How do you know if they have been incorrectly completed and so you may have a defence
The MGDDA/B document has to be filled out in order, whilst you are in the Custody Suite. It has 20-30 separate questions.
If the police do not fill out everything in order and in front of you but take it away so they can complete it later you may have a defence.
The very first thing you need to do is ask the Police or the CPS that CCTV of the relevant area in the Custody Suite and any bodycam footage from bodycam worn by the arresting officer is retained.
The police do not automatically retain CCTV in Custody Suites and it is recorded over within a relatively short period. So DO NOT wait until you get to court to ask that CCTV is retained, as you may be too late.
If the police fail to keep the CCTV after being asked by you or the CPS (and often they do) then it may be possible to have the case thrown out of court for abuse of process.
Of course if the CCTV is provided it may show that the breath test procedure was not completed correctly.
MGDDA Section A12 (Ver 8.5 – 2017), contains a ‘statutory warning’ and this full warning has to be given. Often it is disputed by clients that they were given the “statutory warning”.
As a general rule it is important NOT TO ACCEPT as accurate anything you are not sure about. In other words, DISPUTE EVERYTHING.
If you dispute it, the CPS then has to prove it at trial. If you do not dispute it, it is then assumed correct!
SA12 states: “I require you to provide two specimens of breath for analysis by means of an approved device. The specimen with the lower proportion of alcohol may be used as evidence and the other will be disregarded. I warn you that failure to provide either of these specimens will render you liable to prosecution.”
“Do you agree to provide two specimens of breath for analysis ?”
Many clients say this is not stated in full to them and they may just be informed that they “must blow into the device”.
It should be noted that a ‘direction’ to blow is not the same as a ‘request to blow”.
You do not have to provide a specimen of breath if you do not want to. It is optional.
The police should explain what would happen if you refuse to provide a specimen, prior to asking for agreement to provide one.
If this does not happen I can therefore make this an issue in the case, meaning that the CPS would have to prove the procedure, requirement and the warning were all given correctly to you by the police.
Section 7(7) of the Road Traffic Act 1988 states: “A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution”.
If you accept that this warning was provided to you, you would, in effect, be helping the police to convict yourself (because the police would not then have to prove this aspect of the offence).
However, if you inform me that that this warning was not provided I can raise this as an issue in the case.
Once the point is raised as an issue it is then for the CPS to prove it was given.
This is an important strategic step. The CPS would need to have all relevant police officers to attend court at a trial in order to give evidence and be cross-examined.
If the police fail to attend court (and you would be surprised how often they do fail to attend court) then the CPS would not be able to prove to the Court that the statutory warning was given.
The MGDDA/B document is not an exhibit
The CPS may try to prove the accuracy of the breath test procedure by trying to exhibit the MGDDA document into evidence. If a case also involves a urine procedure, meaning that a separate MGDDB document is used by the police to detail that procedure they may also try to prove the accuracy of that procedure by trying to exhibit the MGDDB document into evidence.
The CPS may also try to use this document as an exhibit.
The MGDDA and MGDDB documents cannot legally be exhibits!
The CPS’s own guidance states that: “in the event of a not guilty plea to a summary drink/drive offence, you should try to obtain a formal admission under Section 10 of the Criminal Justice Act 1967 as to the contents of the Form. Such an admission must include the name of the defendant, the date and place of the offence and the results of the breath test or of the laboratory test. If such an admission cannot be secured then the officers conducting or witnessing the sampling procedure will normally have to be called to give evidence in person.
The Form MG/DD contains assertions of fact; it is a document made out of court and is inadmissible under the hearsay rule. Section 9 Criminal Justice Act 1967 only permits that the evidence contained in a witness statement is admissible were the maker of it in the witness box. If the officer who filled out the Form were in the witness box, he could not produce the Form in chief as an exhibit, though he could refer to it as a memory-refreshing document. The production in evidence of that Form attached to a short s.9 CJA statement will not render the content admissible.
The only way in which the information contained on a Form MG DD can be produced in documentary form as admissible evidence is if that information is extracted from the form and incorporated into a s.9 CJA statement made by the officer. This course must be followed in the event of a prosecution under s.3A of causing death by careless driving when under the influence of drink or drugs”.
The first paragraph reminds the CPS lawyer to try and get an admission from you. If you admit to something the CPS then do not have to prove it!
In my view, never admit to anything. You’d be amazed at the mistakes that can be made by the police.
Most CPS lawyers don’t seem to realise that the MGDDA document (or the MGDDB/C/D) is simply inadmissible hearsay.
In other words, it cannot be used in evidence. But if you agree the MGDDA/B in an admission, then it can. General rule – do not agree!
Note also the second paragraph. It states: “If the officer who filled out the form were in the witness box he could not produce the form in chief as an exhibit”.
In other words, the MGDDA /B document is not an exhibit – whether or not the person completing it is in court!
Even if the officer writes a witness statement referring to the MGDDA/B document as an exhibit, it still cannot be used as an exhibit!
The only way the content of the MGDDA/B document can be used in written evidence is if the content is incorporated into a S9 witness statement. In other words, the S9 witness statement from the officer should contain all the information on the MGDDA/B document.
If you have been charged with drink driving or drunk in charge, check your MGDDA/B form and S9 witness statements.
I could almost guarantee that the S9 witness statement from the officer (even if you have one!) does not contain the information from the MGDDA/B document.
You should always use a lawyer that knows what they are doing.
You must not rush off to the CPS and point out its mistakes or ask for properly completed S9 witness statements prior to the trial date.
Remember, you have to prove nothing the CPS have to prove the case against you.
If they have not got the evidence, they have not got a conviction.
I know that this has been explained to CPS lawyers at trial. When being told they could not use the MGDDA/B or printout in evidence. They just do believe me and think it is a joke. Often they say they intend to simply hand over the documents to the Judge to read and try to insist that they are exhibits and could therefore be exhibited into evidence. Often it needs me to show them the legal guidance on the CPS website before they will concede that I am correct.
If you have been charged with drink driving or drunk in charge and do not remember a MGDDA/B form being completed with you, the police may have breached the procedure. There are some 20-30 questions that you should have been asked before the police go on to warn you that you do not have to give a breath specimen at all.
The police should inform you of what happens if you fail to give such a specimen (known as the statutory warning).
Quite simply, if the police failed to warn you of what happens if you fail to provide a specimen then you should not be convicted, even if you went on to provide a specimen.