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12 January 2017

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Director of Public Prosecutions v Vince; Director of Public Prosecutions v Kang [2016] EWHC 3014 (Admin)

Queen’s Bench Division: Beatson LJ, Males J

Justices — Case stated — Practice — Justices accepting submission of no case to answer in excess alcohol case — Prosecution appealing by way of case stated — Prosecution failing to make representations on contents of draft case — Whether case as drafted disclosing error of law — Crim PRr 35.3(6)

Road traffic — Breath specimen for analysis — Analysis evidence — Roadside breath test giving positive result — Testing device at police station showing initial calibration failure before further positive test result obtained — Defendant charged with driving with excess alcohol — Whether roadside breath test admissible in support of reliability of police station procedure — Whether conviction to be quashed — Road Traffic Act 1988 (c 52), s 7

In the first case the defendant was stopped by police officers while driving a motor vehicle on public road. Having given a positive roadside breath test, she was arrested and taken to a police station for a breath test procedure to be carried out pursuant to section 7 of the Road Traffic Act 1988. The defendant provided two specimens of breath for analysis, the testing device having initially recorded an “Ambient Fail” calibration error. On the basis of the lower breath test reading, the defendant was charged with an excess alcohol offence under the 1988 Act. At her trial, the justices accepted a submission of no case to answer at the close of the prosecution case and dismissed the charge. The prosecution requested the justices to state a case. The draft case, having set out the prosecution evidence, referred to inconsistencies in the police evidence and gave as the reasons for accepting the submission of no case to answer that the evidence obtained as a result of the procedure could not, and should not, be relied upon and that the prosecution had failed to satisfy the justices of an essential element of the alleged offence, namely that the procedure had been conducted in accordance with that required by section 7 of the 1988 Act, and that there was thus insufficient evidence that the crime had been committed. The prosecution appealed by way of case stated, having made no representations on the contents of the draft case.

In the second case, the defendant was arrested having given a positive roadside breath test and taken to the police station for the section 7 procedure to be conducted. He was charged with being in charge of a vehicle with excess alcohol. At his trial, he sought, inter alia, to challenge the reliability of the police station procedure, the testing device having initially recorded an “Ambient Fail” calibration error. The district judge, relying in part on the evidence of the roadside test, found the police station results to be reliable and the charge against the defendant proved. The defendant appealed by way of case stated.

On the appeals—

Held, (1) the appeal in the first case was dismissed. It was important in a case where the prosecution appealed a finding by justices of no case to answer that the case stated by the justices contained a clear statement of their reasons for concluding that the defendant had no case to answer. Furthermore, it was important that the draft case stated was considered carefully by the parties and that any representations as to the content of the case were properly made pursuant to Crim PR r 35.3(6) because, once finalised, no amendments could be made. The case stated by the justices had been poorly drafted and the Crown Prosecution Service had failed to consider its contents and make appropriate representations at the proper time. On the case as drafted, and despite the uncertainty of the justices’ reasoning as set out therein, it was impossible to conclude that the justices had erred in law in acceding to the defendant’s submission of no case to answer (paras 31, 39, 44–45, 46).

And, (2) the appeal in the second case was dismissed. For the purposes of establishing whether a person had committed an excess alcohol offence under sections 3A, 4 or 5 of the Road Traffic Act 1988 where the prosecution case was based on the proportion of alcohol in the accused person’s breath, the relevant specimens of breath were those obtained at a police station in accordance with the procedure set out in section 7 of the Act. A conviction for such an offence could not be based upon specimens obtained by a roadside breath test. However, where a defendant challenged the reliability of the station procedure, it was open to the magistrates’ court to rely upon the result of the roadside procedure as a piece of evidence tending to support the reliability of the station procedure. Accordingly, the district judge had not fallen into error in relying upon the roadside procedure as support for the reliability of the station procedure, the latter procedure forming the basis upon which the defendant’s conviction had been found (paras 28–29, 45, 46).

Appearances: Ashley Barnes (instructed by MAJ Law, Widnes) for the defendant Vince. Taqdir Singh-Bains, solicitor for the defendant Kang. Leslie Chinweze, solicitor (of the Crown Prosecution Service) for the prosecution.

Reported by: Giovanni D’Avola, barrister.

Solicitors Journal case digest is prepared by the Incorporated Council of Law Reporting for England and Wales

Categorised in:

Road traffic Crime

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director of public prosecutions