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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Brown v. Procurator Fiscal [2002] ScotHC 25 (08 March 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/25.html Cite as: [2002] ScotHC 25, [2003] RTR 17

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Brown v. Procurator Fiscal [2002] ScotHC 25 (08 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Hamilton Lord Morison	Appeal No: 256/02 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in APPEAL by GARY JOHN MARSHALL BROWN Appellant; against PROCURATOR FISCAL, Falkirk Respondent: _______

 

 

Appellant: N. Murray, Q.C.; Wheatley & Co.

Respondent: Targowski, Q.C., A.D.; Crown Agent

8 March 2002

1. The appellant was convicted of a contravention of section 5(1)(a) of the Road Traffic Act 1988 ("the 1988 Act") in that he had driven a motor vehicle after consuming so much alcohol that the proportion of it in his breath was 40 microgrammes of alcohol in 100 millilitres of breath, thereby exceeding the prescribed statutory limit. In the course of the trial evidence was led from a police officer. This witness spoke to finding the appellant beside his crashed vehicle. The appellant identified himself as having been the driver of the vehicle. A roadside breath test proved positive. The appellant was arrested and conveyed to Falkirk Police Station. There a requirement was made in terms of section 7 of the 1988 Act that he provide two specimens of breath for analysis. At that point in the witness's evidence a challenge was made to the admissibility of the line of evidence to be derived from the device which had been used by police officers at Falkirk Police Station to analyse the two specimens of breath provided by the appellant.
2. As the sheriff sets out in the stated case, the objection proceeded on two grounds, namely, (a) that the device in Falkirk Police Office was disconform to type approval in terms of its manufacture and (b) that it was disconform to type approval in its functioning. The sheriff proceeded to hear evidence directed to these two grounds in a trial within a trial and having done so repelled the objection. At the conclusion of the whole evidence he convicted the appellant. In the light of the evidence that he had heard he made the following findings in fact:

"3. The device used to analyse the two specimens of breath, in terms of Section 7(1)(a) was an Intoximeter EC/IR, device serial number 03270, which is a device approved by the Secretary of State in terms of paragraph 3 of the Schedule to the Breath Analysis Devices (Scotland) Approval 1998. The device used to analyse the two specimens of breath was accurate and reliable.

4. The proportion of alcohol in the accused's breath as measured by the said device was 40 microgrammes of alcohol per 100 millilitres of breath, in the first specimen and 41 microgrammes of alcohol per 100 millilitres of breath in the second specimen.

5. The appellant had not consumed alcohol for at least 20 minutes prior to the roadside breath test, which was administered at around 12 o'clock midnight. He consumed no alcohol between the roadside breath test and the time of providing specimens of breath for analysis at Falkirk Police Station."

It remains only to note that the sheriff also found in fact that the specimens were provided at 12.35 a.m. and 12.37 a.m.

3. The grounds of appeal set out in the application for a stated case assert that there has been a miscarriage of justice. It is said that the sheriff erred in law and on the evidence led as to the manufacture of the device in Falkirk Police Office in holding that it was of such a type of device as is specified in the Breath Analysis Devices (Scotland) Approval 1998. Further, it is said that the sheriff erred in law in holding on the evidence that the said device was of a type approved by the order in respect that it failed accurately and consistently to perform to all the parameters mandated within the Guide to Type Approval Procedures. Lastly, it is said that the sheriff erred in law and on the evidence in holding that he was entitled to accept that the said device was functioning reliably, accurately and consistently on the date of the offence.
4. One of the devices approved by the Secretary of State, in exercise of the powers conferred upon him by section 7(1)(a) of the 1988 Act, as a means by which specimens of breath may be provided for analysis, is specified in the Breath Analysis Devices (Scotland) Approval 1998 as:

"the device known as the Intoximeter EC/IR manufactured by Intoximeters Inc., of Saint Louis, Missouri, United States of America composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System by BOC Ltd. and software version EC/IR-UK 5.23."

Prior to the trial within a trial a joint minute was entered into which set out amongst other things that the Intoximeter EC/IR had been in fact manufactured in Saint Louis, Missouri by Alcotek Inc., being a separate legal entity from Intoximeter Inc. There is no mutuality of shareholding, neither has a controlling interest in the other and they are not incorporations any of whose shares are held by a mutual parent company.

5. At the trial within a trial evidence was led from two witnesses as to the manufacture of the device. From this evidence it appears that Alcotek have contracted with Intoximeter Inc. to manufacture and assemble the devices to the specification set out by Intoximeter Inc. including a Bill of Materials provided by Intoximeter Inc. The Bill defines all the parts to be used in the manufacture and assembly of the device as well as the production procedures to be utilised. Intoximeter Inc. carry out checks on the manufacturing process to ensure that the devices are built to the correct specification and are performing to UK type approval criteria. The Gas Delivery System is manufactured in the United Kingdom by BOC and is fitted at the time of installation of such a device in a police station. There have been no changes to the software or to the clock on the device since approval was given to it. Crown production 4 related to the device fitted in Falkirk Police Station and certified that the device had met all the requirements of the testing procedures specified by the United Kingdom Accreditation Service. One of the witnesses stated that the device in Falkirk Police Station manufactured by Alcotek accorded to a specification developed with the Forensic Science Service. It was evalued and approved by the Service. The Bill of Materials relating to the device derived from the specification approved by the Service.
6. The sheriff concluded that the device in Falkirk Police Station was a device which is in all respects identical to the device which received approval. He held on the evidence that there were no separate or distinguishing features or characteristics in that device from those of the device which was approved. He noted that although assembled by Alcotek, the device was the product of Intoximeter's design and development and participation in the approval process. It was manufactured on behalf of Intoximeter Inc. and marketed in the United Kingdom by Intoximeter (UK) Limited, a wholly owned subsidiary of the former company, which had been established for the purposes of marketing and servicing such devices. The sheriff had regard to the fact that there was no suggestion that the device in Falkirk Police Station was deficient in its performance and operation by virtue of the identity of its manufacture.
7. In these circumstances he concluded that the identity of the manufacturer of a particular device is not a defining or necessary part of the approval. In doing so, he observed that the purpose of "the type approval" was to certify that certain devices had met the rigorous requirements as to accuracy of analysis set out in the type approval document and applied during the type approval testing procedures. He went on to say:

"The Secretary of State by the approval approves "each of the types of device specified in the schedule hereto". One of these types is the Intoximeter EC/IR. The use of the word "type" seems to me necessarily to connote that devices used in Police stations for the purposes set out in the Act must have the same characteristics in terms of build and function as the device specified in the schedule. That does not require, in my view, that the devices used in Police offices be of common manufacture with those which were subject to the approval process."

8. Mr. Murray for the appellant repeated in large part the submissions made before the sheriff. That is to say, he maintained that the phrase in the relevant paragraph of the schedule "the device known as the Intoximeter EC/IR manufactured by Intoximeters Inc." was to be read as meaning that each device installed in police stations had to have been fabricated by that company and no other. This meaning was consistent with the necessity to maintain what he called quality control in relation to all devices through an approved manufacturer and supplier. He did not shrink from the proposition that if Intoximeters Inc. were to be taken over by a separate and unconnected company who thereafter began to fabricate such devices using the same components as specified in the schedule and subject to the same testing procedures, such devices would no longer be approved devices for the purpose of the schedule. He accepted that his submissions were not supported by the decision in Chief Constable, Northumbria v. Brown 1986 RTR 113. Nor indeed are they by the unreported decision of the Crown Court in Colin Memery v. The Crown Prosecution Service (7 August 2001) where the court rejected an argument that because the device in question was made by Alcotek, who did not service or market it, that being done by the Intoximeter company, that fact invalidated the approval. These decisions are destructive of Mr. Murray's submissions. In our opinion, the sheriff correctly identified that part of the schedule which determined whether a particular device is or is not approved as being "the device known as the Intoximeter EC/IR composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System by BOC Ltd and software version EC/IR - UK 5.23." There is no dispute that such a device was in use in Falkirk Police Station when the requirement was made of the appellant in terms of section 7(1)(a) of the 1988 Act. The first ground of appeal accordingly falls to be rejected.
9. The next chapter of evidence led at the trial within a trial related to the second ground of objection. From what is set out in the sheriff's note appended to his findings, the matter starts from testing procedures carried out on a device installed in Falkirk Police Station on 18 August 2001 and again on 13 November 2001. The results of these tests were described in reports produced for the Crown and for the defence. The tests on 18 August 2001 were carried out by Professor Makin, one of the witnesses for the defence. The tests on 13 November 2001 were carried out jointly by Professor Makin and by the Crown witness, Dr. Mundy. The device tested was the same device as was used to analyse the breath specimens provided by the appellant on 3 January 2000. The evidence is set out at large in the sheriff's note and we do not rehearse it. However we take from the narration the following matters which were not disputed. The Intoximeter functions by measuring the proportion of alcohol in a specific amount of breath by sampling deep lung air blown into the device by the subject. The infra-red component of the device measures the alcohol passing as the subject blows into it. The result shows up on a visual display screen. To ensure that no alcohol is present from a previous breath sample, the device completes a purge test to ensure that the machine remains calibrated before a second sample of breath is blown into the device, measured and the result shown. The device is designed to detect the profile of deep lung air introduced into it and also to detect the profile of mouth alcohol. Likewise it is designed and programmed to detect a difference between the first and second sample of breath and if the difference between the two samples is greater than 15%, the device will display an error message. This capability is a fail-safe or back-up to the facility to detect the profile of mouth alcohol. For the purpose of the type approval document, the desiderated tests on the exemplars were carried out robotically. Each device before installation is subject to testing in accordance with criteria set out in an operating agreement between the Home Office and the manufacturers known as the Quality Framework Document. The procedures for such testing are derived from the guidelines for the desiderated tests for the purpose of type approval. These testing procedures are slightly different from the tests for type approval but set more rigorous standards than those in the guidelines for type approval. The testing procedures are carried out by means of a scientific instrument which enables the testing procedures applied to be replicated consistently. The device in Falkirk Police Station met all the requirements of those testing procedures prior to installation. Following installation the device had been subject to six monthly periodic calibration checks. Dr. Mundy gave evidence that in his opinion the device would pass current approval testing and procedures. Professor Makin was asked whether the device would pass the tests outlined in the guidelines for type approval and said that he did not know. He also agreed that there was nothing inherently extraordinary about the printout which the device produced on 3 January 2000 in respect of the specimens of breath given by the appellant.
10. The nature of the tests carried out by Professor Makin and Dr. Mundy were by means of biological testing and were directed to the capacity of the device at Falkirk Police Station to detect mouth alcohol. While these witnesses spoke to the inconsistent results achieved, it was clear that the tests bore no relation to the tests which were carried out before type approval nor indeed to those carried out on the device prior to installation.
11. Before us Mr. Murray in effect repeated the submissions made to the sheriff. One requirement of the device, he said, was that it be able to detect mouth alcohol consistently and accurately and that requirement had been shown not to have been obtempered. It was said that the type approval documents and the quality framework documents provided a framework which was mandatory and included a requirement that the devices detected mouth alcohol. Accordingly the evidence of the biological tests demonstrated that the device did not function as it should in the field and did not do so on 3 January 2000. That conclusion removed the device from type approval.
12. The question which the sheriff had to address in relation to the charge was whether the appellant had been required to provide, and had in fact provided, two specimens of breath for analysis "by means of a device of a type approved by the Secretary of the Secretary of State". Mr. Murray disavowed any suggestion that the device, as installed, had not been properly maintained thereafter or that it was functioning in any different manner after its installation, and in particular on 3 January 2000, as compared with its functioning when tested prior to and at installation. The nub of his submission was that the tests carried out in August and November 2001 demonstrated that it could not perform and could never have performed within the parameters set down in the guidelines for the type approval testing of the exemplars in relation to mouth alcohol. The decision in Memery v. The Crown Prosecution Service was in point. There the court had held that in order to be an approved device, the machine must be able to detect mouth alcohol when it was used in the field. If it was incapable of measuring mouth alcohol had it been present, it did not measure accurately. Accurate measurement was incorporated into the definition of an approved device. If the machine allowed mouth alcohol and deep lung breath to mix, then it could not be an approved device because "it is not within the definition". That being so, Mr. Murray said, the inconsistency of performance of the device at Falkirk Police Station in terms of the biological testing meant that it did not measure accurately and thus could not be said to be an approved device.
13. In our opinion this submission is neither made out on the evidence nor is it consistent with the approval or the statutory provisions in the 1988 Act. The sheriff very carefully examined the evidence and this examination was not criticised by Mr. Murray as inaccurate or flawed in any material respect. The sheriff noted, in particular, that the biological tests were not such as would be encountered in the field, that is to say, when used by police officers pursuant to their rights and duties in terms of sections 6, 7 and 8 of the 1988 Act. The sheriff also pointed out that the biological tests did not meet the requirements of the type approval document so far as concerned the tests for mouth alcohol there desiderated. The sheriff went on to say this:

"It seems to me therefore that what the Secretary of State approved was a device which was capable of quickly and accurately measuring alcohol in the blood by means of analysing alcohol in deep lung breath. It required to be capable of discriminating deep lung breath from other substances (interfering substances) and from mouth alcohol. It required in certain circumstances to register error messages such that analysis of specimens of breath outwith certain parameters could not found a prosecution.

During the lengthy, rigorous and apparently dynamic type approval procedures, it was recognised that the requirement to detect mouth alcohol posed difficult and complex problems for the device. However, it was also recognised that mouth alcohol or regurgitated or eructated alcohol would rarely, if ever, occur over 2 samples. Safeguards were incorporated into the device (the breath difference) and in the legislation (section 8(2)) to obviate the risks of an inaccurate or unreliable analysis resulting in injustice.

There is no suggestion in the evidence nor was there any such submission that the device was in any other sense deficient in its functioning."

That is to say, the sheriff was satisfied that the device was functioning as a device of the type approved in terms of paragraph 3 of the Schedule to the Breath Analysis Devices (Scotland) Approval 1998 at the time that the appellant provided the samples of breath on 3 January 2000. The sheriff declined to follow the decision in Memery on the ground that the court did not appear to have had the opportunity of fully analysing the context in which approval is considered and given nor the safeguards against injustice which are inherent in the device itself and the legislation. In our opinion, he was right to do so. The decision in Memery appears to be founded on an interpretation of a definition in paragraph 4.1 of the type approval document. This is a document which is issued as a guide to manufacturers seeking type approval and sets out the requirements for the construction of "evidential breath testing instruments", their operation and the means and methods of testing them for that purpose. It is in that context that "evidential breath testing instrument" is defined in paragraph 4.1 as being an instrument which measures accurately the concentration of alcohol in "end-expiratory" air to provide a result which can be used as evidence in drinking and driving offences. "End-expiratory air" is defined in paragraph 4.4 of the same document as a breath sample containing air from the end of a forced expiration from the lungs. The Secretary of State was satisfied that the exemplars produced by Intoximeter Inc. and tested for the purposes of type approval and in accordance with the procedures set out in the document met the requirements in the document and thus were capable of measuring accurately the concentration of alcohol in end-expiratory air. The same requirements informed the testing procedures which had to applied to any such device on installation. The evidence in the present case was that the device met those requirements for its function as an evidential breath testing instrument approved by the Secretary of State when it was installed. In these circumstances we agree with the sheriff that the decision in Memery is flawed in so far as it appears to suggest that inconsistency in reacting to biological tests for mouth alcohol must lead to the conclusion that the device was not functioning and never had functioned as an evidential breath testing instrument approved by the Secretary of State. Accordingly we agree with the sheriff the fact that it may have been demonstrated that the device reacted inconsistently to mouth alcohol when tested biologically did not deprive it of type approval nor did it demonstrate that on 3 January 2000 it did not function as a device in relation to which the statutory requirement could be made of the appellant in terms of section 7(1)(a) of the 1988 Act.

14. For the above reasons we are satisfied that the sheriff did not err in law in determining that the evidence as to the appellant's breath test reading provided by the Intoximeter EC/IR in Falkirk Police Station on 3 January 2000 was admissible in evidence. The sole question posed in the stated case was designed to challenge that ruling. We have answered that question in the negative. At the hearing of the appeal a further question - "Was I entitled to convict?" - was added. We have answered that question in the affirmative.