Coxon v Manchester City Magistrates Court

Type approval concerns whether the device meets the description in the approval instrument. The relevant question is whether the device retains the essence or identity of the approved type. That requires a broad, common-sense assessment of its build, function and the circumstances of approval. A modification removes approval only if the device no longer matches that description. Reliability and type approval are separate issues, although evidence relevant to one may bear on the other. The party challenging approval must provide evidence capable of showing that the device falls outside the approved description.

The claimant sought judicial review of a District Judge’s refusal to state a case concerning his conviction for driving with excess alcohol. The prosecution evidence involved a Lion Intoxilyser 6000 UK, software version 2.34, connected to a LIBIS computer. The claimant argued that the connection altered the approved device and that the resulting reading could not support a conviction.

The District Judge concluded that there was no sufficient evidence that the connection took the device outside the description in the type approval order and considered the proposed case stated to be frivolous. The claimant also sought relief concerning an expert witness’s expenses from central funds.

1. The judicial review application was refused. The District Judge had applied the correct legal test in deciding whether the Lion Intoxilyser, connected to LIBIS, remained a device of the type approved by the Secretary of State.
2. Under section 7(1)(a) of the Road Traffic Act 1988 and the Breath Analysis Devices Approval Order 2005, the issue was whether the description in the Order’s schedule applied to the device. Description concerns the device’s essence or identity. The assessment is broad and common-sense, focusing particularly on build and function and the circumstances in which approval was given.
3. A modification does not automatically remove type approval. The question is whether the modification is sufficiently significant that the device no longer matches the approved description. This is distinct from the separate question whether the device is reliable or operates to the required standard.
4. The District Judge was entitled to find that the evidence of Dr Mundy established no more than speculation that the LIBIS connection affected the device’s operation or took it outside the approved description. The claimant therefore had not discharged the evidential burden of raising a proper challenge to approval. An application to state a case on that premise was properly regarded as frivolous.
5. The separate application concerning Dr Mundy’s expenses from central funds was not adequately developed in the claim and was raised too late. Relief was declined. The court made no order for the Crown Prosecution Service’s costs.

• Manchester City Magistrates’ Court: convicted the claimant and refused to state a case on the type-approval issue.
• High Court (Administrative Court): refused judicial review and declined relief concerning the expert witness’s expenses.