In this case the prosecution was unable to produce the original MGDDA form in a drink driving trial, or the original printout of the result, but instead they produced a photocopy of the Form MGDDA and test result printout.

The district judge refused to permit the PC who carried out the drink driving procedure to refresh his memory from the copy documents.

The DPP challenged the decision of the district judge not to allow the police officer to refresh his memory from a copy document recording the outcome of a breath test on the respondent using an “Intoxilyzer” machine. In consequence of the decision not to allow the officer to refresh his memory, the prosecution was unable to prove its case and the respondent was acquitted.

 The Divisional Court held that the district judge had erred in the manner in which he dealt with the request for the police officer to refresh his memory using the copy. 

The correct course, subject to asking the necessary questions arising under section 139(1) of the Criminal Justice Act 2003, would have been to allow the police officer to refresh his memory and to allow the defence to explore with him in cross examination, and subsequently in submissions, the likelihood of any risk of discrepancy between the copy and the original.