Home > Case Law Studies, Cyber Forensics & Investigations > Data Through Human Mind Case #1: Castle v Cross (United Kingdom)[Excellent for Defendant]

Data Through Human Mind Case #1: Castle v Cross (United Kingdom)[Excellent for Defendant]

[1985] 1 All ER 87, [1984] 1 WLR 1372, [1984] Crim LR 682, [1985] RTR 62

Castle v Cross
QUEEN’S BENCH DIVISION
[1985] 1 All ER 87, [1984] 1 WLR 1372, [1984] Crim LR 682, [1985] RTR 62
HEARING-DATES: 17 JULY 1984

Road traffic – Breath test – Device – Analysis of breath specimen by approved device – Whether print-out produced by device at conclusion of analysis admissible evidence of failure to provide proper specimen – Whether print-out product of a mechanical device constituting real evidence at common law – Road Traffic Act 1972, s 8(7).
HEADNOTE:
On the trial of an information alleging an offence under s 8(7) [a] of the Road Traffic Act 1972 of failing without reasonable excuse to provide a specimen of breath when required to do so, the test record print-out of an automatic breath-testing device (such as the Lion Intoximeter 3000) used to ascertain the proportion of alcohol in specimens of breath is admissible as evidence, since the print-out constitutes the product of a mechanical device which, at common law, falls into the category of real evidence (see p 91 c d j and p 92 a b and d to f, post).

a   Section 8(7), provides: ‘A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section shall be guilty of an offence.’

Dicta of Simon P in The Statue of Liberty [1968] 2 All ER at 196 and of Lord Lane CJ in R v Wood (1982) 76 Cr App R at 27 applied.

NOTES:
Notes

For failure to provide specimen, see 40 Halsbury’s Laws (4th edn) para 493.

For evidence of the proportion of alcohol in a specimen of breath, see ibid para 496.

For admissibility of statements produced by computers, see 17 ibid para 59.

For the Road Traffic Act 1972, s 8 (as substituted by the Transport Act 1981, s 25(3), Sch 8), see 51 Halsbury’ Statutes (3rd edn) 1432.

CASES-REF-TO:
Cases referred to in judgments

Myers v DPP [1964] 2 All ER 881, [1965] AC 1001, [1964] 3 WLR 145.

R v Wood (1982) 76 Cr App R 23, CA.

Statue of Liberty, The, Sapporo Maru (owners) v Statue of Liberty (owners) [1968] 2 All ER 195, [1968] 1 WLR 739.

INTRODUCTION:
Case stated

Douglas Castle appealed by way of a case stated by the justices for the county of Hertford acting for the petty sessional division of Welwyn in respect of their adjudication as a magistrates’ court sitting at Hatfield on 2 March 1984. On 11 November 1983 the appellant preferred an information against the respondent, Nicholas Sidney Cross, alleging that on 25 October 1983 at Welwyn Garden City police station the respondent, being a person who had been driving a motor vehicle on a road in Welwyn Garden City and having been required, pursuant to s 8 of the Road Traffic Act 1972(as substituted by s 25 of and Sch 8 to the Transport Act 1981), to provide a specimen of breath for analysis by means of the Lion Intoximeter 3000 device, failed without reasonable excuse to provide such a specimen, contrary to s 8(7) of the 1972 Act (as so substituted). At the close of the prosecution’s case the justices upheld a submission of no case to answer made on behalf of the respondent and dismissed the information. The question for the opinion of the High Court was whether, on the trial of an information alleging an offence under s 8(7) of the 1972 Act of failing without reasonable excuse to provide a specimen when required to do so, pursuant to s 8(1)(a) of that Act, for analysis by the Lion Intoximeter 3000 device, the ‘test record’ print-out from that device was admissible in evidence. The facts are set out in the judgment of Stephen Brown LJ.

COUNSEL:
J P Wadsworth QC and Neill Stewart for the appellant.; Alan Beaven for the respondent.

17 July 1984. The following judgments were delivered.

17 July 1984

Solicitors: Wynter Davies & Lee, Hertford (for the appellant); Breeze & Wyles, Enfield (for the respondent).

Hilary Kindelan Barrister.

PANEL: STEPHEN BROWN LJ AND KENNEDY J

JUDGMENTBY-1: STEPHEN BROWN LJ.

JUDGMENT-1:
STEPHEN BROWN LJ.

This is a prosecutor’s appeal by way of case stated from the decision of the justices acting for the petty sessional division of Welwyn sitting at Hatfield in the county of Hertford on 2 March 1984 when they dismissed, on finding no case to answer, a charge against the respondent of failing to provide a specimen of breath for analysis without reasonable excuse, contrary to s 8 of the Road Traffic Act 1972(as substituted by s 25(3) of and Sch 8 to the Transport Act 1981).

The short facts which gave rise to that summons are set out in the statement of the justices’ case. The respondent was the driver of a motor car in Welwyn Garden City on Tuesday night, 25 October 1983. The car was seen by a police officer to be travelling fast and it braked harshly on the approach to a roundabout. The car was stopped and the respondent, who was the driver, was requested by the police constable to provide breath for a roadside breath test, administered by an Alcotest 80 device. He failed fully to inflate the bag. Some of the crystals, apparently, had changed colour and the officer came to the conclusion that he had failed to provide the sample for that test. He was arrested and taken to the police station. There, after the facts leading to his arrest had been reported to the station sergeant, Sgt Martin, he was required to provide two specimens of breath on an approved Intoximeter 3000 breath-testing machine in accordance with the provisions of the Road Traffic Act 1972, s 8. It is to be observed that, when specimens are required at a police station, they are referred to as ‘specimens’ to distinguish them from the sample which is requested at the roadside under s 7.

The facts as found by the justices were that, on being required to provide two specimens of breath on the approved Intoximeter 3000 breath-testing machine, the respondent agreed to do so, and the sergeant then instructed him to blow into the mouthpiece of the machine with one breath until he was told to stop. He was allowed four attempts. On the first attempt the respondent blew air through the mouthpiece into the machine but it plainly did not produce any result. A second test was then administered with the same result. A third and fourth attempt were then made by the respondent. The justices record: ‘… in the third the result was inconclusive and on the fourth air went through the mouthpiece into the machine’, but no result, it would appear, was achieved.

The justices found that the machine was ‘fitted with a visual display panel’ but that no clear evidence was adduced before them ‘as to the precise state of the visual display panel during each of the respondent’s attempts’. They record: ‘The Intoximeter 3000 produced a print out at the conclusion of the test being a test record of the tests carried out on the machine.’

Following that, Sgt Martin reported the respondent with a view to prosecution for an offence under s 8(7) of the 1972 Act of having ‘without reasonable excuse, [failed] to provide a specimen when required to do so in pursuance of [the] section’.

On behalf of the respondent it was submitted that the print-out from the machine which came forth at the conclusion of the fourth attempt was not admissible in evidence, that it was hearsay and should not be admitted in evidence. The court has before it the certificate with the print-out which, in accordance with the procedure, is affixed to that particular certificate recording the test. It specifies, in accordance with the requirements, the operating instructions of this machine, the date of the test, the subject, a signature and the time when the test took place. It records: ‘One no sample.’ That means, as the court understands it, that the machine did not have a sufficient sample of breath of the deep kind, from the deep lung, which is required to enable it to perform an analysis. But, as I have already said, the magistrates upheld a submission made on behalf of the respondent to this appeal that that certificate was inadmissible.

The justices found the following:

‘(a) We were of the opinion that the statement produced by the Intoximeter 3000 was a statement made by a machine akin to a computer. (b) The machine was required to assess sufficiency of breath, analyse the quantity of alcohol in the breath and convert that information into figures in statement form. (c) In our submission therefore the Intoximeter contributes to its own knowledge. (d) We noted that Parliament had specifically legislated to overcome this evidential difficulty by a specific statutory authorisation in Section 10(3) of the Road Traffic Act, 1972 (as amended) but that the Section only applied to proceedings under Section 5 and Section 6 of the Act and not to proceedings under Section 8(7). (e) We had our attention drawn to Section 12(3) of the Act dealing with sufficiency of breath for analysis but felt on the facts found by us that the appellant was unable to satisfy any reasonable Bench of Magistrates that the specimen was not sufficient to enable the test or analysis to be carried out. (f) Accordingly, we upheld a submission of no case to answer made on behalf of the respondent and dismissed the information.’

They ask the following question for the opinion of this court:

‘On the trial of an information alleging an offence under Section 8(7) Road Traffic Act, 1972 (as substituted by Section 25(3) of, and Schedule 8 to, Transport Act, 1981) of failing without reasonable excuse to provide a specimen when required to do so in pursuance of Section 8 of the said Act where the defendant had been required by a Constable under Section 8(1)(a) of the said Act to provide two specimens of breath for an analysis by means of a Lion Intoximeter 3000, whether the “test record” print out from that device is admissible in evidence?’

By the agreement of both counsel, the court has had placed before it the Lion Intoximeter 3000 Operator Handbook produced by the manufacturers. Our attention has been drawn to the breath test procedure, which sets out very clearly the sequence of events which has to take place if the correct procedure is to be adopted:

‘Step 1-Press “Start” Button; Step 2-Enter Operator Name; Step 3-Enter Operator Code; Step 4-Enter Subject’s Name; Step 5-Enter Subject’s Date of Birth; Step 6-Stand By; Step 7-Purge and Blank Cycle; Step 8-First Calibration Check; Step 9-Purge and Blank Cycle; Step 10-Attach Mouthpiece; Step 11-Subject’s First Breath Sample [and so on] .’

It is clear that the procedure is set in motion and supervised by a person trained as an operator for that particular purpose, ie a police officer. There is no suggestion in this case, and indeed no finding, to suggest that the correct procedure was not adopted. It is also clear that the justices’ case does not record any finding or indeed submission that the Intoximeter machine was in any way defective.

Counsel on behalf of the appellant prosecutor reminds us of the passage in Cross on Evidence (5th edn, 1979) p 47 headed ‘Mechanical Instruments’ which states:

‘A presumption which serves the same purpose of saving the time and expense of calling evidence as that served by the maxim omnia praesumuntur rite esse acta is the presumption that mechanical instruments were in order when they were used. In the absence of evidence to the contrary, the courts will presume that stopwatches and speedometers and traffic lights were in order at the material time; but the instrument must be one of a kind as to which it is common knowledge that they are more often than not in working order.’

The last sentence is not adopted by Phipson on Evidence (13th edn, 1982) p 209, para 12-34, but the principle which is there accurately set out in the view of this court is that, ‘In the absence of evidence to the contrary, the courts will presume that [mechanical instruments] were in order at the material time’. As I have already observed, there is no evidence recorded in the magistrates’ case and certainly no finding to suggest that this Intoximeter 3000 was defective or might have been defective at the relevant time.

Counsel for the appellant submits that the justices were in error in ruling that the statement on the print-out ‘One no sample’ was inadmissible. He submits that there is no logical distinction between the position in this case and that in many cases where sophisticated and less sophisticated mechanical devices or instruments are used. He cites The Statue of Liberty [1968] 2 All ER 195, [1968] 1 WLR 739 for the proposition that the results of mechanical devices and electrical devices which are achieved without human intervention are admissible in evidence, that they are real evidence.

It is relevant to cite the final paragraph of the judgment of Simon P, when he stated his view that in the case which he was deciding, which related to a record made by a radar set at a shore radar station, the record was admissible in that case concerning liability for a collision at sea. He cited Cockle’s Cases and Statutes on Evidence (10th edn, 1963) p 348 (see [1968] 2 All ER 195 at 196, [1968] 1 WLR 739 at 740):

“‘Real evidence is evidence afforded by the production of physical objects for inspection or other examination by the court.” If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible-or, indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer, but not if it were operated by a trip or clock mechanism. Similarly, if evidence of weather conditions were relevant, the law would affront common sense if it were to say that those could be proved by a person who looked at a barometer from time to time, but not by producing a barograph record. So, too, with other types of dial recordings. Again, cards from clocking-in-and-out machines are frequently admitted in accident cases. The law is bound now to take cognisance of the fact that mechanical means replace human effort.’

Counsel for the appellant submits that that is the correct basis on which to approach consideration of the status of the print-out from this particular machine. He submits that the fact that it is a sophisticated machine which depends for part of its operation on what has been described as computer control does not set it in a different class from other sophisticated mechanical devices and instruments of the kind referred to by Simon P in The Statue of Liberty.

Counsel for the appellant further relies on R v Wood (1982) 76 Cr App R 23. That was a case dealing with a different set of circumstances and was in fact considering the application of s 1(1) of the Criminal Evidence Act 1965. It was a case of handling stolen goods. The point was consideration of the method of proof of the origin of certain processed metals which had been stolen in transit from the processors and to tie up the original processed metals with metals found in the possession of the appellant, Mr Wood. Part of the method by which the Crown attempted to prove that chain, and to relate the metals found in the possession of the appellant with those actually stolen from the processors, was by certain records achieved by computer calculations. It involved an elaborate analysis of the various metals in order to seek to identify them and marry them up. The contention was that the computer print-outs produced in that case were inadmissible as hearsay evidence at common law and not authorised under the Criminal Evidence Act 1965.

The court decided (at 23-24) that whilst-

‘the printouts were inadmissible under section 1(1) of the Criminal Evidence Act 1965 because they had been prepared for the purpose of the prosecution of the appellant and not in the course of a trade or business as required by subsection (1)(a); nevertheless … the computer in the instant case had been used as a calculator-it was a tool and did not contribute to its own knowledge, and was properly treated as a piece of real evidence the actual proof of which depended upon the testimony of the witnesses; thus, the answers produced by the computer were in principle admissible at common law and were properly proved … ‘

In the course of giving the judgment of the court, Lord Lane CJ said (at 27):

‘[Counsel for the appellant] submitted that there was a difference in kind between the measuring device (even a sophisticated one) and this computer. He also suggested that there was a difference in kind between a mathematician who used a slide rule and one who used a calculating computer. We do not agree. This computer was rightly described as a tool. It did not contribute its own knowledge. It merely did a sophisticated calculation which could have been done manually by the chemist and was in fact done by the chemists using the computer programmed by Mr. Kellie whom the Crown called as a witness. The fact that the efficiency of a device is dependent on more than one person does not make any difference in kind. Virtually every device will involve the persons who made it, the persons who calibrated, programmed or set it up (for example with a clock the person who set it to the right time in the first place) and the person who uses or observes the device. In each particular case how many of these people it is appropriate to call must depend on the facts of, and the issues raised and concessions made in that case.’

In point of fact, Myers v DPP [1964] 2 All ER 881, [1965] AC 1001 was distinguished in that judgment.

It seems to this court that in this case the Intoximeter was in terms a tool, albeit a sophisticated tool, which was operated by the police sergeant who was trained in the appropriate procedure. There has been no challenge recorded in the case to the efficiency of the machine or instrument and there is no finding that it was in any way defective. Accordingly, it seems to this court that the result in the form of the print-out was the product of a mechanical device which falls into the same category of real evidence as that indicated by Simon P in The Statue of Liberty [1968] 2 All ER 195, [1968] 1 WLR 739.

Sophisticated arguments were addressed to the justices and it may be, if I may say so, that they were blinded by science. They used the phrase in para 6(c) of the case: ‘In our submission therefore the Intoximeter contributes to its own knowledge.’ That phrase is not explained. It seems to this court that it may be a misunderstanding of the headnote in R v Wood (1982) 76 Cr App R 23 at 23-24, to which I have referred.

Quite plainly the position in this particular instance was that this respondent was correctly required to give two specimens of breath for the purpose of analysis by the approved instrument, the Intoximeter 3000, and that he went through the motions of so doing but in fact failed to give a sufficient sample. That was observed by the police sergeant but apparently he was prevented from giving that evidence because of an objection made by the respondent’s counsel that such evidence would be hearsay. But it seems to this court quite plain that he was in a position to say, as the trained operator of the machine, that the result of the respondent’s attempt was a failure to deliver sufficient breath into the machine to permit it to carry out the required analysis. The justices held that there was no case to answer. It seems to this court that this was a misunderstanding of the position.

Counsel for the respondent has argued forcefully that the potential for computer error renders the consideration of evidence stemming from a computer particularly sensitive and places it into a separate class in relation to its admissibility. He has referred to the relevant statute in Australia and to a case heard in the courts of the State of South Australia. It does not seem to this court that they can substantially assist in this problem, which is essentially whether this evidence which was sought to be given was admissible at common law.

The question of computer error does not enter into the ambit of this appeal. As I have already indicated, the justices made no finding which would permit the inference that the Intoximeter was in any way defective or not in proper working order. It has to be assumed, certainly for the purposes of the submission of no case to answer, that it was in proper working order and that the proper procedure was followed.

I, for my part, am unable to accept the submissions made by counsel for the respondent. They were extremely wide in their ambit but, in my judgment, did not go to the central issue, which was simply one of admissibility. Other authorities were referred to by counsel for the appellant which in fact are in line with The Statue of Liberty [1968] 2 All ER 195, [1968] 1 WLR 739 and with what I have indicated can be derived from R v Wood (1982) 76 Cr App R 23.

In my judgment, this print-out was admissible and, furthermore, the controlling, operating station sergeant ought to have been permitted to give evidence as to what he had observed and as to the result of what he observed, interpreting if necessary the print-out and supplementing it by saying that it meant no sufficient sample, just as if he had been looking at a dial where the pressure and degree of effort was recorded.

The justices, in my judgment, were in error and I would allow this appeal. I would answer the question which they pose: ‘… whether the “test record” print out from [the] device is admissible in evidence’ with the word Yes. I would, therefore, allow the appeal and remit the case to the justices for them to continue to hear the case.

I should add that, because the case was stopped at the close of the evidence for the prosecution, the respondent was not given the opportunity of developing any reasonable cause which there might or might not have been for failing to provide the specimen of breath. All that the court at that stage had to consider was whether a specimen of breath had been provided. In s 12(3) of the Road Traffic Act 1972 (as substituted by the Transport Act 1981, s 25(3), Sch 8, and amended by the Transport Act 1982, s 59), the test which they should have applied is set out:

‘A person does not provide a specimen of breath for a breath test or for analysis unless the specimen is sufficient to enable the test or the analysis to be carried out and provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.’

In my judgment that was what they had to consider at that stage of the case and plainly there was a case for them to consider. It follows furthermore that I regard the reference to s 10(2) of the 1972 Act to be irrelevant to considerations in this case.

I have dealt with this matter on the basis of common law principles. That, in my judgment, is what this matter amounts to.

JUDGMENTBY-2: KENNEDY J.

JUDGMENT-2:
KENNEDY J.

I agree. The central issue here is whether the police sergeant, who was called as a witness and who invited this respondent to provide a specimen of breath, was entitled to rely on the indications he obtained from the Intoximeter 3000 machine when he said that the respondent had not provided the specimen. In my judgment also he was entitled to rely on those indications because they amounted to real evidence.

This machine, as it was used in relation to this respondent, was indistinguishable in principle from, for example, a speedometer or a calculator. Of course, where a computer is used in respect of its memory function, it is possible to envisage cases where it it might fall foul of the rule against hearsay. But that is not this case.

I observe in looking at the form (with a copy of which we have been provided) that it says, in handwriting which may be that of the sergeant: ‘The accused made a very poor attempt to blow into the machine. He would blow for approximately two seconds and this he kept repeating.’ As I understand it, what was said to us by counsel during the course of this case was that that evidence of the sergeant was not in fact given because counsel for the respondent was able to persuade the lower court that the evidence of the sergeant, as to his own observations, was objectionable. That submission made by him was upheld.

Speaking for myself, if the sergeant was able to say what appears on the face of the form, it seems to me that that is evidence which he plainly could have given without any reference whatsoever to the Intoximeter and that is evidence which he should have been allowed to give.

DISPOSITION:
Appeal allowed. Case remitted to justices to continue hearing.

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