Leong, R (on the application of) v Director of Public Prosecutions

Section 16 of the Road Traffic Offenders Act 1988 provides a statutory method of proving alcohol readings, but it is not exhaustive. The prosecution may rely on other admissible evidence. A police officer may give oral evidence of readings observed on a breathalyser print-out or machine display. That evidence is not hearsay where the officer describes what he saw and there is evidence that the approved machine was working properly and appeared reliable. The oral evidence does not become inadmissible merely because the print-out was not exhibited or served on the defendant.

The claimant appealed by way of case stated against his conviction by the Newcastle and Ogmore Justices for driving with excess alcohol, contrary to Road Traffic Act 1988 section 5(1)(a). The justices had relied on oral evidence from a police constable who read aloud the results recorded on an Intoxilyser 6000 print-out. The print-out had not been exhibited or served on the claimant.

The question was whether the justices were entitled to rely on that evidence despite the requirements concerning documentary evidence in section 16(3)(a) of the Road Traffic Offenders Act 1988.

1. The appeal was dismissed. The question stated by the justices was answered in the affirmative.
2. Section 16 of the Road Traffic Offenders Act 1988 is permissive rather than exhaustive. It provides one method of proving the proportion of alcohol in a specimen and does not prevent reliance on other admissible evidence. The court relied on the approach in Thom v the Director of Public Prosecutions [1994] RTR 11.
3. A police officer may give direct oral evidence of the result observed on a breathalyser machine or on its print-out. The print-out and the visual display are merely different ways in which the machine displays the same result. Such evidence is not hearsay because the officer is describing what he saw. The reasoning in Sneyd v the Director of Public Prosecutions [2006] EWHC 560 (Admin) was correct and was followed.
4. The evidence must nevertheless establish that the machine was working properly and appeared reliable. That requirement was supported by Greenaway v the Director of Public Prosecutions [1994] RTR 17. The justices had made the necessary findings concerning the machine, its servicing and the circumstances of the test.
5. The fact that the print-out was neither exhibited nor served did not prevent the constable from giving admissible oral evidence of its contents. The court considered that there was no realistic prospect of a Divisional Court taking a different approach, refused to remit the matter, and declined to grant a certificate of general public importance.

• High Court (Administrative Court): On an appeal by way of case stated, the court dismissed the appeal and answered the justices’ question in the affirmative.
• Newcastle and Ogmore Justices: Convicted the claimant of driving a motor vehicle having consumed excess alcohol.