CO/1079/2004 
Neutral Citation Number: [2005] EWHC 564 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 25th February 2005
 
B E F O R E:

LORD JUSTICE MAURICE KAY 

MR JUSTICE NEWMAN 
 
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STEPHEN JOHN O'SULLIVAN
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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MR N LEY (instructed by BYRNE FRODSHAM & CO) appeared on behalf of the CLAIMANT
MR P FIELDS (SOLICITOR ADVOCATE) (instructed by CROWN PROSECUTION SERVICE) appeared on behalf of the DEFENDANT

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J U D G M E N T
Friday, 25th February 2005 
1.	MR JUSTICE NEWMAN:  This is an appeal by way of case stated from the decision of the Crown Court at St Albans dismissing the appellant's appeal against his conviction by the Watford Magistrates' Court for an offence of driving with excess alcohol contrary to section 5 of the Road Traffic Act 1988.  
2.	The appellant was seen shortly before 00.45 hours on 13th July 2001 driving a car which appeared to be overloaded.  He was stopped, spoken to, and his breath smelt of alcohol.  He was required to provide a roadside specimen of breath.  He did so.  It was positive.  He was arrested and taken to Watford Police Station.  He was booked in and in that process answered questions to the effect that he did not suffer from any medical condition and he was not taking any drugs or medication.  At that stage he did not see a doctor.
3.	In accordance with the statutory procedure specimens were taken at 01.26 and 01.29 respectively, disclosing 71 micrograms of alcohol for every 100 millilitres of breath, and 73 micrograms of alcohol for every 100 millilitres of breath respectively.  These specimens were relied on by the prosecution to prove the offence.
4.	There is evidence that at the time he gave the roadside test he was asked whether he had consumed alcohol within the last 20 minutes and he had replied "No", but it is obvious that some 41 minutes had, in any event, passed before he gave his first specimen at the police station.  The significance of this evidence is that it was common ground that, except by regurgitation from the stomach, alcohol in the mouth will disappear after 20 minutes.  
5.	Controlled tests were carried out on the Intoximeter device on 14th September 2001 which demonstrated that the device was unreliable in detecting mouth alcohol.  On appeal to the Crown Court some four issues were raised, but only one arises on this appeal.  It is in connection with the unreliability of the device to detect mouth alcohol.  It is not in dispute that the unreliability of the device raised an issue in connection with the accuracy of the analysis relied upon by the prosecution, and that it was for the prosecution to prove to the criminal standard that the appellant's breath contained more than the prescribed limit of alcohol, and that the specimen of breath was not affected by mouth alcohol.
6.	Since more than 20 minutes had passed from the time the roadside breath test was taken, the readings could only have been affected by mouth alcohol if at the time each of the tests was taken regurgitation had taken place of some of the stomach contents.  There was no evidence given by the appellant, or by the prosecution witnesses, that regurgitation had occurred at the time the specimens were taken.  With the benefit of the evidence from the experts about the unreliability of the device, the appellant did give evidence in the Crown Court designed to lay the foundation for a contention that regurgitation had possibly occurred.  As recorded in the case statement the evidence was as follows:
"Regarding his health he said that he did not have any major illnesses but did suffer from indigestion, heartburn and a chesty cough.  He said that he had suffered from indigestion and heartburn for 8-10 years, albeit not on a daily basis, and treated the condition with Alka Seltzer or Rennies.  He said that he could not recall much of what had happened at the Police Station.  The heartburn resulted in a bubbly sensation like hiccups. ...he could not remember regurgitating at all that night.  He accepted that he had never sought medical help for his indigestion or heartburn."
7.	The Crown Court concluded that it was sure that the specimens of breath provided for analysis were not affected by mouth alcohol or alcohol vapour for the following reasons: (1) The fact that the appellant provided a positive roadside breath specimen at 0.45.  (2) The closeness of the two readings, 71 and 73 micrograms of alcohol for every 100 millilitres of breath, meant that reflux or regurgitation would have had to have taken place to virtually the same degree at regular intervals.  (3) That the appellant had not stated in evidence that either during the night or early morning he had experienced indigestion or heartburn or gurgling or reflux or regurgitation, or that he had taken Alka Seltzer or Rennies.  His partner, who was called as a witness, made no reference to the alleged history of indigestion, heartburn, reflux, regurgitation, gurgling or taking of Alka Seltzer or Rennies.  
8.	In addition to this evidence the Crown Court also took into account the results of a Quick Test reading provided by the appellant at 3.55am which showed that he still had 53.9 micrograms of alcohol for every 100 millilitres of breath.  The Crown Court took into account that this evidence was after more than three and a half hours since he had last had alcohol, and that after three hours there would be no alcohol in his stomach which would enable reflux to occur.  
9.	Further, they took into account the fact that the reading of 53.9 micrograms, coupled with the average alcohol elimination rate of 7.4 micrograms per hour, was entirely consistent with the results of the evidential breath specimens which have been provided at 01.26 and 01.29.
10.	Mr Ley, counsel for the appellant, submits that the Crown Court erred in law in taking account of the following factors in coming to the conclusion that the specimens were not affected by mouth alcohol: (1) The roadside breath test; (2) the closeness of the two readings; (3) the Quick Test results; and (4) the appellant's evidence about his medical condition.
The Roadside Breath Test 
11.	The device used in a roadside breath test cannot detect mouth alcohol.  There was, as I pointed out, evidence that the test had been given after enquiry had been made as to whether 20 minutes had elapsed since his last drink.  The positive result of the test would therefore have pointed towards the appellant being over the prescribed limit without mouth alcohol having contributed to that excess.  
12.	The prosecution, respondents on this appeal, have not placed particular reliance upon this factor in the Crown Court coming to the conclusion that it did.  In my judgment it was relevant as a factor, particularly since there was evidence of the enquiry as to when the last drink had been taken and an answer in the negative.  It was a matter for the Crown Court to attach such weight to it as it thought proper.
The closeness of the two readings 
Two experts gave evidence.  Dr Mundy gave evidence in the course of the prosecution's case.  Professor Makin gave evidence in the course of the appellant's case.  Dr Mundy's opinion was that the closeness of the two readings of 71 and 73 meant that if the presence of mouth alcohol by regurgitation had occurred it would have had to have been regurgitated from his stomach into his mouth or upper respiratory tract in very similar concentration and at similar intervals prior to the provision of each specimen.  Further, he would have had to have blown into the Intoximeter at a similar rate on each occasion.  In his view that would be very unlikely.
13.	The case stated records Professor Makin's opinion to be that he did not think that the closeness of the readings of 71 and 73 were significant.  If he gave any evidence in support of this opinion the evidence does not appear from the case stated. 
14.	The submission on behalf of the appellant is that whilst it is accepted that the witnesses' testimony may be rejected, it is incumbent upon the fact-finder to give reasons for preferring one witness to another.  In support of the complaint of a failure to give reasons, in his written skeleton argument Mr Ley helpfully drew the court's attention to various authorities.  They concerned cases, for example, where the Crown Court had merely stated that it had had ample opportunity to hear and assess the witnesses, but gave no reasons for dismissing an appeal.  
15.	In this case the Crown Court has carefully recited the nature of the evidence given by each of the experts.  It is clear that it accepted the evidence of Dr Mundy as to the significance of the closeness of the readings of 71 and 73.  
16.	In my judgment, given that the opinion of Professor Makin was not supported by any reasoning, and given that the reasoning of Dr Mundy is transparently clear from the evidence he gave, it seems to me to be obvious, and I would observe not surprising, that the Crown Court preferred the reasoning of Dr Mundy because his evidence comprised the application of simple and persuasive logic to uncomplicated facts.   
17.	The court, in my judgment, could have reached the same conclusion on the facts without the assistance of an expert witness.  
18.	Next, it is said that Dr Mundy's conclusion was that it was very "unlikely" that mouth alcohol was involved, and that that did not mean it was impossible and did not rule it out.  That is obviously right.  It is a common refrain in a criminal trial, but it rarely achieves much where there is a body of evidence on an issue.  It was for the Crown Court to decide, on all the evidence, whether they were sure as to whether mouth alcohol was present.
19.	In this case the requirement that the court be sure that the specimens were not affected by mouth alcohol did not mean that the expert's evidence in the case taken alone, or indeed any other single factor relevant to that issue taken alone, themselves pointed to the impossibility of mouth alcohol being involved.  It was, as the Crown Court approached the matter, correct to approach it by reference to all the evidence, and, having considered all the evidence, for the appropriate question to be asked.
The Quick Test Results 
20.	The argument under this head has been advanced under three headings.  Firstly, that Quick Test results were carried out on a device where no calibration took place.  Secondly, that as a matter of law the evidence should not have been admitted, adopting by analogy an observation of Lord Bridge in the case of Fox v Chief Constable of Gwent [1986] AC 281 at 298.  
21.	It was submitted that since the Act had laid down a careful statutory procedure for requiring a suspected motorist to provide specimens of breath and for analysing them and for prosecuting them before the court, it would be extraordinary if it was possible to disregard that procedure all together.  
22.	In my judgment resort to this observation and to a line of cases, some of which Mr Ley took the court, is misplaced.  The Quick Test was not being relied upon as a substitute for the statutory procedure which Parliament had laid down, but was relied upon in order to rebut the barely asserted and weakly supported suggestion that regurgitation had occurred.  Reliance, therefore, on the established line of cases going to the statutory procedure, in my judgment, does not advance the position.
23.	In my judgment the Crown Court would have been entitled to conclude that regurgitation had not occurred and that they could be sure that mouth alcohol had not affected the reasons, because to conclude otherwise would have been to speculate upon the occurrence of an event which was unsupported by any reliable evidence in the case.  But given that the Crown Court looked to the evidence on a wider basis, and did pay some regard to the evidence of the appellant, in my judgment it cannot be criticised for putting into the overall consideration of the case the Quick Test results.
24.	By reason of the time at which the test was conducted it could not be disputed that it had probative value, not to prove the Crown's case based upon the specimens taken at 01.26 and 01.29, but to rebut the suggestion that they were affected by mouth alcohol.
25.	For the same reasons I am satisfied that the suggestion that the Quick Test being carried out where no calibration took place, in my judgment, is misconceived.  But it can also be said in relation to that that what the Crown Court was, on this occasion, paying regard to, was a given state of affairs in which the Intoximeter was said to be unreliable for a particular purpose.  Thus general reliance upon the calibration cases, in my judgment, does not assist the position.
26.	Thirdly, it was said that it was unfair to allow the evidence in because the appellant had not been warned at the time when the test was taken of the possibility that it might be used in evidence in the case.  Had the appellant not sought to raise an evidential issue about the presence of mouth alcohol, it would not have formed part of the prosecution's case.  It would not have been relevant to the prosecution's case because it was not evidence which was admissible to prove the readings of the specimens taken at 01.26 and 01.29 which were the basis of the prosecution's case.  
27.	In my judgment, he having raised the issue, I can see no unfairness in the Crown Court, looking at all the available relevant material evidence in connection with the issue which he had raised.  In my judgment, to exclude the evidence could give rise to unfairness to the prosecution and to injustice generally, since relevant evidence would be excluded for no good reason.  The good reason why the evidence could be excluded would be under the exercise of the court's discretion under section 78 of the Police and Criminal Evidence Act.  That is always a matter to which a court must pay regard, but, in my judgment, the Crown Court here, as is apparent from the case stated, considered and recognised the circumstances in which the Quick Test had been taken, and, having regard to all the matters which were relevant, exercised a discretion in the case to admit it.  In my judgment nothing has been put before this court to impugn that exercise of discretion.
28.	Finally, it is said, in connection with the evidence in the case, that the Crown Court should not have paid regard to the appellant's inability to give evidence upon regurgitation having occurred, because it was to treat the giving of evidence more as a memory test than anything else.  
29.	It is not entirely clear to me from the argument what the principal complaint is, but, in my judgment, the appellant cannot escape in this case, on a tenable view of his evidence such as it was, emerging as it did only at a time after the expert evidence had become available in September, that it was, in fact, directed towards something about which he was in fact incapable of giving any evidence about because nothing had indeed occurred to that effect.  In my judgment there is no basis for suggesting that the Crown Court made unfair use of the evidence, or, one might say, the lack of evidence on this issue.  
30.	It follows that Mr Ley's final submission was that the matters relied upon by the Crown Court, could not, taken together, exclude the possibility of mouth alcohol having been exhaled into the breathalyser at the time the specimens were taken.  Suffice it to say that I am wholly unpersuaded by the thrust of this argument.  In my judgment there was ample evidence upon which the Crown Court was entitled to rely which was capable of leading it to the conclusion that it was not possible that mouth alcohol had affected the specimen.
31.	Finally, mention should be made of the recent case of Zafar v Director of Public Prosecution [2004] EWHC Admin 2468, a decision of the Divisional Court comprising Silber J and Gibbs J.  The court concluded that the definition of "breath" in section 5 of the Road Traffic Act included all of that which is exhaled and not just deep lung air.  In that case the Crown Court had accepted that the appellant may have had reflux at the material time and that the Intoximeter device could not always be relied upon to recognise mouth alcohol (see paragraph 7 of the judgment).  As a result the court had to reach a conclusion as to the meaning of "breath" in section 5 of the Act.  
32.	Having regard to the factual conclusion reached by the Crown Court in the instant appeal, and, in my judgment, the fact that the appeal against that conclusion should be dismissed, the point does not arise for us.  Had it done so I am in no doubt that the decision in the case of Zafar is correct and would therefore have followed it. 
33.	For all the above reasons I would dismiss this appeal.  I would answer the two questions for the opinion of the court as follows.  The first question being, "Was it Wednesbury unreasonable to have held that mouth alcohol was not the cause of the Appellant's breath analysis showing that he had a level of alcohol which exceeded the prescribed limit?"  A question to which I would answer "No".  The second question, "Were we, as a matter of law, entitled to take into account the result of the quick test carried out by the Intoximeter prior to the Appellant's release from custody?"  The answer to that question, in my judgment, should be "Yes". 
34.	LORD JUSTICE MAURICE KAY:  I entirely agree.  It follows that the appeal will be dismissed.  The order should also relate that the order of Elias J of 8th March 2004 suspending the disqualification pending appeal shall now cease to have effect.
35.	MR LEY:  My Lord, clearly there can be no appeal against sentence, because obviously you can only deal with points of law, but under Article 6 a person has a right to a trial in a reasonable length of time.  Bearing in mind the time it has taken for this case to be finally disposed of in this court, I would ask that there be a reduction of the disqualification as just satisfaction for breach of Article 6, my Lord.  Your Lordship did comment earlier on the length of time it had taken to come to this court, the problems with getting a judge, which is not my client's fault.  Again, other cases in this court, my Lord.  
36.	So I would merely ask that there be some reduction as just satisfaction.  Obviously he has to get a minimum of 12 months disqualification so I will not seek it to be lower than that, my Lord, but I would ask that there be some reduction as just satisfaction for breach of Article 6 of the time it has taken to come to this court, my Lord.
(Pause) 
37.	LORD JUSTICE MAURICE KAY:  What subject are you seeking to address us on? 
38.	MR FIELD:  Just my learned friend's last point, my Lord, if you need to hear from me at all. 
39.	LORD JUSTICE MAURICE KAY:  No, thank you.  We are invited to reduce the period of disqualification as Mr Ley submits that would be a just response to the delays that have occurred in this case.  Whilst I agree with him that the delays are regrettable, both in the Magistrates' Court, and, for at least some of the past year, in this court, I am wholly unpersuaded that justice requires a reduction in the disqualification.  
40.	The top and bottom of it is that, in my judgment, this was a hopeless appeal on the facts.  If that view had been shared by the appellant and his advisers his disqualification would have started a long time ago.  In any event, this court would be very reluctant to interfere with the sentence, particularly in a case in which no notice has been given that this application was to be made, and we are not in possession of all the material that resulted in the sentence that was passed.  
41.	I observe that the case stated records that the appeal to the Crown Court raised issues of sentence as well as conviction.  We are told that both appeals were dismissed, although nothing relating to sentence is mentioned in the decision part of the case stated.  However, it is, in my view, a view which I understand Newman J shares, a wholly inappropriate case in which to interfere with the disqualification.
42.	Mr Ley, I am bound to say, speaking for myself, that I think you are very fortunate still to be in possession of a representation order.  Had the news about the refusal of leave in Zafar come a day or two earlier very serious consideration would have been given to revoking that order.  However, it came late in the day.  If a revocation had been contemplated you would have no doubt wanted to make representations.  That may have caused further delay, so in the circumstances we got on with the case.  But I cannot say, for my part, that I find this a particularly useful deployment of public funds.
43.	MR LEY:  As your Lordship wishes.
44.	LORD JUSTICE MAURICE KAY:  However, you have it and what you have you hold.
45.	MR LEY:  I am much obliged, my Lord.
46.	LORD JUSTICE MAURICE KAY:  Anything else?
47.	MR LEY:  No, my Lord.
48.	LORD JUSTICE MAURICE KAY:  Thank you both very much.