Our High Court Round Up

Most people will not be aware of our case of DPP v Manchester and Salford Magistrates’ Court and most members of the public will be none the wiser as to how the case has influenced and shaped the way in which Courts throughout England and Wales deal with disclosure requests in drink driving contested drink driving cases.

Geoffrey Miller Solicitors have established a strong reputation for being the pioneers of motoring law and in particular, drink and drug driving cases. Whilst the Manchester and Salford case has been published in numerous legal journals, we want to take you “behind the scenes” of the case and reveal what happened in the end with the two defendants (Mr Blakeley and Mr Whyte) who were unfortunately, caught up in the prosecution’s relentless attempts to overcome our strategic prowess. Unusually, the case was heard before the High Court on two separate occasions and for two very different reasons.

In order to give a clear explanation of how the case developed and how it ended up before the High Court on two occasions, we will need to take you back to September 2016 which is when Mr Blakeley was arrested for the offence of driving with excess alcohol. He was shocked that, after drinking only two pints of lager that he would be over the legal limit. He therefore chose to instruct Geoffrey Miller Solicitors to help him keep his driving licence.

Mr Blakeley entered a plea of not guilty to the offence and we, as his representatives applied for an order of disclosure for the internal memory roll of the breathalyser machine that Mr Blakeley blew into. The District Judge who heard this application agreed that we should have access to the material and ordered that the Crown serve the memory roll on the defence to enable the defence expert to inspect it and establish whether the reason for Mr Blakeley’s breath test was due to some level of machine malfunction.

However, the Crown decided to Judicially Review the disclosure order made by the District Judge. Any Judicial Review application can only be litigated in the High Court and therefore both the defence and the prosecution had to produce detailed written legal arguments before the matter was eventually listed for an oral hearing at the Royal Courts of Justice.

The matter was heard on 27 June 2017 before Sir Brian Leveson PC. The Court heard from both parties. We argued that the disclosure order for the memory roll was justified to enable the defence to consider how or why a breathalyser machine may have produced an incorrect result. The Prosecution argued that the defence had not gone far enough in explaining why the material was required and therefore the order should never have been made.

Sir Leveson ultimately held that we had not gone far enough in explaining why the material was required to assist the defence and chose to “quash” the disclosure order made in the Magistrates’ Court. Furthermore, he suggested a new test to be applied in future cases when such an order is sought. Namely, for those applying for such material to explain:

1. How the device may have produced a printout, which, on its face, demonstrated that it was operating correctly and yet it is the defendant’s case that the most likely breath reading would have been below the legal limit; and
2. Identify how the material relating to the servicing/maintenance of the machine could assist in demonstrating how this may have happened

The judgment also upheld the principle of the House of Lords decision in Cracknell v Willis 1987 in that Sir Leveson also made it clear that his ruling was not to be interpreted as an indication that any breathalyser machine was infallible. He also stressed that any defendant had the right to challenge the reliability of a breathalyser if he felt he did not drink enough to give a positive reading.

So what did this judgment mean for Mr Blakeley? It simply resulted in the matter being remitted back to the Magistrates’ Court for trial, but it also meant that the defence were no longer entitled to seek disclosure of the memory roll from the breathalyser device in this case based on the reasons outlined in our original application.

The matter finally proceeded to trial on 16 May 2018 at Manchester Magistrates’ Court.  The day before the trial, the Crown informed the defence that the operator of the breathalyser was unwell and therefore unable to attend the trial. The defence anticipated that the CPS would simply apply to adjourn the hearing to a later date upon which their key witness would be available. However, they decided instead to attempt to proceed to prove their case in the missing witness’ absence.

The operator of the device was required to attend the trial to give evidence because the defence had informed the Crown on several occasions that the printout generated by the breathalyser was not accepted and therefore the operator would have to attend to give evidence on how the machine was operating at the time of Mr Blakeley’s breath test.

Mr Blakeley had a statutory right to require the operator to attend under (amongst other authorities) section 16(4) of the Road Traffic Offenders Act 1988 which states:

The barrister for the defence argued that the Crown could not prove their case without the operator being in attendance to give evidence and that, without the operator, the Crown could not introduce the breath test printout into evidence. The Crown attempted to firstly proceed in the absence of the operator and then tried to adduce the printout via other means. Their arguments were unsuccessful and Mr Blakeley was acquitted of the offence.

After almost two years of legal wrangling. Mr Blakeley could have been forgiven for thinking that, now that he had been acquitted of the offence in Court, that he could finally put this episode behind him. Unfortunately, this was not to be the case as the Crown decided to again appeal the Magistrates’ decision to acquit and asked the High Court to consider whether the reasons provided by the Judge in the Magistrates’ Court to exclude the printout from the breathalyser device were incorrect.

The correct process in such an application is for the Crown to serve a document known as an “Appellant’s Notice” within 10 days of service of the final stated case. In Mr Blakeley’s case, the Crown served the Notice six days late.

The Crown had to make an application to serve the Notice out of time. We opposed the application on numerous grounds and the High Court decided to list the matter for an oral hearing on 7 November 2018 which was over two years from the date of Mr Blakeley’s original arrest.

At the hearing, we were able to successfully argue for the application to be dismissed on the basis that the application lacked merit and there was no good reason for the lateness in service of the Appellant’s Notice. This meant that Mr Blakeley’s acquittal stood and that the matter had finally concluded.

Mr Blakeley was delighted with the final outcome of his case, albeit slightly exhausted that it took over two years to clear his name. You can read Mr Blakeley’s Trust Pilot review here.

The facts of Mr Whyte’s case are strikingly similar to those in the case of Mr Blakeley.  Mr Whyte was arrested on 3 September 2016 and charged with the offence of driving with excess alcohol after providing a breath reading of 60 microgrammes of alcohol in 100ml of breath. As was the situation in Mr Blakeley’s case, Mr Whyte did not accept this to be a reliable reading and chose to plead not guilty to the offence.

Both cases followed a very similar route from this point. In the case of Mr Whyte, we applied for similar disclosure to enable our expert to consider the possibility of a malfunction with the breathalyser. The disclosure of the requested material was ordered by a District Judge at Manchester and Salford Magistrates’ Court and, in the case of Mr Whyte, the requested material was disclosed by the Crown Prosecution Service.

It was only after the material was served that the Crown decided to Judicially Review the order made by the District Judge. The application was heard at the same time as Mr Blakeley’s case. The High Court ordered that the disclosure order be “quashed” in the same way as they did in Mr Blakeley’s case. This was somewhat of a moot point for Mr Whyte because the disclosure had already been served by this point.

As with Mr Blakeley, the matter was remitted back to the Magistrates’ Court for trial. The trial was eventually heard on 13 September 2017, and, on this occasion neither the operator of the breathalyser, nor the officer that conducted the breath test procedure attended the trial to give evidence for the Crown.

The trial then proceeded in a similar fashion to Mr Blakeley’s in that the Crown attempted to proceed in their absence and applied to adduce the witnesses’ evidence under the hearsay provisions. We successfully opposed their application and, ultimately, Mr Whyte was acquitted of the offence.

Thankfully, Mr Whyte was not required to go through a second High Court appearance as the Crown chose not to case state his acquittal.

The Crown clearly targeted our two clients’ cases to seek to reduce their obligations to provide disclosure of evidence at a time when disclosure failings within the CPS are perhaps the main cause of the collapse of criminal cases. We can’t help but wonder whether the public purse would have been better spent on improving the inefficiencies within the criminal justice system than seeking to reduce the rights of the accused.