The magistrates' court had been entitled to hold that the operator of a breath test machine was still a trained operator for the purposes of taking a breath test and that the breath test machine had been working properly where the operator did not know its calibration limits. The time limits for the submission of skeleton arguments and authorities was strict and the Administrative Court and the Court of Appeal would in future make disagreeable orders as to costs where those limits were not observed.Appeal by way of case stated against the decision of Liverpool Magistrates' Court on 24 February 2003 to convict the appellant ('H') of driving a motor vehicle whilst the proportion of alcohol in his breath exceeded the prescribed limit. H had taken a roadside breath test that proved positive. At the police station he then provided two specimens of breath for analysis by a CAMIC datamaster machine. The operator of the machine gave H a printout of the readings that showed H to be over the limit. At the hearing the printout was not adduced in evidence but the operator testified that the printout had been provided and that the self-calibrating machine had been working properly. However, in cross-examination the operator said that she had not known what were the correct calibration limits of the machine. On appeal H argued that: (i) in reliance on Mayan v Director of Public Prosecutions (1988) RTR 281, it was for the prosecution to prove that any machine was working properly; (ii) it was not open to the operator to say that the machine had been working properly in circumstances where she had not known what the correct calibration limits were; (iii) the operator could not in law be considered a trained operator for the purpose of taking breath tests if she was not in a position to say that the machine had been correctly calibrated; and (iv) accordingly, the decision of the magistrates court was Wednesbury unreasonable.HELD: (1) This case turned on its own facts. There was no evidence to the effect that the machine was not working properly other than that the operator did not know the calibration limits of the machine and that therefore on H's case it had not been proven that the machine was working properly. H had given details of her training as an operator and that evidence had not been challenged in any way. Whilst the operator's lack of knowledge cast doubt on the weight to be given to the other evidence in the case it was a question for the magistrates' court as to whether or not it undermined that evidence to the extent that the operator could not be considered as a trained operator. The magistrates' court decided that that evidence was not so undermined and it had been open to them to conclude that the gaps in the operator's knowledge did not mean that she was not a trained operator. (2) Further, H had received a copy of the reading of the machine and if there had been anything in that to show that the machine had not been working properly it would have been put to the prosecution witnesses in cross-examination. (3) Moreover, it was well known that breath test machines tested themselves. The prosecution did not have to prove that any machine had in fact tested itself in each particular case. The matter only became an issue if there was some evidence to suggest that any particular machine had not been working properly. In this case there was no evidence that the operator had not been entitled to say that the machine was working properly. In those circumstances the court's conclusion that the reliability of the machine was consistent with all the other evidence in the case merely ruled out the possibility that it had not been working properly. (4) It was to be noted that the rules relating to the time limits imposed for the submission of skeleton arguments and bundles of authorities had not been complied with. In future, judges of the Administrative Court and the Court of Appeal would show less forbearance and such failures would lead to disagreeable orders in costs if that was the only way in which to enforce discipline.Appeal dismissed.

[2003] EWHC 2481 (Admin)

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