF PUBLIC PROSECUTIONS
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr. John McGuinness QC instructed by R. M. Falvey & Co appeared on behalf of the Appellant.
Mr. Richard Whittam instructed by the Crown Prosecution Service appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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MR. JUSTICE CRESSWELL:
- This is an appeal by Mr. John Robert Williams (“Mr. Williams”) by way of case stated by Justices of the County of West Sussex acting in and for the Petty Session Division of Crawley in respect of their adjudication as a Magistrates’ Court sitting at mid Sussex on 26 January 2001.
- On 10 December 1999 Mr. Williams was charged with an offence alleging that on 9 December 1999 at Crawley, Sussex he drove a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988.
- The evidence called before the magistrates was as follows. For the prosecution Police Sergeant Handley, Pc Chaffey, Pc Lewis and Dr. John Mundy (an expert witness) gave evidence. For the defence Mr. Williams, Dr. Paul Williams (the Marketing Director of Lion Intoximeter) and Dr. Trafford (an expert witness) gave evidence.
- The magistrates heard the charge on 16 November 2000 and 26 January 2001 and found the following facts. On 9 December 1999 Pc Chaffey and Pc Lewis stopped the appellant’s Volkswagen motor car at Tollgate Hill, Crawley. The appellant was asked to provide a breath test at the roadside and at 2321 hours provided a positive specimen of breath. He was arrested and conveyed to Crawley Police Station. At 2352 hours, Pc Lewis operated the Intoximeter EC/IR procedure at the Police Station. The first test was at 2354 hours. The procedure was completed at 2358 hours. Mr. Williams provided two breath specimens; the lower reading was 60 microgrammes of alcohol in 100 millilitres of breath.
- It was contended by the defence that:-
(a) Mr. Williams did not drink sufficient alcohol to exceed the legal limit.
(b) If the Court accepted that Mr. Williams did not drink sufficient alcohol, then the results produced by the Intoximeter printout should be ignored.
(c) The Intoximeter EC/IR device at Crawley Police Station was not an approved device because in subsequent tests it failed to detect mouth alcohol.
(d) If the device did not perform its functions properly in accordance with type approval technical requirements, it ceased to be an approved device and was unreliable.
(e) It was for the Crown to prove beyond reasonable doubt that the Intoximeter EC/IR was an approved device.
- The magistrates were of the following opinion. Mr. Williams had consumed sufficient alcohol to exceed the prescribed limit. The Intoximeter EC/IR was on 9 December 1999 an approved device. On 9 December 1999 the device was a reliable one and operating correctly. A true and correct reading was obtained. On 10 October 2000 when Dr. Trafford carried out his experiment, the device failed to detect the presence of mouth alcohol.
- The magistrates set out the reasons for their decision as follows:-
“The defendant had consumed sufficient alcohol to exceed the prescribed limit. We consider on the facts that the amount of alcohol that Mr. John Williams said in evidence that he had had to drink would have been sufficient to provide a breath test sample in excess of the prescribed limit. We accepted the evidence of Pc Lewis that the defendant’s eyes were glazed and that he smelt strongly of intoxicating liquor. Mr. John Williams provided a positive roadside breath specimen at 2321 hours. The Intoximeter EC/IR is an approved device and was so on 9 December 1999... We were of the opinion that the device was a reliable one and that it was operating correctly at the material time. There is a presumption that the device is deemed to be operating correctly and is reliable when used. However it is open to a defendant to rebut that presumption by calling evidence challenging the reliability of the device at the material time and that is what Mr. John Williams has sought to do in this case. Once the challenge is made it is for the Crown Prosecution Service to prove beyond reasonable doubt that the device was working correctly... We did not believe that mouth alcohol affected the result in this case. Mr. John Williams... accepted that he did not regurgitate food nor did he swallow or belch. We considered that the facts in this particular case make no suggestion that mouth alcohol was a factor. We found Dr. Mundy’s opinion in relation to mouth alcohol consistent with the timings of this particular incident. We consider the timings to be relevant and significant. In the light of the facts of the case we accepted the evidence of Dr.Mundy that Mr. John Williams’ breath alcohol results could not have been significantly influenced by mouth alcohol or regurgitation... We were of the opinion that a true and correct breath reading from deep lung air was obtained from Mr. John Williams...”
- The questions posed by the magistrates for the opinion of this Court were as follows:-
1. Were we correct in law to decline to stay the proceedings as an abuse of the process of the Court?
2. Were we entitled on the evidence to find as a fact that on 9 December 1999 the Intoximeter EC/IR device which analysed the appellant’s breath specimen was on that date a reliable device?
3. Having found that on 9 December 1999 the particular Intoximeter was then a reliable device, were we correct in law to hold it was unnecessary to determine separately whether the device was ‘approved’?
4. Were we entitled on the evidence to find as a fact that the defendant had consumed sufficient alcohol to exceed the prescribed limit?
- An addendum to the case stated was agreed between the appellant and the respondent which included the following. Expert evidence was adduced on behalf of the appellant to the following effect: If the appellant had, on the evening of 9 December 1999, and prior to the provision of his breath specimens, consumed the amount of alcohol he stated in evidence he had consumed, then his breath/alcohol concentration at the time he provided the specimens would have been less than the prescribed limit and in fact would have been zero. When cross-examined, Dr. Mundy stated that he had no reason to doubt this evidence.
- Before this Court the appellant did not pursue the first three questions posed by the magistrates. As to the fourth question, Mr. McGuinness QC for the appellant submitted as follows. It was not open to the magistrates to convict the appellant on the basis that the amount of alcohol he said in evidence he had consumed was sufficient to prove his breath/alcohol concentration was in excess of the prescribed limit. The magistrates could not properly conclude that on the basis of what the appellant said he had to drink, his blood/alcohol concentration was in excess of the prescribed limit. All the evidence (on both sides) was to the contrary. The magistrates made no reference to that evidence and in all the circumstances no fair or proper consideration was actually given by the magistrates to the defence case. The appellant was entitled to have the reliability of his evidence as to how much alcohol he claimed to have consumed, considered by the magistrates. In so far as the Case reveals the magistrates gave such consideration, they proceeded on the basis that he was ‘over the limit’ even if he had in fact drank that which he claimed in evidence. This was an erroneous and unfair approach in the light of all the evidence in the case.
- Before this Court Mr. Whittam for the respondent submitted as follows. Had the magistrates accepted the appellant’s evidence, and the evidence of the expert witnesses, his breath alcohol concentration would have been zero. The magistrates found that the appellant’s eyes were glazed, his breath smelt strongly of alcohol, the roadside breath test was positive and a reading of 60 microgrammes of alcohol in a 100 millilitres of breath was obtained. In making these findings, in the circumstance of this case, the magistrates must have rejected the evidence of the appellant. The magistrates were entitled on the evidence to find as a fact that the defendant had consumed sufficient alcohol to exceed the prescribed limit.
- I refer to my analysis of the relevant statutory provisions and the relevant legal principles in my judgment in DPP v Brown and DPP v Teixeira. In the case of a breath specimen there is a presumption that the device is reliable, but if that presumption is challenged by relevant evidence the magistrates will have to be satisfied that the machine has provided a reading upon which they can rely before making the assumption (Cracknell v Willis [1988] 1AC 450 at 467 C-F, Lord Griffiths).
- Mr. Williams gave evidence before the magistrates that on 9 December 1999 he had been in a London restaurant between 1 p.m. and 5.30 p.m. and between 7 p.m. and 9 p.m. and had consumed 4-5 glasses of red wine, one glass of beer and one bottle of beer. The magistrates reasons quoted in paragraph 7 above must be read as a whole. It does not follow from the magistrates’ reference to the amount of alcohol that Mr. Williams said in evidence he had consumed, that the magistrates were accepting the accuracy of his evidence as to when he consumed the alcohol. When the magistrates’ reasons are carefully examined it is clear that they did not accept the whole of Mr. Williams’ evidence. I do not read the sentence “We consider on the facts that the amount of alcohol that Mr. John Williams said in evidence that he had had to drink would have been sufficient to provide a breath test sample in excess of the prescribed limit” as “We consider on the facts that the amount of alcohol that Mr. John Williams said in evidence that he had had to drink at the times he referred to would have been sufficient to provide a breath test sample in excess of the prescribed limit.” The magistrates concluded that on the facts they found, mouth alcohol was not a factor. At the same time it was open to them to point out, in the course of a comprehensive analysis, that taking the quantities Mr. Williams said he had consumed (but not accepting his evidence as to time of consumption) the breath test sample would have been over the prescribed limit. I would answer the remaining question for the opinion of this Court in the affirmative.
LORD JUSTICE PILL:
- I agree. For the appellant, Mr McGuinness QC submits that the appellant was entitled to an express finding as to whether his evidence as to what he had drunk was accepted. If it was accepted, he was entitled to an acquittal on the basis of expert evidence which for the purposes of this hearing is to be treated as agreed expert evidence. The Magistrates’ finding that on the appellant’s own evidence he had drunk sufficient to provide a sample in excess of the prescribed limit was untenable in the light of the expert evidence, it is submitted.
- I should first wish to express my reservations about the procedure followed in the stating of this case. The parties have apparently agreed, for the purpose of submissions to this Court, a statement of expert evidence not referred to by the Magistrates in their findings or their reasoning. On behalf of the respondent, it is still contended that the relevant expert evidence was not before the Magistrates but it is agreed that the appeal should be determined as if it was. Moreover the factual basis of the experts’ opinions is not provided, though we were told orally that the appellant gave similar, though not identical, information to the expert as he gave in evidence. The times at which he had drunk what he said he had drunk were not particularised in the statement to the expert (or in evidence). I should add and bear in mind that the parties may have been encouraged by this Court, differently constituted, to take the course they did.
- The result is unsatisfactory. It is unfair to Magistrates whose reasoning is challenged on a factual basis not included in their case and it is unsatisfactory to this Court which has to determine what is put as a point of law on a factual base which is unclear.
The Magistrates have made a clear finding that the appellant “had consumed sufficient alcohol to exceed the prescribed limit”. There was ample evidence to justify that finding; the intoximeter reading, the roadside breath specimen, the glazed eyes, and the smell of alcohol. I read the sentence complained of in their reasons (“We consider on the facts that the amount of alcohol that [the appellant] said in evidence he had had to drink would have been sufficient to provide a breath test sample in excess of the prescribed limit”), in the context of a case in which it is the now abandoned points which were given prominence at the trial, as no more than an aside, an indication that the appellant had admitted drinking a considerable amount. If the Magistrates were accepting his evidence as to amount, I agree with Cresswell J that they were not accepting it as to time. The sentence is not essential to the Magistrates’ reasoning. Reading it in the context of the case as a whole I am quite unable to find a defect in reasoning or procedure which would justify the quashing of this conviction.
LORD JUSTICE PILL: For the reasons given in the judgments handed down, this appeal is dismissed. Are there any applications?
MR WHITTAM: My Lord, I indicated to my learned friend that there is an application for costs. It is only in relation to counsel's fees because of the way matters were linked together initially. I have given my learned friend a figure. I am not sure that he has been able to take instructions in relation to that figure and I would simply ask for costs, if not agreed, to be taxed.
LORD JUSTICE PILL: Mr McGuinness?
MR MCGUINNESS: That is correct. I have been given a figure this morning. I have not been able to take instructions on it so I have agreed with my learned friend that the appropriate order would be for costs to be taxed, if not agreed. I should say it has been agreed between the parties that the costs order should not include the costs relating to or arising out of the application to remit the case for amendment; that is agreed between the parties.
LORD JUSTICE PILL: Yes. Yes, do you want that noted on the order?
MR MCGUINNESS: I would like it noted in case we have to tax the costs.
LORD JUSTICE PILL: Yes. So would you repeat it?
MR MCGUINNESS: The appellant to pay the costs of the respondent, save for costs relating to or arising out of the application to remit the case for amendment. Costs to be taxed, if not agreed. Mr Lord, I have one application.
LORD JUSTICE PILL: Just on that point, if it would help, and it is entirely a matter for you, we would rehear you after handing down the other two cases if, by reason of a short word, you could forestall the possibility of the further costs on a taxation.
MR MCGUINNESS: Yes.
LORD JUSTICE PILL: You have another application.
MR MCGUINNESS: One application. The appellant's disqualification from driving which was imposed on his conviction was suspended by the justices at Crawley after this court heard the application to remit in July. So he has had his disqualification revoked or suspended since, I think, late July. Clearly, that must be reimposed as a result of the appeal being dismissed. I would ask, in case he happens to be somewhere at the moment where he does need to drive back home, that the disqualification is imposed with effect from midnight tonight.
LORD JUSTICE PILL: Mr Whittam?
MR WHITTAM: My Lord, I have no objection to that course.
LORD JUSTICE PILL: Yes, the suspension is lifted because the disqualification must now take effect, but it will not take effect until midnight tonight.
MR MCGUINNESS: Thank you.
(The judgment was given in the following case)
LORD JUSTICE PILL: Mr McGuinness, have you had an opportunity?
MR MCGUINNESS: I have not, my Lord, no.
LORD JUSTICE PILL: Well, that is quite understandable. I agree with that order, so the costs on the basis indicated with that exclusion will be taxed, if not agreed, and in favour of the respondent.
MR MCGUINNESS: Yes. Thank you.
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