Murphy v Director of Public Prosecutions

Criminal proceedings should be stayed for delay only where a fair trial is no longer possible or it would be unfair to try the defendant. Delay caused or permitted by procedural failures does not itself justify a stay where the issues remain capable of fair determination.

Secondary disclosure under sections 7 and 8 of the Criminal Procedure and Investigations Act 1996 concerns prosecution material within the prosecutor’s possession, inspection or statutory access. The court cannot order disclosure of material or information outside that statutory scheme. A defence statement served late remains a statement given under sections 5 or 6 and does not remove the defendant’s entitlement to seek secondary disclosure.

A type-approved breathalyser is presumed to contain the approved software and gas-delivery system absent contrary evidence. Evidence of a roadside breath-test reading need only be taken into account if it is actually placed before the court.

The claimant appealed by way of case stated against his conviction at Wimbledon Magistrates’ Court for driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. The proceedings had involved 44 hearings and lasted almost five years and ten months from arrest to appeal.

The appeal concerned refusal to stay the proceedings for delay, the effect of a late defence statement on secondary disclosure, the magistrates’ power to revisit an earlier disclosure order, the status of the approved breathalyser and its software, whether the approval order was expert evidence, and whether the prosecution had to produce a stored roadside breath-test result.

The central issues were whether the procedural delays prevented a fair trial and how the statutory disclosure and breath-analysis provisions applied to the facts.

1. Disposition. The appeal was dismissed. The questions were answered as stated by the court; question (2) was unnecessary to decide.
2. Delay and abuse of process. Applying the principles in Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, a stay was justified only if a fair trial was no longer possible or it would be unfair to try the defendant. Although the prosecution and magistrates had allowed improper disclosure applications to prolong the case, the remaining issues depended on the defendant’s truthfulness and technical evidence, not faded memories or compromised police evidence. A fair trial remained possible, so the district judge was bound to refuse a stay.
3. Secondary disclosure. Under sections 7 and 8 of the Criminal Procedure and Investigations Act 1996, disclosure was confined to prosecution material within the prosecutor’s possession, material inspected under the applicable code, or material which the prosecutor could require from a third party under that code. Material never in the prosecution’s possession, and information rather than documents, could not properly be ordered by way of secondary disclosure.
4. A defence statement served late was still given under section 5 or 6. The defendant did not lose the statutory right to seek disclosure merely through delay in serving it. The court adopted the analysis in Director of Public Prosecutions v Wood and McGillicuddy [2006] EWHC 32 (QB), applying the approach to procedural rules explained in R v Soneji [2005] UKHL 49.
5. Breathalyser approval. The device was of a type approved under section 7(1)(a) of the Road Traffic Act 1988. In the absence of contrary evidence, the district judge could assume that it contained the approved software and gas-delivery system, consistently with Skinner v DPP [2004] EWHC 2914 (Admin). The approval order was a public document, not expert evidence.
6. Roadside breath analysis. Section 15(2) of the Road Traffic Offenders Act 1988 required evidence of the alcohol proportion in a specimen to be taken into account only where that evidence was actually before the court. Badkin v Director of Public Prosecutions [1988] RTR 401 was confined to its unusual facts and did not require the prosecution in every case to retrieve and prove a roadside device’s stored result.

• High Court (Administrative Court): The appeal by way of case stated against the conviction and rulings of the Wimbledon Magistrates’ Court was dismissed. The court answered the questions posed by the district judge, leaving question (2) unanswered as unnecessary.