The defendant sought judicial review of the magistrate’s refusal to state a case for an appeal against his conviction for driving with excess alcohol, saying that the intoximeter used had not received type approval as required. The defendant’s expert had been unable to say that the version used differed sufficiently, and the District Judge had rejected his conclusion as speculation.
Held: The review was refused. The District Judge was required to make a broad common sense assessment of whether the device remained approved despite differences. He had applied the correct test, and ‘He concluded that the claimant had not raised any evidence that the device was not of an approved type. That meant that the appellant had not discharged the evidential burden. In my view, the District Judge having found that there was no evidence that the device fell outside type approval, an application to state a case on that premise would have been, indeed, frivolous.’
Cranston J said: ‘type approval is concerned with description. The issue is whether a device meets the description set out in the schedule. That is a separate issue from reliability or quality. Description means the essence or identity of the device. That is a broad common sense test. It will turn very much on the build and function of a device and the circumstances in which type approval is given. The issue then arises whether collateral attributes of the device go to its description affecting, in other words, its essence or identity so that the device can no longer be regarded as of that description. Even if a specific manufacturer is part of a type approval, that may not be part of its description because it is not part of its essence or identity. Similarly, with the modification of the device the issue is whether the modification is such that the device no longer matches the description in the type approval. That demands a common sense judgment as to whether the build and function of the device is such that it still has, in fact, the essence or identity of the device specified in the type approval.’
Leveson J, Cranston J
[2010] EWHC 712 (Admin)
Bailii
England and Wales
Citing:
Cited – Brown v Procurator Fiscal, Falkirk HCJ 24-Sep-2002
The defendant appealed against his conviction for driving with excess alcohol. He said that the machine used to measure the alcohol in his breath did not have type approval. The schedule to Approval 1998 for the purposes of section 7(1)(a) of the . .
Cited – Breckon v Director of Public Prosecutions Admn 22-Aug-2007
The defendant appealed against his conviction for driving with excess alcohol.
Held: There was no requirement that the prosecutor should produce the results of the roadside breath test in evidence, and the breathalyser was of the approved . .
Cited – Fearnley v Director of Public Prosecutions Admn 10-Jun-2005
The defendant appealed his conviction for driving with excess alcohol. He said that the machine used to measure his breath alcohol was not of the type approved by the Secretary of State.
Held: There was a presumption that the Intoximeter used . .
Cited – Richardson v Director of Public Prosecutions Admn 20-Feb-2003
The defendant appealed against his conviction for driving with excess alcohol, saying that the device used to make the measurement did not have type approval.
Held: The appeal failed. Stanley Burnton J considered the issue of type approval of . .
Lists of cited by and citing cases may be incomplete.
Road Traffic, Magistrates
Updated: 31 October 2021; Ref: scu.408626