Rothon v DPP

Applications for disclosure in prosecutions involving breath-testing equipment require a realistic evidential basis for questioning whether the device malfunctioned or produced a false reading. A bare assertion that the defendant was not over the limit is insufficient.

However, where the prosecution calls an expert who relies on undisclosed machine records, fairness and the adversarial requirements of Article 6 require those records to be disclosed so that the defence can examine and challenge the expert evidence. The prosecution cannot rely on expert evidence while denying access to the material underlying it.

The appellant appealed by way of case stated against his conviction by magistrates for driving with excess alcohol, contrary to Road Traffic Act 1988, section 5(1). He challenged the refusal of disclosure of records relating to the intoximeter used in the test.

The magistrates initially relied on the presumption that the machine was approved and functioning correctly. They then heard evidence from a prosecution expert, who had examined machine records, while the defence was not given those records. The central issue was whether disclosure should have been ordered under section 8 of the Criminal Procedure and Investigations Act 1996.

1. The appeal was allowed. The court answered question 8(a) in the negative and quashed the conviction. Answers to the other stated questions were no longer required.
2. Under section 8(2) of the Criminal Procedure and Investigations Act 1996, the relevant English disclosure question is whether prosecution material might reasonably be expected to assist the defence. The Strasbourg formulation in Fitt v The United Kingdom concerning disclosure of material evidence did not require section 8 to be read down under section 3(1) of the Human Rights Act 1998. Section 8 itself indicated what should be treated as material, subject to relevant authority and guidance.
3. The authorities, including Murphy v DPP, Scheiner v DPP, and DPP v Wood and DPP v McGillicuddy, required careful scrutiny of disclosure applications in this context. Evidence was required at least to raise a realistic possibility that the device might have malfunctioned and produced a false reading. The appellant’s general assertion that he could not have been over the limit did not meet that threshold.
4. Before the prosecution expert was called, the magistrates could properly have refused disclosure. Once the prosecution relied on expert evidence based on the machine records, however, natural justice, Article 6 considerations and common sense required disclosure. It was contrary to principle for the magistrates to rely on the expert’s opinion without allowing the defence access to the material and an opportunity to challenge it.
5. Although remittal was legally possible, the court declined to order further proceedings. The delay since the alleged offence was too great, and the conviction was therefore quashed.

• High Court (Administrative Court): Appeal by case stated allowed. The magistrates’ refusal of disclosure was held incorrect, question 8(a) was answered “No”, and the conviction was quashed.
• Magistrates’ court: The appellant was convicted on 15 November 2005 after the court refused disclosure of intoximeter records and relied on prosecution expert evidence.