Scheiner v Harrow Crown Court

A renewed application to require a magistrates’ appeal court to state a case is not frivolous merely because the proposed question may ultimately fail. Where an evidential breath test may have been conducted contrary to the manufacturer’s operating instructions, and the evidence may support an argument that the analysis was invalid, the issue should be stated for appellate determination. The court should not decide the ultimate strength of that evidence at the permission stage.

By contrast, where an officer followed a form containing the required prosecution warning, and the warning was not challenged in evidence, the court may infer that the warning was given. A prior indication that the issue would be raised does not itself make the point substantial.

The claimant had been convicted at Brent Magistrates’ Court of driving with excess alcohol, contrary to section 5(1) of the Road Traffic Act 1988. His appeal was dismissed, and Harrow Crown Court refused to state a case. He renewed his application for permission to seek judicial review of that refusal.

Two proposed questions arose. The first concerned whether a breath analysis was invalid because the intoximeter operator probably had a switched-on mobile telephone in the vicinity, contrary to the manufacturer’s instructions. The second concerned whether there was evidence that the claimant had received a prosecution warning before the breath analysis.

1. Mobile telephone issue. The court accepted that the proposed question was not frivolous or academic within section 111(5) of the Magistrates’ Courts Act 1980. The manufacturer’s instructions stated that radio sets and mobile telephones should be switched off where evidential breath testing was in use. The evidence that one or more officers might have had switched-on mobile telephones gave rise to an arguable issue of non-compliance.
2. Relevant authorities. Webber v Carey [1970] AC 1072 was considered in relation to the requirement that an officer administering a breath test act bona fide. The court did not regard the facts, as understood at this stage, as an appropriate case for an argument of mala fides. However, Attorney General’s Reference No 2 of 1974 [1975] RTR 142 supported the distinction between ignorance of facts concerning the test and ignorance of the manufacturer’s instructions. The court made no determination on the ultimate strength of the evidence.
3. Prosecution warning. The second proposed question was refused. The sergeant said that he followed form MG DD/A, which was not challenged as containing a prosecution warning. In those circumstances the court was entitled to find that the warning had been given. The fact that the issue had been raised before the hearing did not alter that conclusion.
4. Order. The Crown Court was ordered to state a case on the mobile telephone issue. The application concerning the prosecution warning was dismissed.

1. Harrow Crown Court: dismissed the claimant’s appeal against his conviction and refused to state a case.
2. High Court (Administrative Court): on the renewed application, ordered the Crown Court to state a case on the mobile telephone issue and dismissed the application concerning the prosecution warning.