'Smoke and mirror' tactics of drink-drive defence teams criticised

The “smoke and mirror” tactics of defence lawyers in drink-driving cases have been criticised by the government’s forensic science regulator, who has launched an investigation into the work of a number of expert witnesses.

The review was triggered by a recent high court judgment that raised concerns about defence teams requesting the disclosure of vast amounts of “irrelevant” technical information in order to challenge the reliability of breathalyser and blood alcohol test results.

“It’s a shotgun approach to trying to get irrelevant things disclosed to do a smoke and mirrors defence rather than an actual issue being raised with the evidence,” said Gill Tully, the regulator. “It’s been an approach by a number of specialist firms of solicitors who tend to use a number of particular experts.”

In a written submission to the House of Commons justice committee last week, Tully said some teams were routinely adopting this approach. “The conduct of a small number of forensic science practitioners has been referred to my office in this regard and will be the subject of review,” she said.

Those facing scrutiny include John Mundy, who acted as an expert witness for the defence in the trial of the rugby player Danny Cipriani, who was convicted of drink-driving in 2016, and has given evidence at the trials of other sports celebrities and businesspeople.

Paul Williams, a forensic scientist who led the development of one of the most widely used breath alcohol tests, said some experts have “shopping lists” of spurious technical data they request, including engineer and service logs for breathalysers, calibration certificates and the readouts from hundreds of previous tests.

The relevance of such material, which was obtained by Cipriani’s defence team and unsuccessfully used to challenge the reliability of the breathalyser result, was questioned by the the high court judge in the rugby player’s 2016 trial. In other trials, experts have suggested the readouts could be corrupted by the presence of mobile phones, dust in the air or dental mouthwash.

In another recent drink-driving case, Joanne Cronshaw, a senior prosecutor in Greater Manchester, told the court the Crown Prosecution Service was concerned about “a pattern of disclosure requests of this sort now being made routinely in excess alcohol cases”, with “serious practical implications for the resources of the CPS and police”.

Williams said the practice had increased in the past couple of years at the behest of a few specialised law firms. “If you’re going to go down that route,” he said, “you might as well throw the machines out the window.”

However, Tara Boyle, a partner at Geoffrey Miller Solicitors, which specialises in motor offences, said defence teams are entitled to scrutinise scientific evidence. “For every request for disclosure there’s a reason behind that,” she said. “It’s our duty to investigate.”

The issue is the latest problem to emerge around the disclosure of forensic evidence in criminal trials. Since December police and the CPS have faced intense criticism over repeated failures to disclose crucial mobile phone evidence, leading to the collapse of a series of rape cases.

A spokesman for the CPS said: “Proper and timely disclosure of evidence is vital to ensuring defendants get a fair trial. We are aware of regular challenges to prosecution evidence made by the defence in drink- or drug-driving cases and we have worked with the National Police Chiefs’ Council to develop guidance for our prosecutors on the appropriate handling of such requests.”

Mundy did not respond to a request for comment.