Source: All England Reporter
Publisher Citation: [2002] All ER (D) 64 (Jul)
Court: Divisional Court

Rose LJ and Gibbs J

Representation Richard Whittam (instructed by Crown Prosecution Service, Warrington) for the appellant.
  Nigel Ley (instructed by Byrne Frodsham, Widnes) for the respondent.
Judgment Dates: 4 July 2002


Road traffic - Breath test - Device - Analysis of breath specimen by approved device - Expert evidence demonstrating machine not meeting one required specification - Defendants challenging reliability of device - Device's failure not relevant case ||Crown Court dismissing informations - Approach to challenge to reliability of intoximeter - Whether justices in error.

The Case

It had not been open to the Crown Court to find that the Home Secretary, in approving the intoximeter device EC-IR had been acting unlawfully or irrationally. The point in issue before the court had been the admissibility of the real evidence, namely the intoximeter reading. The reliability of a particular device was always open to challenge by admissible evidence, and in the event of a challenge, the prosecution were obliged to prove the device's reliability. Moreover, looking at the statutory scheme as a whole, including the procedural safeguards relating to the possibility of inaccurate readings due to mouth alcohol, the approval of the device could not be described as irrational.

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