CO/5342/2006 
Neutral Citation Number: [2006] EWHC 3328 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 8 November 2006
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE FULFORD 

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CARTER
(CLAIMANT) 
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DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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MR NIGEL LEY (instructed by Byrne Frodsham) appeared on behalf of the CLAIMANT
MR RICHARD BENDALL (instructed by Crown Prosecution Service ) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	LORD JUSTICE LATHAM:  This is an appeal by way of case stated from a decision of District Judge Marshall, sitting at Staines Magistrates' Court.  The appellant was convicted by the district judge on that occasion of an offence of driving whilst the proportion of alcohol in his blood exceeded the prescribed level.  
2.	The background facts which give rise to the appeal are as follows.  The appellant was stopped by the police while driving on 2 April 2003.  He gave a positive roadside breath test.  He was arrested and taken to Kingston Police Station where the substantive breath procedure was carried out by Sergeant Hardie.  He provided two samples of breath for analysis.  As the lower of the two breath readings was 49 micrograms of alcohol in 100 millilitres of breath, he was offered the statutory option of replacing his breath samples with either a specimen of blood or a specimen of urine.  He elected to replace the sample, and the police officer conducting the test required him to provide a specimen of blood.  
3.	A blood sample was taken by a police surgeon which, upon analysis, was found to contain not less than 93 milligrams of alcohol per 100 millilitres of blood, that figure being reached by adjusting the finding of 99 milligrams by 6 milligrams which is the standard procedure wherever the sample shows a figure less than 100 milligrams.  He was accordingly charged with the offence under the Road Traffic Act 1988.  He was ultimately convicted by the district judge after trial.  
4.	At the trial the evidence for the prosecution was given first by Sergeant Hardie, who was an experienced police officer and who carried out the procedures in the police station, and Dr Porter who was a scientist employed by the Forensic Science Service and had been for some 25 years.  In addition to that evidence, there was a formal admission eventually agreed between the parties as to the circumstances in which the appellant was arrested, which included the statement "that he was lawfully arrested having provided a positive breath specimen at the roadside".  There was, in addition, a statement which went before the district judge as being effectively an agreed statement from Dr Agrawal, the medical practitioner who took the blood samples from the appellant and placed them in the appropriate phials which were then transported to Dr Porter's laboratory.  
5.	The appellant gave evidence himself to the effect that although he agreed that on the evening in question he had been drinking, he had, over a period from 7 pm to 11 pm, only drunk four pints of lager shandy which, he estimated, would be one‑half lager and one‑half lemonade.  That evidence was supported by his partner Miss Williams.  A statement of Dr Manners, a chemist with 29 years of experience in forensic investigation in drink/driving cases, supported the appellant's case to this extent, that it concluded that if the appellant's evidence was correct then he would, by the time he was stopped by the police, by the process of natural excretion of alcohol, have had no alcohol remaining in his body by the time he gave his blood specimen for analysis.  The district judge, having heard that evidence and counsel's submissions, as I have indicated, convicted the appellant.  
6.	Before turning to the case stated, which sets out the basis of the district judge's decision, it is perhaps sensible to rehearse one or two of the matters which arose before the trial itself commenced.  There were apparently numerous pre‑trial reviews.  It is perhaps not surprising that, accordingly, by the time it came close to trial, the district judge was anxious to ensure that the issues which she was to try were clearly delineated.  Counsel appearing for the appellant had, in a generalised way, indicated that, first, the procedure followed at the police station was in issue as was the accuracy of the analysis of the blood sample, hence Sergeant Hardie was required to attend, and the certificate of the blood analysis was not accepted by the appellant.  The consequence was that Dr Porter undoubtedly had to attend.  
7.	Shortly before the trial itself commenced there still remained outstanding the issue of whether it was necessary for the prosecution to give any evidence in relation to the roadside procedures which were carried out by police officers who would have to give evidence if that was a matter about which complaint was being made.  There was debate between Mr Ley, acting for the appellant, and the Crown as to precisely what it was that the prosecution were intending to prove by means of that evidence.  It is clear that Mr Ley was at that stage concerned as to whether or not any evidence was going to be led identifying the numerical reading of the device that was used to take the roadside breath test.  It was in those circumstances that ultimately, as a result of the district judge forcing the issue, in my judgment quite rightly, that the admission was made in relation to what happened at the roadside to which I have already referred.  It is to be noted that at no stage during the pre‑trial period, or indeed at the time of the hearing itself, was any issue raised in relation to the accuracy of the analysis other than the assertion that it was to be challenged.  
8.	As the case progressed it is important to note that Mr Ley did not cross‑examine Sergeant Hardie at all about the way in which the blood samples were taken, the phials in which they were contained, or anything that might have been within the phials.  As I have already indicated, the doctor was not required to give evidence at all so no questions were asked of him.  
9.	During cross‑examination of Dr Porter, Dr Porter accepted that if preservative had not been placed or present in the phial into which the blood had been placed before submission for analysis the final figure could have been either higher or lower.  In other words, there was the possibility, if there was no preservative in the phial, of his reading being inaccurate.  Dr Porter's evidence was to the effect that it was not the practice of the Forensic Science Service to test for the presence of preservative.  He gave evidence as to the  quality assurance procedures the manufacturers of the blood specimen kits had to follow in relation to the provision of phials, glass beads, preservatives and anti‑coagulants.  
10.	At the end of the evidence Mr Ley submitted to the district judge that she could not be satisfied so that she was sure that the analysis of the blood by Dr Porter was an accurate analysis which could be relied upon to convict his client.  His case was that there was no positive evidence of preservative in the sample that was analysed.  It will be noted that that was not an issue which had been raised at any of the pre‑trial hearings, and it is apparent from what Mr Ley has told us today that that argument only emerged as a result of the answer given by Dr Porter, to which I have referred, as to the consequences of the absence of any preservative.  
11.	The district judge, in her case statement, has set out the facts which she found and the reasons that she had for coming to the conclusion that the prosecution had satisfied her as to the guilt of this appellant.  The two relevant paragraphs are paragraphs 17 and 18 which are as follows:
"17 On the basis of the evidence heard, I found the following facts proved:
a) Mr Carter was the driver of a motor vehicle on the public highway on 2 April 2003.
b) At about 11.50 hrs he was lawfully arrested having provided a positive sample of breath at the roadside.
c) The defendant was taken to Kingston Police Station where Sergeant Hardie took him through the breathalyser procedure.  Following the conclusion of that procedure, Mr Carter was entitled to, and elected to, exercise his statutory option to provide a sample of blood or urine for evidential purposes which would replace the breath specimen obtained.  When required by the officer the defendant consented to and provided a sample of blood, which was taken by the police doctor following usual procedures, and forwarded to the laboratory for analysis.
d) The procedure followed by the officer was that set out in the MGDDA.
e) The laboratory analysis of Mr Carter's blood sample was certified by Mr Porter, an analyst employed by the Forensic Science Service for some 25 years, as containing not less than 93 mg of alcohol per 100 ml of blood.  This figure included the standard deduction of 6 mg for a sample below 100 mg.
f) Mr Carter had spent the evening at a pub in Putney watching a qualifying football match being screened there.  He arrived at about 7 pm and left after 11 pm to return home.  During that time he was drinking with his partner and friends, and he consumed some alcohol, likely to be in the form of Fosters lager.
g) I did not accept the evidence given by Mr Carter and Miss Williams as to stated alcohol consumption.
h) I accepted the evidence of Dr Manners that if the defendant had consumed only that amount of alcohol indicated and at the times stated, that would have resulted in there being no alcohol remaining in his body at the time of providing the evidential specimen.
18 I convicted Mr Carter of the offence of drink driving for the following reasons:
a) The only issues in dispute were as to the procedure followed at the police station and as to whether the amount of alcohol consumed was over the prescribed limit.
b) Sergeant Hardie is an experienced officer with over 10 years of taking defendants through the breathalyser procedure.  The MGDDA form provides a form of words for officers to use which covers all aspects of the required procedure, which ensures that no mistakes are made.  Sergeant Hardie stated that he did not deviate from that form of wording.  There was no reason for him to do so.  The procedure was gone through without incident or difficulty and took only 47 minutes in total.  I accepted the officer's evidence on this point, Mr Carter being unable to remember what he thought had been said.
c) The evidential sample relied on by the prosecution was a blood sample which the defendant elected to provide pursuant to s.8(2) of the Road Traffic Act 1988.
d) That sample was analysed following the standard procedures employed at the Forensic Science Service laboratory.  The analysis confirmed the presence of alcohol in the sample as not less than 93 mg per 100 ml of blood.
e) It was not necessary for the prosecution to positively prove the presence of preservative in the phial into which the sample was placed by the police in the absence of the defence raising it in issue evidentially.  The defence merely put before the court speculation on the basis that 'we do not know if there was preservative present or not' which went neither one way nor the other.  Having heard the procedures in place to ensure the accuracy of analysis of blood samples, including the QA controls required and UKAS accreditation, the prosecution were entitled to rely on a presumption of fact as to the presence of preservative unless challenged evidentially.
f) Furthermore, I rejected the accuracy of the evidence given by Mr Carter as to what he stated he had drunk on that day, and on which Dr Manners' report was based.  There was no evidence other than Mr Carter's description of it as 'weak' as to the amount of lager contained in the shandy, an assumption was being made that the proportion was 50:50 lager and lemonade.  If that evidence were correct, the opinion of the defence expert was that at the time of taking of the blood sample, Mr Carter would have had no alcohol remaining in his body, yet there was alcohol present in the blood sample.  In addition, 
i. very shortly before that sample was taken Sergeant Hardie could smell alcohol on Mr Carter's breath.
ii. Mr Carter had failed a roadside screening test, and 
iii. Mr Carter had provided a positive reading on an evidential breathalyser machine sufficient to trigger the blood option under s.8(2) RTA 1988.
I concluded that clearly there must have been some alcohol remaining in the defendant's body, and there being no reason to reject Dr Manners' expert calculation, the information on which it was based must be wrong, i.e. what the defendant and his partner stated he had drunk.
f) As I could not be sure what the defendant had in fact had to drink, and in the absence of any credible challenge to the blood analysis I found that the prosecution had proved the case to the relevant criminal standard, and I was satisfied of Mr Carter's guilt beyond any reasonable doubt."
12.	The questions in the case stated are in very general form.  They are as follows:
"1 In relation to the decisions I reached as set out in the above case, did I misdirect myself as to the law in any respect?
2 On the basis of the evidence as stated in the above case, was the decision to convict 'Wednesbury' unreasonable?"
13.	The issues argued before us by Mr Ley are essentially two in number.  The first issue is whether or not the district judge was entitled, as she said in paragraph 18 e), to rely on a presumption of fact as to the presence of preservative unless challenged evidentially.  Mr Ley's submission in that respect is that she was not entitled to, and I will return in detail to his submissions in a moment.  
14.	The second issue is whether or not the district judge was entitled to take into account in the conclusion she reached in paragraph 18 f) of the case as to the credibility of the appellant, the fact that the appellant had provided a   positive reading on a breathalyser machine by reason of the provisions of Section 8 (2) of the Road Traffic Act 1988.
15.	Turning to the first issue, Mr Ley submits ‑ and this is trite law ‑ that the prosecution must prove its case.  It must establish that the defendant had alcohol in his body in quantities which exceeded the prescribed limit.  That cannot be established to the satisfaction of a court if there is any doubt about the reliability of the analysis of the sample which is placed before the court as proof of guilt of that charge.  He submits that once Dr Porter accepted that if there was no preservative in the phial into which the blood was placed that could render the analysis unreliable, the prosecution were required to establish that preservative was in the phial otherwise there would be a doubt as to the reliability of the analysis and his client would thereby be entitled to be acquitted.  
16.	His main authority for the assertion that that is the necessary conclusion is Collins v Lucky [1983] RTR 312.  In that case it was accepted that there was contamination of the urine sample with micro‑organisms that could raise doubts about the validity of any analysis.  It raised a further  question as to whether or not the appellant in that case was diabetic because that also could affect the issue of whether or not analysis would be unreliable.  Mr Ley submits that by a parity of reasoning once there is an absence of  information as to whether or not there was preservative in the phial that created a doubt which entitled his client to be acquitted.  But in the present case there was no evidence to suggest that the sample was other than in analysable condition, untainted by any alien substances.  
17.	This court has considered a similar issue as that arising in the present in the case of Dhaliwal v Director of Public Prosecutions Neutral Citation No [2006] EWHC 1149 (Admin).  In giving judgment, Mr Justice Newman said:
"29 To the extent that the evidence which was given could have been taken to have been evidence that a preservative had been added, in my judgment was inadmissible.  The only person who could prove that the additive was present was the person who had either added it, or at a time when the blood was added to the vial, if that is the process, added it to the vial at a time when he or she could say there was a preservative present in the vial.  If it was necessary for the prosecution to prove that a preservative had been added, or that it had been added in any particular quantity, then the evidence  which was given by the forensic scientist was  inadmissible to prove that fact, or those two facts.  Therefore, so far as the question is concerned, to the extent that the court admitted the hearsay evidence for the purposes of concluding that there had been preservative added and any quantity the preservative added, the evidence was inadmissible and hearsay evidence and incapable of proving those facts.
30 So far as the prosecution's case is concerned, in my judgment it was not necessary, having regard to the way in which the issue had been raised by the defence, for it to prove that the preservative had been added and in any quantity.  The nature of the issue which had been raised by the defence merely went to whether or not the due and proper procedures had been followed at this laboratory for the purposes of the analysis being carried out professionally.
31 So far as that issue is concerned, the court had the evidence of the analysis, the analyst herself, which was to the effect that she believed that all the procedures had been carried out.  She had reasonable grounds for so stating and, in my judgment, therefore, the question for this court has to be answered in the terms in which I have endeavoured, in the body of the latter part of this judgment, to answer it.  I do not consider it necessary to seek to answer it in any other way than I have done.  This appeal by way of case stated is therefore dismissed."
18.	I have no doubt that the way in which Mr Justice Newman approached the problem in that case was correct.  It seems to me to be entirely consistent with the way this court has approached arguments in relation to reliability of the various devices which have been used for the purposes of obtaining samples of breath.  It is, in my judgment, an approach which should indeed be adopted wherever there is material before the court to show that there are in place procedures designed to ensure the accuracy of such machines or the accuracy of readings from the machines or, as in this case, designed to ensure the proper make‑up of kits provided in such circumstances.  To rule otherwise would, in my judgment, add a wholly unnecessary technicality to the prosecutions task.  It seems to me that the court should bear in mind the fact that the motorist has the opportunity to have a sample, with which he is provided, analysed himself.  That is the real defence against mistakes, errors or omissions.  
19.	Unless there is something in the material before the court to suggest to the contrary, I would accordingly conclude that the court is entitled to presume that the procedures laid down for the preparation of kits such as the ones we are concerned with here have been carried out  correctly.  In those circumstances the district judge was clearly entitled to come to the conclusion that she did, having heard the evidence of Sergeant Hardie that the procedures were properly carried out at the police station and the evidence of Dr Porter which did not suggest in any way that he concluded or considered that the sample might have been contaminated or otherwise affected by any failure to place in the phials the appropriate preservatives and other substances.  
20.	I would accordingly reject Mr Ley's arguments on the basis that I have indicated.  
21.	I should add, since Mr Ley has submitted that this raises an issue under Article 6 as to evidential presumptions, that the presumption that I considered appropriate in this case is one which is essentially based on common sense and, in my judgment, is entirely proportionate bearing in mind the opportunities, on the one hand, for the defendant to have his own sample analysed and, secondly, the opportunity, in any event, to raise any proper questions based upon material available to him which could undermine the presumption in any way.  The moment there is such material clearly it will be for the prosecution to satisfy the court that any doubts have been entirely resolved before the court could properly convict.
22.	The second question arises out of the wording of Section 8 (2) of the Act which has to be read in the context of sub‑section (1).  Accordingly it is necessary it seems to me to read those two sub‑sections together:
"8 (1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.
 (2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen, neither specimen of breath shall be used."
23.	Mr Ley's argument is that in paragraph 18 f) iii of the case stated the district judge has made it plain that she "used" the reading taken at the police station as part of the evidence, and accordingly she breached the prohibition in  Section 8 (2) which provide that such a specimen shall not  be used in the course of the trial.  The submission is based not simply on the wording of the sub‑section but is supported, he submits, by authority, in particular, the decision of this court in Smith v Geraghty [1986] RTR 222 which was cited with approval, again by this court in Yhnell v Director for Public Prosecutions [1989] RTR 250.  
24.	The high watermark of Mr Ley's case seems to be a passage in the judgment of Mr Justice Glidewell in the former case in the following terms, this being a reference to the statutory predecessor of Section 8 (2), that is Section 8 (6) of the 1982 Act which is in identical terms so far as is relevant.  Mr Justice Glidewell said:
"Having heard the argument for and against, I conclude that it applies equally in relation to the consideration of special reasons.  It is true, as was pointed out to us, that subsection (1) of section 8 starts off with the words:
'In the course of an investigation whether a person has committed an offence under section 5 or section 6 of this Act a constable may .....'.
and then it goes on to say require that person to provide specimens of breath or blood or urine.  But that is merely the power to provide the specimens and in my view it does not detract from the clear words of subsection (6) which make it clear that, when the defendant has exercised his right, where his breath test shows less than 50 microgrammes of alcohol, to require a blood sample to be taken or a urine sample, thereafter neither the prosecution nor he may rely on the breath sample for evidence in relation to any matter arising under that charge."
25.	That dictum is one which, in my judgment, cannot be taken as being a complete statement of the effect of Section 8 (6) as was and Section 8 (2) with which we are concerned.  That follows from the judgment of Parker CJ in Yhnell in which the above passage was cited.  Parker CJ said:
"It is apparent in my view that Glidewell LJ was merely saying that once the procedure has been gone through nobody ‑ ‑ that is to say, neither the defendant nor the prosecutor ‑ ‑ can rely on the one remaining Intoximeter specimen as evidence of any sort in relation to the charge.  He was not saying that the prosecution are prohibited from giving evidence which they have to give in order to comply with the requirement that the procedure must be strictly gone through in order to establish their right to rely on the blood sample at all.
It is possible, I accept, that justices may thereafter err if they do take into account as part of the evidence of excess alcohol in the blood the reading on the Intoximeter which had previously been taken.  It is submitted on behalf of the defendant in this case that the justices must be taken to have taken into account the Intoximeter reading in order to prefer the higher reading in the blood sample taken by the prosecution analysis, rather than the lower figure taken from the defendant's analysis.  Had the justices done so I would, for my part, have had no doubt that they had offended against section 8 (6), but they state clearly that they had done nothing of the sort.  They had before them evidence which they accepted, that the reason for the lower reading in the defendant's analysis was that he had deliberately falsified his sample by prising open the phial and injecting into it free, uncontaminated blood, thereby reducing inevitably the proportion of alcohol remaining in the sample."
From this passage it is clear that the court did not consider that Lord Justice Glidewell's judgment in Smith v Geraghty should be taken as literally.  It seems to me that is correct.  
26.	Context is all, the context we are concerned with is the way in which the district judge here "used" the evidence.  All she did was to add it as a third reason for concluding that she could not accept the defendant's evidence as credible.  It formed no part of her conclusion as to the reliability of the analysis carried out by Dr Porter of the blood sample.  If one reads Section 8 (1) and Section 8 (2) together it is interesting to note that the word "used" appears rather than a word which one would expect if the court were to be required to treat certain evidence as inadmissible in any proceedings.  As Parker CJ indicated in Yhnell, it is inevitable that reference must be made to the breath test taken at the police station if the matter proceeds to the stage of the taking of  a blood sample.  It forms part of the story and it is relevant and it is admissible.  
27.	That is, in my judgment, the sole test that is required here.  The word "used", in my judgment, is essentially concerned with the process of proof of the reliability of the sample, as indicated in the passage from Parker CJ, which I have already cited.  The district judge did not here purport to use the evidence of the breath test in the police station as some support by way of comparison with the blood sample or otherwise for the reliability of the analysis carried out by Dr Porter.  She used it together with other material, as she was entitled to in my judgment, as a means of helping her to determine whether the appellant's evidence before her was capable of belief.  That seems to me to be a wholly proper use to be made of this material.  It is relevant.  It is admissible and it does not seem to me that Section 8 (2) is worded in such a way as to preclude its use in that context.  I therefore have no doubt that the district judge was entitled to take that piece of evidence into account in the way she did in coming to her conclusion as to credibility.  
28.	I strongly suspect that, in any event, even if I had concluded that she was not entitled to take that piece of material into account I would have come to the conclusion that it would not have made any difference to her conclusions as to the appellant's credibility, bearing in mind the other aspects of the evidence which she considered sufficient to support the conclusion to which she had come.  
29.	I would reject the second argument of Mr Ley.  In those circumstances I dismiss this appeal.
30.	MR JUSTICE FULFORD:  I agree.
31.	MR BENDALL:  There is no application.
32.	LORD JUSTICE LATHAM:  Thank you both very much.
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