Richardson v Director of Public Prosecutions

Approval of a breath-testing device under section 7(1)(a) of the Road Traffic Act 1988 is a matter for the Secretary of State. Unless challenged by judicial review, approval cannot be questioned in criminal proceedings. A separate issue may arise as to whether the device used complied with the description in the approval order.

The statutory entitlement to a blood or urine specimen under section 8(2) arises only where the lower breath reading is no more than 50 microgrammes per 100 millilitres. Where the reading substantially exceeds that threshold, refusal of a further specimen does not ordinarily deny the accused adequate facilities to prepare a defence under Article 6(3)(b) of the European Convention on Human Rights.

The claimant was convicted by magistrates of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988. The approved Intoximeter recorded 93 microgrammes of alcohol per 100 millilitres of breath. The police refused his request for a blood specimen, and the magistrates refused an adjournment sought to obtain disclosure concerning the device’s service history.

By case stated, the claimant challenged the magistrates’ rulings. The issues were whether approval of the device could be challenged in the criminal court, whether the case should be adjourned to investigate possible modifications affecting compliance with the approval description, and whether refusal of a blood specimen infringed Article 6(3)(b).

1. The appeal was dismissed. The questions posed in the case stated were answered “yes”.

2. Approval of a type of device under section 7(1)(a) of the Road Traffic Act 1988 is for the Secretary of State. If the approval has not been challenged by judicial review, it is effective in criminal proceedings. A criminal court cannot decide whether the Secretary of State was right to approve the device or whether approval should continue.

3. This principle did not determine the separate question whether the device used was in fact within the description in the approval order. A device may fall outside the approval if modifications mean that the description in the schedule no longer applies. The modification must be material in that sense; not every alteration has that effect.

4. The case stated did not fairly and precisely raise that issue. The proposed inquiry was also advanced late, without an evidential basis, and amounted substantially to a fishing expedition. The magistrates were therefore entitled to refuse an adjournment. The High Court declined to remit the matter for reformulation because the application was made too late and there was no evidence that the device failed to comply with the approved description.

5. Section 8(2) provides a blood or urine specimen safeguard where the lower breath reading is no more than 50 microgrammes per 100 millilitres. Section 7(4) did not require a replacement specimen here because the reading was substantially above that threshold.

6. Article 6(3)(b) requires adequate, not perfect, facilities for preparing a defence. The statutory threshold expresses Parliament’s assessment of when a second specimen is required. On the facts, including the approved device and the reading of 93 microgrammes, refusal of a blood specimen created no real risk of injustice and did not deny a fair trial.

• High Court (Administrative Court): On an appeal by way of case stated, the court dismissed the appeal from the magistrates’ conviction and answered the questions in the case stated affirmatively.