Ivic v Director of Public Prosecutions

Proceedings should be stayed for delay only where a fair trial is impossible or it would be unfair to try the defendant. Loss of potentially relevant evidence justifies a stay only where its absence creates a real, rather than speculative, possibility of material prejudice. A breath test does not cease to be valid merely because manufacturers’ instructions were not followed. The question is whether the departure could adversely affect the driver, assessed on the evidence. Defendants who pursue hopeless technical defences and thereby cause substantial additional prosecution costs may be ordered to pay those costs, even where the costs exceed the fine. A costs schedule should ordinarily be provided before assessment, but a defendant may accept assessment without one.

The claimant was convicted by a district judge of driving with excess alcohol after two breath specimens produced readings of 81 milligrams per 100 millilitres. The prosecution followed a lengthy procedural history involving disclosure applications, expert evidence and adjournments.

Before trial, the district judge refused applications to stay the proceedings for delay and for the loss of CCTV footage. She also refused to exclude the breath-test evidence because a police radio had remained switched on during testing, and ordered a £500 fine with £4,000 prosecution costs. The claimant brought a case stated appeal raising questions concerning delay, lost evidence, test procedure and costs.

1. Delay. The court rejected the challenge to the refusal to stay the proceedings. The governing question was whether a fair trial remained possible or whether it would be unfair to try the defendant, applying [2004] 2 AC 72. The case depended principally on expert evidence concerning the approved breath-testing device. The delay did not impair that evidence, and the rejection of the claimant’s factual evidence was based on credibility rather than deteriorated recollection.

2. Lost CCTV footage. The refusal to stay for loss of the footage was plainly correct. The possibility that it might have shown a burp or procedural irregularity was speculative. Two officers remained available for cross-examination and one had made a contemporaneous record. Lang was fact-specific and did not require a stay on these facts. The issue had also become irrelevant because the reflux ground had been abandoned.

3. Breath-test procedure. The court upheld the district judge’s reliance on Carey [1970] AC 1072. Manufacturers’ instructions guide the operation of an approved device but do not themselves constitute statutory requirements. Under Watkinson v Barley [1975] RTR, non-compliance matters only if it could adversely affect the driver. The unchallenged expert evidence established that the radio being switched on did not affect the machine’s accuracy or reliability. The court therefore rejected the submission that possible inaccuracy, without actual adverse effect on the facts found, invalidated the test.

4. Costs. The costs order was not Wednesbury unreasonable. Although costs should ordinarily not be grossly disproportionate to the fine, that principle does not protect defendants who cause substantial additional costs by pursuing hopeless technical defences. The district judge was entitled to order £4,000 despite the £500 fine. A costs schedule should have been provided, but the claimant, through counsel, accepted assessment without one.

5. All pursued grounds were rejected. The conviction, disqualification, fine and costs order were restored. The respondent obtained costs in the appeal, subject to assessment and enforcement only with leave.

• District Judge Lachhar: convicted the claimant, imposed a £500 fine, ordered £4,000 prosecution costs and rejected the applications to stay proceedings and exclude the breath-test evidence.
• High Court (Administrative Court): the case stated appeal was dismissed. The district judge’s answers were upheld and the suspended disqualification, fine and costs order were reinstated.