QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE GOLDRING
| JOHN KIMBALL STEWART
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Ms. M. Jacobson (instructed by Crown Prosecution Service) for the Respondent
Crown Copyright ©
Mr Justice Goldring:
1. This is a case stated by the Justices for the Petty Sessional Division of Faversham and Sittingbourne sitting at Sittingbourne. On 28 October 2002 they convicted the appellant of driving "after consuming so much alcohol that the proportion of it in his breath, namely 59 microgrammes in 100 mililitres of breath, exceeded the prescribed limit, contrary to section 5(1) of the Road Traffic Act 1988…"
The issue in this appeal
2. It can simply be stated. The appellant provided two specimens of breath for analysis at the police station. There was a considerable difference between them. For that reason they were an unreliable indication of the amount of alcohol in his breath. The police officer gave the appellant the choice of either providing two more specimens of breath, or specimens of blood or urine. The appellant chose to provide two more specimens of breath. The lower reading of those two specimens was relied upon by the prosecution and formed the basis of the conviction. It is said that the relevant statutory provisions, in particular section 7 of the Road Traffic Act 1988 ("the Act"), did not permit reliance on that further specimen. The police officer was not entitled to give the appellant the option of providing further specimens of breath. He was obliged to require him to provide specimens either of blood or urine.
3. They are set out in paragraph 2 of the Case.
"(i) At 7.40 am on 16th November 2001, the Appellant was found asleep in the driving seat of his motor vehicle…parked in a lay-by…at Hollingbourne, Kent. The vehicle's engine was running and there was accident damage to its front…offside;
(ii) The Appellant had driven the vehicle to that location after having consumed alcohol in excess of the legal limit.
(iii) The Appellant was lawfully required by a police officer to provide a roadside breath specimen, which was positive. The Appellant was arrested and taken to Maidstone Police Station, arriving at 8.05am.
(iv) Police Constable Sanders again required the Appellant to provide two specimens of breath for analysis on an approved machine, namely an Intoximeter machine (…"the machine")
(v) In his first attempt at providing a specimen of breath, the Appellant blew incorrectly with the result that no reading was recorded by the machine.
(vi) PC Sanders again required the Appellant to provide two specimens of breath on the machine.
(vii) The procedure commenced at 8.21am. The Appellant provided two specimens of breath which were recorded by the machine as 66 microgrammes and 56 microgrammes respectively in 100 millilitres of breath, with the message "breath difference" recorded on the machine print out.
(viii) In view of the difference between the two breath readings being more than 15%, PC Sanders could not rely on the lower of the two readings.
(ix) After consulting with the Custody Sergeant, PC Sanders explained the circumstances to the Appellant and invited him to choose between providing two further samples of breath or providing a sample of blood. The Appellant chose to provide two more specimens of breath.
(x) The procedure recommenced at 8.46am and was repeated in its entirety including the warning under section 7(7) of the Act. The appellant provided two reliable specimens of breath which were recorded by the machine as 63 and 59 microgrammes of alcohol in 100 millilitres of breath, with the message "NO ERRORS" recorded on the machine printout.
(xi) The Appellant was subsequently charged with driving a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit."
The statutory framework
4. By section 5 of the Act it is an offence to drive a motor vehicle on a road having consumed so much alcohol that the proportion in a person's breath, blood or urine exceeds the prescribed limit.
5. Section 7 of the Act states,
(1) In the course of an investigation into whether a person has committed an offence under section…5…a constable may, subject to the following provisions of this section…require him-
(a) To provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State or
(b) To provide a specimen of blood or urine for a laboratory test.
(2) A requirement under this section to provide specimens of breath can only be made at a police station.
(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station…and it cannot be made at a police station unless…
(bb) a device of the type mentioned in subsection (1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the machine has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned…
but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath…
(7) A constable must, in requiring any person to provide a specimen in pursuance of this section, warn him that failure to provide it may render him liable for prosecution."
6. Section 8 of the Act states,
"Choice of specimens of breath. (1)…of any two specimens of breath provided by any person in pursuance of section 7…the lower proportion of alcohol in the breath shall be used and the other shall be disregarded…"
7. Section 11 states,
"(1) The following provisions apply for the interpretation of [section 7]…
(3) A person does not provide a specimen of breath for…analysis…unless the specimen-
(a) is sufficient to enable the…analysis to be carried out, and
(b) is provided in such a way as to enable the objective of the…analysis to be satisfactorily achieved…"
8. In addition to the statutory provisions, this court's (and I assume the Magistrates') attention was drawn by Mr. Corre on behalf of the appellant to two particular documents concerning the machine and the procedure to be followed.
9. The first was a document published by the Home Office in 1994 and titled "Evidential Breath Alcohol Testing Instruments ("the Guide")." It is said to be a "Guide to the type approval procedures for evidential breath alcohol testing instruments used for road traffic law enforcement in Great Britain.
10. Paragraph 5.5.5 states,
"…Any breath specimen commenced within the 3 minute period which fully satisfies the breath sampling requirements shall be valid and allowed to proceed to completion.
If no satisfactory breath specimen is provided within the 3 minute allowance the instrument shall print a report indicating that no specimen has been supplied."
11. Paragraph 5.6.1 states,
"Samples: Readings from the two required breath specimens shall only be accepted if separated by no more than 15% of the lower reading…"
12. The second document Mr. Corre referred to was Form MG DD/A ("MG DD/A"). That is the pro-forma used by the police officer at the police station. Paragraph A13 deals with "instrument and sample reliability." It states,
"…where a machine produces an instrument message of…breath difference…then whilst the machine may be operating reliably a reliable indication of the proportion of alcohol in a person's breath may not have been obtained and it will be usual to proceed to a requirement for blood under section 7(3)(bb)…
13. Paragraph A15, dealing with "breath specimens provided," states,
"If the accused has provided…one or two specimens of breath but a reliable indication may not have been obtained…go to A17.
14. Paragraph A17 states,
"If specimens have been provided but no reliable indication of the proportion of alcohol in the…breath has been obtained give details."
15. There is a space for the details. The paragraph then effectively provides for the officer, if he wishes, to require a laboratory specimen. The obtaining of such a specimen (blood or urine) is dealt with in a different form.
The contentions on both sides
16. The Magistrates summarised them. They were to some extent repeated to us. On behalf of the Appellant it was contended,
"The procedure conducted by PC Sanders in obtaining the second set of breath samples had been unlawful, and that any evidence resulting from it was inadmissible. In particular, section 7(1)(a), read in conjunction with section 8(1), of the Road Traffic Act 1988, allowed the officer to require only two specimens of breath for analysis on the machine. There was no provision to enable the Appellant to choose between providing breath or blood. Therefore the officer had exceeded his powers in requiring a second set of breath samples and evidence of the lower reading of 59 microgrammes had been unlawfully obtained…The court should exercise its discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984."
17. On behalf of the Respondent it was contended,
"The first attempt at providing a specimen of breath for analysis was not a proper specimen because it had failed to provide a reading on the machine…After the next two samples had provided readings which were not within the acceptable range, PC Sanders was lawfully entitled to repeat the procedure under section 7(1) of the Road Traffic Act 1988. He was not obliged to require a blood sample because, under section 7(3)(bb) of the Act he had a discretion to require a blood sample which he had chosen not to exercise…"
18. The Magistrates concluded that,
"It was the Respondents' responsibility to satisfy us beyond reasonable doubt that (a) PC Sanders had lawfully obtained two specimens of breath for analysis from the Appellant and that (b) the lower of those two readings should be used in deciding whether the Defendants breath alcohol level exceeded the prescribed limit.
We were so satisfied because:
We considered that the Appellant's first attempt at providing a breath specimen for analysis was a failure and should be disregarded, although that is not to say that he unlawfully failed to provide a specimen.
We considered that the Appellant's next two breath samples should be disregarded on account of the variance of more than 15% between the two readings which rendered them unreliable.
Having found that the Appellant's next two readings were reliable, it followed that the lower of those two readings (59 Microgrammes) should be used in accordance with section 8(1) of the Road Traffic Act 1988. The other sample (63 microgrammes) should be disregarded.
Evidence of this lower reading had not been unfairly obtained by PC Sanders, who had explained the procedure to the Appellant throughout, and had at all times, acted in good faith.
The said reading of 59 microgrammes being over the prescribed limit of 35 microgrammes, the Appellant had committed the offence under section 5(1)(a) of the Road Traffic Act 1988."
19. They posed the following questions.
"Where, in the course of an investigation into whether a person has committed an offence contrary to section 4 or 5 of the Road Traffic Act 1988, that person provides two specimens of breath into an approved machine, and the operator has reasonable cause to believe that the machine has not given a reliable indication of the proportion of alcohol in the breath of the person concerned, is the operator acting lawfully in either requiring or giving the person the option to provide two further specimens of breath?
Does the fact that the operator is acting in good faith affect whether or not he is acting lawfully?"
20. Mr. Corre's submissions on behalf of the appellant came to this. Section 7(1)(a) permitted the officer to require the suspect to provide "two specimens" of breath. Section 8(1) referred to two specimens of breath. Here, pursuant to the requirement under section 7(1)(a) the appellant provided two specimens of breath. They were satisfactory and valid samples, as paragraph 5.5.5 of the Guide suggests. The fact the machine did not produce a reliable indication of the proportion of alcohol in them does not affect that. Once such a valid sample has been provided no further specimens of breath may be required. Section 7(3)(bb) permits the officer in such a case to require blood or urine, as MG DD/A suggests. Here, the officer required the appellant to provide the further two specimens of breath. For once he had chosen to provide those specimens the procedure, including the warning under section 7(7), was repeated.
21. Implicit in Mr. Corre's argument is the submission that each of the first set of specimens was "provided in such a way as to enable the objective of the…analysis to be satisfactorily achieved:" see section 11(3)(b). He submits that was so. If it were not, the officer could go on requesting breath ad infinitum.
22. Mr. Corre referred in his skeleton argument to a number of authorities. He accepted that only two were relevant. He primarily relied upon some observations of McCombe J in Jubb v DPP  EWHC 2317 (not before the Magistrates). That too was a "breath difference" case. There too the appellant was given the chance to repeat the breath analysis procedure. He refused. He was then required to provide blood which was above the limit. The submission in that case was the converse of Mr. Corre's. It was that if the officer believed the machine would have provided a reliable breath specimen analysis, he was obliged to require breath. The blood analysis could not lawfully be relied upon.
23. In the course of rejecting that submission, McCombe J stated (at paragraph 44) that "The officer was lawfully entitled to invite the appellant to give further specimens of breath as he did but he could not require them." He also stated (at paragraph 46) that "The constable was entitled to require a specimen of blood or urine and he did not have to require the defendant to provide two further specimens of breath."
24. Mr. Corre referred us to Creech  RTR 87. That was a case which concerned the provision of three valid specimens. The first was obtained in the machine's first cycle. Two others were obtained in the second. The prosecution relied only on the first two specimens and accepted the third was inadmissible. The issue was whether specimens from different cycles could be relied upon. Implicit in that was a consideration of the status of the third specimen. Mr. Corre submitted, as it is put in the headnote, "a constable…had power …to require no more than two specimens of breath for analysis." That meant here that the later specimens could not be relied on.
25. Ms Jacobson on behalf of the respondent first submitted that section 11(3)(b) is fatal to Mr. Corre's submissions. On no sensible interpretation can it be said, she submitted, that either of the first set of specimens was "provided in such a way as to enable the objective of the…analysis to be satisfactorily achieved." It is artificial to consider each specimen quite independently of the other. In such circumstances, section 7(1) does not prevent the officer either requiring or giving the person the option of providing two further specimens of breath.
26. As to the observations of McCombe J in Jubb, Ms Jacobson submitted they should be considered in context. He was saying no more than having been provided with the option of breath, blood or urine, Mr. Jubb could not be prosecuted for not providing breath. He has the choice of whether or not to do so.
27. Ms Jacobson distinguished Creech from the present case. There was no suggestion that any of the three specimens was not valid. Indeed, it was accepted all three were. All the court decided was that when there were 2 valid specimens (albeit in different cycles), the constable could not require a third. Here, she submits, the first two specimens were not valid.
28. I have come to the following conclusions.
29. First, section 7(3)(bb) deals with the circumstances in which a request for blood or urine may be made. By it, the officer is entitled to require blood or urine once the request for breath has resulted in an unreliable indication. Nothing in the section states that in such a case the officer is obliged to require blood or urine: that the option of a further breath test may not be offered. The various guidance documents have no statutory force. Moreover, their effect is to say no more than that the officer may move on to blood or urine, not that any other way of proceeding is necessarily unlawful.
30. Second, on any sensible interpretation of section 11(3)(b), each of the first two specimens (and of course I ignore the failed attempt at the outset) did not "enable the objective of the…analysis to be satisfactorily achieved." It seems to me to follow that once it is accepted that effectively no specimen of breath is provided, there would be nothing to prevent the officer requiring further specimens of breath. He is not obliged to do so. Insofar as McCombe J's observations in Jubb were intended to be to the contrary effect, I would with respect disagree. However, I agree with Ms Jacobson that they need to be considered in the context of the facts he was considering. I would add these three observations. Nothing in the judgment suggests his attention was drawn to section 11(3). If the sentence at paragraph 44 relied upon by Mr. Corre is as wide in its application as he submits, it was not necessary to the decision. I agree with what was said at paragraph 46.
31. However, as will become apparent, I doubt it is necessary to go as far as finding that the officer here required the appellant to provide two further specimens of breath in accordance with section 7(1)(a).
32. Third, on a careful analysis of the findings of fact in this case there may well be no conflict between this case and what McCombe J said in Jubb.
33. Paragraph 2(ix) of the Case makes it plain that PC Sanders "invited [the appellant] to choose [my emphasis] between providing two further samples of breath or providing a sample of blood. The appellant chose [my emphasis] to provide…breath." Only after that choice was made was the procedure (including the section 7(7) warning) gone through. Had Mr. Jubb made the same choice as the appellant, it is probable that the same procedure would have been carried out there as was here.
34. In such circumstances it seems to me artificial to speak of a requirement to provide specimens of breath. If so, as McCombe J held, there could be nothing unlawful about such a procedure being followed.
35. Fourth, there is nothing in section 8(1) which in any way affects the statutory interpretation set out above.
36. Fifth, I agree with Ms Jacobson's comments about Creech. Moreover, no equivalent provision to section 11(3) appears to have been considered by the court in that case. It would not have been material. If I am right about the effect of section 11(3)(b), then Creech would tend to support the view that specimens which are not valid need not be taken into account when deciding the number of specimens of breath which may be required.
37. I turn to the questions posed by the Magistrates.
38. As to question 1, I would answer it in the affirmative.
39. As there is no issue but that the police officer was acting in good faith, it is not necessary to answer question 2.
40. In the result I would dismiss this appeal.
41. Lord Chief Justice: I agree.