Thursday, 17 February 2011

Miscarriage of Justice Dispensed By “Computer Says No!” Culture Within The Magistrates’ Courts

In the Little Britain sketch show the moody character who blindly relies on whatever her computer tells her has produced one of the comic duo’s most successful catchphrases, “The Computer Says No!”

Mr David Wannell, a Marketing Consultant based in Arundel, was certainly not laughing when he was convicted for failing to provide a specimen based on what a machine said. I was shocked when the Magistrates at Mid Sussex Magistrates’ Court chose to ignore one of the strongest expert testimonies I had come across saying the machine was faulty. This case is even more relevant now that the government's budget cuts will most likley lead to more shoddy prosecutions than ever.

When stopped by the police if you fail to provide or fail a roadside breath test, the Police take you back to the Police Station to give an evidential breath test. Occasionally they will ask for a blood or urine sample but not without good reason. However, if you refuse to blow into the machine at the Police Station, this is classed as an entirely separate offence of Failing to Provide a Specimen. To deter people from deliberately refusing to co-operate at the police station, the guideline penalty for this offence is a 24 month ban whereas the minimum penalty for drink driving is a 12 month ban.Problems often arise with the machines because it can be difficult to blow into them so they record a satisfactory reading. Some machines require a steady slow breath whereas others require a strong blow into them. You only have a limited time to blow a reading that registers and if you fail to give two complete samples during that time you will face prosecution for the failing to provide offence. The only defence to this offence is if you have a reasonable excuse for failing to provide. This could be, for example, if you suffer with asthma (although you should have told the police about any medical condition that makes it difficult to blow before even beginning the test.)Two samples are required because if there is a big breath difference between the samples, the machine is meant to flag this up to the officer so that they choose to take a blood or urine sample. This is to protect the defendant so as to be sure the police have an accurate reading.In Mr Wannell’s case, when the maintenance log for the machine he was trying to blow into was reviewed by his solicitors and forensic experts, it was noticed that there were around 9 occasions where there are recorded serious breath differences but the instrument did not flag these up by displaying the error message BREATH DIFFERENCE. The log was updated manually by the police officer who conducted the tests and so while one mis-transcription may be possible, nine were unlikely – and in the log of the instrument in Mr Wannell’s case, all of the logs where there was a big difference between the two readings, the logs were recorded by different officers. If the machine did not show an error message when there were big differences between the two readings, this suggests a serious software problem with the machine and added to his defence that he was unable to blow into the machine rather than unwilling to.

As if this was not enough to convince the Magistrates that something was up there were also a high numbers of tests where the breath readings recorded were below the legal limit. This should have given rise to suspicion because if they blew over the limit at the roadside, it is unlikely their alcohol levels will have dropped by the time they reached the police station. With a correctly operating machine, there should be very few tests giving results below 30mg/100ml. In Mr Wannell’s case the instrument he was required to blow into had had 77 recorded instances where tests gave results below the legal limit suggesting that either no roadside test was carried out or that the roadside testing instruments used were not properly calibrated.

The number of breath differences recorded in the log [52] was substantially in excess of what the experts consulted would expect and suggested to them that there was a serious systemic problem with the infra-red system in this instrument. This conclusion was reinforced by the number of associated failures [89].

This log recorded approx 730 tests on suspected persons and thus the rate of problems was nearly 20%. There was in addition no pattern to these problems which appear to be random with failures to provide samples per page varying from zero to 7.

Despite all of these problems being explained by experts at his trial on 30 June 2008 at the Magistrates’ Court, the lay Magistrates chose to convict leaving Mr Wannell in the frustrating and devastating position of having to raise the funds to appeal a conviction that should never have happened.

I was shocked when David was convicted. I had no doubt the evidence we had gathered would be enough to secure his acquittal but as if often the case in Magistrates’ Courts, the people entrusted with the task of hearing the case either did not understand the complex scientific issues raised or they just chose to rely on the machine blindly despite the evidence we presented to cast significant doubt on its reliability and accuracy.

This was no motoring loophole but involved a genuinely innocent motorist who was the victim of a faulty machine and a court system that is crying out for review. Thankfully we went on to overturn the conviction at Lewes Crown Court but Mr Wannell paid handsomely to clear his name. His legal bill came to over £20,000. He was eventually refunded in full by the court but to those who cannot afford to pay for justice to be done, this is simply not good enough....

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