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 was type approved. The defendant had brought no evidence to suggest otherwise. The magistrates had exercised a discretion, and that decision was not appealable. They were entitled to be satisfied as to the authenticity of the device under section 24 of the 1988 Act.
Field J said that although the defence statement purported to put the prosecution specifically to proof that the software was UK 5.23, that did not mean that the prosecution has specifically to prove this matter. A general presumption flowed from the fact that the machine was of a type that had been approved. This presumption was plainly consistent with Article 6 ECHR. Thus it was for the appellant to adduce some evidence that the software was otherwise than the specified software. At no stage did the appellant adduce such evidence and therefore he could have no substantial complaint that the prosecution were allowed to provide specific proof of the software through the engineer’s report


Brooke LJ, Field J


Times 06-Jul-2005, [2005] EWHC 1393 (Admin)




Criminal Justice Act 1988 24


England and Wales

Cited by:

CitedCoxon v Manchester City Magistrates Court Admn 11-Mar-2010
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 . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Magistrates, Human Rights

Updated: 11 October 2022; Ref: scu.228581