B e f o r e :
THE HONOURABLE MR JUSTICE SILBER THE HONOURABLE MR JUSTICE GIBBS ____________________
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(Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)
Nigel Ley (instructed by Vickers and Co) for the Appellant Hugo Charlton (instructed by Crown Prosecution Service, London) for the Respondent ____________________
HTML VERSION OF JUDGMENT ____________________
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Mr Justice Silber:
I Introduction
Mahmood Zafar ("the appellant") appeals by way of case stated against a decision made on 29 March 2004 by the Inner London Crown Court dismissing his appeal against his conviction by Tower Bridge Magistrates Court for an offence of driving a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988 as amended ("the RTA").
This appeal raises the question of what is meant by the word "breath" in that section as the case stated by the Crown Court for this court is
The appellant says that the answer is that the word "breath" means "deep lung air " only while the respondent contends that the word "breath" means all that is exhaled.
II The Statutory Provisions
Counsel agree that of the two provisions set out in the case stated, the only relevant statutory provision for the purpose of this appeal is section 5(1)(a) of the RTA, which insofar as is material, provides that: -
No specific submissions were made in relation to the other statutory provision referred to in the case stated, which is section 15(2) of the Road Traffic Offenders Act 1998, which provides that: -
III The Crown Court Proceedings
In the Case Stated, the Crown Court set out the facts, which they found and they are that: -
The Crown Court also said that they accepted that: -
In the Crown Court, the appellant contended that the prosecution were obliged to show that the reading from the Intoximeter related solely to "deep lung alcohol" and not in any respect to "mouth alcohol" and therefore the appeal should be allowed. The Crown Court rejected this submission because it considered that neither section 5 of the RTA nor any other statutory provision to which it had been referred distinguished between "deep-lung alcohol" and "mouth alcohol", both of which form components of the term "breath".
The conclusion of the Crown Court was that they should accept the argument of the prosecution first that although the Intoximeter was designed to make the distinction between "deep lung breath" and "mouth alcohol", such a distinction was not required by section 5 of the RTA and second that the word "breath" in that provision does not distinguish between the two meanings.
III The Submissions and Discussion
The basic submission of Mr. Ley for the appellant is that the word "breath" in section 5 of the RTA does not include all of what is exhaled, but that it is limited to "deep lung air" and therefore it excludes "mouth alcohol". Mr. Charlton for the respondent disagrees as he contends that the word "breath" includes mouth alcohol as it includes any exhaled air.
The result of this appeal depends on the construction of the word "breath" in section 5 of the RTA and in section 15(2) of the RTOA. It is a relevant starting point that the New Shorter Oxford English Dictionary's main definition of the word "breath" is "air exhaled from any thing". This definition confirms my view of how the word "breath" is used and understood in normal parlance and Mr. Ley does not appear to dispute this. Thus, neither the dictionary definition nor the normal use of the word "breath" limits its meaning to "deep lung air", which is the way in which Mr. Ley says that it should be defined. In my view, unless there is any contrary intention expressed in the statutory provision, that definition of the word "breath" should be adopted in construing the statutory provisions referred to in the Case Stated.
Mr. Ley contends correctly in my view that in ascertaining the meaning of the word "breath", it is necessary for the court to ascertain the intention of the legislature (see, for example, Viscountess Rhondda's Claim [1922] AC, 339, 397). He points out that the problem of mouth alcohol has long been recognised and that as long ago as in 1970 Lord Diplock noted that "the alcohol remaining in the mouth will cause a falsely high indication of the true blood alcohol level"(Webber v. Cary [1970] AC 1072, 1096).
This statement, Mr. Ley submits, indicates that Parliament was aware of the effect of "mouth alcohol" on blood alcohol level when it enacted section 5 of RTA and it must have had "mouth alcohol" in mind. That might be so but what is important is that Parliament chose not to limit the normal and natural meaning of "breath" in this way, but instead it used the word "breath" without specifying any limitation on its meaning.
The second submission made by Mr. Ley is that the Home Secretary has approved the use of Intoximeters, which are designed to detect alcohol in "the deep lung air" as opposed to "mouth alcohol" in the mouth or in the upper respiratory tract. As I have explained, Professor Meakin's evidence, which was accepted by the Crown Court, was that if "mouth alcohol" is detected, the Intoximeter is designed to print out the message "mouth alcohol – unsatisfactory specimen". Thus, Mr. Ley says that this shows that the intention of Parliament was to regard "mouth alcohol" as constituting unsatisfactory breath specimens.
However, the approval given by the Home Secretary to Intoximeters apparently occurred after section 5 was enacted; in any event, it does not throw any light on the interpretation of the statutory provisions with which this appeal is concerned. The court's task is to ascertain the intention of Parliament and not of the Home Secretary at the time when section 5 was enacted. Therefore the way in which the Executive decides that breath should be measured is irrelevant in ascertaining that Parliamentary intention, especially if that decision, as appears to be the case here, is taken after the legislation is enacted.
Third, Mr. Ley contends that his interpretation of the word "breath" is supported by what was said by Baroness Blatch, who was then the Minister of State at the Home Office on 26 June 1999, during the debates in the House of Lords on Amendment No. 67 of the Parliamentary Bill, which later became inserted in section 7(3) of the RTA and which provides that: -
The Minister said that: -
The decision of the House of Lords in Pepper v Hart [1993] AC 539 shows that there are only limited circumstances in which the courts can use parliamentary debates to decide on a question of statutory construction. Mr. Ley attaches importance to the comments of Lord Griffiths, who said at page 617, that:-
The limited circumstances in which a party can rely on Parliamentary statements by Ministers in interpreting statutes were explained by Lord Browne-Wilkinson, with whom the majority of the Appellate Committee agreed. He said at page 640 that:-
In my view, the appellant cannot rely on the statements of Baroness Blatch as an aid to construing the sections with which the Case Stated is concerned because first the word "breath" in section 5 of the RTA is not ambiguous, second the statement of Baroness Blatch was not made in relation to section 5, which is the section under review and third, here statement was made not by the promoter of section 5 but as the promoter of an amendment, which was made eight years later.
Thus Mr. Ley cannot derive any assistance from Baroness Blatch' comments and I move on to his fourth point, which is to seek to derive assistance from comments made in two recent decisions of this Court, namely DPP v Texeira [2003] RTR 395 and Memery v. DPP [2003] RTR 249. In neither of these cases was the meaning of the word "breath" the subject of either of the Cases Stated or of any of counsel's submissions. Thus, I am unable to derive any help in answering the present Case Stated from either of those cases, which were dealing with different issues.
Therefore, I conclude that there is nothing in the RTA or in the RTOA, which suggests that the word "breath" should have a special meaning or that the dictionary definition of "breath" should not apply. It is noteworthy that the statutory provision refers to "breath" and not to "deep lung air". What Mr. Ley is seeking to persuade us to do is to rewrite the statutory provision and that is not correct.
I should mention that very late in his submissions, Mr. Ley sought leave to amend the Case Stated in order to challenge the decision of the Crown Court to convict the appellant. We then said that we would deal with this application to amend in our judgments, which we now do. In my view this application at this very late stage should be refused because to accede to it would mean that the matter would have to be remitted to the Crown Court so that they could deal with this matter and set out their reasoning on this issue in greater detail. That would lead to further delay and in addition the prospects of success on this point would not justify the decision to allow the amendment, which in any event has not been formulated in writing. Furthermore, this application for a case stated on this issue raised by the proposed amendment is well out of time because an application for a case stated must be made within 21 days of the decision subject to a discretion to extend. Thus I would reject that application to amend.
IV Conclusion
I would answer the question raised in the Case Stated:-
with the word "no".
Mr. Justice Gibbs:
I agree.