Director of Public Prosecutions v Walsall Magistrates’ Court & Anor [2019] EWHC 3317 (Admin)

Director of Public Prosecutions v Walsall Magistrates’ Court & Anor [2019] EWHC 3317 (Admin) concerned two applications by the DPP for judicial review of disclosure orders made in excess breath-alcohol prosecutions. The Lord Chief Justice, Lord Burnett of Maldon, sitting with Mrs Justice May in the Divisional Court, granted permission and allowed the applications, quashing the orders for disclosure.

Both cases arose from prosecutions under section 5(1) of the Road Traffic Act 1988. The interested parties, Mr Ramachandra Bhusal and Mr Neill Thaiss, had each been charged with driving with excess alcohol after testing on a Lion Intoxilyser 6000UK, a type-approved breath-testing device. Mr Bhusal’s roadside test had given a reading of 47 µg/100ml; his subsequent evidential breath samples read 57 and 55 µg/100ml. Mr Thaiss’ roadside test produced 44 µg/100ml; his evidential samples measured 46 and 45 µg/100ml. In both cases the Intoxilyser printout showed no error message and no indication of malfunction.

Each defendant served a defence statement challenging the reliability of the breath-test procedure and making an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996. Mr Bhusal’s defence statement contained identical assertions to Mr Thaiss’ defence statement, including nine numbered sub-paragraphs alleging that the Intoxilyser might give incorrect readings notwithstanding the absence of error messages. These included contentions that no instrument is infallible, that pre-programmed error detection is limited, that calibration gas might be below specification, that dry gas calibration checks might not reflect wet breath samples, and that dust, mouth alcohol and analytical uncertainty could all affect readings. Both defence statements sought disclosure of historical data including memory downloads covering periods of six months before and after each test, calibration certificates for the machines and for the gas used in calibration, and metrological logs.

Mr Bhusal’s defence statement was accompanied by a report from Dr Mundy calculating, on the basis of Mr Bhusal’s reported consumption of two 500ml cans of lager between 4pm and 6pm, that his breath alcohol level at the time of testing would have been around 0 µg/100ml but could have been as high as 5 µg/100ml. Mr Thaiss’ defence statement was also supported by a report from Dr Mundy, which included a section purporting to justify the disclosure requests by reference to possibilities of gas concentration variation, dust in the analytical chamber, coefficients of variation and service records. Dr Mundy’s report suggested that a coefficient of variation of 3.75% could reduce Mr Thaiss’ lower reading to 39 µg/100ml. Neither report examined or discussed the calibration check results recorded on the Intoxilyser printouts.

In Mr Bhusal’s case the prosecution initially opposed the disclosure application and served a report from Dr Paul Williams, an expert on the Intoxilyser. The Crown did, however, disclose the calibration certificate for the control gas cannister, which had expired in November 2018, two months before Mr Bhusal’s test, though without conceding that this affected reliability. The District Judge on 10 April 2019 granted an adjournment to enable investigation of the expired certificate and, observing that ordinarily the memory download would not be disclosable, allowed the application due to the unusual circumstance of the expired gas certificate. The DPP issued judicial review proceedings on 3 May 2019 and obtained a stay of the disclosure order pending determination of the application.

In Mr Thaiss’ case the prosecution responded to the disclosure request on 28 December 2018 stating there was no material to disclose and on 11 January 2019 confirming that the police had not obtained the material sought and there was nothing further to disclose. The prosecution served Dr Williams’ report challenging Dr Mundy’s conclusions. Two trial dates were vacated, first owing to bereavement affecting Dr Williams and then owing to the non-availability of Dr Mundy. On 12 August 2019, at what would have been the third trial date, counsel for Mr Thaiss pressed for a hearing on the section 8 application, asserting that the prosecution had not responded to it. The District Judge initially agreed with the prosecution that the letters of 28 December and 11 January constituted responses but then changed his mind and allowed the application, ordering disclosure on the basis that Mr Thaiss’ reading was near the limit and the prosecution had not properly responded. The DPP issued proceedings on 22 September 2019 and obtained a stay.

The cases were heard together as rolled-up hearings to determine permission and, if granted, the substantive applications. Mr Simon Heptonstall appeared for the DPP in both cases. Mr Jeremy Benson QC appeared for Mr Thaiss. Mr Bhusal’s representatives indicated they would make no submissions.

Mr Heptonstall accepted that the material sought fell within section 8(4) of the CPIA as prosecution material but contended it was not relevant because it could not reasonably be considered capable of undermining the prosecution case or assisting the defence. He relied on guidance from Sir Brian Leveson PQBD in R (DPP) v Manchester and Salford Magistrates’ Court [2017] EWHC 1708 (Admin) concerning the evidential basis required to support disclosure applications in cases involving type-approved breath-testing devices. In Mr Bhusal’s case Mr Heptonstall submitted that Dr Mundy’s report contained nothing supporting the assertions in the defence statement and that unsupported assertions cannot ground a section 8 application. He argued that the District Judge had been wrong to rely on the expired gas calibration certificate as justification for ordering wider disclosure, as the prosecution had disclosed it out of an abundance of caution and sought an adjournment to obtain expert evidence on its effect, but this did not relieve the defence of the obligation to produce proper evidence in support of its application. In Mr Thaiss’ case Mr Heptonstall accepted that Dr Mundy’s report included a section purporting to give supporting evidence but submitted it fell far short of what was required. He argued that determining a coefficient of variation from historical test readings taken from different subjects was fundamentally different from analysis of results against a known control sample and that Dr Mundy had given no indication of how historical data might yield useful information about inherent variance. He further submitted that even if Dr Mundy’s calculation were correct, the lowest figure proposed, 39 µg/100ml, remained above the statutory limit of 35 µg/100ml and therefore could not undermine the prosecution or assist the defence.

On the issue of delay specific to Mr Thaiss’ case, Mr Heptonstall submitted that having received the prosecution’s refusal of further disclosure in December 2018 and January 2019, Mr Thaiss’ representatives should have pursued the section 8 application before trial rather than waiting until the day of the hearing when it was inevitable that an order for disclosure would require an adjournment. This was contrary to the overriding objective and the Criminal Procedure Rules requiring parties actively to assist the court in case management and promptly to inform the court of anything affecting hearing dates or case progress.

Mr Benson relied on paragraphs 36 and 37 of Dr Mundy’s report discussing a coefficient of variation of 3.75% which, when applied to Mr Thaiss’ lower reading, gave a possible reading of 39 µg/100ml. He submitted that historical test data could be used to determine a coefficient of variation for the machine allowing argument that the results put Mr Thaiss below 40 µg/100ml, the threshold above which the prosecution policy permits charging, and that this raised the potential for an abuse argument. On delay Mr Benson suggested that however strong the prosecution case on delay might have been before the District Judge, it was not a sufficient reason to set aside the disclosure order if the application under section 8 was otherwise meritorious.

The court examined the statutory requirements for disclosure under sections 7A and 8 of the CPIA. Section 7A imposes a continuing duty on prosecutors to disclose any prosecution material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. Section 8 permits an accused who has given a defence statement to apply to the court for an order requiring disclosure if he has reasonable cause to believe that there is prosecution material required to be disclosed under section 7A which has not been disclosed.

The court emphasised that the Intoxilyser is a type-approved device with in-built calibration checks run before, between and after each pair of breath samples, making each test complete in itself. The printout is the full and sufficient record of the test and of the machine’s reliability when performing it. As Sir Brian Leveson observed in the Manchester Justices case, the device fails safe in the sense that if faulty it will not work at all rather than produce unreliable readings. The court set out the guidance given in the Manchester Justices case at paragraphs 55 to 59, emphasising that there must be a proper evidential basis for concluding that material sought is reasonably capable of undermining the prosecution or assisting the defence. It is not enough for experts to say material is necessary to verify that a device was reliable or to assert that the amount drunk would not have put the defendant over the limit and therefore the machine must be unreliable. Evidence in support of a disclosure application must address two critical requirements: first, the basis for contending how the device might produce a printout which on its face demonstrates proper operation but which could generate a significantly false positive reading; and second, how the material sought could assist to demonstrate how that might have happened. Unless both issues are addressed the disclosure is irrelevant. The court noted that this does not mean the machine must be taken to be infallible and Cracknell v Willis [1988] AC 450 permits evidence that a defendant had not consumed enough alcohol to produce a positive reading even if he cannot demonstrate how the machine might have malfunctioned, but applications for disclosure go further and must meet the two-stage test if extensive disclosure is not to be required in every case where a defendant alleges low consumption.

The court held that in Mr Bhusal’s case there was no evidence at all served in support of the application for disclosure. Dr Mundy’s report did not contain the section included in his report for Mr Thaiss. The assertions in the defence statement were accordingly no more than assertions and could not provide any basis for disclosure, as the court had emphasised in Beattie v Crown Prosecution Service [2018] EWHC 787 (Admin). The court referred to R (DPP) v Caernarfon Crown Court [2019] EWHC 767 (Admin), where an order for disclosure was quashed in a speeding case where there was no expert report served in support of the application, merely an assertion that an expert in the offing had indicated he needed to see data in order to arrive at a view. Edis J had observed that in the absence of a report establishing the matters identified in the Manchester Justices case and in breach of the requirement under the Criminal Procedure Rules to serve a report in proper terms so it could be evaluated by the court, the disclosure application was entirely misconceived and the only proper course was to reject it. In the absence of any supporting evidence in Mr Bhusal’s case the District Judge’s first instinct to refuse the application had been correct. The District Judge was persuaded that the expiry of the gas calibration certificate overcame that difficulty but the court respectfully disagreed. He was right to adjourn the trial to enable expert attendance on the relevance of that fact but that circumstance alone could not justify ordering wider disclosure in the absence of any evidence establishing its relevance.

The court held that Dr Mundy’s report in Mr Thaiss’ case purported to give some evidence in support of the application but it was inadequate, falling far short of demonstrating the necessary relevance. Paragraphs 39.1 to 39.9 contained a series of generalised and for the most part unexplained assertions. Some were statements of the obvious, such as the observation that an instrument cannot detect problems it is not programmed to detect. In others Dr Mundy speculated as to ways in which the Intoxilyser might produce unreliable results, for instance by dust entering the infra-red beam. The court observed that courts faced with evidence purporting to call into question the reliability of a type-approved device should scrutinise such evidence carefully for its actual meaning and its relevance to the particular test results under examination. There was little of the former and none of the latter in the relevant section of Dr Mundy’s report.

It was unsurprising that Mr Benson’s submissions focused instead on paragraphs 34 to 37 concerning breath-alcohol level and the possibility of variance reducing the reading to 39 µg/100ml. The court accepted Mr Heptonstall’s criticisms of Dr Mundy’s figures. There was no proper explanation of the numbers and it was impossible to understand how Dr Mundy arrived at a variance figure of 3.75% or how this applied to reduce the lower reading from 45 µg to 39 µg. Even if the court had been satisfied of Dr Mundy’s figures and workings, it agreed with Mr Heptonstall that this evidence did not establish relevance for section 8 purposes. An offence under section 5 is committed when a person has a breath-alcohol reading on an approved machine of greater than 35 µg/100ml. The fact that the prosecution limit is set at a higher level is irrelevant. Dr Williams had explained in his report that the allowance from 35 to 39 µg is more than sufficient to allow for any errors in the breath analysis process. Mr Thaiss’ lower reading was 45 µg/100ml, well above both the statutory and prosecution limits. Even if the data sought could have demonstrated variance of as much as plus or minus 6 µg, the resulting level of 39 µg would still have been above the statutory limit. It could not be said that material which might have demonstrated variance at this level would have undermined the prosecution case or assisted the defence. The suggestion that an abuse argument might have been available was fanciful.

On the issue of delay the court held that the delay on the part of Mr Thaiss’ representatives in pursuing the section 8 application was a further reason for the District Judge to have refused the application. Mr Benson did not seek to explain or justify the delay and it appears the District Judge was given no explanation either. The court set out the relevant provisions of rule 3A of the Magistrates’ Courts Rules 1981 requiring active case management, prompt identification of issues, discouragement of delay and active assistance by parties in managing cases including promptly informing the court of anything affecting hearing dates or progress. The prosecution had unambiguously dealt with the section 8 application on 28 December 2018 and 11 January 2019, declining further disclosure. Two trial dates had been set and adjourned without any indication from the defence that it intended to press the application. It was contrary to the overriding objective and the rules for Mr Thaiss’ representatives to have renewed the application on the day of trial knowing that if granted the trial date would need to be adjourned. In the circumstances

Cracknell v Willis [1988] AC 450
Beattie v Crown Prosecution Service [2018] EWHC 787 (Admin)
R (Director of Public Prosecutions) v Crown Court at Caernarfon & Anor [2019] EWHC 767 (Admin)
ex parte Cardy [1985] RTR 49
R (Director of Public Prosecutions) v Manchester and Salford Magistrates’ Court [2017] EWHC 1708 (Admin)

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