QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
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MR J BENSON (instructed by CPS) appeared on behalf of the DEFENDANT
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The district judge went on to express his conclusion in this way:
"I concluded in this case that the defendant had not done his best to provide a specimen and failed, so that he could not rely on a 'reasonable excuse', particularly as he had not informed the custody sergeant of his needle phobia. If he had done so, the officer could have sought medical advice and, if appropriate, required a specimen of urine. There was no causative link between the appellant's condition and his failure to provide the specimen. Although the line of authorities on the topic refer to failures to provide specimens of breath, I concluded that they could apply equally in cases involving failures to provide specimens of blood. To conclude otherwise would be to overturn the whole purpose of the legislation."
The district judge accordingly convicted the defendant and imposed a fine of £150, together with prosecution costs of £100 and disqualified him from driving for 12 months.
"When a motorist has been lawfully required to provide a specimen of blood for analysis and deliberately fails to provide such a specimen, whether he has a reasonable excuse for so failing when he suffers from a medical condition which might have prevented him from doing so but which he did not mention to the police constable requiring the specimen."
"Was I right to convict the appellant?"
"A state of affairs which does not affect ability to take a breath test or supply a specimen does not seem, on the authorities, to amount to a reasonable excuse."
A little later on, he says this:
"In our judgment no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physical or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health."
"The difficulty which the defendant faces in the present case is that on the findings of the justices as I read them, he on each occasion deliberately failed to provide the specimen. He did not provide such breath as he could, he simply avoided providing the breath and did so deliberately. He blew around the tube rather than into it.
In those circumstances, it seems to me that, in the context of this particular case, no question of reasonable excuse in fact arose ..."
I need not read any more from that judgment. I simply note that, on the findings of the district judge here, and as Mr Benson observed, this appellant seems to have made no attempt to provide a blood sample as requested.
"This, to my mind, means that there is a duty on the motorist in the circumstances outlined to provide a specimen. If a man suffers from a medical condition which either does, or may well, prevent him from giving a specimen of breath sufficient to enable the analysis to be carried out - that is what is required by section 12(3) of the Act of 1972 as amended - he still remains to my mind under a duty to provide a specimen. In such a case, specimens of blood or urine are the alternatives ...
If a man knows that he suffers from a medical condition which prevents him giving sufficient breath, his duty to provide a specimen must include, in those circumstances, a duty to inform the constable making the requirement of that medical condition. He having done so, the constable may of course require an alternative specimen or he may insist on a breath specimen. If he does the latter, he runs the risk that any consequent prosecution may well fail, if the medical condition can be justified by evidence on the grounds that the defendant has a reasonable excuse for failing to provide a specimen.
Of course, if the man does not have any knowledge of his medical condition or its effect on his providing a breath specimen, he can hardly be under such a duty to inform the constable. But I feel quite satisfied that if he does know, then his duty to provide a specimen includes a duty to inform the constable of his medical condition so that a specimen can be provided in those circumstances.
As Kennedy J has said, the question of reasonable excuse does not really arise in this case, but as this question of the extent of the duty was much canvassed during the argument, I thought it only right that I should add that footnote to what Kennedy J has said."
That last comment makes it clear that the previous observations of Forbes J were obiter dicta. Nevertheless they are clearly relevant to the present case: unless there be, as Mr Chapman submits, a plain and clear distinction to be drawn between cases involving a failure to give breath, which is the position in Teape v Godfrey, and a failure to give a sample of blood or urine, which is the position in the present case.
"The way the statute is worded using the present tense is such as to make it clear that there must be a direct relationship between the excuse relied upon and the failure to provide a sample. So that a man whose lung capacity is impaired to such an extent that he is incapable of providing a specimen, but who is unaware of that impairment, cannot rely upon it as excuse unless he makes a genuine attempt to provide the specimen. If he knows of his incapacity he may prefer to explain why it is not even worth making the attempt. If he is unaware of his incapacity and has made no genuine attempt, he cannot at the time of his failure have had any reasonable excuse for it. As it seems to me, the fact that he subsequently discovered that had he made a genuine attempt he would not have been able to provide a specimen is, for the purposes of the statute, irrelevant.
Mr McIlroy sought to persuade us that provided -- viewed objectively -- the medical condition existed which, had he made the attempt to provide the specimen, would have prevented him from providing it then, at the time when he was making the attempt, he had a reasonable excuse for not providing it.
For my part, I simply cannot accept that. In the course of argument, I put to Mr McIlroy the example of my being required to attend at a meeting some 300 or 400 yards away. I choose not to attend and make no effort to go. The fact that had I made the effort I would, on the way, have suffered a fatal heart attack cannot, as it seems to me, constitute a reasonable excuse for my failure to attend. It is simply an extraneous element. It is not something which, at the material time, played a part in the failure on my part to stir myself to go at all.
That approach to the statute seems to me to be fortified by the provisions of section 7(3)(a) to which I have already referred. As Mr Clarke, on behalf of the appellant pointed out, if a person in the position of this respondent makes an attempt to provide a specimen and does what he can, or if he explains that because of his condition he is unable to provide any specimen, then the officer who is conducting the inquiry is put in the position of being able to make a requirement that he should provide a specimen of blood or urine. If the suspect does not behave in the way that I have envisaged then, as it seems to me, the provisions of section 7(3)(a) are nullified."
"These cases make it clear that if a police officer requires the motorist to take a breath test in the police station and the motorist makes no effort at all to blow into the bag, then he cannot, subsequently, contend that he has a reasonable excuse for failing to do so."
It is also to be observed that at page 450 the court expressly noted that, on the facts as found, the police sergeant in that case did not know that the defendant was suffering from bronchitis and did not know that, at the time he made the requirement for the specimen, the defendant had a prescription in his pocket.
"It is, in any event, Sergeant McNeil on whom the focus of the inquiry must be concentrated. If he did not know of the bronchitis, and the defendant did not tell him about the bronchitis, then no objective observer could say that he had reasonable cause to observe that for medical reasons a specimen of breath should not be required."
It is true that observation is made in the context of section 7(3)(a); but as Kennedy LJ had previously said in the case of Furby, there is a clear link between section 7(3)(a) and section 7(6).
"7(1) In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, 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 or at a hospital; and it cannot be made at a police station unless—
(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or(c) the suspected offence is one under section 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;
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.
(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.
(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.
(7) 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."
I add that section 7(4) has recently been amended, but it is agreed that, given the timing of this offence, the previous version of that section applies.