Skinner v Director of Public Prosecutions

An approved breath-analysis device may be presumed to contain the approved software and to operate correctly, provided the evidential limits of that presumption have not been exceeded. An evidential burden arises where the defendant merely asserts that the device may be unreliable or may contain incorrect software.

A magistrates’ court has discretion to manage related trials together, including by hearing common expert evidence once, so long as each defendant’s case remains separately determined and no unfairness results. The court may restrict repetitive or procedurally inadmissible expert evidence where relevant evidence has already been given.

The claimant appealed by way of case stated against her conviction at Staines Magistrates’ Court for driving with excess alcohol contrary to section 5(1) of the Road Traffic Act 1988. The prosecution relied on two breath specimens analysed by an approved Intoximeter EC/IR device.

Several defendants challenged the reliability of the same device. Their cases were heard together for common expert evidence but were determined separately. The claimant challenged the presumption that the device contained approved software and operated correctly, and complained about the conduct and management of the combined proceedings.

1. Appeal dismissed. The District Judge was entitled to proceed on the basis that the approved Intoximeter EC/IR contained the software specified in the approval order and was operating correctly.
2. The principles concerning factual and legal presumptions in Attorney General’s Reference (No 4 of 2002) (2004) 3 WLR 976, including the requirement that presumptions remain within reasonable limits, did not require the prosecution to prove the software version in every case. The defence had to adduce some evidence suggesting that the device did not contain the approved software. Cross-examination showing only that an expert could not identify the software installed, together with an unparticularised reference to another machine, did not discharge that evidential burden.
3. The factual circumstances identified by the District Judge supported a compelling inference that the machine retained its original approved software. The caution in Scott v Baker [1969] 1 QB 659 did not apply to the materially different facts.
4. The management of the proceedings was within the District Judge’s discretion. She could interpret the earlier order as permitting the three cases to be heard together for common evidence while remaining separate trials. The procedure caused no demonstrated injustice or prejudice.
5. Consistently with the case-management principles in Jisl EWCA 2004 Crim 696, the District Judge could refuse repetitive expert evidence and restrict cross-examination of an expert whose evidence had not been served for the claimant’s case. The claimant’s case remained independently adjudicated notwithstanding the earlier decision in another defendant’s case.

• High Court (Administrative Court): The appeal by way of case stated against the conviction and sentence imposed by District Judge Marshall at Staines Magistrates’ Court was dismissed.
• Staines Magistrates’ Court: The claimant was convicted on 2 February 2004 of driving with excess alcohol.