Road Traffic - Drink and Drug Driving

• Evidential considerations
• Section 5 Road Traffic Act 1988 [‘RTA 1988’] - Driving or being in charge with alcohol concentration above prescribed limit
• Section 5A RTA 1988 - Driving or being in charge with concentration of specified controlled drug above specified limit
• Section 4 RTA 1988 - Driving/Attempting to drive or being in charge of a motor vehicle whilst unfit
• Section 6 RTA 1988 – Preliminary Impairment Testing
• Section 7 RTA 1988 –Requirement to provide a sample
• Procedure – MGDD Forms
• Procedure - children
• Post Driving Consumption and Back Calculations
• Challenging the evidential breath testing instrument
• Disclosure of Unused Material
• General Public Interest Considerations
• Other Guidance
• Annex A - List of Drink or Drug related RTA 1988 offences
• Annex B - Relevant Case Law and other authorities
• Annex C - Defence Challenges in Drink or Drug Drive Cases

Evidential considerations

This section addresses:

• the elements of offences under sections 4, 5, and 5A Road Traffic Act 1988 and statutory defences
• charging practice/acceptability of pleas
• issues relating to impairment testing and the taking of samples under sections 6, 7 and 7A Road Traffic Act 1988

Section 5 Road Traffic Act 1988 [‘RTA 1988’] - Driving or being in charge with alcohol concentration above prescribed limit

Section 5 RTA 1988 sets out this offence and provides a defence.

A person who drives or attempts to drive a motor vehicle on a road or other public place or is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in  their breath, blood or urine exceeds the prescribed limit, is guilty of an offence.

In relation to being in charge of a motor vehicle, a person is not guilty if they prove that the circumstances were such that there was no likelihood of them driving the vehicle whilst the proportion of alcohol in their breath, blood or urine exceeded the prescribed limit.

Section 5A RTA 1988 - Driving or being in charge with concentration of specified controlled drug above specified limit

The offence at section 5A RTA 1988 is driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug. It brings enforcement of drug driving into line with that of drink driving, by introducing a strict liability offence to avoid the need to prove impairment. It seeks to enable more effective law enforcement to take place, with the aim of improving road safety by deterring potential drug drivers and bringing more drug drivers to justice.

A 'controlled drug' is stated at section 11 RTA 1988 to have the meaning given by section 2 Misuse of Drugs Act 1971. A "controlled drug" is any substance or product for the time being specified in Part I, II or III of schedule 2 of the Misuse of Drugs Act 1971.

Section 5A(1)(b) and (2) RTA 1988 provides for an offence of driving or being in charge of a motor vehicle with a proportion of a specified controlled drug above the specified limit.

Section 5A RTA 1988 – availability when Section 3A offence charged

Where a section 3A RTA 1988 offence (Causing death by careless driving when under influence of drink or drugs) is charged, a jury may convict of the alternative offences listed in the table in section 24 Road Traffic Offenders Act 1988.  The list of alternative offences includes section 4(1) RTA 1988 (driving when unfit to drive through drink or drugs). However, the offence under section 5A RTA 1988 is not listed.

Consequently, where a section 3A offence is charged and there is an issue as to whether the standard of driving was careless, it is good practice also to charge a section 5A RTA 1988 offence as an alternative for trial purposes. 

Section 5A RTA 1988 – Defences

Section 5A(3) RTA 1988 provides a defence if a specified controlled drug is prescribed or supplied in accordance with the Misuse of Drugs Act 1971 and taken in accordance with medical advice. Section 5A(4) RTA 1988 confirms that the defence is not available if medical advice  has not been followed. If a defendant raises the medical defence, it must be disproved beyond reasonable doubt for the defendant to be convicted. Prosecutors should consider the charging the offence in section 4 RTA 1988  as an alternative where driving is impaired by specified controlled drugs taken in such circumstances. Section 4 RTA 1988 also applies to those whose driving is impaired by drugs that are not specified for the purposes of the offence.

Section 5A(6) RTA 1988 provides a defence to being in charge of a motor vehicle with a specified controlled drug in the blood or urine above the specified limit for that drug, if the defendant can show that there was no likelihood of them driving the vehicle while over the specified limit. This is similar to the defence in section 5(2) RTA 1988.

Blood or Urine – section 5A RTA 1988

Section 5A(2) RTA 1988 states that the specimen will be blood or urine. However, as there are no specified limits set for drugs in urine, for the purposes of section 5A RTA 1988 the specimen must be blood, and this is reflected in police procedure. If the suspect refuses, without reasonable excuse to provide a specimen of blood, the appropriate charge will be one of "failure to provide" contrary to section 7(6) RTA 1988. A section 5A RTA 1988 offence cannot be prosecuted if the suspect has a genuine medical reason for failing to provide a specimen of blood. This does not affect evidence-gathering for a section 4 RTA 1988 offence, as the requirement for the presence of a drug does not need to exceed a limit and the drug can be discovered in specimens of urine. This is why police will investigate both offences where evidence of impairment is available.

Specified Limits

Section 5A(8) RTA 1988 provides a regulation-making power to specify which controlled drugs are covered by the offence, and the specified limit in relation to each. Section 5A(2) RTA 1988 allows different specified limits to be set for different controlled drugs. Specified limits could be set based on evidence of the road safety risk posed by driving after taking the drug, or based on an approach whereby it is not acceptable to drive after taking any appreciable amount of the drug. Section 5A(9) RTA 1988 provides that specified limits could be zero.

The relevant drugs are listed in the Drug Driving (Specified Limits) (England and Wales) Regulations 2014 and the Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015. The levels have been set and stated in the regulations. They are based on figures from a panel of experts that has considered such factors as "accidental exposure". It is important to note that this offence is not a "zero tolerance" offence, as the limits for the illegal drugs are low but with sufficient tolerance to allow for accidental exposure.

Sample Testing

If a blood specimen has been taken, the police will ensure that it is stored, packaged and transported in the appropriate way. This is especially important in circumstances where cannabinoids are involved, as the breakdown rate is very fast. The sample should ideally be taken within one hour, to be reflective of the level at the time of the offence. The specimen of blood taken will be divided and one part provided to the suspect if requested. The suspect will be given a leaflet as to what to do with this sample to maintain its integrity. There may be challenges to the suspect's specimen, as the concentration will reduce if it is not kept refrigerated.

The testing of both specimens must be at an accredited laboratory to ensure that the criminal justice system can be satisfied whether a person is above the specified limit. The testing is based on the same methodology as for alcohol. This is to allow for margins of error. Guidance issued by the Home Office and the office of the Forensic Science Regulator requires analysts to allow a margin of error and the level reported will allow for that. In cases where a not guilty plea is entered, the defence should be asked if they have had a sample analysed and whether they will be calling an expert.

Forensic Science Regulator's Guidance

The Forensic Science Regulator, together with accredited Forensic Science Providers, has developed a standard approach as to how measurement uncertainty should be accounted for when reporting analyses in support of the section 5A RTA 1988 offence.

The Forensic Science Regulator has also published guidance on the comparison of analytical results to limits created under the provisions of section 5A RTA 1988.

Section 4 RTA 1988 - Driving/Attempting to drive or being in charge of a motor vehicle whilst unfit

Under section 4(1) RTA 1988, it is an offence if a person drives or attempts to drive a motor vehicle on a road or other public place whilst unfit through drink or drugs. Similarly, section 4(2) RTA 1988 makes it an offence if the person is in charge of a motor vehicle when under the influence of drink or drugs.

It is important to note the interplay between section 4 RTA 1988 and section  5A RTA 1998. Where the level of drugs exceeds the specified amount, the appropriate charge would be section 5A RTA 1988. If the level of the drug does not exceed the specified limit, but where there is sufficient evidence of impairment, the charge will be contrary to section 4 RTA 1988.

The police have been advised to continue gathering evidence of impairment to support the investigation of section 4 RTA 1988. Whilst cannabis and cocaine are the most prevalent drugs amongst drug-drivers, most specified drugs and other drugs and intoxicants cannot be tested for at the roadside.

Prosecutors  should be mindful of the need to distinguish between "attempting to drive" and being "in charge". An attempt must be "more than merely preparatory" to the act of driving. In Mason v DPP [2009] EWHC 2198 (Admin), a car owner had been robbed at knifepoint as he opened his car door. The robber drove off in the car. The car owner phoned the police who told him to come to the station and make a report. When he did, the officer smelt alcohol on his breath and arrested him for attempting to drive whilst over the limit. He later blew 68ug in breath. The Court held that opening a car door was merely preparatory to the act of driving, and not an actual attempt to drive.

A person remains in charge of their vehicle until they have transferred control to another, for example by handing over the key or have gone some distance from the car, in such circumstances that they had no intention of re-asserting control of the vehicle.

Charging Practice – level of alcohol

In most cases of drink/driving, there will be scientific and/or medical evidence to show that the driver has exceeded the prescribed limit. In such cases, a charge under section 5 RTA 1988 will be proper. Although the prescribed breath alcohol limit is 35 micrograms, a driver will not be prosecuted under section 5 RTA 1988 with a breath alcohol level of less than 40 micrograms. This is in accordance with the guidelines contained in Home Office Circular 46/1983. That level will usually be taken as that recorded by an evidential breath testing machine or by analysis of a blood/urine sample. However, it may be the level as determined by back calculations.

Failing to provide a specimen

There is no need to state in a charge under section 7(6) RTA 1988 the offence which is suspected and being investigated by a police officer: see DPP v Butterworth (1994) 3 WLR 538. It is the fact that an investigation is in process that gives rise to the requirement to provide a specimen for analysis. The nature of the offence under investigation is relevant only to penalty; it may be necessary to have a "Newton" hearing to determine if the defendant had driven, or was in charge of, a vehicle on a road.

Section 6 RTA 1988 – Preliminary Impairment Testing

Section 6 RTA 1988 provides a power for a constable to administer preliminary tests. Section 6A RTA 1988 provides for a preliminary breath test, 6B RTA 1988 for a preliminary impairment test and 6C RTA 1988 for a preliminary drug test. Sections 6D RTA 1988 and 6E RTA 1988 make provision about powers of arrest and powers of entry respectively in connection with the administration of preliminary tests.

The preliminary tests are:

• a breath test whereby a specimen of breath is taken by means of a device approved by the Secretary of State which indicates whether the proportion of alcohol in a person's breath or blood is likely to exceed the prescribed limit (section 6A RTA 1988).
• an impairment test, which consists of a series of physical tasks, set by the constable. By observing the person's ability to perform these tasks, and making such other observations of the person's physical state as the constable thinks expedient, the constable can obtain an indication whether the person is unfit to drive and, if he is, whether his unfitness is likely to be due to drink or drugs. The Secretary of State is required to issue and to keep under review a code of practice regarding such tests (section 6B RTA 1988)
• a drug test whereby a specimen of sweat or saliva is used, by means of a device approved by the Secretary of State, for the purpose of obtaining an indication whether a person has a drug in his body (section 6C RTA 1988). The police will carry out a roadside test, much in the same way as the screening breath test for alcohol. Current testing devices used under section 6C RTA 1988 only test for Delta-9-tetrahydrocannabinol (the active ingredient of cannabis) and cocaine. If the result is positive, the suspect can be arrested and taken to a police station, where an evidential specimen of blood will be required.

A person commits an offence if they fail without reasonable excuse to co-operate with a constable's requirement for any one or more preliminary tests – section 6(6) RTA 1988.

Preliminary tests may be administered if a constable reasonably suspects that the person:

• is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public place, and has alcohol or a drug in his body or is under the influence of a drug – section 6(2) RTA 1988
• has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug, and still has alcohol or a drug in his body or is still under the influence of a drug section 6(3) RTA 1988
• is or has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place, and has committed a traffic offence while the vehicle was in motion section 6(4) RTA 1988
• an accident occurs owing to the presence of a motor vehicle on a road or other public place, and a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident – section 6(5) RTA 1988.

A preliminary breath test administered in reliance on section 6(2) to (4) may be administered only at or near the place where the requirement to co-operate with the test is imposed – section 6A(2) RTA 1988.

Preliminary tests that may be administered at or near the place where the requirement to co-operate with the test is imposed, or if the constable who imposes the requirement thinks it expedient, at a specified police station, are set out at section 6A(3), section 6B(4) and section 6C(2) RTA 1988. They are a:

• preliminary breath test administered in reliance on section 6(5) RTA 1988
• preliminary impairment test or a
• preliminary drug test

Section 7 RTA 1988 –Requirement to provide a sample

An obligatory requirement to provide a sample for analysis arises in circumstances set out in section 7 RTA 1988.

If the provision of a specimen other than a specimen of breath is required, the question whether it is to be a specimen of blood or a specimen of urine and, in the case of a specimen of blood, the question who is to be asked to take it, shall be decided by the constable making the requirement. However, there is no requirement to provide such a specimen if:

• the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or
• the registered health care professional who is asked to take it is of that opinion and there is no contrary opinion from a medical practitioner

A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.

A constable must provide a warning on requiring a specimen that a failure to provide it may render the suspect liable to prosecution and may arrest a person without warrant if the person fails to provide a specimen. Failure, without reasonable excuse, to provide a specimen when required is an offence – section 7(6) RTA 1988.

If "reasonable excuse" is raised as a defence based on medical evidence (including, for example, needlephobia), the prosecutor should require the defence to provide that evidence before the hearing, or seek an adjournment for that purpose. The matter can then be investigated and, if necessary, expert medical evidence obtained which addresses the specific issues raised by the defence. In DPP v Crofton (1994) RTR 265 it was held that the court should consider the following matters in such circumstances:

• medical evidence of physical or mental inability to provide the specimen;
• the causative link between the physical or mental condition and the failure to provide the specimen.

Once such a defence is raised, the onus is upon the prosecution to negate it.

A specimen may be required during an investigation into whether a person has committed an offence under:

• section 3A RTA 1988 - Causing death by careless driving when under influence of drink or drugs
• section 4 RTA 1988 - Driving, or being in charge, when under influence of drink or drugs, or
• section 5 RTA 1988 - Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.
• section 5A RTA 1988 - Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit

Breath

A constable may make a requirement under section 7 RTA 1988 to provide specimens of breath only if the requirement:

• is made at a police station or a hospital,
• where section 6(5) RTA 1988 applies (an accident occurs owing to the presence of a motor vehicle on a road or other public place, and a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident), or
• the constable is in uniform.

Section 8 RTA 1988 provides that of any two specimens of breath provided by any person in pursuance of section 7 RTA 1988 that with the lower proportion of alcohol in the breath is to be used and the other disregarded.

Blood or Urine – section 7 RTA 1988

A requirement to provide a specimen of blood or urine can only be made at a police station or at a hospital – section 7(3) RTA 1988. It cannot be made at a police station unless:

• the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required – section 7(3)(a) RTA 1988, or
• specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device of the type mentioned in section 7(1)(a) RTA 1988 is not available at the police station or it is then for any other reason not practicable to use such a device there – section 7(3)(b) RTA 1988, or
• a device of the type mentioned in section 7(1)(a) RTA 1988 has been used at the police station or elsewhere but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned – section 7(3)(bb) RTA 1988, or
• as a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body – section 7(3)(bc) RTA 1988, or
• the suspected offence is one under section 3A RTA 1988, s. 4 RTA 1988 or section 5A RTA 1988 and the constable making the requirement has been advised by a medical practitioner or a registered health care professional that the condition of the person required to provide the specimen might be due to some drug – section 7(3)(c) RTA 1988

Where a requirement to provide blood or urine applies the requirement may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

Doctor's advice to Constable re influence of drugs under section 7(3)(c) RTA 1988

Under section 7(3)(c) RTA 1988 a constable may require a driver to provide a laboratory specimen when a medical practitioner has advised them that the condition of the driver might be due to a drug. The purpose of this provision is neither to prove that the driver is, or that the doctor believes him to be, under the influence of drugs - but simply to advise that the driver's condition might be due to some drug. The doctor is not prohibited by the words of that statute from taking into account any fact or matter which they feel to be relevant. They are not restricted to considering the condition of the driver at the time of the examination. Officers are now frequently testing for driver impairment due to drugs at the roadside. The tests are primarily based on the physical response of the driver to certain tasks. The doctor may consider the results of such tests when they advises a constable under section 7(3)(c) RTA 1988.

Section 7A RTA 1988 - Blood taking without consent

A constable may ask a medical or health care practitioner to take a specimen of blood irrespective of whether that person consents if:

• the constable would have been entitled under section 7 RTA 1988 to require the provision of a specimen of blood for a laboratory test,
• it appears that the person has been involved in an accident;
• it appears that the person is or may be incapable of giving a valid consent for medical reasons.

Such a request is not to be made to a medical or health care practitioner with responsibility for the clinical care of the person concerned. The blood specimen can be taken irrespective of whether that person consents. However, that specimen is not to be subjected to a laboratory test unless the person from whom it was taken

• has been informed that it was taken
• has been required by a constable to give their permission for a laboratory test of the specimen, and
• has given their permission.

On requiring a person to give their permission, the constable must warn that person that a failure to give permission may render them liable to prosecution. A person who, without reasonable excuse, fails to give their permission for a laboratory test of a specimen of blood taken from them is guilty of an offence.

Prosecutors should also be alive to any challenges by the defence in relation to the taking of blood. The procedure is normally certified by way of a HORT5 from the custody nurse. If the defence allege this procedure was not properly followed, consideration should be given to obtaining a formal statement from the healthcare professional responsible.

Section 9 RTA 1988 – Protection for hospital patients

Section 9 RTA 1988 provides protection for hospital patients. A patient is not to be required to co-operate with a preliminary test, to provide a specimen under section 7 RTA RTA 1988 or a specimen of blood under section 7A RTA 1988 unless the medical practitioner in immediate charge of their case has been notified of the proposal to make the requirement; and does not object.

Procedure – MGDD Forms

The Manual of Guidance drink and drug driving (MGDD) prescribes a set of forms that is used by forces in England and Wales when dealing with drink and drugs driving offences. Prosecutors should note the contents of the forms and the procedures that they prescribe.

The procedure for requiring a specimen

• of breath is set out in MGDD Form A
• of blood or urine is set out in MGDD Form B
• at hospital is set out in MGDD Form C

Other forms that set out relevant procedures are

MGDD Form D – Alcohol technical defence and back calculation

MGDD Form E – Drug drive laboratory submissions

MGDD Form F – Roadside Impairment testing

In the event of a not guilty plea to a summary drink/drive offence,  prosecutors should try to obtain a formal admission under Section 10 of the Criminal Justice Act 1967 as to the contents of the Form. Such an admission must include the name of the defendant, the date and place of the offence and the results of the breath test or of the laboratory test. If such an admission cannot be secured then the officers conducting or witnessing the sampling procedure will normally have to be called to give evidence in person. Its admission cannot be achieved by producing it as an exhibit, either attached to a statement or in the witness box: Form MG/DD contains assertions of fact and is a document made out of court. It may only be admissible as an exception to the hearsay rule or by an officer giving evidence as to its content (relying on it if necessary as a memory-refreshing document).

Procedure - children

MGDD Form A provides guidance on taking a sample in cases involving a person aged 17 years or under. The child may consent to the provision of breath, blood or urine specimens without the need for parental or other approval. The officer must be satisfied, as they would with any consent, that the child has the necessary mental capacity. The prosecution need not be delayed until an appropriate adult attends since the procedure does not constitute an interview for the purposes of PACE.

The child must have sufficient capacity to understand what they are being asked to consent to and the consequence of refusing to provide the specimen (namely, that a failure or refusal, to provide it, without reasonable excuse, may render them liable to prosecution for an offence of failing to provide).

Post Driving Consumption and Back Calculations

A driver may claim that the proportion of alcohol in a breath or laboratory specimen is above the legal limit because they consumed alcohol after they ceased to drive. The driver will need to rebut the presumption contained in section 15(2) RTOA 1988 that the proportion of alcohol in their breath, blood or urine at the time of the alleged offence was not less than in the specimen. That presumption can be rebutted if the driver proves the matters set out at section 15(3) RTOA 1988 on a balance of probabilities. This usually requires expert scientific evidence to establish that the alleged post driving consumption of alcohol accounts for the excess found in the sample.

It was held in Dawson v Lunn [1986] RTR 234 that Pugsley v Hunter [1973] RTR 284, the leading authority on "laced drinks", is equally applicable to this defence. The defence must call medical or scientific evidence on the point unless it is obvious to a layperson that the post offence consumption explained the excess. Experience has shown that this is frequently argued in cases where the defendant claims to have consumed no alcohol prior to driving. Even here, it will not be "obvious" where the quantity of alcohol subsequently consumed is not consistent with the measured breath, blood or urine sample.

Conversely, a driver may provide a specimen some hours after the time of the alleged offence that is below the legal limit. The Forensic Service Provider may advise that back calculations based upon rates at which the human body eliminates alcohol could establish that the driver was in excess of the legal limit when the offence occurred. The prosecution are entitled to rely upon such back calculations for the purposes of proving an offence under section 5 RTA 1988 - see Gumbley v Cunningham (1989) 1 All ER 5 - but only if that evidence is easily understood and clearly persuasive of the presence of excess alcohol at the time of the alleged offence.

Expert evidence from the Forensic Service Provider will include evidence of mathematical calculations based upon the elimination of alcohol within the driver's body. Ideally, the evidence provided by the Forensic Service Provider should relate as closely as possible to the physical characteristics of the driver and his consumption of both food and drink over the relevant period.

The officer will normally record information required by the expert on the Form MG/DD/D at the police station. However if the defence is not raised until a later time the FSP should be provided with as much information as can be obtained from the case papers and the officer in the case. The following information is relevant, where available:

• the weight, height, build, age and sex of the driver;
• details of any food consumed from six hours before the offence and the provision of a breath or laboratory specimen;
• any known medical condition;
• details of any medication taken regularly, or within 4 hours prior to drinking;
• the type and quantity of alcohol consumed before the offence and, if possible, the times at which individual units of alcohol were consumed;
• the same information concerning any alcohol allegedly consumed after the offence but before the provision of a breath or laboratory specimen.

Challenging the evidential breath testing instrument

The first generations of Evidential Breath Testing Instruments were replaced in 1999. All forces are now equipped with the Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer 6000UK. They detect and record a wider range of information when analysing breath samples.

These three makes of instrument are a type approved by the Secretary of State for the purposes of the Road Traffic Act. Any challenge of that type approval must be made by way of an application for Judicial Review, not in the course of a summary trial relating to the performance of a particular instrument: see DPP v Brown and DPP v Teixeira [2001] EWHC Admin 932, 166 JP 1.

There is a statutory presumption at section 15(2) RTOA 1988 that at the time that the defendant was driving the proportion of alcohol in their breath, blood or urine was at least what was found in the specimen.  However, that presumption may be challenged by evidence relevant to the circumstances of each case. To convict in the face of such evidence the court must remain satisfied that the instrument provided a reading upon which they can rely. See Cracknell v Willis (1988) 1 AC 450 at 467, and DPP v Brown; DPP & v Teixeira, supra.

Prosecutors should be robust in challenging speculative defence applications for disclosure of material such as calibration service sheets or engineers’ reports, for example relating to the history of the machine which produced the reading relied on.

The disclosure duties under the Criminal Procedure and Investigation Act 1996 (‘CPIA’) only apply to material which is in the possession of the prosecutor or which the  prosecutor has inspected or which the prosecutor must, if they ask for the material, be given a copy or must be allowed to inspect (CPIA sections 3 and 8).  The manufacturers of a breath testing device are third parties and any records they hold relating to the machine are not ‘prosecution material’ within the meaning of the CPIA: DPP v Wood and McGillicuddy [2006] EWHC 32 (Admin). 

Records held in the custody suite are in the possession of police (but not the prosecutor). However, these will only meet the definition of ‘prosecution material’ if they are relevant and it would constitute a ‘reasonable line of enquiry’ for the prosecutor to ask the police to provide them (section 8(4) CPIA). If there is no reason to believe that they contain anything relevant which would meet the criteria for disclosure under the CPIA then obtaining them will not be a reasonable line of enquiry. Therefore, defence applications for disclosure of this sort of material must identify a proper evidential basis for concluding that the material sought might reasonably be expected to meet the criteria for disclosure.  (See: DPP v Manchester and Salford Magistrates’ Court [2017] EWCH 3719 (Admin)) followed in DPP v Walsall Magistrates' Court & Anor [2019] EWHC 3317 (Admin) (05 December 2019). 

See also the Table of Common Disclosure Requests (at Annex D of this chapter.).

Evidential Breath Testing Instruments are computers. Following the repeal of section 69 PACE 1984, the law has reverted to the common law position which presumes that any mechanical or other device is working properly unless the contrary is proved (affirmed in Clarke v CPS [2013] EWHC 366 (Admin)). Consequently the record produced by a computer is admissible as real evidence as it is presumed that the record is accurate. That presumption can be rebutted if evidence to the contrary is adduced. In that event, it will be for the party seeking to produce the computer record in evidence to satisfy the court that the computer was working properly at the material time.

Disclosure of Unused Material

Standard records, such as the maintenance log for each instrument, does not form part of the investigation into an offence, will not form part of the standard unused material of an investigation, and should not be routinely disclosed to the defence.

The defence may request copies of technical documents relating to the specification, construction and performance of the instruments. Disclosure to the defence of such unused material is governed by the usual CPIA rules on defence material - see also DPP v McKeown, DPP v Jones (1997) RTR 162. You should bear in mind that material in this category might be commercially confidential.

If there is any reason to believe that an instrument whose readings are relied upon in evidence was not working correctly that information, which will undermine the prosecution case, must be disclosed to the defence.

General Public Interest Considerations

There is a very clear public interest in prosecuting drink or drug driving offences, due to the danger posed to others by such behaviour. Where an individual has driven a motor vehicle and the evidence is sufficient to support a charge under s. 4, 5, 5A or 7(6) RTA 1988, a prosecution will almost invariably follow.

Selection of charges

It may not normally be necessary to charge both section 4 and 5 RTA 1988 offences, or to combine these charges with a failing to provide allegation. However, depending on the issues in the case, it may be appropriate to add further charges so that the court can return a verdict on one charge even if it acquits on another. The selection of charges should apply section 6 of the Code for Crown Prosecutors and identify a charge or charges which reflect the seriousness and extent of the offending and provide adequate powers of sentence.

Sentencing

Prosecutors should refer to the definitive sentencing guideline. The guidance includes aggravating and mitigating factors, as well as factors that increase or reduce the seriousness of the offence. 

If the defendant accepts the presence of alcohol or another specified drug, this information can be placed before the Court and taken into consideration.

Other Guidance

Prosecutors should also note the (restricted) operational guidance on specialist defences in Annex C of this document on:

• Defence challenges on drink / drug drive offences and how to address them
• Specialist challenges on drink / drug drive offences (which covers some additional points)
• Common disclosure requests and how to approach them
• Schedule of helpful authorities on defence challenges 

Annex A - List of Drink or Drug related RTA 1988 offences

Annex B - Relevant Case Law and other authorities

Annex C - Defence Challenges in Drink or Drug Drive Cases

Guidance to prosecutors and police officers

CASE MANAGEMENT

First appearance / case management hearing

1. These cases are likely to be listed in the GAP (guilty plea) courts. In blood/urine alcohol cases, the SFR1 (or analyst's certificate or record on MG5) with the alcohol reading is served on the defence with the IDPC. The SFR, being a summary of the forensic evidence that is served on the defence for securing an admission of its contents, is thereby served on the defence under Rule 19.3(1) CPR.
2. The defence will state that they intend to instruct an expert; and therefore, request disclosure under Rule 19.3(3)(d) CPR in order that the expert can properly assist the court. The defence will state that no admissions will be made in respect of the content of the SFR1 (or similar).
3. If the defence are not willing to agree the SFR1 served under Rule19.3(1) the defence must follow the process set out in Rule 19.3(2) and serve a response to the SFR1 stating which, if any of the expert's conclusions are admitted and if not, what are the disputed issues concerning those conclusions.
4. It follows from the above that requests by the defence to see the working notes of a prosecution expert under Rule 19.3(3)(d) should not be made after service of an SFR1 unless the process set out in Rule 19.3(2) has been followed.
5. Assuming compliance, if appropriate, with Rule 19.3(2) the defence are entitled on request the following material on request under Rule 19.3(3)(d)

A party who wants to introduce expert evidence otherwise than as admitted fact must— (d) if another party so requires, give that party a copy of, or a reasonable opportunity to inspect—

• a record of any examination, measurement, test or experiment on which the expert's findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and
• anything on which any such examination, measurement, test or experiment was carried out.

6. Note the confines of Rule 19.3(3)(d). The defence are only entitled to data etc. in respect of which the expert's findings and opinion are based. For example, the ambit will not include data from samples tested immediately prior to the defendant's sample. The defence can only request material falling outside Rule 19.3(3)(d) following the service of a CPIA- compliant defence statement; and, if necessary, an application under section 8 CPIA. 
7. Whilst recognising that each case, and each request, must be considered on its own facts, attached at Annex Dis guidance on whether the item is likely to be within Rule 19.3(3)(d) and whether the item is likely to be relevant unused material (to be listed on the MG6C) in accordance with the definition of "unused material" and "relevant" at paragraph 2.1 Code of Practice CPIA.
8.  In breath alcohol cases (where the prosecution is not relying on expert evidence), Part 3 CPR requires the defence to spell out the precise nature of the challenge to the MGDDA procedure at the case management stage. Prosecutors are referred to page 17(g) of the Chief Magistrate's ruling in R v Cipriani [2015] EWCA Crim 1941.

The case management hearing - suggested directions

9. Where the defence indicate that they will be instructing an expert and request disclosure under Rule 19.3(3)(d), it is important to ask the court for the following directions (or similar). The directions are by way of a guide. The directions also provide a structure for prosecutors in the pro-active management of the case.

a)  If this cannot be done immediately, date by which the defence must respond to the prosecution under Rule 19.3(2).

b) Date by which prosecution is to serve material under Rule 19.3(3)(d) CPR (or grant the defence access at the lab). Whilst the decision whether to serve the material or grant access must be taken on a case by case basis, it will be reasonable to serve the material where the defence have provided a secure email address; and to give a reasonable opportunity to inspect where they have not provided a secure email address. 

c) Date by which prosecution is to serve a statement from the scientist (FSP Reporting Officer), plus other witness statements on which the prosecution relies and disclosure schedule/initial disclosure. 

d) Date by which defence to request any further disclosure under Rule 19.3(3)(d), providing reasons why they state that the material falls within Rule 19.3(3)(d); or, if the material does not fall within Rule 19.3(3)(d), to serve a defence statement and, if necessary, application under section 8 CPIA, and request the material that way. 

e) Date by which defence are to indicate which further witnesses they require to give live evidence; to include date by which the defence are to make application, if they wish to do so, under section 127(4) CJA 2003 for an order that section 127 CJA 2003 does not apply; at the same time the defence to indicate which assistants they require to give evidence and, by reference to the real issues, why they are required.

f) Date by which prosecution to provide further disclosure requested at (d) above.

g) If the prosecution declines to provide further disclosure at (f) above, date by which the court will determine (by way of a hearing or otherwise) the section 8 application, or, alternatively, determine whether the further material requested by the defence falls within Rule 19.3(3)(d). (NB: through a request to the police, prosecutors should seek the opinion of an expert on the ambit of Rule 19.3(3)(d) in the individual case; and on whether any material is capable of meeting the disclosure test).

h) If appropriate, date by which the court will determine (by way of a hearing or otherwise) the defence application under section 127(4) CJA 2003. Date by which prosecution to apply to vacate trial date if inconvenient to any lab assistants who are required to attend following a ruling under section 127(4) CJA 2003. 

i) Date by which defence are to serve any expert evidence 

j) Date by which prosecution is to serve any expert evidence 

k) If the defence are applying to exclude evidence under section 78 PACE, date by which skeleton argument to be served (and date by which prosecution to serve skeleton argument in response) 

Action plan to the police

10. Immediately following the defendant's first appearance, prosecutors should provide an action plan to the police. Prosecutors should set out the disclosure requests and the nature of the defence(s). This will be considered by the police in authorising expenditure. Where it is appropriate to do so, prosecutors should ask for a prosecution expert to be identified straight away. 

Reporting Officer's statement

11. The evidence of the alcohol or drug concentration will be provided by an expert who is the Reporting Officer. The Reporting Officer will not have conducted all the relevant work. Indeed, they may not be the scientist who conducts the blood alcohol analysis.
12. The Reporting Officer's statement will include a Forensic Examination Record. This is a list of the assistants who have conducted work and a description of their involvement.
13. It is important that the Reporting Officer's statement complies with the provisions of Section 127 Criminal Justice Act 2003 and Rule 19.4(e) CPR.Section 127 CJA 2003 gives the court discretion to admit the evidence of lab assistants where the Reporting Officer's statement contains the following in respect of each assistant (note section 115(2) CJA 2003: a "statement" is not confined to a formal section 9 statement- it is any representation of fact by the assistant by whatever means):

• Express reference to the fact that Reporting Officer will rely on the contents of a statement made by [X]
• X's statement was prepared for the purposes of the proceedings or for the investigation that led to the proceedings
• Recite the matters stated in X's statement and deal with the extent to which X had personal knowledge of the matters stated.
• Give the qualifications/relevant experience/accreditation of X
• State whether the work of X was conducted under the Reporting Officer's supervision.

Prosecution expert

14. The prosecution should normally arrange for an expert witness to be instructed to deal with the specific defence challenges. Care should be taken in selecting an expert because the Reporting Officer (whilst competent from a scientific perspective) may not be the most suitable and experienced expert to deal with this type of specialist defence. In some cases, it may be appropriate to instruct a second expert in addition to the Reporting Officer.
15. An expert who is available to attend on the trial date should be identified as soon as possible. Where appropriate, the expert should be instructed before the defence have provided an expert report in order that he/she can provide written opinion on the ambit of the defence disclosure requests (please see paragraph 9(g) above).
16. The prosecution expert should then provide a report responding to the defence expert report; and should attend throughout the trial

DEALING WITH SPECIFIC CHALLENGES

Requiring the attendance of assistants

17. A common challenge is to require the attendance of all the assistants listed in the Forensic Examination Record.
18. The court is permitted to admit the evidence of an assistant without agreement from the defence under the following provisions in Part 11 CJA 2003 (note section 115(2) CJA 2003 "statement" is not confined to formal section 9 statement- it is any representation of fact by whatever means):

• Section 127 Criminal Justice Act 2003: the court can admit the evidence of the assistants if the Reporting Officer ("the expert") has referred to the statements of the assistants and the content of those statements in his/her report.
• Hearsay application to admit the written record of the assistant (or section 9 statement) under section 117 Criminal Justice Act 2003- business records.
• Hearsay application to admit the statements under section 114(1)(d) Criminal Justice Act 2003; in the absence of identifiable challenge, it is in the interests of justice for the statements to be admitted; to avoid the expense and inconvenience of calling the witnesses.

Continuity

19. Prosecutors should strive to obtain a section 10 admission as to the continuity of the blood/urine sample (to include the taking of the sample from the defendant at the police station). If the defence will not agree a section 10 admission, they should be pressed to explain why.
20. In the event of challenges at trial, prosecutors should refer to the authorities at Annex B.

Section 9 Statement vs Report

21. Defence submission that the evidence of the Reporting Officer or other prosecution expert is not admissible because it is in the form of a section 9 statement rather than a "report".
22. In support of this submission, the defence will argue that the prosecution has not complied with Rule 19.3(3)(a) Criminal Procedure Rules 2020  that requires the prior service of a report by the expert, which complies with Rule 19.4 (content of expert report).
23. This argument is without foundation. If the expert has complied with Rule 19.4 in terms of the content of the report, it is irrelevant that the document contains, in addition, the section 9 caption and is signed. It is still a report by the expert.

Defence expert report not rejected

24. Prosecutors are referred to paragraph 19A.2 of the Criminal Practice Direction: 19A.2: Legislation relevant to the introduction and admissibility of such [expert] evidence includes section 30 CJA 1988, which provides that an expert report shall be admissible as evidence in criminal proceedings whether or not the person making it gives oral evidence, but that if he or she does not give oral evidence then the report is admissible only with the leave of the court. 

Disclosure under CPIA is not complete

25. The defence may submit that initial disclosure is not complete because the MG6C or SDC does not contain all relevant items of unused material. Prosecutors are referred to the definitions of "unused material" and "relevant" in paragraph 2.1 of the CPIA Code of Practice.Annex D includes analysis of whether items subject of common disclosure requests are likely to meet the CPIA definition of "relevant". Material not meeting that definition should not be listed on the MG6C/SDC.
26. However, police officers must ensure that items, which are "relevant", are included on the schedules. This will include, for example, relevant CCTV footage in the custody block and relevant PNBs. It will also include applicable items on Annex D that meet the definition of "relevant" in the circumstances of the case.
27. Prosecutors should adopt a pro-active approach from the outset in advising the police to remedy any omissions from the disclosure schedules.
28. The defence may argue that they are not in a position to serve a defence statement and make an application under section 8 CPIA until initial disclosure is complete. In meeting this argument, prosecutors are referred to R v R [2015] EWCA Crim 1941- see Annex B.
29. In the event that omissions from the disclosure schedules are not remedied by the date of the trial, the defendant may argue that evidence should be excluded pursuant to section 78 PACE and/or that the proceedings should be stayed on the grounds of abuse of process. Prosecutors should invite the defence to identify specific prejudice occasioned by the omission. Why is it submitted that the absence of a particular item from the schedule has prejudiced a fair trial. In the context of unfairness arising from non-availability of CCTV, prosecutors are referred to Director of Public Prosecutions v Petrie [2015] EWHC 48 (Admin), Director of Public Prosecutions v Spalluto [2015] EWHC 2211 (Admin) (Annex B).