The defendant appealed against his conviction for driving with excess alcohol. The officer had given evidence that at the time of the test all of the readings showed that the machine was working properly. That evidence was not challenged by the defence.
Held: The court rejected, submissions that the print-out had not been put in evidence and the oral evidence of the officers of the readings on the print-out, was not sufficient.
Buckley J: ‘For my part I would accept that as clearly sufficient evidence, albeit perhaps in shorthand, that he had considered the calibration readings amongst others, and was telling the court that the machine was reliable and was working properly and he went on to give the actual reading of 51 microgrammes. The time for the defence to challenge that aspect of the case, that is, the reliability of the machine, if they had any basis at all for doing so, was then. They did not do so and that evidence went unchallenged.’ and ‘It seems that the position is clear. Section 16 of the Road Traffic Offenders Act 1988 enables, and it is a permissive section, the prosecution to rely on the documents produced by the machine provided they do so in the prescribed fashion. But it is clear that the prosecution may also rely on the direct evidence of the officer who administered the breath test at the police station to give the reading based on his observation of the figures on the machine. If he is going to do that, he must give evidence that the machine was working properly and appeared to be reliable at the time. That is a matter of basic common sense which the courts have underlined.
The question for us is whether there was sufficient evidence in this case that that occurred. In my judgment there clearly is. That is to be found in the finding at paragraph 3 of the case …’
Staughton LJ: ‘We have been referred to three cases where this court has said that, if a police officer gives oral evidence of the result of a Lion Intoximeter test but does not identify the print-out and produce it to the court, he must give evidence of the calibration of the machine both before and after the test was taken. Those cases are Owen v Chesters, Morgan v Lee and Denneny v Harding. In my judgment it does not follow that the officer must in terms give evidence of what the actual calibration results were. Here the officer’s evidence-in-chief is summarised in paragraph 3 of the case as follows: ‘He stated that at the time of the test all of the readings showed the machine was working properly.’ That is no doubt a summary. We do not know the actual words used by the officer giving evidence, but we must accept it as an accurate and comprehensive summary. If the defence wanted to test that evidence, they should have explored the point in cross-examination. It would seem that, if the defence had done so, the sergeant could have given some answers. He had the print-out with him, but no questions were asked. In my judgment on the sergeant’s evidence here there was a case to answer and the justices were entitled to find the offence proved.
It was argued by Mr Sapsard in reply that the sergeant’s evidence was defective in another respect in that it did not disclose his experience of using the Lion Intoximeter and his knowledge of its operation. There is, however, nothing whatever in the case to show that this point was taken in the Magistrates’ Court. It does not feature in the question which the justices stated for the opinion of the court. We have no idea whether the sergeant gave any evidence on that topic or, if he did, what his evidence amounted to. It is too late to take that point now.’
Judges:
Buckley J, Staughton LJ
Citations:
[1994] RTR 17
Jurisdiction:
England and Wales
Cited by:
Cited – Sneyd v Director of Public Prosecutions Admn 24-Feb-2006
The defendant appealed against his conviction for driving with excess alcohol. He complained that though the officers suspected him of having consumed alcohol, they asked him whether he had been drinking without cautioning him, and that no print out . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 17 May 2022; Ref: scu.240393
