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
		23rd February 2006

Thursday, 23rd February 2006

1. LORD JUSTICE RICHARDS: This is an appeal by way of case stated from a decision of the South Devon Justices sitting at Totnes Magistrates' Court on 24th January 2005 by which they convicted the appellant of driving a motor vehicle after consuming excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.
2. The facts found by the justices are very clearly set out in the case stated. At about 11.30 hours on 10th January 2004 the appellant was stopped by the police while driving his motor vehicle in Rathmore Road, Torquay. At 11.32 hours, on the same date, he provided a positive roadside breath test. He was conveyed to Torquay police station. At the police station Police Constable Wickenden requested him to provide two specimens of breath for analysis, using the Lion Intoxiliser equipment. Before commencing the Intoxiliser procedure the officer warned the appellant that a failure to provide such specimens might render him liable to prosecution. At 12.13 hours, on the same day, the appellant provided a specimen of breath which gave a reading of 90 micrograms of alcohol in 100 millilitres of breath. A minute later he provided a specimen of breath which gave a reading of 76 micrograms of alcohol in 100 millilitres of breath.
3. The officer concluded that the variance between the two readings was too great and that the test he had just conducted was not reliable. He then invited the appellant to provide two further specimens of breath for analysis, stating:

"I am going to do another test. I am not happy about it, I can't use that one. If we get the same reading we will have to go for blood."

The officer did not offer the appellant the option of providing blood or urine. The appellant agreed to provide two further specimens of breath for analysis. The officer then commenced the Intoxiliser procedure anew, although he accepted that he did not warn the appellant a second time that a failure to provide such specimens might render him liable to prosecution. At 12.21 hours the appellant provided a specimen of breath which gave a reading of 89 micrograms of alcohol in 100 millilitres of breath. A minute later he provided a specimen of breath which gave a reading of 86 micrograms of alcohol in 100 millilitres of breath.

4. The appellant was convicted, fined and disqualified.
5. It was contended by the appellant before the justices that the procedure whereby he provided two further specimens of breath for analysis was defective because the police officer, before commencing the procedure, did not administer a fresh warning to the appellant under section 7(7) of the 1988 Act that a failure to provide such specimens might render him liable to prosecution.
6. The justices rejected that contention. The question they ask in the case stated is effectively whether they were right to do so. The question in full is as follows:

"When in the course of an investigation into whether a person has committed an offence contrary to section 5(1)(a) of the Road Traffic Act 1988, that person provides two specimens of breath into an approved device and the operator has reasonable cause to believe that the device has not given a reliable indication of the proportion of alcohol in the breath and thus the operator requests that further specimens be provided, is it incumbent upon the operator (the request having been acceded to in principle) to formally require that those two further specimens of breath be provided and to issue the warning detailed in section 7(7) of the Road Traffic Act 1988, irrespective of the shortness in time that has elapsed since such a warning was given when an earlier, and void, test took place?"

7. For an understanding of the authorities to which I will refer in a moment, I need to go wider than the provisions directly in issue in this case. Section 7 provides:

"(1) In the course of an investigation into whether a person has committed an offence under section 3A, 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.

...

(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 -

...

(bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device 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, 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."

8. Section 11(3) provides:

"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."

9. There are three relevant authorities which form the backdrop to the submissions. The first is Murray v Director of Public Prosecutions [1993] Crim LR 968, a judgment of a Divisional Court dated 4th February 1993. In that case the court held that the relevant statutory provisions constitute a strict and compulsory code whereby a set of preconditions must be fulfilled before any specimen produced by the defendant can be adduced in evidence, and that that is so irrespective of whether non-compliance with the preconditions has in fact caused any discernible prejudice.
10. In Jubb v Director of Public Prosecutions [2002] EWHC 2317 Admin, a warning under section 7(7) was given before two specimens of breath were obtained. The officer formed the view that those specimens were unreliable owing to the appellant having provided specimens of uneven volume. The officer then gave the appellant the chance to repeat the breath analysis procedure, but stressed that the appellant was under no obligation to do so. The appellant declined. He was then required to provide a specimen of blood. One of the issues on the appeal was whether the officer was entitled to require a specimen of blood in those circumstances.
11. It was argued on the appellant's behalf that if the officer believed that the breath test device would provide a reliable reading if used again he should have required a second set of specimens of breath rather than requiring a specimen of blood.
12. That argument was rejected by McCombe J who stated in paragraph 44 of his judgment that the officer was lawfully entitled to invite the appellant to give further specimens of breath, as he did, but he could not require the appellant to do so. The effect of section 7(3), however, was that he was entitled, in the circumstances, to require a specimen of blood or urine, and by section 7(4) (which I have not read) it was for the officer to choose whether it should be blood rather than urine.
13. The third of the cases is Stewart v Director of Public Prosecutions [2003] EWHC 1323 Admin The facts in that case were that the appellant provided two specimens of breath but there was a considerable difference between them. For that reason they were an unreliable indication of the amount of alcohol in his breath. The officer then gave the appellant the choice of either providing two more specimens of breath, or providing specimens of blood or urine. The appellant chose to provide two more specimens of breath. The procedure was then repeated in its entirety, including the warning under section 7(7). The lower reading of the second set of specimens was relied on by the prosecution and formed the basis of the conviction.
14. It was argued that section 7 did not permit reliance on that further specimen; that the officer was not entitled to give the appellant the option of providing further specimens of breath, but was obliged to require him to provide a specimen of blood or urine.
15. Again the argument was rejected. On appeal Goldring J, with whom the Lord Chief Justice agreed, stated that by section 7(3)(bb) the officer was entitled to require a specimen of blood or urine once the request for specimens of breath had resulted in an unreliable indication. Nothing in that provision, however, precluded the offer of a further breath test. Further, on any sensible interpretation of section 11(3)(b) each of the first two specimens did not "enable the objective of the... analysis to be... achieved." Since, effectively, no specimen of breath had been provided there was nothing to prevent the officer requiring further specimens of breath, though he was not obliged to do so.
16. Insofar as McCombe J's observations in Jubb were intended to be to the contrary effect, that is to say what he said in paragraph 44, that the officer could not require further specimens, Goldring J disagreed and observed that McCombe J's attention did not appear to have been drawn to section 11(3) and that the relevant sentence of paragraph 44 of his judgment was not necessary for his decision.
17. On the actual facts of Stewart, however, it was held that in any event the officer did not require the appellant to provide the further specimens. He invited him to choose and it was only after the choice was made that the procedure, including the section 7(7) warning, was gone through.
18. In the light of those authorities, Mr Vaitilingam, who appears on behalf of the appellant, accepts that the officer in the present case was entitled to invite the appellant to provide a second set of specimens of breath and to do so without, at the same time, offering the option of providing blood. He submits, however, that if the motorist accepts such an invitation, as the appellant did here, it is incumbent on the officer to repeat the statutory procedure, including the warning under section 7(7). That is what was done in the case of Stewart and it is submitted that that is what should have been done here.
19. Mr Vaitilingam accepts that if the matter rested simply on the basis of an invitation to provide a further set of specimens, there would be no basis upon which the person concerned could be warned. He contends, however, that once the officer has obtained the consent of the person concerned, he is obliged then to require that person to provide further specimens and to go through the statutory procedure again, including the giving of a warning under section 7(7). He submits that otherwise one would be going through a process not provided for under the statute and a process that might lead the person to incriminate himself. One should not approach the statute in such a way as to allow that result.
20. Mr Vaitilingam further points out that if the officer chose to go down the alternative route of obtaining a specimen of blood or urine he would be obliged to do so by way of a requirement and to give the relevant statutory warning. It is said that the failure to give the warning in this case was a fatal defect, irrespective of whether that failure caused any prejudice to the appellant, and that the failure precluded reliance on the specimens of breath that were then provided.
21. In my judgment it was not necessary for the officer to give the appellant a further warning under section 7(7). That subsection, as Mr Vaitilingam recognises, obliges an officer to give a warning on requiring a person to provide a specimen. Such a warning was given at the outset when the appellant was required to provide specimens of breath. After the first set of specimens proved unreliable, the officer did not impose any further requirement that the appellant provide specimens, nor, as it seems to me, was he obliged to impose any such further requirement.
22. What happened thereafter was voluntary. The officer invited the appellant to provide a further set of specimens and the appellant agreed to do so. Section 7(7) plainly does not apply in that situation. Indeed, the very purpose of the subsection is inapplicable in such a situation. As its terms make clear, the purpose is to warn that failure to provide a specimen as required may render a person liable to prosecution. But a failure to provide a specimen when invited, rather than required, to do so cannot render a person liable for prosecution. The only consequence of a failure to provide a specimen in those circumstances is that the officer may exercise his further powers to require a specimen to be given, whether that be a specimen of breath or of blood or urine.
23. I would reject Mr Vaitilingam's contention that where an invitation has been made to provide a further specimen of breath and the motorist has agreed to do so, the officer is then obliged to go through the entire procedure of imposing a requirement on the motorist to provide such a specimen. That, as it seems to me, goes against what was decided in Stewart. It leaves no real room for the possibility that was accepted both in Jubb and in Stewart of there being an invitation to provide a further specimen as something distinct from a requirement to provide a further specimen. It would create the problem that a course of action to which the motorist has expressly consented would be converted into a matter of requirement exposing him to the risk of prosecution if he then failed to provide a specimen. In my view that is a conclusion that one should be slow to avoid.
24. It does appear that a warning under section 7(7) was given in Stewart, even though the further procedure was carried out following the motorist's acceptance of an invitation to go down that course. The court passed no comment on the point, which was not one of the matters in issue before it. For my part, whilst holding that a warning does not need to be given in such a situation, I do not think that the giving of a warning creates any legal difficulty. In my view it is unnecessary and inappropriate, but does not render the procedure in any way unlawful.
25. The court does not need to decide whether a further warning under section 7(7) would have to be given if the officer had exercised his power to require rather than to invite the appellant to provide a further set of specimens of breath. In their Case Stated the justices indicate their view that the procedure under which the officer conducted the second test followed on very closely in time to the first test and therefore formed part of one continuous test so that, in effect, the original warning continued to govern it. I can see the attraction of that way of looking at it. On the other hand, in the circumstances under consideration, the officer would appear to be imposing a new requirement to provide a specimen, and, on the face of it, section 7(7) obliges him to give a warning on imposing such a requirement.
26. Undoubtedly the safe and sensible course, if a person is once more required to provide a specimen, is to give the warning again. But I would leave open the question whether the further procedure was lawful, if, in the circumstances under consideration, no further warning was in fact given.
27. For the reasons I have given, I would dismiss this appeal.
28. MR JUSTICE DAVID CLARKE: I agree.
29. LORD JUSTICE RICHARDS: Is there any further matter?
30. MR VAITILINGAM: My Lord, there are other matters in relation to the disqualification and in terms of costs and the appellant's legal representation. Firstly, so far as disqualification is concerned, his disqualification was, as I understand it, suspended pending the outcome of an appeal to the Crown Court, although his legal advisers at that stage moved on from appeal to the Crown Court to appeal by way of case stated. But I understand his disqualification remains suspended pending the outcome of this appeal. The disqualification will then have to take effect. I do not anticipate it will be necessary or cost effective to remit the matter back to the magistrates to impose the disqualification --
31. LORD JUSTICE RICHARDS: We can order that that disqualification should take effect immediately.
32. MR VAITILINGAM: Would your Lordship give me the opportunity to speak to my instructing solicitors to have them pass the message on to the appellant?
33. LORD JUSTICE RICHARDS: Yes. David Clarke J suggests 1 o'clock so as to give you that opportunity.
34. MR VAITILINGAM: I anticipate there will be an application for costs. The defendant is legally aided. Would your Lordship make the appropriate order for assessment of his Legal Aid funding?
35. LORD JUSTICE RICHARDS: Yes. Detailed assessment for Legal Aid purposes. There is an application for costs, is there?
36. MISS PITTS: My Lord, yes.
37. MR VAITILINGAM: Will your Lordship say not to be enforced --
38. LORD JUSTICE RICHARDS: Subject to the usual order for publicly funded litigants. I can never remember the precise terms, but you are not opposing the application?
39. MR VAITILINGAM: I cannot oppose the application, but if it is not enforced without the usual procedure being followed.
40. LORD JUSTICE RICHARDS: The associate will have the form of words. I am always corrected when I try to get it right. So we will say the appellant is to pay the DPP's costs subject to the normal Legal Aid proviso.
41. MR VAITILINGAM: Thank you very much.
42. LORD JUSTICE RICHARDS: It is all to do with postponing the assessment of those costs, I think.
43. MR VAITILINGAM: It is interesting when you read the other judgments from the other cases that nobody seems to know quite what the appropriate terminology is. We should have it drilled into us.
44. LORD JUSTICE RICHARDS: That is a very good idea. Then you would be able to tell the court.
45. Thank you very much.