CO/1423/2008 
Neutral Citation Number: [2008] EWHC 1335 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 15th May 2008
 
B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE PENRY‑DAVEY 
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Between: 
PLACKETT 
Claimant

v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr A Vaitilingan (instructed by Bay Advocates) appeared on behalf of the Claimant
Mr S Brunton (instructed by DPP) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE PENRY DAVEY:  This is an appeal by way of case stated against the conviction of the appellant by the Totnes Justices on 6th November 2007 for failing to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988.  We grant the necessary extension of time for this appeal.  
2.	The justices found the following facts:
"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."
3.	Those matters have been amplified somewhat, we understand, from the video recording that is made of all events of this kind in a document, which forms an agreed addition to the facts that I have recited as found by the justices.  That document is in these words:
"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."
4.	It is clear that, despite the words of the officer indicating that it was to be done again, that did not in fact happen and was not an opportunity that was given to the appellant.
5.	Before the justices the appellant contended that he should have been offered another opportunity to take the breath test, using a full cycle of the Intoxilyzer machine.  The respondent contended that once the appellant had refused to give a breath test, it was for the officer to decide whether he should be permitted to take the test after speaking to the duty solicitor.  The appellant having failed to provide a sample, the officer was under no obligation to start the cycle again.
6.	The justices were of the opinion that the appellant was given an expectation by the officer that he would be able to take a breath test when he was allowed to take the test with approximately one minute of the Intoxilyzer machine's cycle left.
7.	The appellant made two attempts to give a specimen.  On the first occasion the mouthpiece of the machine came off and on the second the appellant did not blow sufficient breath.  
8.	The justices expressed their findings in this way:
"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."
9.	The questions for the opinion of this court are: (1) whether the justices were entitled to convict, when, in the conduct of the breath test procedures provided for in section 7 of the 1988 Act the officer administering the test began the operation of the machine in the absence of the appellant; (2) whether the justices were right to find the appellant had a proper opportunity to provide a specimen given that the officer allowed him only one minute instead of the usual three in order to provide the two specimens required?  
10.	The appellant concedes that having refused to provide a specimen and having left the room, it was unnecessary for the officer to start the cycle.  He could simply have charged the appellant on his second refusal with failing to provide a specimen.  However, the appellant also points out that the officer chose to continue with the process for the obtaining of the sample by starting the approved device and doing so while to his knowledge the appellant was out of the room taking legal advice.  When the appellant returned to the room and indicated his willingness to participate, the officer allowed him to try to provide the required two samples in the remaining one minute of the cycle rather than the three minutes of the normal cycle.  After the device stopped at the end of the period with no specimen reading the officer refused to allow him to try again.  
11.	The appellant accepts also that the public interest requires that the obtaining of the breath specimens cannot be delayed to any significant extent in order to enable a suspect to take legal advice.  Additionally, where legal advice has been requested it is conceded that it is not necessary for an officer administering the breath test to wait for an uncertain time for a lawyer to be spoken to on a telephone, or to travel to a police station.
12.	In this case it is submitted that the officer did not have to wait for an uncertain time and once it was known that legal advice was immediately available, and that the appellant wished to take it prior to proceeding further, it was incumbent on PC Johnson to allow the appellant the opportunity to act upon that advice notwithstanding his earlier refusal.  The appellant contends that, whether or not the officer was entitled to start the cycle in his absence, no proper opportunity was given to him to provide a specimen after he had returned to the room and indicated that he was willing to do so.  The appellant illustrates the argument by asking what the conclusion would be if the officer decided after one minute of the cycle of the approved device that he was going to stop it because the suspect had failed to produce specimens in that time.  That, he submits, could not constitute a proper opportunity.
13.	Finally, he submits that given that the justices found that the appellant was given an expectation by PC Johnson that he would be able to take the breath test, notwithstanding the earlier refusal, the expectation was not satisfied since the approved device was not subsequently operated in its normal way.
14.	Mr Brunton on behalf of the respondent submits that the offence of failure to provide was complete, at the latest, at the stage when the appellant left the room to seek legal advice and, in any event, before he attempted the breath test procedures following his return to the room.  Alternatively, he submits that the appellant by his conduct persisted in his refusal to provide a specimen even when he purported to do so on his return to the room.  He categorises the conduct after the return to the room as a sham.  He points out in relation to the chronology, though this is not clear from the stated case, that the written breath test procedure commenced one hour and 20 minutes after the first request to provide and that the form indicates that it was towards the end of that procedure that there came the knock on the door with the information that the duty solicitor was on the telephone.  It is, however, common ground that the officer allowed the appellant the opportunity of speaking to the duty solicitor.  It is further submitted that the officer started the Intoxilyzer machine to provide the requisite paperwork.  Mr Brunton submits that was essentially a matter of evidence but that it does not affect the fact that the offence was, as he submits, complete before the appellant left the room.
15.	We have been referred to the case of Smyth V DPP [1996] RTR 59, where a defendant initially refused to provide a specimen, but within some five seconds said, "Can I change my mind?"  Followed by the words, "I want to change my mind."  This court held that whether the defendant's words and conduct amounted to a refusal was a matter of fact for decision by the tribunal of fact, but it was clear from the justices' findings that they had ignored the words indicating a change of mind and that the only conclusion that could reasonably be arrived at in the light of everything the appellant had said was that he was not proved to have failed to provide a specimen.  In that case McCowan LJ referred to the decision in Procaj v Johnstone [1970] Crim LR 110 and distinguished the position where a defendant had refused to give specimens of breath, blood or urine over a substantial period, but then some 26 minutes after the earlier refusals had volunteered to give a specimen.  The court held there that despite the change of mind the offence had been committed and was complete before that occurred.
16.	There is in this case the further element of the impact, if any, of the legal advice and the fact that the appellant was allowed to consult on the telephone with the duty solicitor.  In the case of Kennedy v Crown Prosecution Service [2002] EWHC 2297 this court considered the right to legal advice in the context of an investigation into a suspected offence under section 5 of the 1988 Act.  Kennedy LJ at paragraph 31 of his judgment said this:
"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." 
17.	In this case, in my judgment, it may well be that the appellant having refused to provide a specimen of breath and left the room, albeit with the permission of the officer, to speak to the duty solicitor, the officer would have been entitled to treat the refusal as the commission of the offence and not to offer any further opportunity to the appellant to provide a specimen.  However, it is clear that he chose not to do that, and, having commenced the operating cycle of the Intoxilyzing machine whilst the appellant was out of the room, for whatever purpose, gave the appellant the opportunity to provide a specimen when the appellant returned to the room and indicated that after taking advice he wished to take the breath test.  There is, in my judgment, on the facts as stated no basis for concluding that the conduct of the appellant on his return to the room was simply a sham.  Had the justices drawn that conclusion, that might affect the result in a particular case.  
18.	I do not consider that we would be justified in drawing that conclusion from the facts as recited, albeit that there are indications that on a number of occasions the appellant had previously refused the offer to take a test.  In my judgment, the officer having decided that he would give the appellant the opportunity, it was incumbent on him to give an opportunity to take the test in the normal way, using a full cycle of the Intoxilyzer machine, which is, of course, and has to be for the purposes of any offence under the Act, an approved device in relation to which there are procedures that are laid down.
19.	It is to be noted that the justices were of the view that the appellant was given the expectation by the officer that he would be able to take the breath test and that what occurred within the remainder of the cycle of the machine satisfied that expectation.  In my judgment, it did not.  One would be entitled to pose the question: what if the attempt by the appellant had registered on the machine?  It is hard to think that in a situation of that kind that there would be any prosecution for failure to provide a specimen, albeit, if the submissions on behalf of the respondent are right, that would be the inevitable result.  What would happen in such a case is if the test was positive there would no doubt be a prosecution for that, or for a further sample provided, and if it were not the matter would go no further.  But, in my judgment, what happened in this case did not provide the opportunity that the officer had decided he would give the appellant.  
20.	So dealing with the questions posed by the justices: as to the first question, I do not consider that the fact that the officer administering the test began the operation of the machine in the absence of the appellant would necessarily be a bar to conviction.  But in the circumstances of this case, where the appellant subsequently expressed the wish to take the test and the officer by his conduct agreed to the request, the offence was not in my judgment made out where the normal procedure with the approved machine running full cycle was not carried out.  As to the second question, in my judgment, the answer is no.
21.	Accordingly, I would allow this appeal and quash the conviction. 
22.	LORD JUSTICE MAURICE KAY:  I agree.  Cases of this sort whilst concerned with an universal statutory procedure are ultimately fact sensitive.  In this case the magistrates did not find that the appellant had deliberately frustrated the procedure when he failed to blow hard enough at the first attempt or when the mouthpiece came off on the second attempt.  If there had been such a finding, the appeal would not have succeeded.  Moreover, in a slightly different factual context and with a slightly different chronology of events, the two refusals which immediately preceded the knock on the door would have been capable of supporting a conviction, but for the reasons given by my Lord they do not do so in the present case, the facts of which seem to me to be atypical.  I would answer the questions as my Lord has indicated and would allow the appeal, quashing the conviction.
23.	MR VAITILINGAN:  My Lords, the appellant has the benefit of a representation order.  Can I ask for legal aid assessment in respect of his costs?
24.	LORD JUSTICE MAURICE KAY:  Yes, certainly.  
25.	MR VAITILINGAN:  So far as the court below was concerned, can I ask for a defendant's costs out of central funds to cover our proper expenses? 
(Pause) 
26.	LORD JUSTICE MAURICE KAY:  He was publicly funded in the court below? 
27.	MR VAITILINGAN:  Yes, so simply proper expenses.  I don't know what they would be.  Small.
28.	LORD JUSTICE MAURICE KAY:  You are not asking for ‑‑ his own ‑‑ you are asking for his own personal out of pocket expenses? 
29.	MR VAITILINGAN:  Yes.
30.	LORD JUSTICE MAURICE KAY:  How far away does he live from the court? 
31.	MR VAITILINGAN:  I don't know.  (Pause).  It will be nominal. 
32.	LORD JUSTICE MAURICE KAY:  I don't think we will bother with that. 
33.	MR VAITILINGAN:  Thank you very much.