Rose v Director of Public Prosecutions

An approved breathalyser device cannot be challenged in criminal proceedings on public-law grounds. The reliability of the particular device remains open to challenge by evidence. The statutory regime does not require the prosecution to adduce figures recorded by a roadside preliminary breath test. A failure to disclose such figures causes no abuse of process where they were unknown or unavailable and could not materially assist the defence. Serious delay does not require a stay where a fair hearing remains possible, particularly where the defendant’s own technical challenges and acquiescence contributed materially to the delay.

The appellant had been convicted of driving with excess alcohol after evidential breath specimens were analysed by an Intoximeter EC/IR device. The Warwick Crown Court dismissed his appeal against conviction and stated three questions for the Administrative Court.

The questions concerned whether the device was an approved device, whether non-disclosure of the digital reading from the roadside test constituted an abuse of process or prevented a fair trial, and whether the substantial delay made a fair hearing impossible. The appeal also required consideration of the effect of Zafar v DPP and earlier authorities concerning type approval, reliability and roadside breath-test results.

1. Approval and reliability. The appeal was dismissed on the first question. DPP v Colin Memery established that approval granted by the Secretary of State could not be challenged in a criminal trial, although the reliability of the particular device could be challenged by admissible evidence. That principle did not depend on whether the defendant gave evidence of mouth alcohol. Zafar v DPP, which held that breath included all air exhaled, did not alter the distinction between approval and reliability. The evidence showed that the device was type-approved, operating reliably and accurate in the particular case.
2. Roadside readings and disclosure. The prosecution was not required by section 15(2) of the Road Traffic Offenders Act 1988 to put the figures from a roadside preliminary test in evidence. Section 15(2) dealt with evidence actually placed before the court and did not impose a duty to obtain or produce evidence. The court preferred the reasoning in Murphy v DPP. R v Coe did not require a different conclusion, since it concerned specimens within the statutory provisions applicable to evidential samples. The court respectfully disagreed with any suggestion in Smith v DPP or Breckon v DPP that section 15(2) imposed such an evidential obligation.
3. There was no abuse of process or unfairness arising from non-disclosure. The figures were unknown to the prosecution in 2004 and unavailable by the 2008 hearing. In any event, the evidence showed that they could not have assisted the defence. The second question was therefore answered no.
4. Delay. The delay was described as scandalous, but the central question was whether a fair trial remained possible. The court had to consider the whole picture, including the merits of the defendant’s case, the prosecution’s responsibility for particular periods, the number and changing nature of the technical points taken, and the defendant’s acquiescence in adjournments. The Crown Court was entitled to conclude that a fair hearing remained possible. The third question was answered no.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The court answered the first question in the affirmative and the second and third questions in the negative.
• Warwick Crown Court: On 8 December 2008, the Crown Court dismissed the appellant’s appeal against conviction and declined to stay the proceedings for abuse of process based on delay.
• Stratford upon Avon Magistrates Court: The appellant was convicted on 19 August 2004 of an offence under section 5(1)(a) of the Road Traffic Act 1988.