QUEEN'S BENCH DIVISION
Royal Courts of Justice
B e f o r e :
MR JUSTICE SULLIVAN
|MELISSA EVANS PIGGOTT||(APPELLANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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Mr Ian Goldsack (instructed by the Director of Public Prosecutions) appeared on behalf of the DEFENDANT
Crown Copyright ©
"A) On 22 April 2006 at 01.00 hours PC Armstrong and PC Leach attended at Malvern Road, Darnall in response to reports of a road traffic collision.
B) At approximately 01.03 hours the Appellant was followed by the officers and was observed to stop outside 43 Industry Road, alight from the driver's seat and approach the police vehicle.
C) The Appellant was arrested at 01.05 hours on suspicion of being unfit to drive a motorcar through the consumption of drink or drugs. She was not required to provide a breath test at the scene, but was required to provide a roadside type breath test once at the police station.
D) PC Henderson was called to operate the Lion Intoxilyzer and at 02.24 hours asked the Appellant if she agreed to provide two specimens of breath for analysis. The Appellant agreed but then failed to provide sufficient breath for a specimen to be obtained.
E) PC Henderson again asked the Appellant if she agreed to provide two specimens of breath and the Appellant again agreed but then failed to provide sufficient breath. In total the Appellant made four attempts to provide specimen, each attempt lasting approximately half a second.
F) When then asked by PC Henderson if there were any medical reasons why she could not provide two specimens of breath, the Appellant answered 'No'.
G) The Appellant was not suffering from an asthma attack when attempting to provide the specimens of breath or when she was arrested.
H) In a medical report prepared on behalf of the Appellant and accepted by the prosecution, Dr Bruce John Hutchcroft, specialist in respiratory medicine, stated that in his opinion 'there is a medical reason why (the Appellant) failed to give a breath specimen', namely that she suffered from asthma and hyperventilation syndrome. We accepted the contents of this report.
I) PC Armstrong signed the form MG DD/A as having witnessed all of the breath test procedure. PC Armstrong assisted PC Henderson by completing A1-A3 of the Intoxilyzer pro forma. These matters were confirmed by PC Armstrong in evidence.
J) The Appellant did not at any point tell PC Henderson that she suffered from asthma or that there was any medical condition that could affect her ability to provide specimens of breath."
"3. It was contended by the Appellant that:
A) On the evening in question the Appellant had gone out in her Mother's car to visit her cousins and had only drunk half a pint of lager at around 10.00 hours.
B) The Appellant told PC Armstrong just prior to arrest that she could not blow very hard.
C) Whilst PC Henderson was preparing the mouthpiece of the Lion Intoxilyzer the Appellant told PC Armstrong that she would try the best she could but that she suffered from asthma. PC Armstrong replied that there was a doctor's room nearby if anything happened. PC Henderson was about twenty feet from them during this conversation.
D) Having told PC Armstrong she suffered from Asthma the Appellant did not feel she needed to tell PC Henderson. E) On being required to provide two samples of breath for analysis the Appellant put her mouth over the mouthpiece of the Lion intoxilyzer and tried the best she could.
A) On arrest the Appellant was drunk, smelt strongly of intoxicants and was unsteady on her feet. In the police station the Appellant appeared agitated, abusive and drunk, and was swearing and shouting.
B) A roadside breath test was not carried out prior to arrest as PC Armstrong felt the Appellant was so clearly unfit to drive through drink or drugs that the test was not necessary and it would not have assisted him in his decision to arrest her.
C) The Appellant made only half-hearted attempts to provide breath specimens; she was not trying or making any real effort to provide a breath sample.
D) Having failed after four attempts to provide a specimen, the Appellant told PC Henderson, 'I don't have to - you can't make me do this'.
E) The Appellant did not say anything to PC Henderson or PC Armstrong concerning her medical condition, neither officer was aware that the Appellant suffered from asthma or any medical condition which could have prevented her from providing adequate breath specimens."
"We were of the opinion:
A) Although the medical condition may have been mentioned to PC Armstrong, the Appellant on two occasions failed to provide sufficient breath for a specimen to be taken without giving any explanation for that failure to the officer requiring her to provide the specimens, and then, on being directly asked if there were any medical reason why she couldn't provide specimens the Appellant gave a negative reply. The Appellant therefore had not put forward any reasonable excuse for her failure to provide.
B) Following the case of Teape v Godfrey if the Appellant knew that she suffered from a medical condition which might affect her ability to provide a sample she was under a duty to inform the officer making the requirement to provide breath specimens of that medical condition. The Appellant had not informed PC Henderson of her medical condition and we therefore found her guilty of the offence charged."
(ii) Should the justices have found that the Appellant informing another officer who witnessed the breath test procedure was sufficient?"
"(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."
"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."
"We have no hesitation in saying, with all due respect, that we do not approve of the observations of Forbes J in Teape which were drawn to our attention. The learned judge declares that a person who knows that he suffers from a medical condition which may affect his ability to provide a specimen of breath has a duty to disclose it when the requirement is made, so that the officer making the requirement may consider the use of his power under section 8(3) to require the provision of a specimen of blood or urine instead of breath. He does not, however, go on to explain what the sanction is if a person fails to fulfil that duty. If Forbes J intended it to be understood that a failure to fulfil the duty would have the result that the question of reasonable excuse could not thereafter be put in issue at his trial, then we totally disagree with him. The offence under which section 8(7) is not one of failing to provide a required specimen coupled with a possible defence of reasonable excuse. The offence is of failure without reasonable excuse. The onus of proving this offence is undoubtedly upon the prosecutor and to succeed in a prosecution he must, whenever the issue of a possible reasonable excuse is introduced, establish that the failures was without reasonable excuse. There is nothing in the language of section 8 which puts any onus upon a motorist to disclose anything to the officer who requires him to provide a particular specimen or specimens, or which would relieve the Crown of the burden of proving the absence of reasonable excuse, an essential ingredient of the offence under section 8(7), if, at the police station, the motorist merely fails or refuses to provide the specimen or specimens without giving any explanation."
The reference in the Lord Justice-General's judgment to section 8 was to section 8 of the Road Traffic Act 1972; but there is no material difference between the language of section 8 and section 7 of the 1988 Act with which we are concerned.
"As to the passage which Mr Carter-Manning relies on in the judgment of Forbes J in Teape v Godfrey, to which Pill J has referred and indeed cited, I respectfully differ from the view there expressed. It was clearly obiter. It does not appear that the effect of the caution to which I have just referred was considered. Furthermore, neither the Road Traffic Act 1988, nor its precursors impose any obligation to declare a medical condition to the police as a necessary prelude to establishing reasonable excuse."
"32. In my view, therefore, if no attempt is made to provide the specimen requested and no reasonable excuse is advanced, particularly where the defendant knows of such excuse but deliberately chooses not to avail himself of it, then the position is exactly as stated by the district judge. The position is no different with regard to requests for specimens of blood (or urine) to that applicable (as established by authority) in the case of requests for specimens of breath. In my view, were the position otherwise, that would be an affront to commonsense, and would not advance the evident policy behind the Act. There can, after all, be no hardship on a defendant in a case such as this, if he knows of a reason as to why he cannot even attempt to supply a blood specimen, from him frankly saying so. The advantage, of course, in him doing so, and the reason why he should do so, is that it then enables the police officer in question to consider taking alternative steps, such as seeking a medical opinion or considering requiring a urine sample or something like that. It does not seem to me to be right that, in effect, defendants in this position can subsequently seek to take advantage of their own deliberate failure to advance an excuse known to them for not attempting to provide the requested specimen."
See also paragraph 21 in which Davis J noted that "this appellant seems to have made no attempt to provide a blood sample as requested."
"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, ..."