Breckon v DPP

A device remains an approved device if, after a modification or alteration, the description in the approval schedule still properly applies to it. The approval does not incorporate every detail in related guidance unless the approval document does so.

The statutory requirement to take alcohol evidence into account concerns specimens taken for analysis under Road Traffic Act 1988, section 7. It does not require the prosecution to adduce figures from a preliminary roadside breath test. Such figures may nevertheless be disclosable if they assist the defence or undermine the prosecution case.

The claimant appealed by way of case stated against his conviction at Milton Keynes Magistrates’ Court for driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.

He argued that the evidential breathalyser was not an approved device because it had a manual rather than an automatic change-over valve. He also argued that the prosecution had to adduce the numerical result of the preliminary roadside breath test under section 15(2) of the Road Traffic Offenders Act 1988.

The central questions were whether the device was approved and whether the roadside test figures had to be adduced.

1. Appeal dismissed. Both questions in the case stated were answered in the negative.
2. The approved device was defined by the description in the schedule to the approval document. The agreement with the manufacturer and the guide to type approval were not incorporated into the approval. The proper question was whether, after a modification or alteration, the machine remained one to which the schedule’s description still properly applied.
3. The removal of one cylinder did not affect approval. Nor did the presence of a manual rather than an automatic change-over valve. The machine remained an Intoximeter EC/IR with a gas delivery system. Rayner v Hampshire Chief Constable and Kemsley v DPP were distinguishable because the device in the present case fell within the approved description.
4. Section 15(2) of the Road Traffic Offenders Act 1988 did not apply to preliminary tests under sections 6 and 6A of the Road Traffic Act 1988. The roadside test indicated whether the prescribed limit was likely to be exceeded. The section 7 specimens determined whether the offence had been committed, and the latter part of section 15(2) applied to those specimens.
5. The prosecution therefore had no statutory obligation to adduce the roadside figures. The court accepted the reasoning in Smith v DPP and found no reason to depart from it. Figures assisting the defence or undermining the prosecution case would fall within the general duty of disclosure, and should routinely be provided if requested.
6. Murphy provided no assistance to the claimant’s argument. Cooksley concerned sentence only. There had been no obstruction of the claimant’s ability to prepare his defence and no available Article 6 argument.

1. High Court (Administrative Court) — The Divisional Court heard an appeal by way of case stated from the conviction and dismissed the appeal, answering both questions in the negative.