“It was not me; it was the machine”
We were recently reminded of the more rigorous regime of case management courtesy of the CPRs (which are not reproduced in this blog) in connection with drink drive and failing to provide a specimen cases when faced with instructions that are based on a distrust of the intoxemeter both in terms of the reliability of the readings and where a failure to blow has been recorded on the MGDDA.
The comments of former senior DJ Riddle in the Cipriani case (where there were three days of evidence over 5 court days) adopted and approved of by the divisional court in Hassani would leave one in no doubt of the frustration of the court regarding that case and the robust approach to case management that should be adopted moving forwards and to which both defendants and lawyers will be subject.
SDJ Riddle in dismissing the suggestion that the prosecution must show each of the machines are properly calibrated, opined that is an outdated approach relegated to when these machines were new and not properly tested/self-calibrating. He made it plain that the case should proceed on the presumption the EBM machine was working correctly. The judge was equally critical of the manner in which expert evidence was dealt with and introduced and indeed the availability of such witnesses even where they had been served section 9 (to be read) and where the defence relied on the prosecution silence in then proposing to read such which some may seem as perverse given that is the law. He made plain that if the reliability of the machine is in doubt or challenged the expert should be present for the cross-examination of the prosecution witnesses and then available again for the defence case after the defendant has given evidence. These comments were not necessarily new, the presumption in favour of the machine working was made in the case of Haggis but how this translates to case management is what led the SDJ to say of the Cipriani case:
“In future drink driving cases cannot be conducted in the way that this one was…(it must be) ensured that the precise nature of the challenge to the MGDDA procedure (is) spelt out at the case management stage…the “reliability of breath alcohol readings” was insufficient to identify the matter in dispute””. It is suggested that this would apply equally to cases where the allegation is about a failure to provide a specimen of breath and not just where a reading is over the legal limit. He goes on to specify what the form might say by way of specifics in this regard.
As former SDJ Riddle himself observed his comments were not binding, that is until the 2017 divisional court case of Hassani. The divisional court was not concerned with the Cipriani case per se but in unceremoniously dismissing a JR of a decision from another DJ, the court did not shy from expressing its view that “The Criminal Law is not a game to be played in the hope of a lucky outcome…” In evoking the CPRs the court opined that “Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate” and went on more than once to encourage “firm case management”. Beware that this firm case management may be predicated on the view of the court that:
“In the absence of some specific evidence which indicates that there is a problem with the intoxemeter EC/IKR machine, approved in 1998 and with approval reissued in 2005, extensive exploration of technicalities will normally be a waste of time”.
The divisional court goes on from paragraph 17 onwards of its judgement to specifically commend and adopt the comments by DJ Riddle. What the divisional court commends as rigour and firmness on the part of the court may seem unfair when a lay defendant is expected to breakdown the trial issues embedded in a world of technicalities and machinery but any not guilty plea should be accompanied by such a specific treatment of the trial issues.
Reading of the cases of Hassani and the adoption of parts of the former SDJ’s comments is recommended.
What the divisional court’s adoption of SDR Riddle’s views mean, it is suggested, is that if you are facing an allegation whereby you attack the efficacy of the machine and you are dealing with a first appearance and case management at the Magistrates Court, there must be thought given to something more specific that simply not trusting the machine.
Both defendants in person and practitioners of the law alike need to be aware of the additional obligations imposed upon them by these decisions and the way driving offences involving alcohol are case managed in order to be fully prepared at initial hearings. The alternative is that your freedom to argue the issues you want to, in the time you want to, may be compromised and even your right to a trial may be jeopardised.