Director of Public Prosecutions v. McKeown and Jones

The House of Lords held that section 69(1) of the Police and Criminal Evidence Act 1984 must be read purposively: a computer-generated statement is inadmissible only where there is positive reason to think that a malfunction or improper use has affected the computer's processing, storage or retrieval of the information material to the statement tendered in evidence. The inaccurate time displayed on the Lion Intoximeter 3000 was not shown to have affected the processing or accuracy of the breath‑analysis results, and a certificate and oral evidence were sufficient to satisfy section 69 and Schedule 3 paragraph 8. The devices in question remained of an approved type for the purposes of sections 5 and 7 of the Road Traffic Act 1988; and an inaccurate clock did not constitute a "reasonable excuse" for failing to provide a specimen absent a causal link to the failure.

These conjoined appeals arose from two convictions based on breath‑analysis results obtained on a Lion Intoximeter 3000 at Widnes Police Station where the machine's clock was showing a time about one hour and thirteen minutes slow. In McKeown the appellant had two specimens registering well above the legal limit and was convicted under section 5(1) of the Road Traffic Act 1988. In Jones the appellant provided one specimen registering far above the limit but failed to provide a second specimen and was convicted under section 7(6) of the Road Traffic Act 1988.

The Divisional Court had accepted that the inaccuracy of the Intoximeter's clock vitiated the prosecutions' evidence and thus the convictions. The Director of Public Prosecutions appealed to the House of Lords.

• Nature of the applications: appeals by the Director against the Divisional Court's decision that the inaccurate clock invalidated the computer‑produced breath analysis evidence and so vitiated the convictions.
• Issues framed: (i) whether the computer‑produced statements satisfied section 69(1) PACE and Schedule 3 paragraph 8; (ii) whether a slow clock on an approved device rendered it no longer an approved device under section 7 or provided a "reasonable excuse" for failing to provide a specimen; and (iii) procedural questions about disclosure of manufacturer documents and admissibility of expert evidence.
• Court's reasoning: the House of Lords interpreted section 69 purposively and confined its scope to malfunctions that affect the way the computer processes, stores or retrieves material information. Errors in information supplied to the computer or peripheral inaccuracies (for example a clock display error) are relevant only if they can be shown to have affected those processing functions or the accuracy of the statement material to the charged offence. The justices were entitled to accept Sergeant O'Dell's certificate under Schedule 3 paragraph 8 and the evidence of Dr Williams and the operating constable that the clock error did not affect breath‑analysis results. The device remained of an approved type and there was no causal link between the clock error and Jones's failure to provide a second specimen; therefore the clock inaccuracy did not afford a reasonable excuse.

The appeals were allowed and the convictions reinstated. The court also upheld the magistrates' refusal to order production of internal circuit diagrams and accepted the admissibility of the manufacturer's evidence given the absence of any foundation showing relevance of such material.

Appeals allowed in both cases. The House of Lords held that section 69(1) PACE should be read so as to exclude only those computer malfunctions or improper uses that affect the processing, storage or retrieval of the information material to the statement tendered; the inaccurate clock did not affect the accuracy of the breath‑analysis results and did not invalidate the certificates or oral evidence. The Lion Intoximeter remained an approved device and the clock inaccuracy did not constitute a reasonable excuse for failure to provide a specimen.

Appeals from the Divisional Court (Queen's Bench Division), which had accepted that the inaccurate time display on the Intoximeter vitiated the convictions. The Director of Public Prosecutions appealed to the House of Lords and the appeals were allowed. (No neutral citation for the Divisional Court decision is given in the judgment.)