Director of Public Prosecutions (DPP) v Manchester And Salford Magistrates' Court

An interlocutory decision of a magistrates’ court may exceptionally be challenged before the Administrative Court where the issue has wider application, does not depend on the eventual result, and no other effective remedy exists. Applications for disclosure under the Criminal Procedure and Investigations Act 1996 require a proper evidential basis. It is insufficient for experts simply to assert that material is needed to test the reliability of an evidential breath device. The evidence must explain how a device which apparently passed its built-in checks could have produced a substantially false positive, and how the requested material could demonstrate that mechanism. The court’s guidance was confined to the Lion Intoxilyzer 6000 UK.

The DPP brought two rolled-up judicial review claims concerning disclosure orders made in prosecutions for driving with excess alcohol contrary to section 5 of the Road Traffic Act 1988. The interested parties had served defence statements challenging the reliability of Lion Intoxilyzer evidential breath readings and sought extensive records concerning calibration, servicing, previous tests and engineering work.

The magistrates’ court ordered disclosure of several categories of material. The DPP challenged those orders. The interested parties argued that the Administrative Court had no jurisdiction to intervene in interlocutory case-management decisions. The central issues were whether the court had jurisdiction and whether the material fell within, and was shown to satisfy, the disclosure test in the Criminal Procedure and Investigations Act 1996.

1. Jurisdiction. The general rule is that a challenge to an interlocutory ruling made during a trial should await the trial’s conclusion. That rule is pragmatic rather than an absolute jurisdictional bar. Exceptionally, intervention may be justified where the issue is of general or wider application, is independent of the ultimate result, and cannot otherwise be challenged. The present disclosure issue met those conditions.
2. Statutory scope. Material in the possession of the police did not necessarily fall within section 8(3)(a) or (b) of the Criminal Procedure and Investigations Act 1996, because it had not come into the prosecutor’s possession or been inspected in connection with the prosecution. Material held by the police could potentially fall within section 8(4), subject to the applicable code and the relevance test. Material held by Lion Laboratories did not fall within section 8(4), since the company was not obliged to provide it or allow inspection.
3. Disclosure test. The District Judge could not rationally conclude that the ordered material was reasonably capable of undermining the prosecution case or assisting the defence. A proper evidential basis was required both to show how the device could have passed its blank and calibration checks yet produced a substantially false positive, and to show how the requested material could establish that possibility. General assertions that the device might be unreliable were insufficient.
4. The court distinguished the entitlement recognised in Cracknell v Willis to adduce evidence that the defendant had consumed too little alcohol to produce the reading. That did not justify routine disclosure designed to investigate an unspecified mechanism of malfunction. The decision was confined to the particular device considered.
5. The disclosure order in Mr Whyte’s case should not have been made. No further relief was granted because disclosure had already occurred. Its admissibility and weight remained matters for the trial judge.

The judgment itself describes the challenged interlocutory disclosure orders made by the Manchester and Salford Magistrates’ Court. The Administrative Court granted permission, heard the claims as rolled-up hearings, held that it had jurisdiction, and declared that the disclosure order in Mr Whyte’s case should not have been made.