Guidance regarding disclosure in Intoximeter EC/IR cases

Introduction
- Applicability of this guidance to other devices
Background - Type approval of Intoximeter EC/IR
Intoximeter EC/IR - Operation
The disclosure regime
The initial MG6c
Primary disclosure or initial disclosure
The defence statement
- Formalities: time limits
- Formalities: content
The evidential burden
Specific defences
Defence requests for disclosure of particular items
Glossary of items and terms
Third party material
Further practical guidance

Notes
Useful references

Introduction
1. This guidance, which has been updated to take account of the important Administrative Court decision on disclosure in Intoximeter EC/IR cases in DPP v Wood; DPP v McGillicuddy [2006] EWHC 32 (QB), is supplementary to other general guidance and material concerning disclosure under the Criminal Procedure and Investigations Act 1996 ('the CPIA'). It must therefore be read in the context of such guidance, including:
  - the relevant provisions of the CPIA (including the provisions amended or inserted by Part 5 of the Criminal Justice Act 2003, where they apply),
  - the relevant Code of Practice ('the Code') issued under s23(1) of the CPIA (i.e., as applicable, the 1997 edition or the 2005 edition)
  - the Attorney General's Guidelines on Disclosure 2005 edition ('the Guidelines')
  - the relevant joint operational instructions agreed between CPS and ACPO for handling unused material, i.e the 2005 Disclosure Manual or the 2002 edition of the JOPI
  - the Director of Public Prosecution's policy minute PO 054 2004 regarding disclosure in December 2004.
  Due regard should also be had to the CPS Legal Guidance on Drink Driving Offences.
  
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  Applicability of this guidance to other devices
2. The focus of this guidance is on disclosure where the evidential breath testing instrument (EBTI) used at the police station is the Intoximeter EC/IR. However, the general principles set out here are equally applicable where a 'reliability' or 'type approval' challenge is mounted in respect of any EBTI authorised for use by police under s7(1)(a) of the Road Traffic Act 1988.
3. Having said this, there have been particular difficulties in some Areas regarding applications for disclosure in the context of prosecutions under sections 5 and 7 of the Road Traffic Act 1988, where the device used to take the evidential breath specimens is an Intoximeter EC/IR. These devices have, for instance, been the focus of claims that they perform poorly in detecting 'mouth alcohol', and issues relating to them have been repeatedly been before the Administrative Court in recent years.
4. It is important that in approaching the disclosure issues in such cases, the CPS should be seen to:
  1. take due account of any specific issues arising within an individual case, rather then simply adopting a 'broad-brush approach' and
  2. where the circumstances of a number of cases are such that they do raise substantially similar issues, adopt a consistent approach.
5. The focus of this Guidance is on point (ii), namely, providing a framework in which a consistent approach to disclosure can be applied. This Guidance is not intended to suggest, and cannot suggest, that lawyers should not have regard to the particular issues arising within an individual case.
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Background - Type approval of Intoximeter EC/IR
1. Section 7 of the Road Traffic Act 1988 states (see note 1):
  1. In the course of an investigation into whether a person has committed an offence under s3A, 4 or 5 of this Act a constable may...require him -
    1. to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State...
  2. A requirement under this section to provide specimens of breath can only be made -
    1. at a police station..."
2. The Secretary of State was thereby empowered to "approve" this or that 'device' for the purposes of this section. Following testing of devices from competing manufacturers in accordance with the Home Office's 1995 "Guide to Type Approval Procedures for Evidential Breath Alcohol Testing Instruments Used for Road Traffic Law Enforcement in Great Britain", the Secretary of State approved a number of devices, which are currently used in different Areas of England and Wales. One of these is the Intoximeter EC/IR, and it was initially approved by means of the Breath Analysis Devices (No 2) Approval order of 1998. The Schedule to that order states the nature of the device approved:
  The device known as the Intoximeter EC/IR, manufactured by Intoximeters Inc., of St Louis Missouri (see note 2), composed of the Intoximeter EC.IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR - UK 5.23
3. The Secretary of State's s7(1)(a) "approval" of the device was renewed and extended (see note 3) as of 22 October 2004, by the Breath Analysis Devices Approval (No 2) 2004 order, the schedule of which referred to the Intoximeter EC/IR in the following terms:
  The device known as the Intoximeter EC/IR manufactured by Intoximeters Inc. composed of the Intoximeter EC/IR, the Intoximeter EC/IR Gas Delivery System and software version EC/IR - UK 5.23.
  
  It can be seen that the description of the device in the schedule of the 2004 order is the same as that in the 1998 one, except that the reference to "St Louis Missouri" is omitted. The 2004 approval order has replaced the 1998 one and should be cited as the relevant approval order in respect of cases where the device has been used in a police station between 22 October 2004 and 30th June 2005, inclusive.
  
  A further type approval order, namely, the Breath Analysis Devices Approval 2005 has now been made by the Secretary of State, effective as from 1 July 2005. The Schedule to this includes the Intoximeter EC/IR device as an approved one for use under s7(2)(a) of the Act, referring to it in the same terms as the October 2004 one. The 2005 approval order is therefore the relevant one where the Intoximeter EC/IR device in question has been used in a police station on or after 1 July 2005.
4. In connection with the initial 1998 approval order, Intoximeters UK Ltd, a company responsible for marketing and serving the devices in this country, entered into a contract with the Secretary of State in February 1998. This dealt with the supply and servicing of Intoximeter EC/IR devices. There was a further related agreement, the "Framework Arrangement for the Supply of Evidential Breath Testing Equipment and Services", between the Police Information Technology Organisation (PITO) and Intoximeters UK Ltd, initially for three years. When this lapsed in 2001, it was not renewed: instead, it was replaced by individual agreements between the company and police authorities using the device. At time of writing, it appears that the police forces using the device within England and Wales are: Metropolitan, Cheshire, Thames Valley, Humberside, Northamptonshire, Warwickshire, Hertfordshire, Surrey, Sussex, Kent, Essex, Hampshire and Suffolk.
5. The above is recited because it forms the background to, or in certain cases almost the substance of, certain submissions that are made on behalf of defendants in proceedings. The relevance of it, if and in so far as it has any direct relevance at all, is dealt with in the body of this guidance.
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Intoximeter EC/IR - Operation

This guidance gives details of certain technical terms used in relation to these devices in section 11 below. However, it is helpful to consider some basic facts about the use and operation of the device before proceeding further.
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The calibration check
The device (in common with other types of device approved for the same purpose) has a feature enabling the operator to check that it has been calibrated properly by requiring the device to analyse a known amount of alcohol in air. This 'calibration check' works by means of the device's gas delivery system. The latter uses a compressed mixture of alcohol vapour in air set at 35 micrograms of alcohol in 100 millilitres of air.
In effect, this provides a 'standard' measure against which the device's breath-alcohol analysis can be checked. This compressed mixture is released into the device at two points - before the two specimens required for the evidential procedure are obtained, and afterwards. At each point, the device has to provide a reading within the range 32 - 37 micrograms. If the reading provided is outside that range, then it has failed the calibration check and an error message ('Simulator Check Error') is provided.
If this error occurs at the start of the procedure, the procedure is aborted. If it occurs at the end, then the message will invalidate evidentially any reading obtained from the suspect during the procedure (see note 4). In either case, an alternative sample (blood or urine) will be sought. Proof of a proper calibration check is essential for a conviction to be obtained for an excess alcohol offence (see note 5).
However, it is important to note the significance of the calibration check: at the time of the statutory procedure, the device is always tested twice to see whether it can reliably detect the quantity of alcohol in the standard, compressed mixture. If the device checks itself properly in this way, it is therefore powerful prima facie evidence supporting the reliability of any readings obtained during that procedure.
The matter might be put in this way: if a device has 'correctly' detected, on two occasions, the quantity of alcohol in the compressed gas mixture, before and after the provision of the two samples by the suspect, what is the basis for challenging its analysis of the alcohol content in the two samples? Please see further on this at paragraph 3.13 below.
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The print-out

The device, at the conclusion of the procedure, produces a print-out. This is directly admissible in evidence, subject to being duly served on the defendant (see note 6). The operator signs it and the subject is invited to sign, although under no legal obligation to do so. If the subject declines to sign, the operator usually writes "refused" and makes an appropriate entry on the MGDD/A. In the Metropolitan police area, the details of the procedure are also entered in separate log recording use and maintenance of the device, the Book 117. Most lawyers will be familiar with the form of the typical print-out, but a specimen/mock print-out is printed below for illustrative purposes:

SPECIMEN PRINT-OUT

SUBJECT TEST

Intox EC/IR
SERIAL NUMBER:
012345

TEST NUMBER:
12345678910
START DATE:
Thu 21 Jul 05
START TIME:
22:25 BST
LOCATION:
SOMETOWN POLICE
SOMEWHERE

NAME:
ANNA SMITH
DATE OF BIRTH:
24.12.1961
SUBJECT SIGNATURE:

	Value g/100ml	Time BST
Blank Simulator Check 1	0.0 35	22.26 22.27
Blank Breath Specimen 1	0.0 54	22.28 22.29
Blank Breath Specimen 2	0.0 55	22.30 22.33
Blank Simulator Check 2	0.0 35	22.34 22.35
NO ERRORS

I CERTIFY THAT IN THIS
STATEMENT, READING
ONE RELATES TO THE FIRST
SPECIMEN OF BREATH
PROVIDED BY THE SUBJECT
NAMED ABOVE AND
READING TWO TO THE
SECOND, AT THE DATE AND
TIME SHOWN HEREIN.

OPERATOR:
SGT GORMLEY
OPERATOR SIGNATURE

As can be seen, the print out records the following stages:

Stage		Message
(1)	The device is purged with clean air	('Blank')
(2)	Gas calibration check No.1	('Simulator Check 1')
(3)	Purging with clean air	('Blank')
(4)	1st sample from subject	('Breath specimen 1')
(5)	Purging with clean air	('Blank')
(6)	2nd sample from subject	('Breath specimen 2')
(7)	Purging with clean air	('Blank')
(8)	Gas calibration check No. 2	('Simulator Check 2')

It should be noted that details of the subject (suspect) and operator (the police officer) are also entered into the device at the start of the procedure, so that the actual print-out will record these details as well.
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Error messages and procedural checks
The operation of the device requires that the subject blows a certain volume of air through the mouthpiece for there to be a satisfactory specimen. This is designed to ensure that the sample records the quantity of alcohol in the subject's 'deep lung air'.
If insufficient air is blown into the device, it will produce error messages (eg, Specimen 1 Incomplete'), and if the subject is asked to try again and continues to do this without good reason, then (if three minutes elapses without a satisfactory specimen) it is likely that a charge of failing to provide under s7 RTA 1988 will ensue.
The current pro forma used by operators during this procedure (the MGDD/A) contains questions which the suspect is asked, including questions about when he/she last had a drink and (but only where the device used at the police station is an Intoximeter EC/IR) whether he/she has recently suffered any reflux of stomach contents. These are designed to alert the operator (if positive answers are given) to the possibility of mouth-alcohol and to the need to postpone the procedure.
Error messages alert the operator to other forms of unsatisfactory or suspicious specimens. One is 'Mouth Alcohol' (eg, 'Mouth Alcohol Unsatisfactory Specimen 1'), another is 'Interfering Substance'. If the difference between the readings for the two breath samples is greater than 15% (or 6 micrograms, whichever is the greater), the machine will display the error message 'Breath Difference'.
It can be seen that the device itself, and the procedure, builds in a number of checks so as to err on the side of caution, and therefore on the side of the suspect. The sorts of questions in the pro forma, and other matters, for instance the quantity of breath that the subject has to blow into the device, are designed to ensure that the alcohol in the subject's deep-lung air is measured. In DPP v Wood; DPP v McGillicuddy (see note 7), Ouseley J saw all this as powerful evidence which a court would have to take into account when considering whether a sufficient challenge had been made to the reliability of the device, and whether disclosure was appropriate in relation to such challenge:
In considering disclosure applications based upon a claim about a particular machine's reliability, and its possible basis for a defence, the DJ needs explicitly to consider the effect of the safeguards provided by the taking of two specimens, the intervening clearances of the device and the evidential use of the lower specimen of the two, together with an opportunity to give specimens of blood or urine and the fact that there is leeway above the breath limit before a prosecution takes place. They are relevant to whether the alleged unreliability could possibly advance the stated defence...[T]he safeguards in the legislation and in practice persuade me that there is no unfairness which requires to be remedied by taking an unduly broad approach to disclosure.
The alcohol content of the air in the lungs gives a better indication of the quantity of alcohol in the subject's blood or urine than air in the dead space of the upper respiratory tract, so that the results of breath-testing and blood-testing procedures are comparable. This was clearly a consideration in the testing procedures which resulted in the Intoximeter EC/IR becoming an approved device.
In certain cases, the defence has advanced evidence of certain experiments tending to show that that the Intoximeter EC/IR cannot reliably detect 'mouth alcohol', that is, it does not always show the appropriate error message. This commonly involves testimony from experts who have swilled alcohol in their mouths, without swallowing it, then blown into the device, producing an excess reading.
This has resulted in defence claims to the effect that (1) the EC/IR device is not "of the type approved" because it fails one of the tests that devices had to pass during the type-approval process and/or (2) any reading produced by the device is unreliable, because of this 'defect'.
Although these points are dealt with in more detail below, it is appropriate to state now that such arguments have been conclusively rejected by the Administrative Court when put in these general terms (see note 8), and the mouth alcohol point may not now even afford a defence in cases where its presence cannot be completely ruled out (see note 9).

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The disclosure regime
1. The purpose of this guidance is not to rehearse in detail all the law, practice and procedure regarding either (i) prosecutions for drink-drive offences or (ii) the disclosure regime. As said in the Introduction, detailed and authoritative guidance can be found on those matters elsewhere.
2. However, it is necessary, in brief, to refer to the disclosure regime in summary manner. There are two CPIA disclosure regimes at present.x
  The old CPIA regime: if the criminal investigation commenced on or after 1st April 1997, but before 4th April 2005, then the CPIA will apply in its original form (that is, without the amendments inserted by virtue of Part 5 of the Criminal Justice Act 2003), so the relevant Code of Practice will be the 1997 edition and the 2002 edition of the JOPI should be referred to.
  
  The new CPIA regime: if the investigation commenced on or after 4th April 2005, then the CJA amendments to the CPIA will apply, so the relevant Code of Practice will be the 2005 edition and the 2005 Disclosure Manual should be followed.
3. Police conducting a criminal investigation, including an investigation into a drink-drive offence, are required to retain "material" (being material which was obtained during the investigation (see note 10)) which is "relevant to the investigation" (see note 11), which is then put in the form of schedules (see note 12) (non-sensitive and sensitive). Following a plea of not guilty in summary proceedings such as concern us here, the police will reveal these schedules to the prosecutor. The prosecutor is then required to apply the relevant test for disclosure (depending which CPIA disclosure regime applies) and as a result of the latter must either copy to the defence, or make available for defence inspection, any material satisfying that test, or advise the defence that there is no such material.
4. In doing this, the prosecutor will have complied with, or purported to comply with, the duty to comply with primary disclosure under the old CPIA regime or, if applicable, the duty to make initial disclosure under the new regime.
5. Under the old regime, 'secondary' disclosure would be triggered by the service by the accused of a defence statement. Under the new CPIA regime, s7A of the Act applies so that the prosecutor has an ongoing duty to review disclosure and must particularly do this if and when a defence statement is served.
6. Following primary or initial disclosure, the accused has 14 days within which to serve a defence statement, although such a statement is voluntary in summary proceedings (see note 13). If the accused is dissatisfied with disclosure made by the prosecutor, or the lack of disclosure, following service of the defence statement, an application to the court may be made under s8 of the CPIA (see rule 25.6 Criminal Procedure Rules 2005 for procedure). Briefly, when the prosecutor receives the requisite written notice of this application, there is the option of either (i) stating that the application is opposed and asking for a hearing to make representations or (ii) stating the requested material will be provided to the defence. The court has the power to deal with the matter without a hearing unless (i) the prosecution has asked to make representations and a hearing would be appropriate or (ii) it would otherwise be in the interests of justice to have such a hearing. Hence, if the reviewing lawyer wishes to oppose the application, he/she should ask for a "hearing". In the course of such an application, the defence must be able to show that there is "reasonable cause to believe" that there is "prosecution material", namely material on the schedules (see note 14), which satisfies the relevant test for disclosure (the nature of that test being determined by whether the old or the new CPIA regime applies). It is important to note that a section 8 application cannot be used in respect of third party material (i.e., material which neither the police or CPS has, but which is instead in the hands of a third party). See further about the latter in section 12 below.
7. The CPIA disclosure regimes determine the test to be applied for disclosure of unused material in the drink-drive cases with which this guidance is concerned. The prosecutor is obliged only to disclose unused material satisfying the relevant CPIA test. The prosecutor cannot be compelled to disclose material which:
  - is not "prosecution material" (see note 15)
  - is simply 'material', in the sense of being 'relevant', as the materiality criterion is a common-law test derived from R v Keane (see note 16), which does not apply to disclosure of unused material where the criminal investigation began on or after 1st April 1997, or
  - is 'neutral' (in the sense that it does not undermine the prosecution case or assist the case for the accused), or
  - would, if used, tend to strengthen the prosecution case or undermine the defence case.
8. The House of Lords in R v H & C [2003] made it clear that the test for disclosure was no longer that in Keane [see paragraphs 16 and 17 of the judgement] and endorsed firm adherence to the CPIA regime as the best means of securing a fair trial, where (as was recognised in R v Feltham Magistrates Crown Court ex parte Ebrahim [2001] (see note 17)) 'fairness' takes into account both fairness to the defence and the prosecution.
9. The Lords in R v H & C did not take the view that a fair trial was secured by the defence being afforded an open-ended trawl over unused material, or that the defence should be permitted to have such a trawl simply on the basis of vague or unsubstantiated allegations or speculation, in the hope that some material might turn up to make such allegations or speculation good [see paragraph 35 of the Judgement, and paragraph 15 of the Guidelines]. The Lords stated that in order to determine the propriety of disclosure, the parties' respective cases had to be carefully analysed, considering the matters which the prosecution was required to prove and the basis upon which the defendant resisted the charges.
10. It is central to the above authoritative statement of what disclosure ought to be made within criminal proceedings that material should only be disclosed where it satisfies the relevant disclosure test in relation to the actual case put forward by the accused. It is crucial for understanding what follows that, under the CPIA, disclosure is not required or appropriate simply on the basis that certain material exists and 'might' possibly be of some relevance, or that the defence should be afforded access to the material in order to decide, in due course, whether the material assisted them or did not.
11. This is highlighted by the Administrative Court's approach in the case of Aycliffe, Swain and Percy v DPP [2005] (see note 18), which involved the actions of the appellants at military bases by way of protest against the Iraq War. The appellants' representatives had served detailed defence statements purporting to put the prosecution to proof regarding the 'lawfulness' of activities at the bases in question, and seeking disclosure of a wide range of government material, including the Attorney General's advice about the legality of the war (eventually published in May 2005). Waller LJ stated, in relation to the defence statement of the appellant Swain:
  There was not a scintilla of evidence that persons on the base had it in contemplation to commit or aid and abet some conduct which was a war crime. Bare assertions relating to the possible use to which an aircraft might be put by some unidentified person at some future date provide no evidence that any unlawful activity was being carried out. Such assertions formed no basis for the disclosure of documents sought on behalf of the appellant.
  
  Waller LJ adopted the same approach regarding the defence statement of the appellant Percy:
  
  Bare assertions relating to the possibility that activities at RAF Croughton by persons unidentified might possibly amount to a war crime or the aiding and abetting of a war crime provide no evidence that war crimes were being committed or that there was any aiding and abetting of war crimes. Such assertions simply provide no basis for the disclosure sought and no basis for holding that the Crown had not discharged the burden of showing that the activities at the base were lawful.
12. The Director's casework minute concerning disclosure PO 054 2004 of 16 December 2004 made it clear that all practices based on pre-CPIA common-law 'blanket' disclosure of non-sensitive unused material should cease forthwith. Material that does not satisfy the appropriate CPIA test for disclosure must not be disclosed.
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The initial MG6c
1. In most drink-drive cases, the amount of unused "material" which is "relevant to an investigation", and in respect of which duties of retention and recording/scheduling will arise, will be fairly minimal. Leaving aside any material relating to the background circumstances of the arrest (for instance, a road traffic accident), a typical list of unused material would include:
  1. any written or computerised records of messages/calls (for instance, a call alerting police to the scene, or records of messages passing between police officers)
  2. any police crime or other report relating to the incident (i.e., if one is created)
  3. any officers' note book entries
  4. any unused material relating to an interview (possible if there are related allegations, for instance an allegation of driving while disqualified, or an interview was considered appropriate to deal with issues such as identification)
  5. any relevant police record of the use and maintenance of the device, if such a record is kept (e.g., the Book 117 entry, where the device is used in the Metropolitan police area)
  6. any FME or Police Surgeon's report in relation to the accused
2. It is important to note that while there may be other documents relating to the particular device (for instance, engineers' service records or calibration service certificates), in a normal Intoximeter EC/IR case where the machine has self-calibrated properly before and after the procedure, and no unusual issues have been raised by the defendant in the course of the procedure, there would be no reason for the disclosure officer to consider such extraneous material to be 'relevant to an investigation': it would not be a 'reasonable line of inquiry' (see note 19). The initial MG6c is likely therefore to be restricted to the items set out at 1 - 6 above, in so far as they were actually obtained in the course of the instant investigation.
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Primary disclosure or initial disclosure
1. Although the test for "initial disclosure" (where the revised CPIA regime applies) is wider, as the prosecutor needs to consider whether there is material that has not previously been disclosed which would reasonably be considered capable of assisting the case for the accused, the net effect is not likely to be that different to disclosure of simple "undermining" material where the old CPIA regime applies.
2. This is because most drink-drive suspects are not formally interviewed, and unless particular issues are raised in the MG6DD, there would be very little information available about the "case for the accused" to objectively assess 'assisting' material. The prosecutor cannot speculate about possible defences (see note 20). In the typical or normal case, therefore, it is likely that very little material would properly be disclosed under the CPIA at this stage.
3. Due to the above, prosecutors should await service of a defence statement, which will enable them to consider whether any further disclosure is appropriate.
4. In some cases, there are arguments as to whether the prosecution has complied with "or purported to comply with" the duty of section 3(1) disclosure. In DPP v Wood; DPP v McGillicuddy (see note 21), the Administrative Court ruled that the section 3(1) duty had been complied with when a letter was sent to the accused's representatives, advising them that there was no material which required disclosure under the section: there was no need for a non-sensitive schedule to be attached to the letter. The subsequent service of an MG6c on the defence did not alter the date when the section 3(1) duty was complied with.
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The defence statement
1. The Lords said (in R v H and C) that the defence case had to be "carefully analysed". Where further disclosure is sought, the defence statement is more likely than not (in the cases this guidance is concerned with) to be the material upon which the prosecutor can reliably and objectively assess the nature of the case put forward by the accused. In any event, where further disclosure is sought, a defence statement will need to be served as a preliminary to making a s8 application.
2. Where a prosecutor is considering such a defence statement, he or she must have regard specifically to the 'defence' raised by the accused, and not therefore to any 'list' of items sought by the defence by way of disclosure, except in so far as this material is actually triggered by the defence raised. The appropriate test for disclosure determines what should be disclosed, not the 'list'. Hence, if a defence statement does not raise a defence, then it will not in itself trigger disclosure beyond material which would fall to be disclosed at the 'primary' or 'initial' disclosure stage. If there is no such material, or any such material that does exist has already been disclosed, then no further disclosure should follow from the defence statement.
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  Formalities: time limits
3. The starting point, therefore, in considering disclosure in the present cases is the defence statement. It must be served in compliance with the time limit: i.e., within 14 days of the prosecution complying with or purporting to comply with its initial duty of disclosure. If the defence want further time to serve a defence statement, they must apply within the 14 day period: the court does not have jurisdiction to extend the time limit if the application for the extension is made outside the 14 days (see note 22). Failure to serve a defence statement within the appropriate time limit can result in the court drawing an adverse inference against the defendant, in the course of determining whether he or she is guilty of the offence (see note 23). In DPP v Wood; DPP v McGillicuddy (see note 24) the Administrative Court held that a defence statement served late was still "a defence statement", as was clear from the wording of section 11 of the CPIA. The late service did not deprive the accused of the right to make a section 8 application for specific disclosure, and did not deprive the court of jurisdiction to hear and rule on such an application.
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  Formalities: content
4. The defence statement itself must comply with certain formalities: where the case relates to an investigation which commenced before 4th April 2005, the defence statement must set out in general terms the nature of the defence case, stating any particular matters upon which the defendant takes issue, and, in relation to such matters, the basis upon which the defendant takes such issue (there are provisions relating to alibis which do not concern us here).
5. Where the case relates to an investigation which commenced on or after 4th April 2005, then the actual defence statement must be more detailed (see note 25): it must set out the nature of the accused's defence (the reference to 'general terms' is now omitted, with the inference that the defendant must be more specific), and set out any particular defences relied on. It must indicate the matters of fact in relation to which the accused takes issue and the why issue is taken with them, and refer to any points of law [for instance, regarding admissibility of evidence or abuse of process] which the defendant intends to rely on.
6. In either case, the defence statement must amount to more than a reiteration of the plea of 'not guilty', if the defence statement is to trigger disclosure of any 'assisting material' not already disclosed. If insufficient details are given in the defence statement, then further details should be sought from the defence, in writing (see note 26).
7. A defence statement which says, in terms, that the defendant 'denies the offence, takes issue with the prosecution case and therefore requests the following disclosure...' cannot be said to comply with the above formalities.In DPP v Wood; DPP v McGillicuddy (see note 27), Ouseley J said:
  [T]here can be so-called defence statements which are so deficient in their fulfilment of the [requisite formalities] that they cannot properly be termed defence statements at all, but such 'statements' would probably fall foul of [section 11 CPIA] with the consequences which then follow.
  
  He went on to say that defective defence statements would not deprive the court of jurisdiction to hear a section 8 application for further disclosure, but the court would have to apply R v H and C and consider whether the 'statement' consisted simply of general and unspecified allegations made in order to seek far-reaching disclosure in the hope that material would turn up to make them good. If so, little or no further disclosure should result.
8. One example of this is where a defence statement simply puts forward a speculative hypothesis, stating in terms that 'it may be the case that the defendant can avail himself of the following defence, and therefore disclosure of material is sought to enable the defence to investigate the possible availability of that defence'. This does not in fact go beyond the sort of fishing expedition which the Lords addressed directly in R v H & C, and which they had little hesitation in rejecting.
9. It is crucial to stress that a defendant, where the CPIA applies (whether the new regime or old regime), is not entitled to blanket disclosure of non-sensitive unused material (see note 28). In the cases with which this guidance is concerned, the best means of determining what disclosure should be made, and whether any disclosure made is appropriate, will be the defence raised by the accused in the defence statement.
10. In order to consider whether a particular defence statement actually raises a defence, it is necessary to consider two preliminary matters: firstly, where the burden of proving certain matters lies at the start of proceedings, and, secondly, whether certain alleged defences are in fact defences at all.
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The evidential burden
1. Prosecutors are used, in the normal course of their work, to their general burden to prove all the key elements of the prosecution case, beyond reasonable doubt.
2. In certain cases, however, there is assistance either in the form of a statute imposing a 'reverse burden', or a presumption in common law which is of similar effect. The burden which the defence has in such cases may be a 'legal' burden or an 'evidential' one.
3. Where it is an evidential burden, the defence must adduce sufficient relevant evidence for the full burden of proving the contrary to the criminal standard to revert to the prosecutor.
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  The common-law presumption of reliability
4. At common law, there is a presumption (expressed by the maxim 'omnia praesumuntur rite esse acta') that machinery works accurately: this has been applied to other devices used in respect of road traffic matters such as traffic lights (see note 29) and speedometers (see note 30).
5. It has been stated (see note 31) that this presumption operates in such a way that it is not weakened by mere challenge, and therefore it appears to operate as a presumption 'until the contrary is proved' (see note 32). There is a general presumption that things like clocks and other similar measuring instruments are working and reliable.
6. It is clear and indeed trite law on the basis of numerous authorities that this presumption extends to devices used to measure the alcohol content in breath (see note 33).Given that the prosecution is not required by section 5 of the 1988 Act to prove a specific reading (only that the defendant was in excess of the prescribed limit), proof that a reading was distorted by an ascertainable margin, say 10 micrograms, would not in itself mean a defendant had to be acquitted. Ouseley J said in DPP v Wood; DPP v McGillicuddy (see note 34):
  The nature and degree of an alleged unreliability has to be such that it might be able to throw doubt on the excess of the reading to such an extent that the level of alcohol in the breath might have been below the level at which a prosecution would have been instituted. If on any view there would still be an excess leading to prosecution, it is difficult to see how that could justify disclosure of the material sought to make an irrelevant point about reliability.
7. There is thus a common-law presumption that a device such as an Intoximeter EC/IR is reliable, and it can only be challenged and, as it were, overturned by relevant evidence to the contrary (and evidence capable of amounting to a defence to, e.g., the section 5 RTA 1988 offence). Note the word 'relevant'. In the context of these matters, it means evidence relating to the specific device in question and the particular facts at issue.
8. Evidence showing that another Intoximeter EC/IR device (not the one actually used in the instant case) was, or may have been, unreliable is irrelevant. Proof that one watch is slow or keeps poor time is not proof that another watch has such defects.
9. Similarly, if the defence showed that an Intoximeter device could not be relied on to provide a reliable reading when immersed in a tank of boiling water, or when subjected to below freezing temperatures for a prolonged period, that evidence would not be 'relevant' if there was no suggestion that the device in question had been so treated at or around the relevant time.
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  The presumption of reliability and 'mouth alcohol'
10. If the defence produce evidence of tests tending to show that an Intoximeter cannot 'reliably' detect mouth alcohol, then it would not be 'relevant' evidence of unreliability if there is no evidence of the presence of mouth alcohol at the time of the evidential reading. (see note 35)
11. Evidence of experts swilling alcohol in their mouths and then immediately using an Intoximeter may therefore be thought to be of doubtful, if indeed any relevance ever, where there is no suggestion that the defendant in the instant case was permitted by officers to stand in the custody suite swilling alcohol in his mouth before using the device, or that he had not otherwise consumed alcohol just before using the device. In DPP v Wood; DPP v McGillicuddy (see note 36), Ouseley J said (at paragraph 35) it was difficult to see how general arguments about a device's failures to detect mouth alcohol could justify disclosure of material relating to the device in the absence of any evidence that mouth alcohol was a problem through the manner of consumption, regurgitation or testing.
12. Similarly, expert evidence to the effect that certain persons suffering from medical conditions causing involuntary reflux of stomach contents into the mouth may produce a 'mouth alcohol' effect, is again of doubtful if any relevance where there is no evidence that the defendant suffered from the condition at the time when specimens were provided.
13. The question of whether 'mouth alcohol' is relevant at all has to be considered in the light of the decision in DPP v Zafar [2004] (see note 37). In that case, it was determined that the meaning of "breath", for the purposes of s5 RTA 1998, could not be limited to "deep lung air". The ordinary dictionary definition was "air exhaled from any thing", and therefore, by extension, the offence under section 5 could be committed even if there was a possibility that the alcohol content in the evidential sample may have been boosted by 'mouth alcohol'/air from the upper respiratory tract. It is therefore properly open to prosecutors, in individual cases where 'mouth alcohol' is raised by the defence, to challenge the admissibility of evidence in relation it.
14. The court in Zafar reasoned that even if the type approval procedure prior to the granting of approved status to the Intoximeter EC/IR was designed to produce devices which would analyse the alcohol content of breath samples consisting of "deep lung air" only, this could not have the effect of rewriting the clear, unambiguous language of the statute creating the offence enacted 10 years before. The House of Lords subsequently declined the appellant's petition to appeal the Administrative Court's decision.
15. In the light of this, the relevance of evidence in relation to an allegation of unreliability concerning 'mouth alcohol' is open to question, and it remains to be seen whether courts will consider such evidence admissible. It does appear clear, though, at the very least, that the prosecution is not required to satisfy the court that the alcohol in the evidential sample came only from deep lung air.
16. However, even without Zafar, as has been stated, evidence concerning mouth alcohol is unlikely to be relevant or 'material' in most cases. If 'mouth alcohol' is raised in a defence statement, look at the actual evidence: look at the accounts given by the arresting officers. On initially approaching the defendant, did they ask the accused when he or she last had a drink? If the response was that the last drink was consumed at least 20 minutes ago, then there is no likelihood of mouth alcohol being present at that stage, or any subsequent stage, in the absence of some form of 'reflux'.
17. Look at the MGDD/A procedure. Was the Defendant asked the now standard question (where the Intoximeter EC/IR is used) about reflux of stomach contents: 'Have you, in the last twenty minutes, brought anything up from your stomach?' If there is no response to this question indicating that reflux had taken place or might have taken place, then, once again, what likelihood is there of mouth alcohol affecting the readings obtained during the statutory procedure? The answer must be that there is no such likelihood.
18. This conclusion may well be reinforced when one considers anything said by the defendant to police (for example, during the 'booking in' procedure) or to an FME concerning whether he or she suffers from any medical conditions which could give rise to reflux.
19. Where therefore a Defendant:
  - has told police (prior to the roadside procedure) that more than twenty minutes had elapsed since his last drink, and
  - (where the Intoximeter EC/IR is used) has told the police during the statutory procedure that he has not suffered from any reflux of stomach contents,
  then any assertion in his defence statement that an Intoximeter EC/IR cannot reliably detect mouth alcohol will not raise a defence, as the alleged unreliability would not be 'relevant', in the absence of credible admissible medical evidence relating to the Defendant to the effect that reflux, notwithstanding the above, could have played a part (see note 38). The Administrative Court has now ruled that the prosecution may adduce evidence of a 'quick test', taken a suitable interval after the statutory procedure, in order to rebut a mouth alcohol defence: see DPP v O'Sullivan [2005]. (see note 39)
20. Again, medical evidence that certain individuals suffer from a condition is not evidence that a particular defendant suffers from the same condition. Evidence that a certain proportion, even a majority, of the population suffer from a particular condition inducing regular and involuntary reflux/regurgitation is not evidence that the defendant does. One does not prove that one is ill by proving that another person is.
21. In summary, it can be seen that in the absence of relevant evidence to the contrary, it will be presumed that a particular Intoximeter EC/IR device is working and reliable.
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  Presumption that device is of the type approved
22. However, it is also now clear, on the basis of Skinner v DPP [2004], that this presumption extends to a subsidiary or related presumption that the Intoximeter EC/IR used is a device "of the type approved" by the Home Office (see note 40) unless there is evidence to the contrary.
23. The prosecution cannot be put to proof, for instance, that the software installed in the device is "software version EC/IR-UK 5.23" simply on the basis of an unsupported assertion by the accused that it is not, or 'may be not', or an assertion that there has been a case where the software in another device has been found to be other than version 5.23. (see note 41) This has been expressly stated in a recent Administrative Court decision in Fearnley v DPP [2005] by Field J (see note 42):
  Whilst the defence statement purports to put the prosecution specifically to proof that the software was UK 5.23, this did not mean that the prosecution specifically had to prove this matter. This is because of the general presumption that flows from the fact that the machine was of a type that had been approved, this being a presumption which in my view is plainly consistent with Article 6 ECHR. Thus, it was for the appellant to adduce some evidence that the software was otherwise than the specified software before the prosecution came under a burden to prove the software.
  
  An assertion in a defence statement that the particular device is not type approved because it runs on software other than UK 5.23 will not trigger any secondary/further disclosure obligations on the part of the prosecution and in particular will not require the Crown to direct the police to seek further material relating to this 'issue'. The defence statement needs to go beyond mere assertion of non-approval. As Ouseley J stated in DPP v Wood; DPP v McGillicuddy (at paragraphs 30 and 32):
  
  It has to be shown for disclosure purposes that the alterations which are said to have occurred could mean that the device is no longer type approved. As Stanley J said in Richardson v DPP [2003] EWHC Admin 359, paragraph 6, type approval is confined to the components specified in the Schedule of the Type approval order, excluding the manufacturer's name, and for these purposes any alteration to the components of the type approval had to be such that the description in the Schedule no longer applied to it. Not every such alteration would be capable of taking a machine out of type approval...Where the contention is that the device which was originally type approved has been altered without the Secretary of State's written consent in such a way as to take it outside type approval, and disclosure is sought to further that contention, the DJ will require more than the asserted fact of unapproved modification to justify disclosure. There would have to be some material which explains how the alteration could go to the loss of type approval in the Schedule and how disclosure could advance that point. A change to a parameter in the software which is still described as UK5.23 would not be such a change. Here, the edited (FII) printouts still showed that the software was UK 5.23. there was nothing to suggest a change to the gas delivery system which took it out of type approval. It is difficult to see how allegedly defective maintenance practices could cause a device to lose its type approval, but they would have to be potentially of that gravity before becoming relevant to a loss of type approval argument.
24. In short, there is a presumption that the device is 'of the type approved', and the prosecution do not have to prove that it is unless there is relevant evidence (that is, evidence relating to the actual device in question, and in relation to the components specified in the Schedule to the type approval order, namely the gas delivery system and UK 5.23 software) that it is not.
25. The fact that the onus is on the defence to produce evidence in support of assertions of type approval non-compliancy can be further illustrated from the following passage in the case of Fiona Kemsley v DPP [2004] (see note 43):
  In any future cases where it is sought to argue that the EC/IR had been changed so that it is different from that approved by the Home Secretary, those who seek to make that case will be well advised to produce a more circumstantial account than was produced in this case, and in particular to be in a position to demonstrate (because prosecuting authorities will be well entitled to require them to do so) how and in what particular respects the machine is different from that approved, and whether that difference is sufficient to make it of a different type: because, as has often been said in this court, the mere fact that there are some differences does not mean that the machine is of an unapproved type.
26. If a defendant therefore serves a defence statement in which he or she simply asserts that the device is not or may not be of the type approved, or purports to put the prosecution to 'strict proof' as regards this, then no disclosure should follow from that. It is for the defence to raise relevant evidence that it is not 'of the type approved', not for the prosecution (without such evidence) to prove that it is. An unsupported assertion of that nature would amount to being a 'fishing expedition' (see note 44), and see R v H & C in respect of that generally.
27. It is clear from DPP v Wood; DPP v McGillicuddy that it is incumbent on the defendant in the defence statement to give particulars of what modifications are said to have been made and why it is contended that those modifications are so "fundamental" (see note 45) that the device is taken out of the original type approval. It might be noted that many defence statements make no distinction between some form of 'change' to a device and a 'modification'. In the course of a service, for instance, an engineer may replace a component in the device (for instance the IR unit), or change the settings. In neither case would this amount to a 'modification', as is apparent from the passage from DPP v Wood; DPP v McGillicuddy cited above at 8.23. In any event, the mere assertion in a defence statement of some post-approval change or modification does not trigger secondary/further disclosure or an obligation to the police to track down records, logs or documents relating to the device. The defence would have to demonstrate why they contend that the change amounts to a modification which would take the particular device out of the description in the Schedule to the type approval order.
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  The statutory assumption
28. There is an assumption under s15(2) of the Road Traffic Offenders Act 1988 that the proportion of alcohol in the accused's breath as shown by the Intoximeter reading is not less than that in his breath at the time of the alleged offence (ie, at the time he was actually driving, attempting to drive or being in charge of the vehicle on a road or other public place).
29. This assumption cannot be made if the accused proves, on a balance or probabilities, that he consumed alcohol after the alleged offence and that it was as a result of the post-offence consumption that his reading exceeded the limit of 35 micrograms. There is a reverse burden on the defendant to this effect, the imposition of which has been held to be article 6 ECHR compliant (see note 46). It would appear that the assumption in s15(2) is irrebuttable, unless the defendant is raising the post-offence consumption defence in s15(3) (see note 47), in which case the aforementioned reverse burden applies.
30. The statutory assumption is not an assumption that the device itself is reliable (see note 48), but appears to be to some extent contingent on the common-law presumption of reliability (see note 49). However, the 'post-offence consumption' defence under s15(3) applies even if there is no evidence challenging the reliability of the device.
31. Due to this, while many judgements somewhat confusingly refer to the "statutory assumption of reliability" or "statutory presumption of reliability", there is clear authority from the House of Lords in Cracknell v Willis to the effect that the statutory assumption under s15(2) is not a presumption of reliability, and it therefore has marginal relevance, if indeed any relevance at all, where reliability is challenged.
32. If the court finds that the device is reliable, then it is bound to apply the assumption in s15(2), unless the accused is running an alternative defence of 'post-offence consumption' specifically allowed by s15(3).
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Specific defences
1. This guidance is concerned with defences which give rise to disclosure issues, concerning material predominantly of a technical nature, specific to these cases. It is not concerned with general defences, such as 'identification' (e.g., in the context of a s5 matter, "It was not me who was driving"), or other general defences such as duress or necessity.
2. It is also not concerned with matters other than formal defences, related to 'special reasons' for non-disqualification, such as shortness of distance driven or 'spiked drinks'. Where actual defences or matters other than those set out below are pleaded, then the prosecutor must consider in the normal way whether they give rise to any disclosure.
3. There are a number of specific defences or purported defences typically advanced in these cases, usually accompanied by a defence application for extensive disclosure of technical material, and it is necessary to consider each one in turn. Each defence is summarised below in a form of words which may or may not be used in any actual defence statement, but encapsulates the particular proposition or assertion therein.
4. "The Home Secretary should not have approved the Intoximeter EC/IR device"
  This is not a defence. In itself, it does not question that the Intoximeter EC/IR was approved by the Home Secretary: it asserts that because of particular faults with the device, or problems that allegedly should have become apparent during the type approval process, but did not, the Home Secretary should not have approved it and/or it was Wednesbury (see note 50) unreasonable for him to have done so. There is clear authority that defendants are unable to mount what would be in effect a Boddington-style (see note 51) collateral challenge to the decision of the Home Secretary in proceedings for drink-drive offences. (see note 52) As Stanley-Burnton J put it in Richardson v DPP [2003] (see note 53):
  
  It is quite clear that the question of approval of a type of device is a matter for the Secretary of State. The question of whether the Home Secretary was right or wrong is not for a criminal court.
  
  No disclosure should arise from this sort of purported challenge.
5. "The Intoximeter EC/IR should, due to post-approval modifications, no longer be an approved device"
  This is a variation on the same theme. The thrust of it is that, essentially, the Home Secretary should withdraw type approval for the Intoximeter EC/IR device, due to the fact it has been modified in certain ways. Applying the identical reasoning, it is similarly not a defence, as it is a matter for the Home Secretary whether a device should continue to have its s7(1)(a) approval. (see note 54)
6. "Due to certain modifications, this device (ie the device in this case) is not an approved device"
  This looks superficially like the 'defence' in ii), but it is clearly different. This defence addresses the device in question (as opposed to Intoximeter EC/IR devices generally), and simply argues that it is not an approved device. It is clear that that this is a defence (see note 55), and it has been recognised as a defence for many years. (see note 56) It was considered by Burnton J in Richardson v DPP (see note 57) when, having examined the attributes of the device as set out in the Schedule to the type approval order he stated:
  
  On the face of it, therefore, it would seem that a device which did not include the Intoximeter EC/IR Gas Delivery System, by way of example, or the software version of which was not UK 5.23, but some significantly different version, would not be an approved device. It does not follow from that that every modification to an Intoximeter takes it out of the approval. Far from it. The alteration must be such, in my judgement, that the description in the schedule to the order no longer applies to it.
7. However, importantly, he went on to say at para 13:
  If the only contention on behalf of the accused...was that the modifications to the Intoximeter device had been such that it was no longer in the same condition as it had been when the Secretary of State's approval was given, that could not amount to a defence. They had to be able to go further and show that the modifications were such that it was no longer an approved device.
8. In effect, Burton J limited the defence to substantial modifications of the device which took it outside the description of the device in the schedule to the 1998 type approval order. This was followed in DPP v Wood; DPP v McGillicuddy (see note 58), where Ouseley J (at paragraph 33) described this as "the stringent test required to show loss of type approval". It should be recalled that there is a presumption that the device is of the type approved, and the prosecution cannot be put to prove type-approval conformity by mere challenge (see note 59). Magistrates can take judicial notice that a device is of the type approved for prosecutions under the Road Traffic Act by reference to the appropriate paragraph in Wilkinson's Road Traffic Offences (see note 60). Alternatively, the fact of approval is easily proved under s2 of the Documentary Evidence Act 1868 by simple production of the approval order. See Section 2 above for links to the relevant Intoximeter EC/IR approval orders.
9. As was noted in the case of Kemsley v DPP (see note 61), even if the defendant is able to show that a device has been modified, that is not enough: the mere fact that there are some differences does not mean that the machine is of an unapproved type.
10. The burden therefore appears to be for the defence to provide sufficient evidence that that the device has been modified, and to show that any variation or modification is such that it does not fall within the schedule. (see note 62) This point is stressed in DPP v Wood; DPP v McGillicuddy (see, e.g., paragraph 33).
11. There appears to be no requirement for the prosecution to (without more from the defence) adduce any evidence in respect of modifications. In Young v Flint, the prosecution, for reasons which are insufficiently clear from the law report, called an employee, Mr Evans, from Lion Laboratory to give evidence to the effect that there had been some post type-approval minor modifications to their device, but not so as to affect its analytical unit. Watkins J criticised the prosecution for adducing this evidence in the first place, stating [at 305, f]:
  I fail to understand why the prosecution saw fit to call Mr Evans at all. It was wholly unnecessary and really has been the root of all this unnecessary trouble.
12. It may be noted at this point that there is clear authority to the effect that the device is only required to be 'of the type approved', and the fact that Intoximeter EC/IR devices may be manufactured by Alcotek rather than Intoximeter Inc. is unimportant. (see note 63) As was said by Watkins J in Chief Constable of Northumbria v Browne (1986) (see note 64), a case involving a Camic device:
  The Secretary of State was called upon to do no more by the Act of Parliament than to approve, as he states in his Order, a type of device. By the material parts of the Schedule to which I have referred he did, in my judgement, do precisely that. The fact that he went on to refer to the manufacturers of these devices does nothing, by an error of description of the companies, to invalidate the approval of the device.
13. These words were echoed by Goff J in DPP v Memery (see note 65):
  There is only one device known as the Intoximeter EC/IR. The approval document identifies that device. The fact that the document goes on to say that it is manufactured by Intoximeter Inc. of St Louise in Missouri creates no ambiguity in the description of the device being approved.
14. For reasons which are far from clear, some defence statements still raise this issue, even though it has been authoritatively determined for several years.
15. Some defendants seem to have argued that because the contract between the Home Secretary and Intoximeters stipulates that the device cannot be changed in any way without the authority of the Secretary of State (see note 66), the Crown must prove that any modification was duly authorised, otherwise the device cannot be said to be of the type approved. Some proceedings seem to have become unnecessarily over-complicated by the Crown adducing evidence of the procedure by which certain modifications have been approved by means of the FSS liaising between the company and the Home Office (see further regarding this in the Glossary at Section 11 below, regarding "variation orders").
16. However, the argument relating to the terms of the contract is predicated upon a basic fallacy. If, in a hypothetical case, it was shown that the company did change the device without the authority of the Secretary of State, then that would only constitute, on the face of it, a breach of contract actionable in civil law and could not determine the relevant issue in criminal law, which is whether a modification is of such a nature as to make the device other than of the type approved. What affects substantive criminal law for the purposes of s7(1)(a) is not the terms of a commercial contract, to which privity of contract applies, but the relevant type approval order and the description of the approved device in the schedule thereto. Even if a 'breach of contract' could be arguable, in our hypothetical case, it would not assist the court in determining whether any modification would be such as to render the device 'not of the type approved'. It is not therefore for the Crown to have to prove that a certain modification has been authorised by the Home Office: it is for the defence to show that any such modification, even if 'unauthorised', would be such as to make the device unapproved.
17. The defence in some cases have also argued that, as the Guide to Type Approval Procedures sets out various tests which prospective devices ought to pass in order to be eligible for type approval, then a device which fails such a test is 'not an approved device'. This is again a fallacious argument. The issue of whether or not a device is 'an approved device' is determined by whether or not that a device of that type was approved by the Secretary of State. If it is, then it is an approved device. If the device later to fails a relevant test, then it is still be an approved device, albeit that one that had failed that particular test. There is authority for this somewhat obvious point (see note 67) but the fallacy of the argument should be manifest in any event.
18. It might be helpful to note that a device which was not type approved would be incapable of providing any evidence at all of alcohol content in the defendant's breath, even if it could be shown to be somehow 'better' or 'more reliable' than an Intoximeter EC/IR. Evidence from such a device would not be admissible (see note 68). The issue of type approval conformity is therefore completely distinct from the reliability issue: a non-approved device may be reliable, just as an approved device may be unreliable. Equally, a particular device may be both unreliable and non-approved, so the defences are not mutually exclusive.
19. However, it is settled law that, in a case which involves the prosecution of a defendant under s5 Road Traffic Act 1988 in which the defendant had provided two breath samples using the Intoximeter EC/IR, the lower of which was under 50 micrograms so that was offered and accepted the statutory option to provide an alternative specimen of blood or urine (see note 69) (upon which his prosecution is then based), evidence to the effect that the Intoximeter EC/IR was not/no longer type approved is inadmissible, because it is irrelevant. (see note 70) The prosecution is based on the blood/urine sample, and not on the Intoximeter device.
20. "This Intoximeter EC/IR device cannot reliably detect mouth alcohol, therefore it is not an approved device"
  This is not a defence. It is, in effect, a criticism of the Secretary of State's decision to approve the device, or of his failure to revoke the approval order, and for reasons given previously, this is not a matter into which the criminal courts can entertain argument. (see note 71) In DPP v Wood; DPP v McGillicuddy (see note 72), Ouseley J observed:
  
  ...McGillicuddy explicitly raised issues which went to the reliability of the particular device even if they might affect all machines which were type approved. They are not irrelevant arguments (regarding reliability) simply because they might be applicable generally. But their relationship to type approval arguments needs careful scrutiny in view of the irrelevance of arguments which in effect contend that the machine should not have been approved...The McGillicuddy arguments about reliability which went to the ability of the device to detect mouth alcohol are clearly general and go to the approval of this type of device; disclosure based on those arguments should have been rejected.
21. "This device is not reliable, because..."
  This is a potential defence, although the qualification placed upon it by DPP v Wood; DPP v McGillicuddy needs to be carefully considered, namely that the alleged unreliability would have to be such that it could produce such a difference in the reading that the defendant may have been below the limit at which he or she would have been prosecuted (see note 73). As previously stated, it is trite law that although there is a presumption at common law that devices such as the Intoximeter EC/IR are working and therefore 'reliable', this presumption can be challenged by relevant evidence (see note 74). It appears to be a matter for the court what evidence it considers relevant in this regard, including expert evidence, although a defendant does not need to adduce expert evidence to sufficiently challenge the presumption of reliability (see note 75). However, in weighing the evidence as to the issue of reliability, it is clear that the court has to consider all the evidence, including any evidence capable of supporting the reliability of the reading obtained, such as the evidence that the device calibrated itself properly before and after the statutory procedure (see the aforementioned paragraph from Wood and McGillicuddy on this point).
22. The key, though, is 'relevant evidence'. As has been stated, evidence tending to show that a device cannot reliably detect mouth alcohol is not relevant evidence if there is no, or insufficient, evidence indicating the presence of mouth alcohol at the time of the statutory procedure (see note 76). From, the point of view of disclosure, no disclosure should flow from the raising of this point concerning reliability in detecting mouth alcohol, where there is no attendant evidence (either from the prosecution papers or from the defendant) indicating that there was mouth alcohol present at the relevant time. This is clear from paragraph 35 of DPP v Wood; DPP v McGillicuddy. There might be all the material in the world indicating that a particular device is not that good at indicating the presence of mouth alcohol, but it would not undermine the prosecution case or assist the case for the accused if there was no evidence suggesting the presence of mouth alcohol at the time of the statutory procedure. However, it must be noted that the Zafar case suggests that, even if the defence provides some evidence indicating the possible influence of mouth alcohol on the actual reading obtained, this would not render it an invalid measure of "excess alcohol in breath" for the purposes of section 5 RTA 1988.
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Defence requests for disclosure of particular items
1. The prosecutor must not pay excessive regard to any 'shopping list' attached or appended to a defence statement served on behalf of the accused: the prosecutor's duty is to consider whether the defence statement raises a defence and what that defence is. Such a list is not part of a 'defence statement' in any event, according to the relevant CPIA formalities. In the light of the defence raised in the statement (if a valid defence is raised), the prosecutor has to assess whether there is "prosecution material" (namely, material which the prosecutor already has, or which is otherwise on the unused material schedules) (see note 77) which is capable of satisfying the appropriate test for disclosure.
2. In many of the cases which this guidance deals with, the sort of material requested by the defence will not actually be in the possession of the CPS, or even the police. The material may, for instance, be held by Intoximeters UK Ltd, or other company, where another approved EBTI has been used, such as Camic (Car and Medical Instrument Company) Ltd or Lion Laboratories Ltd, as applicable. If that is the case, and the prosecutor is of the view that the material might satisfy the relevant disclosure test, then the appropriate step would be to advise the officer in the case to make inquiries with the company. However, unless the material has been obtained from the third party by the police, it will not be prosecution material and therefore cannot be subject to an order made under s8 CPIA. The third party disclosure issue and the important rulings in DPP v Wood; DPP v McGillicuddy (see note 78), as well as the case of R v Alibhai and others [2004] are considered further in detail in section 12, below.
3. It has, however, been clear since at least June 2003 that Intoximeters UK Ltd is unwilling to provide certain technical information or documentation at all, and is even unwilling to provide such material in a summarised or edited form. One reason for this is that the company appears concerned to protect information that it considers commercially sensitive.
4. Commercial confidentiality is not in itself a relevant factor from the point of view of disclosure in criminal proceedings by the prosecutor (it could not, in itself, be a basis for a prosecutor withholding material which would otherwise be disclosable under the CPIA), but it is a consideration which may well result in the company declining to reveal the material to the police or the prosecutor. It is similarly a matter which a court might properly take into account when deciding whether to order a third party to disclose material under section 97 of the Magistrates' Court Act 1980, as can be seen from this passage (paragraph 62) in DPP v Wood; DPP v McGillicuddy:
  Had such an application (for a section 97 witness summons) been made, it would have had the effect of permitting the interests of the third party in the confidentiality of the material to be raised as a reason for the refusal of the summons or as 'just excuse' and the true materiality of the documents in question to be more fully explained. It would have been quite wrong to say that commercial confidentiality was irrelevant to ordering disclosure of material in the hands of a third party. If the DJ accepted that, then the DJ would then have had to take a view about whether or not a fair trial was possible (if the material was not disclosed).
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Glossary of items and terms
1. The first step is to consider some items and terms commonly referred to in defence statements, in order to see better how they may or may not relate to the legitimate defences which have been identified (see note 79).
  - RTC Board, also known as the Real Time Clock Board: this was a modification of the original EC/IR device, by insertion of a single integrated circuit board designed to deal with the risk of time and date data being lost when the device was turned off or switched off accidentally. As a modification, it appears to have been agreed by the Home Office in 1999. The fact that it is present does not undermine the assumption that the device is of the type approved. Its purpose is limited, and it is not concerned with the device's breath-alcohol analysis. It therefore has no obvious relation to the issue of whether the device's breath-alcohol analysis is reliable. The mention of it in a defence statement should therefore not give rise any further disclosure.
  - Fuel cell shunt: this is a resister component related to the fuel cell amplifier, and designed so that it can be manually replaced if necessary. This component was part of the original approved instrument, and thus its presence cannot reasonably be considered capable of undermining the presumption that the device is of the type approved. If the defence are seeking to demonstrate that it has some relevance in respect of reliability, then that will be a matter for the defence to demonstrate through appropriate expert evidence. In itself, reference to 'fuel cell shunt' should not give rise to any further disclosure.
  - Pinning Mod: this was a modification proposed by Intoximeter to deal with slight variations in InfraRed components used in the device, such variations coming as a normal result of the production process itself. The modification seems to have been approved by the Home Office in October 2002. Again, its presence cannot reasonably be considered capable of undermining the presumption that the device is of the type approved. It would be a matter for defence expert evidence to demonstrate otherwise (namely, that its effect was such as to take the device outside the description of the device in the relevant type approval order) and similarly so if it was argued it was relevant to an issue of 'reliability'. In itself, it should give rise to no further disclosure.
  - F11 print-out: the device is designed so that it can provide a print-out showing its settings, or 'parameters'. A print out of this information is known as an "F11 print out", so called because the F11 function key on the device is the one which is pressed (a password is then required, known only to authorised service personnel) in order to provide the print-out. Any print-out produced would be retained by the service engineer: the information on the print-out would be meaningless without a detailed knowledge of the instrument's hardware and software. The 'shift' and F9 keys in combination can be used to allow an engineer (on entering the appropriate level of password) to adjust the settings, if this is necessary during servicing. In some respects, the analogy with 'tuning' a television by adjusting the settings on the set so that the picture becomes clear may be helpful. The fact that the Intoximeter device's settings can be changed, or have been changed, in the course of its service history does not, in itself, undermine the assumption that the device is of the type approved (see DPP v Wood; DPP v McGillicuddy). As has been stated, the device was designed so that the settings could be adjusted by a qualified service engineer. It is a matter of conjecture from the point of view of the defence whether the F11 settings were in some sense 'wrong', and whether the actual settings may have contributed to the device becoming 'unreliable'. Requests to see the print out are therefore almost certainly fishing expeditions: see further below.
  - Unedited F11 print-out: in some cases, Intoximeters UK Ltd had provided copies of F11 print-outs only in 'edited' form, on the basis that the full-print-out would reveal matters which it regards as commercially sensitive. Specific defence requests are therefore sometimes made for "unedited" print-outs, usually on the basis that the defence wish to see whether and how the slope parameters have been changed. The latter is a fishing expedition in any event, but the same considerations apply as above: the fact that settings may have been changed is irrelevant in so far as the issue of type approval is concerned and a matter of speculation as regards reliability.
  - Slope parameters: using the 'shift' key with the F9 key, as has been stated, the service engineer may adjust certain settings on the device. The analogy with tuning a TV set has been used. The Intoximeter EC/IR device sends an infra-red beam through the suspect's breath sample as it passes through the device, so that the device can measure the proportion of alcohol on an ongoing basis, 'in real time' (in very simple terms, if there is alcohol in the sample, it will absorb some of the infra-red signal, and this enables the device to measure the amount of alcohol). In the normal course of events, where the subject has been drinking, the proportion of alcohol in any breath exhaled into the device will rise as it comes from deeper within the lungs, until it eventually 'plateaus' off. At this point, the level of alcohol will neither be rising nor falling (the slope will be 'zero'), and the fuel cell of the device will take an actual 'reading'. The device must therefore be set in such a way that it looks for this 'zero slope'. This is done by the Intoximeter service engineer adjusting the 'slope parameters' for the individual device. A defence statement may refer to the 'slope parameters' having been changed. In itself, this does not undermine the presumption that the device is of the type approved, as the device is designed in such a way that these can be altered. If a device could hypothetically be set in such a way as to take a reading 'too early' (i.e., before the plateau was reached), then that would in almost all cases only benefit the defendant, as the breath/alcohol reading would then be lower. It has been argued that this would not be the case if there was undetected mouth alcohol - for in such a case, the initial alcohol level would be higher (as it would be contaminated by alcohol in the mouth, or the dead space of the upper respiratory tract), then tail off as deep lung air entered the device. However, the mouth alcohol point is irrelevant if there is no evidence of 'mouth alcohol' in the instant case. Even if mouth alcohol could not be ruled out, then the court would have to apply the decision in Zafar. Regarding reliability generally, the defence would have to demonstrate the relevance of different slope parameters by means of appropriate expert evidence, but defence requests for copies of unedited F11 setttings and engineers' records to see how the parameters have been changed will almost certainly just be fishing expeditions.
  - Split RAM: RAM stands for "random access memory". The Intoximeter EC/IR RAM chip is a memory chip which holds data and is battery powered: the chip and the battery are attached to each other. When the battery becomes too low (like any battery, in any sort of device) it needs to be replaced. In order to do this, it needs to be split, ie separated, from the battery, then put on another, replacement, battery. This procedure is recorded on service documentation as "split RAM". Since it only involves the replacement of one component for another on a like-for-like basis, it has no type-approval significance, and has no apparent relevance to reliability. It would not appear to give rise to any further disclosure.
  - UPS: this stands for "uninterrupted power supply". The device is powered externally, by means of the UPS. This sort of device (commonly used, for instance, on computer networks) ensures that power will be provided even when there is a mains failure, and it also 'smoothes' the alternating voltage so that power spikes are minimised. As an external power supply device, it did not require type approval: it is not part of the instrument. The defence would have to demonstrate by expert evidence how and in what respect this would have any relevance to 'reliability. Mention of it should not in itself trigger any further disclosure.
  - Instrument History: at one time, in order to deal with certain requests for disclosure, the company produced summarised 'histories' of the servicing of particular devices. These were not original business documents, but were multiple-hearsay accounts based on the company's own records, prepared in connection with proceedings. However, disclosure of the service information in this form appears not to have stopped defence requests for sight of the original service documents, and did not prevent the defence challenging the summaries on the basis that they were, for instance, 'misleading'. The company discontinued the practice of preparing them in June 2003, so they no longer exist as such.
  - Engineers' reports and Calibration Service certificates: EC/IR devices are serviced bi-annually, as was required by the company's agreement with PITO (see the reference above to the 'Framework Arrangement'). Following such a service, the engineer produces a certificate of calibration service, which is signed and dated. In addition to this, there is a signed and dated engineer's report concerning the service. Copies are forwarded to the responsible police authority, rather than to the actual police station where the device is being used: for instance, in the Metropolitan Police Area it seems that they are sent to New Scotland Yard. As they would not be part of the material gathered during the course of the criminal investigation, they would not be "prosecution material", unless they subsequently became so as a result of a 'reasonable line of inquiry'. In order for anything in these documents to be discloseable, the information therein would have to be such as to actually undermine the prosecution case or assist the case for the accused, as disclosed in the defence statement. These documents should never be routinely disclosed (i.e., disclosed whether or not they satisfy the appropriate CPIA test). Routine disclosure may just result in requests for further disclosure, possibly based on a speculative misreading of the contents, e.g. allegations that routine servicing procedures such as replacement of components 'affect type approval'. It is regularly asserted in defence statements that because a device has had a particular component replaced during a service, it is 'no longer type approved'. This is an obvious fallacy.
  - Calibration: as stated above, there are standard bi-annual service procedures, which involve an engineer carrying out checks to ensure the device is accurate. In effect, this is a more rigorous check on the calibration of the device and if the device is working properly a certificate of calibration service is issued. If there is a problem, then the device may need to be re-calibrated by Intoximeter. This process involves introduction of a known alcohol/air mixture into the device (35/100), enabling the device to calculate a "calibration factor". Calibration is carried out by pressing the F4 key and entering an 'engineer-only' password, not available to police. There are two means of calibrating a device: either a "dry gas" or "wet bath" simulator can be used to produce the alcohol/air mixture. Where a wet bath simulator is used, the simulator comprises a receptacle into which the engineer's breath is passed. The receptacle contains a warm mixture containing alcohol, so that the breath, on passing through, will pick up alcohol. The mixture is such that the breath/alcohol reading will be 35/100. The latter ratio is entered into the device and its software then allows it to calculate a 'calibration factor', to ensure that the device will provide a standard conversion of any breath/alcohol sample introduced into the device. The calibration procedure as described was stipulated in the Guide to Type Approval Procedures, and the fact that a device has been calibrated in this way will therefore not, in itself, affect the presumption that an EC/IR device is of the type approved, and in itself does not raise an issue undermining reliability.
  - Engineer's Checklist: this is a standard checklist produced by the company and used by its engineers when carrying out the bi-annual service procedures. It is an aid to the engineer, to ensure that the process is carried out in full and that tests are carried out according to the appropriate specification. It contains sensitive passwords which the company considers would post a threat to the integrity of the system if disclosed. It would appear to have no obvious relevance to type approval and a request to see it is more likely than not a simple fishing expedition.
  - Service Manual: this is the detailed manual of service procedures used by Intoximeter engineers. The procedures are approved by the responsible independent authority, UKAS (United Kingdom Accreditation Service, formerly known as NAMAS). The manual is not in the possession of the police or the CPS. It appears that there have been defence attempts to obtain disclosure of this manual, which the company has resisted. Again, a request for disclosure of this is likely only to be part of a fishing expedition.
  - "Variation Orders": While some defence statements make reference to these, there is actually no such thing as a formal document called a "variation order". The term may be used in the context of references to evidence provided in some cases by a Mr David Rudram, a type approval manager employed by the FSS. Mr Rudram gave evidence of the procedure whereby the FSS liaised between manufacturers and the Home Office concerning proposed changes to approved devices. The general nature of his evidence in this respect was succinctly summarised by Field J in Fearnley v DPP [2005] (see note 80):
    In [his] statement, Mr Rudrum [sic] described how the approval system operates and, in particular, the schemes for dealing with proposals made by the manufacturers for changes to [Evidentiary Breath Testing Instruments, or "EBTIs"]. Where the change would affect the fundamental operation of the EBTI, a new type approval order has to be made. Where the change has no effect on the fundamental operation of the EBTI, the change is authorised by the Home Office without there having to be a new type approval order.
    
    Certain defence lawyers have argued that the Crown must produce copies of "variation orders" from the Home Office in order to show that an EC/IR device is of the type approved, as the contract between Intoximeters UK Ltd and the Home Secretary stipulated the device could not be changed without Home Office approval. This argument is based on a fallacy: even if (for the sake of argument) Intoximeters UK Ltd had committed a civil breach of contract by making changes to certain devices without the approval of the Secretary of State, that would not be relevant, as the breach of contract in itself would not stop an approved device being an approved device for the purposes of substantive law applicable in criminal proceedings. A criminal court would still have to determine whether (i) the particular device in the case had been modified and (ii) whether such modification was so fundamental as to take it out of the description in the Schedule of the relevant type approval order. "Variation orders", even if they existed in some form, would therefore not undermine the prosecution case (because, by definition, they would relate to changes which were not so substantial as to undermine the device's type approval) and, if they did not, could not assist the defence case, for the reasons given above. Mr Rudram's evidence is largely irrelevant in any event as it would inevitably concern proposals for general changes to EC/IR devices, and the court in any case is only concerned with whether (and what) modifications have been made to individual devices. The court would have to speculate about the possible relevance of Mr Rudram's evidence to the case in point, as Field J observed in Fearnley (see note 81). It might be noted in passing that Mr Rudram's evidence seems to be of a similar nature to that given by "Mr Evans" in Young v Flint, which the appellate court deemed "unnecessary" evidence.
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Third party material

Third parties and reasonable lines of enquiry
1. As stated above [paragraph 10.2], the defence may, in the course of specific requests for disclosure set out in defence statements, seek material which is not in the Crown's possession or on the MG6 schedules. It is certainly a duty of investigating officers to pursue all reasonable lines of inquiry, and for prosecutors to indicate these to the police where, for instance, they are triggered by relevant matters raised in a defence statement (see note 82).
2. However, in order to decide whether such inquiries are appropriate, the prosecutor needs to (i) identify whether the defence statement actually raises a valid defence then, if it does, (ii) consider whether the material held by the third party would be likely to satisfy the appropriate the test for disclosure, by reasonably being capable of undermining the case for the prosecution against the accused or assisting the case for the accused.
3. If in the case in question there is no evidence in the existing prosecution material that the reading provided by the device is 'unreliable' (the statutory procedure was conducted appropriately, the calibration checks were within the permissible limits before and after the specimens were taken, and the readings obtained are consistent with other evidence, for instance the accused admitted drinking, smelled of drink, spoke in a slurred manner, etc), then the only further reasonable lines of inquiry, if any, would be those indicated by the defence in the defence statement. If insufficient detail is given in the latter in respect of any allegation of 'unreliability', then further details should be sought from the defence before deciding whether specific inquiries by the police are appropriate. Speculative inquiries, amounting to a 'fishing expedition', should not be conducted.
4. The position is the same where the defence statement raises an issue regarding 'type approval'. As should be clear from the above, it is not sufficient for the defence simply to challenge type approval conformity: the presumption as to the latter means that the defence have the burden of adducing evidence of non-conformity. It is not enough for the defence to show that the device has been modified in some way or other since type approval, or is not in the same condition as it was then. The defence needs to go further and show that any such modification is such as to render the device other than of the type approved. An assertion that the defence must have access to material to determine what, if any, changes have been made to a device, and whether such changes as have been made amount to modifications requiring the consent of the Home Office, is demonstrably a fishing expedition.
5. Further details should be requested of the defence if the type approval defence is not sufficiently made out, which may mean that the decision on further disclosure is deferred until receipt of the defence's expert evidence. Where further details are sought from the defence, they should be invited to explain how and why a particular item is relevant and disclosable. As was stated in R v H and C, the trial process is not well-served if the defence are permitted to make general and unspecified allegations in the hope that material may turn up to make them good, so the defence case needs to be carefully analysed in order to ensure disclosure is appropriate.
6. If the prosecutor concludes that, in the light of the foregoing, further inquiries, including inquiries with third parties, are not currently appropriate, then the existing prosecution material will not be supplemented by further material obtained from third parties. The prosecutor should indicate to the defence that he or she has considered the duties incumbent upon the police and prosecution under the Code and Guidelines in respect of material held by third parties, and concluded that no inquiries with such third parties are currently appropriate.
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  Section 8 CPIA and third party material
7. If the defence then make an application (and see the appropriate procedure under r25.6 Criminal Procedure Rules) for specific disclosure, the prosecution response to this should make clear that the prosecution material is limited to scheduled material. Any order for specific disclosure made by the court would be restricted to the latter, due to s8(3) and (4) CPIA (see note 83).
8. The court would have no jurisdiction to make an order under s8 CPIA for material held by Intoximeters, if the prosecution were not in receipt of this material in connection with the instant proceedings. This simple point is clear from Ouseley J's judgement in DPP v Wood; DPP v McGillicuddy (see note 84):
  I accept Mr McGuinness's submissions that the material (held by Intoximeters UK Ltd) could not fall in either case within the scope of 'prosecution material', because it had not been inspected by the prosecutor, nor was it material which the Disclosure Officer could disclose to the prosecutor. S8(3)(b) (of the CPIA) and the related provisions of the Code are plainly drafted on the basis that the Disclosure Officer has possession of the material. The provisions are simply unintelligible or unworkable otherwise.
  
  See also paragraph 43 of the judgement (quoted below at paragraph 12.9).
  
  The material in possession of Intoximeters UK Ltd would (unless the company has provided the material to the police upon request) include much of the service-related documentation, technical information concerning the device, F11 print outs, engineer's service checklists, service manuals, and so on. It might also be appropriate to note here that the witness summons procedure cannot be used to get a third party to produce material at a section 8 hearing. (see note 85)
  
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  Is Intoximeters UK Ltd 'part of the prosecution'?
9. Due to the above, it has been argued that Intoximeters UK Ltd is not a third party, and is instead 'part of the prosecution' for CPIA purposes, so that the material they have is 'prosecution material'. This issue has now been determined by the Administrative Court in DPP v Wood; DPP v McGillicuddy (see note 86), where it was ruled that Intoximeters UK Ltd is a third party and it was Wednesbury unreasonable for two magistrates' courts to have ruled otherwise. As Ouseley J stated in his judgement (paragraph 43):
  The only basis upon which it could be said that the material in question satisfied the [section 8(4) CPIA] requirement that it be in the possession of the prosecutor, was if the prosecutor was or at least included Intoximeters UK Ltd. That is an impossible contention. The prosecutor was the CPS. Intoximeters UK is not part of the CPS...Intoximeters UK is not part of the prosecution team, a concept which itself is misleading and irrelevant in the light of the specific provisions for disclosure. Intoximeters does not become part of the CPS because it has supplied the device to the police force and has certain continuing obligations to the police under that contract.
  
  Or again at paragraph 55:
  
  The CPIA and the Code are not directed to creating duties for third parties to follow and Intoximeters UK is a third party...There is no provision in the Code which imposes any obligation on third parties nor sensibly could there be.
  
  This was the reason for Ouseley J's ruling on the case stated in McGillicuddy, dealt with at paragraph 66 of the judgement:
  
  Was the court Wednesbury unreasonable to hold that Intoximeter UK Ltd is 'the prosecutor' for the purposes of section 7 and 8 of the Act and therefore required to disclose material in their possession? Yes and it involved misinterpretation of the CPIA.
  
  In other words, no reasonable tribunal could conclude that Intoximeters UK Ltd was 'a prosecutor' or 'part of the prosecution'.
  
  The reasons for the Administrative Court decision are clear. The 'prosecutor' is defined in s2(3) of the CPIA as "any person acting as prosecutor, whether an individual or body." This is further elucidated in paragraph 2.1 of the CPIA Code, where it states that the prosecutor is "the authority responsible for the conduct of criminal proceedings on behalf of the Crown." The prosecutor is distinct from investigating police officers (see note 87).
10. The result is that, where the proceedings in question are being conducted by the CPS, 'the prosecutor' is the CPS. Section 3 of the Act makes it clear that "prosecution material" is material which is actually in the prosecutor's possession in connection with the case against the accused, or which the prosecutor has inspected in the course of discharging duties under the CPIA Code. Hence, if the CPS has not received the material in the course of the instant proceedings, and has not inspected it, then it is not 'prosecution material'.
11. The decision in DPP v Wood; DPP v McGillicuddy is consistent with the case of Alibhai and others [2004] (see note 88), the appellants sought to argue that the company Microsoft and the USA Federal Bureau of Investigation (FBI), had become "prosecutors" due to their close involvement in the instant case, and that material held by them was therefore 'prosecution material'. The Court of Appeal made the point in paragraph 12.9 above regarding the CPIA definition of prosecutor (see note 89) and went on to dismiss the argument that the third parties in question, despite an arguably close involvement in a case, had assumed extensive obligations of disclosure which they otherwise did not have. (see note 90)
12. In respect of material held by the Home Office, the same arguments would apply, and the point made in paragraph 48 of the Guidelines must be noted:
  It should be remembered that investigators, disclosure officers and prosecutors cannot be regarded to be in constructive possession of material held by Government departments or Crown bodies simply by virtue of their status as Government departments or Crown bodies.
  
  The defence have, on occasion, sought to substantiate the argument that Intoximeters UK Ltd hold 'prosecution material' by suggesting that the company is contracturally bound to provide certain information to the Home Secretary or chief officer of police upon their request for such information, as mentioned by Ouseley J (above). However, the February 1998 contract restricts this to 'expert evidence in the form of verbal information and routine statements concerning the working of the device'. It does not create a right, for example, to demand copies or originals of technical service-related documentation such as unedited F11 print-outs. Ouseley J, in DPP v Wood; DPP v McGillicuddy, dealt with this issue in the following terms (see note 91):
  
  There is no provision in the contract between the police and Intoximeters In giving the police or CPS any general right to inspect Intoximeters In or UK records, whether commercially confidential or not. The notion that the CPS or police somehow had a right to do so, or to do so in connection with a prosecution and that therefore one or other of them was in "constructive possession" of the records is wholly wrong. The record of calibration and repair is open to inspection by the Home Secretary and certain other bodies, but these do not include the CPS or police.
  
  In any event, the contractural relationship between the Home Office and the company cannot affect the statutory definitions of "the prosecutor" and "prosecution material" in the CPIA. Further, Robert Johnson v Stratford Magistrates' Court [2003] (see note 92) may be relevant. In that case, involving a 'type approval' challenge to evidence from a Gatsometer, the defence sought disclosure inter alia of a copy of the Home Office approval order, with conditions of use and the ACPO guidelines for the device. The prosecution had contended that these were not 'prosecution material', and said that the defence should have sought third party disclosure. When this matter was ventilated at the Administrative Court, Rose LJ observed (paragraph 58):
  
  For my part, so far as the minutiae of disclosure sought is concerned, I am wholly unpersuaded that Home Office Approval of conditions of use, or ACPO guidelines, can properly be said to be in the possession of the prosecution for the purposes of disclosure.
  
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  The Guidelines and abuse of process
13. Alternatively, the defence may seek to argue that by failing to obtain certain material from, for instance, Intoximeters, the prosecution is in breach the Guidelines in respect of obtaining third party material, and that the failure to obtain this material therefore amounts to abuse. This may be used, in some cases, as a means of exerting pressure on the prosecutor to seek a witness summons against Intoximeters.
14. There are a number of issues raised by the above which merit individual consideration:
  - the extent of the Crown's obligations under the Guidelines;
  - the relationship between breach of the latter and 'abuse of process'
  - the issue of whether or not it is appropriate for the Crown to seek a witness summons against a representative of a third party.
15. Alibhai (see above paragraph 12.11) involved argument as to whether the Crown had breached the Guidelines in respect of third party material, in particular in respect of the efforts made to obtain disclosure from Microsoft. The Court of Appeal, having examined the relevant paragraphs of the Guidelines (see note 93), said that the starting point for determining breach had to be whether there was a suspicion on the part of the investigator, disclosure officer or prosecutor that the third party material might be discloseable if in possession of the prosecutor. This had to be a suspicion that the material would undermine the prosecution case or assist the specific case put forward by the defence (as opposed to being neutral, strengthening the prosecution case, weakening the defence or being in some way "relevant"). Without such suspicion, there could be no basis for alleging breach. (see note 94)
16. Secondly, even if there is a suspicion on the part of the investigator, disclosure officer or prosecutor that there was discloseable material in the hands of the third party, the prosecutor is not under an absolute obligation to secure disclosure of that material: the prosecutor enjoys a "margin of consideration" as to what steps are appropriate in the particular case. In order for there to be a breach, the prosecutor would have to act outside the "permissible limits". (see note 95) Applying this, there would be no absolute obligation to, for instance, seek a witness summons [and see below 12.26 - 12.35 for further considerations in respect of witness summonses generally].
17. The next issue that arises is the relationship between the issue of breach and that of 'abuse of process'. It does not follow that, if the prosecutor is not in breach of the Guidelines, there could be no question of abuse. In Alibhai, Longmore LJ commented, obiter, that "in an extreme case", it might be so unfair for a prosecution to proceed in the absence of material which a third party declined to produce, that the matter ought to be stayed, even if the Crown were not in breach of the Guidelines (see note 96).
18. Clearly, the CPS Intranet Legal Guidance in relation to abuse of process issues ought to be considered here, but, briefly, the following points should be made. There are two broad categories of abuse: where it would be unfair for the trial to proceed, or where the defendant(s) would not be able to have a fair trial. The former might apply where there was an allegation of mala fides, for instance by the police or the prosecutor (see note 97), and the latter would apply where the accused, for instance, was not in a proper position to defend the proceedings because of delay, or because certain evidence was no longer available.
19. The burden of proving abuse is on the defendant (see note 98), and the court must decide the matter on the material provided by the prosecution and the defence: use of the witness summons procedure to compel production of further material for the purpose of an application to stay proceedings is inappropriate (see note 99). The court's discretion to order a stay of proceedings for abuse is an exceptional one, and such an order should never be made where it is still possible for the defendant to have a fair trial, still less when there is no evidence of prejudice to the defendant. (see note 100) This is clear from DPP v Wood; DPP v McGillicuddy, where Ouseley J, considering Alibhai, said at paragraph 61:
  The Court does not hold that any failure to comply with the Attorney-General Guidelines would of itself justify a stay. Rather, it would still have to be shown that the consequence of any failure was that the very strict test for a stay (of proceedings) had been satisfied.
20. In R v Feltham Magistrates Court ex parte Ebrahim (see note 101), the Administrative Court outlined the duties of investigators and prosecutors under the CPIA Code and the Guidelines, in respect of reasonable lines of inquiry and retaining, recording and disclosing relevant material, stating that in approaching applications for a stay relating to alleged abuse of these duties, the court would first determine whether the prosecution were under a duty in respect of the material in question, because if there were no such duty, then there could be no abuse. If there was a duty, and it had been breached, then the court had to go on to consider whether exercising the exceptional power to stay proceedings was appropriate.
21. The court stressed that the trial process itself was well-equipped to deal with the bulk of complaints upon which most applications for a stay are founded, and the absence of certain evidence may prejudice the prosecution as much as the defence. If there is still sufficient credible evidence upon which the defendant can be convicted, then the matter should proceed, leaving the defence sufficient opportunity to seek to persuade the magistrates that they should not convict because certain evidence is not before the court, through no fault of the defendant (see note 102). Ouseley J applied this considered approach to the issues in DPP v Wood; DPP v McGillicuddy, at paragraph 64.
  Even if relevant material could not be obtained...that would not have meant of itself that a fair trail would not be possible. The significance of the material held by the third party would have to be set against a proper appreciation of the defence, other evidence as to the reliability of the device and the legal position about arguments over type approval [in the light of Grant and Richardson]. I do not accept (the defendants') submission that a reliability issue could not in reality be raised without access to the material (from Intoximeters) which was not disclosed here, not least because the DJs do not explain clearly how the material actually sought could sh

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Guidance regarding disclosure in Intoximeter EC/IR cases

Introduction

Applicability of this guidance to other devices

Background - Type approval of Intoximeter EC/IR

Intoximeter EC/IR - Operation

The calibration check

The print-out

SPECIMEN PRINT-OUT

Error messages and procedural checks

The disclosure regime

The initial MG6c

Primary disclosure or initial disclosure

The defence statement

Formalities: time limits

Formalities: content

The evidential burden

The common-law presumption of reliability

The presumption of reliability and 'mouth alcohol'

Presumption that device is of the type approved

The statutory assumption

Specific defences

Defence requests for disclosure of particular items

Glossary of items and terms

Third party material

Third parties and reasonable lines of enquiry

Section 8 CPIA and third party material

Is Intoximeters UK Ltd 'part of the prosecution'?

The Guidelines and abuse of process