Director of Public Prosecutions v Kennedy

Director of Public Prosecutions v Kennedy

Failure to change the mouthpiece between breath test attempts did not constitute incorrect assembly or invalidate the test; manufacturer's instructions, properly interpreted, did not require a new mouthpiece after an unsuccessful attempt. Simple proof of unlawful arrest or technical error at the roadside is insufficient to justify exclusion of subsequent evidence under section 78; there must be a significant adverse effect on fairness.

Parties
Claimant: Director of Public Prosecutions; Defendant: Kennedy
Jurisdiction
England and Wales
Judgment Date
24 October 2003
Procedural Posture
Criminal Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Breath Test Procedure, Admissibility of Evidence, Unlawful Arrest, Exclusion of Evidence Under Section 78
Criminal Law Road Traffic Law Breath Test Procedure Admissibility of Evidence Unlawful Arrest Exclusion of Evidence Under Section 78

Case Brief

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Parties

Director of Public Prosecutions

Claimant

Kennedy

Defendant

Procedural Posture

Criminal Appeal / Judgment

Legal Issues

  1. 1 Whether failure to change the mouthpiece between breath test attempts invalidated the roadside test
  2. 2 Whether such failure rendered the arrest unlawful and justified exclusion of subsequent evidence under section 78 of the Police and Criminal Evidence Act 1984

Ratio Decidendi

Failure to change the mouthpiece between breath test attempts did not constitute incorrect assembly or invalidate the test; manufacturer's instructions, properly interpreted, did not require a new mouthpiece after an unsuccessful attempt. Simple proof of unlawful arrest or technical error at the roadside is insufficient to justify exclusion of subsequent evidence under section 78; there must be a significant adverse effect on fairness.

Court Disposition

appeal allowed

Orders

  • First question answered in the negative: a fresh mouthpiece is not required for each breath test attempt as a matter of law.
  • Second question answered in the negative: no basis for exclusion of evidence under section 78 solely due to unlawful arrest.