QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE PENRY-DAVEY
|DIRECTOR OF PUBLIC PROSECUTIONS||Defendant|
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Mr S Brunton (instructed by DPP) appeared on behalf of the Defendant
Crown Copyright ©
"As a result of information received on 4th April 2007 PC6523 Johnson attended Haytor View, Heathfield, Devon where he located the appellant sitting alone in his motor vehicle which was parked in a car park.
PC Johnson spoke to the appellant and formed opinion he was drunk due to a strong smell of intoxicating liquor.
PC Johnson requested three or four times the appellant undertake a roadside breath test which he refused. The official request was given, warning the appellant if he failed or refused to undertake the test he may be prosecuted. He refused to take the test and was subsequently arrested, cautioned and conveyed to Torquay police station.
At 22.22 hours PC Johnson started the breath test procedure using form MG/DD/A and set up the Lion Intoxilyzer machine.
The appellant was told he was required to provide two specimens of breath and if he failed to do so he could be prosecuted. The appellant refused to provide a specimen of breath.
The appellant then left the room where the procedure was being conducted to speak to the duty solicitor, he returned to the room with PC Stoppard after his consultation. Whilst the appellant was out of the room PC Johnson commenced the operating cycle of the Intoxilyzer machine.
PC Stoppard gave evidence he commenced the test when the appellant was out of the room and as he had already refused to undertake the breath test.
On returning to the room the appellant indicated after taking advice he now wished to take the breath test. There was approximately one minute of the machine's three minute cycle left. At the first attempt the mouthpiece came off; at the second attempt the amount of breath provided was insufficient to be analysed satisfactorily. The machine then stopped.
The appellant was not offered another opportunity to undertake the test."
"Summary of relevant part of video
The officer goes through the form. When he gets to A15 ..."
Pausing there for one moment. A15 is one part of the form used for these procedures. Continuing with the document:
"... and gets the answer 'No', he does not charge but says, 'Is there any reasonable excuse for not giving a specimen of breath?' Before the accused answers, there is a knock on the door. The officer asks, 'Do you want to speak to your solicitor now?' The accused says 'Yes', and leaves. The officer then sets the Intoxilyzer running.
The accused is out for about eight minutes. When he returns, the officer says, 'Have you had a chance to speak to your solicitor'? Yes.' 'Do you still not want to provide breath specimen?' 'He has advised me to.' 'You've already refused though, so what are we going to do? I'll put a mouthpiece on, we haven't got a lot of time.' While the officer is saying this, the accused has taken hold of the device and the mouthpiece comes off.
The accused blows into the new mouthpiece and then takes it away from his mouth. The officer does not appear to be watching and gives him advice to blow harder after he has already taken it away from his mouth. That blow produces no result and the officer says 'Take a deep breath' and 'It is just purging.' He gets advice on blowing. The machine then runs out of time. The officer appears to say, 'I think we'll do it again' before leaving the room. When he returns several minutes later the conversation could not be heard."
"We find by allowing him to do this, that satisfied the expectation that he would be allowed to provide another specimen and it was not incumbent on PC Johnson to start another cycle on is the machine.
We therefore found there was no reasonable excuse for failing to provide a specimen of breathe."
"Where the matter under investigation is a suspected offence contrary to section 5 of the Road Traffic Act 1988 it is really conceded by Mr Jennings, and in my view rightly conceded, that in this jurisdiction the public interest requires that the obtaining of breath specimens part of the investigation cannot be delayed to any significant extent in order to enable a suspect to take legal advice. That, to my mind, means this -- that if there happens to be a solicitor in the charge office whom the suspect says that he wants to consult for a couple of minutes before deciding whether or not to provide specimens of breath he must be allowed to do so. Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor in question is immediately available. But where, as here, the suspect does no more than indicate a general desire to have legal advice, I see no reason why the custody officer should not simply continue to take details, and alert the solicitors' call centre at the first convenient opportunity."