Kemsley v Director of Public Prosecutions

An answer identifying the driver of a vehicle may be admitted under section 78 of the Police and Criminal Evidence Act 1984 where police officers ask preliminary, non-oppressive questions at the scene of an accident. The absence of a caution is not necessarily fatal. The statutory power under section 172 of the Road Traffic Act 1988 may reinforce that conclusion.

A court cannot question the correctness of the Secretary of State’s approval of a breath-testing device. However, evidence that the device used was materially different from the approved type raises a separate issue. If the court accepts that the device was not approved, evidence produced by it cannot support a conviction. The decision is confined to the evidence and case stated in the particular proceedings.

The claimant was convicted by Ealing Magistrates’ Court of driving a motor vehicle having consumed excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. She challenged the admission of her roadside answer identifying her as the driver and the use of breath-test evidence obtained from an Intoximeter EC/IR.

The district judge admitted the answer and accepted evidence that the device used was materially different from the type approved by the Home Secretary. The case stated did not contain a specific question on that issue, but the court was asked whether the conviction was permissible on the evidence recorded. The central issue was whether the accepted evidence required the device to be treated as unapproved.

1. Roadside answer. The court upheld the admission of the claimant’s answer identifying herself as the driver. The police questions were preliminary attempts to establish what had happened after a road accident. They were not oppressive. The absence of a caution did not therefore make the answer inadmissible under section 78 of the Police and Criminal Evidence Act 1984. The availability of a formal enquiry under section 172 of the Road Traffic Act 1988 reinforced the conclusion that it would be artificial to exclude the informal answer.
2. Approval of the device. The challenge to the correctness of the Secretary of State’s approval was rightly abandoned. Following DPP v Memery (CO/522/2002), neither this court nor a district judge could rule that the Secretary of State had been wrong to approve a particular device. The statutory presumption of approval was conclusive for that purpose.
3. Different device. A distinct question arose where the evidence, as recorded in the case stated, was accepted as showing that the EC/IR used had been modified in essential respects and was scientifically a different type of device from that approved. The court was bound by the case stated and could not go behind the district judge’s recorded acceptance of that evidence. On that basis, the device was not an approved device and the breath evidence was inadmissible, regardless of the high reading or the absence of any malfunction.
4. Disposition and limits. The appeal was allowed and the conviction quashed. The decision concerned only the particular evidence and case stated. It did not determine whether EC/IR devices generally were approved. Future challenges based on modification would require detailed evidence identifying the differences and explaining why they made the device a different type, since mere differences would not suffice.

High Court (Administrative Court). Appeal by way of case stated from the conviction recorded by Ealing Magistrates’ Court. The appeal was allowed and the conviction quashed.