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

A statutory warning required by section 7(7) of the Road Traffic Act 1988 is mandatory, even where the suspect complies with the breath-testing procedure. A defence must identify its real issues sufficiently early to enable the prosecution and the court to respond. Where a new point is raised in closing submissions, the court may permit further evidence or an adjournment, but the prosecution cannot ordinarily obtain a new trial merely to repair its own failure to prove an essential matter at the first trial. The power to order a new trial depends on the circumstances and is particularly relevant where defence misconduct has caused unfairness. Whether an intoximeter was reliable was a question of fact, and it was open to the magistrates to accept its alcohol reading despite an incorrect time display.

The claimant was convicted by magistrates of driving with excess alcohol contrary to section 5(1) of the Road Traffic Act 1988. The magistrates had accepted the breath-analysis evidence, although the intoximeter printout displayed British Summer Time rather than Greenwich Mean Time.

In closing submissions, the defence argued for the first time that the police officer had failed to give the warning required by section 7(7). The magistrates rejected that argument on the basis that the claimant had complied with the procedure. The case was stated for the Administrative Court. The central issues were whether the warning was mandatory, whether the case should be remitted for a possible retrial, and whether the magistrates’ findings about the intoximeter involved errors of law.

1. Statutory warning. The magistrates erred in treating the warning under section 7(7) of the Road Traffic Act 1988 as unnecessary because the claimant was compliant. The provision is mandatory, as established in Murray v Director of Public Prosecutions [1993] RTR 209. The first question was therefore answered “Yes”.
2. Late defence point and retrial. The defence has a clear obligation to identify its case and the issues it raises at an early stage. That obligation supports effective case management under rule 3.3 of the Criminal Procedure Rules 2005. The court may permit the prosecution to recall a witness or seek an adjournment where a genuinely new issue arises, as explained in Malcolm v Director of Public Prosecutions [2007] EWHC 363. However, it was impermissible here to allow a new trial so that the prosecution could rely on evidence which could and should have been called at the original trial after making an erroneous submission of law.
3. The power recognised in Brett v Director of Public Prosecutions [2009] EWHC 440 (Admin) depends on the circumstances. It will most often be exercised where defence misconduct or procedural infraction has caused, or may have caused, unfairness or injustice. This was not such a case. The case was remitted to the magistrates to acquit the claimant.
4. Intoximeter evidence. The reliability of the machine was a finding of fact, not a question of law, unless perverse. It was open to the magistrates to accept the technical evidence and conclude that the incorrect clock setting did not affect the alcohol analysis. The court accepted that an intoximeter could be reliable as to breath alcohol even when displaying the wrong time, following Director of Public Prosecutions v McKeown and Director of Public Prosecutions v Jones [1997] 1 Cr.App.R 155.
5. The application for a defendant’s costs order was refused. A single judge could not make an order for costs out of central funds, and there was no merit in referring the application to the Divisional Court because the defence conduct had caused the relevant difficulties.

• High Court (Administrative Court): The case was stated by the Isle of Wight Justices. The court answered question (c) “Yes”, held that the remaining issues concerned factual evaluation which was open to the magistrates, and remitted the case for acquittal.
• Magistrates’ Court: The claimant was convicted after the magistrates accepted the breath-analysis evidence and rejected the late section 7(7) argument.