England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		29th June 2005

1. MR JUSTICE CRANE: This is a case stated by the Justices for De Brycheiniog in Dyfed, Powys sitting at Brecon. On 6th January 2005, they held that there was no case for the respondent to answer on a charge under section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
2. The charge was that having been required to provide a specimen or specimens of breath for analysis by means of a device of the type approved by the Secretary of State, pursuant to section 7 of the Road Traffic Act 1988, in the course of an investigation into whether he had committed an offence under section 3A, 4 and 5 thereof, he failed, without reasonable excuse, to do so.
3. The facts found by the Justices, in so far as they are relevant, are in paragraph 2 of the case.

(a) The respondent was driving a black motorcar at about 21.00 hours on the evening of 20th July 2004.

(b) The respondent was lawfully stopped by the police officers who smelt alcohol on his breath and who lawfully required him to provide a roadside breath specimen.

(c) The breath was positive and the respondent was arrested and conveyed to Brecon Police Station.

(d) At the police station the respondent was requested to provide samples of breath by means of a Lion Intoxilyser machine.

(e) At 22.15-hours and 22.22-hours respectively, the respondent failed to provide the required specimens of breath and was consequently charged with the offence.

(f) That during the Intoxilyser procedure, when asked by the police officer whether he had eaten anything, the respondent replied "might have had a tic-tac."

(g) That part of paragraph A13 of form MGDDA Station Procedure General Booklet reads "If the suspect has consumed alcohol or used a mouth spray, mouthwash or medication or has eaten, inhaled, taken or used anything ... wait for 20 minutes before the test."

h) That the police officer did not wait the specified 20 minutes and proceeded to carry out the breath specimen procedure.

i) That the police officer had not received training in relation to the requirement to wait 20 minutes.

4. We have been invited to read the affidavit of the respondent's solicitor as to the course of argument, but in my view we are limited to the four walls of the case stated.
5. It was contended by the respondent, both before the Justices and today, that the police officer should have waited 20 minutes in view of the respondent's reply, and that any test requested thereafter would be unlawfully requested since he had failed to comply with the form. It was argued that the police officer was unqualified to comment on any effect that the failure to wait 20 minutes might have upon the results of the breath test as he was untrained on that issue.
6. The Justices in paragraph 6 of the case reached the following conclusions:

"We were of the opinion that.

(a) The police officer should have waited 20 minutes before undertaking the breath test procedure once he was informed that the respondent might have eaten something.

(b) that the police officer could not prove that consumption of the tic tac would not affect the breath test specimen.

(c) that the police officer had not received training in respect of the consequences of failing to wait 20 minutes.

(d) That the applicant was unable to refer the court to relevant authority, which stated that the requirement to wait 20 minutes was not mandatory and non-compliance with this procedure was lawful.

(e) That the case of DPP v Kay (1999) was not relevant to this case as it referred to failure to comply with the roadside breath test procedure, used a basic screening devise.

(f) That in view of the guidance set out in R v Galbraith (1981) there was an inherent weakness in the evidence owing to the police officer's failure to comply with the correct procedure and accordingly we found that there was no case to answer.

The question for the opinion of the High Court is whether the Justices were right to hold that Constable 298 Dillon's failure to follow the procedure set out in paragraph A13 of form MGDDA rendered his request for a sample unlawful."

7. There was thus, in fact, no evidence about the effect that a tic tac, if indeed it was consumed, would have had on the reading. In fact, the respondent declined to provide a specimen and, so far as this court is aware, it is not suggested that that failure had anything to do with his consumption of a tic tac.
8. As the case stated indicates, the Justices were referred to DPP v Kay [1999] RTR 109. In that case this court was considering a decision by Justices to exclude evidence under section 8 of the Police and Criminal Evidence Act where a police officer had allegedly failed to follow the guidance in relation to a roadside breath test. The court pointed out that that procedure was not required by the Act and sent the case back to the Justices with a direction to admit the constable's evidence of that test. That is, in my view, of some assistance in this case, but is not central to what this court has to decide.
9. The essential reasoning depends on a reading of section 7. Section 7(1) reads:

"In the course of an investigation into whether a person has committed an offence ... 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 ..."

The constable must, under subsection (7), warn the person of the consequences of a failure to provide a specimen and subsection (6) enacts the offence of failing to provide a specimen when required to do so without reasonable excuse.

10. There is nothing in that section to indicate that a requirement is unlawful if guidance in the form, to which I have referred, is not followed. Even in the absence of authority it would seem to me that that is the clear answer to the case. Nevertheless, there is an additional authority which is of assistance.
11. In DPP v Smith [2000] RTR 341 this court was considering a requirement for breath at a police station under section 7. The particular point that arose in that case was in fact different because the issue there related to the calibration and reliability of the proved device and a consideration of section 7(3). However, the remarks of Turner J, in the course of delivering the principal judgment, are of interest:

"I have examined the forms MG DD/A and B and conclude that they are, in essence, no more than what I would describe as the 'plain man's guide' to a simple understanding of the procedures provided by the Act of 1998 to ensure, in a practical way, that those called upon to operate the procedures do not omit a relevant step; that, at stages where there is a choice of steps, they appreciate that such a choice exists; and it also offers quite clearly common sense guidance as to the way in which choices should be exercised when they fall to be made."

If there is a failure to follow the guidance it is possible, in certain circumstances, that that might affect the reliability of a specimen that was, in fact, provided. There are limited circumstances in which a challenge to the reliability of a specimen that is provided can arise. That, in my view, is not relevant here. No specimen was provided. There was a failure to provide a specimen.

12. In my judgment the Justices were wholly wrong to regard the argument that had been advanced as of any relevance. They were wrong to conclude that there was no case to answer. For my part, I would send the case back to the Justices either for a rehearing before a different bench or with an order for the continuation of the proceedings.
13. LORD JUSTICE KENNEDY: I agree. Mr Heywood, is there any logistical difficulty about sending it back to continue the hearing, as far as you are aware?
14. MR HEYWOOD: I think not, my Lord.
15. LORD JUSTICE KENNEDY: The order will be, as my Lord indicated, that the matter will be remitted to the same court with a judgment of this court in order to continue the hearing.
16. MR HEYWOOD: Thank you, my Lord.
17. LORD JUSTICE KENNEDY: Mr Heywood, I gather you need legal aid assessment?
18. MR HEYWOOD: I do.
19. LORD JUSTICE KENNEDY: You may have it. Thank you for your attendance.