Fearnley v Director of Public Prosecutions

In a statutory appeal against conviction, a magistrates’ court may rely on the statutory presumption that an approved breath-testing device is reliable unless the defendant adduces relevant evidence challenging the particular device or reading. Documentary hearsay may be admitted where the statutory safeguards have been considered and the defendant can fairly deal with the evidence. A procedural error, including refusal to issue a witness summons, will not normally justify quashing a conviction without material prejudice. Evidence concerning other devices may properly be excluded where it does not relate to the device used in the prosecution. Prosecution costs need not be proportionate to the fine, provided they are not grossly disproportionate.

The claimant appealed by way of case stated against his conviction by Ealing Justices for driving with excess alcohol. The prosecution relied on readings from an Intoximeter EC/IR breath-testing device. The claimant challenged the device’s approval, reliability and ability to detect mouth alcohol. He also challenged the refusal of a witness summons, the exclusion of documents concerning another device, the admission of an engineer’s report, the admission of hearsay evidence, and the fine and costs imposed.

The central issues were whether the Justices had erred in law or exercised their procedural discretions improperly, and whether any errors materially affected the safety of the conviction.

1. Appeal dismissed. The conviction was upheld. Questions 2, 3, 4, 5 and 7 were answered “No”; questions 6, 8 and 10 were answered “Yes”. Questions 1 and 9 were answered “Yes”, but the claimant suffered no material prejudice.
2. The Justices were plainly wrong to refuse a witness summons for Mr Rudrum. The summons would not necessarily have prolonged the trial, and any later application for an adjournment could have been refused. Nevertheless, the proposed evidence could not have materially advanced the claimant’s case. The presumption that an approved machine was reliable and approved remained applicable unless the claimant adduced evidence calling it into question.
3. The principles stated in DPP v Brown and DPP v Teixeira [2001] EWHC 931 Admin; 116 JP 1 applied. The Justices were concerned with the particular Intoximeter used. The claimant had to adduce relevant evidence challenging its reliability before the presumption could be displaced.
4. The engineer’s report was properly admitted under sections 24 and 27 of the Criminal Justice Act 1988. The Justices were entitled to accept its authenticity and to conclude that its admission caused no unfair prejudice. Sections 24 to 27 were compatible with Article 6 of the ECHR. Fairness required consideration of the inability to cross-examine the maker, but did not require exclusion where the document was clear, relevant and capable of being answered fairly.
5. The letters concerning the Banbury device were materially different from the report concerning the Ealing device and were properly excluded. The two evidential applications had to be decided on their own merits. The admission of general evidence about Intoximeters did not require admission of documents concerning another machine.
6. The hearsay evidence that machines were tested every six months was technically inadmissible, but its admission caused no material prejudice and did not justify remitting the case. The costs order of £2,500 was not grossly disproportionate to the £1,500 fine. No order for the respondent’s costs of the appeal was made because of the claimant’s means and financial circumstances.

1. High Court (Administrative Court): the statutory appeal against conviction was dismissed and the conviction upheld.
2. Ealing Justices: the claimant was convicted on 19 May 2004 and fined £1,500, with an order for £2,500 costs.