CO/3501/2007 
Neutral Citation Number: [2008] EWHC 901 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 19th March 2008
 
B e f o r e:

LORD JUSTICE LEVESON 

MR JUSTICE LLOYD JONES 
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Between: 
HUSSAIN
Claimant

v 

THE DIRECTOR OF PUBLIC PROSECUTIONS 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr N Ley (instructed by Howells Solicitors) appeared on behalf of the Claimant
Mr C Tonge (instructed by the CPS) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE LLOYD JONES:  This is an appeal by case stated against a decision of District Judge Hadfield, sitting at Sheffield Magistrates' Court on 11th December 2006, convicting the appellant, Mr Asif Hussain, of an offence of failing to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988.  The appellant pleaded not guilty.  
2.	The District Judge found the following facts as set out in the case stated.  At 01.50 hours on 24th September 2005 the appellant was observed driving a motor vehicle along Abbeydale Road, Sheffield by two police officers.  After losing sight of the vehicle for a matter of a few seconds the officers found the vehicle parked further along Abbeydale Road.  The appellant was sitting in the driver's seat.  The appellant provided a positive roadside breath test, following which he was arrested and taken to Mossway Police Station.  There, Police Constable Houston required the appellant to provide two specimens of breath for analysis by means of an approved device, to ascertain whether the appellant had committed an offence under section 5 of the Road Traffic Act.  The appellant was warned that failure to provide either of the specimens would render him liable to prosecution.  He agreed to do so. 
3.	The breath test procedure began and at 02.55 hours the appellant provided the first specimen of breath.  The machine would not allow the second specimen to be provided and the words "ambient fail" appeared on the screen of the machine and on the print out subsequently produced.  Police Constable Houston confirmed that those words indicated to him that the machine had not done the test properly and that there was a problem with the machine.  The machine was reset for a second cycle and at 03.04 hours the appellant once again provided a specimen of breath.  Once again it would not allow a second specimen, displaying the words "ambient fail" on the display and print out. 
4.	Constable Houston believed that the device had not produced a reliable indication of the level of alcohol in the appellant's breath.  The appellant was then taken to Bridge Street Police Station where he was taken to the Intoximeter room.  At approximately 03.55 hours Police Sergeant Hayes requested that he provide two specimens of breath for analysis.  The appellant was warned that failure to provide either of the specimens would render him liable to prosecution.  The appellant refused and was warned again as to the consequences of refusal.  The appellant again refused to provide the specimens.
5.	On behalf of the appellant, it was contended before the court below that the breath specimens provided by the appellant on each of the two cycles should have been relied upon for the purpose of analysis of the breath alcohol level; that if those specimens were not to be relied upon then the police were able to request further specimens of breath but by virtue of section 7(3)(bb) of the Road Traffic Act 1988 could only require a specimen of blood or urine.  Thirdly, it was contended on behalf of the appellant that Sergeant Hayes was entitled to request that the appellant provide further specimens but was not entitled to require him to do so.
6.	On behalf of the respondent it was said that if the specimens provided on each of the cycles were reliable, they could be relied upon.  The specimens, however, were not reliable for the reasons outlined by Constable Houston.  If the specimen was not reliable, the officer was entitled to require further breath specimens rather than blood or urine specimens. 
7.	The District Judge concluded that Constable Houston had reasonable cause to believe that the device had not produced a reliable indication of the proportion of alcohol in the appellant's breath.  Secondly, pursuant to section 11(3) of the Road Traffic Act 1988, the appellant had not provided a specimen of breath for analysis in such a way to enable the objective of the analysis to be carried out.  Thirdly, Sergeant Hayes was entitled to require further specimens of breath as each of the initial specimens had not been provided in such a way as to enable the objective of the analysis to be satisfactorily achieved pursuant to section 11(3)(b) of the Road Traffic Act 1988.  Fourthly, that section 7(3)(bb) permitted the Sergeant to require a blood or urine specimen but he was not obliged to do so.  Fifthly, the appellant had, without reasonable excuse, failed to provide a specimen when required to do so pursuant to section 7 of the Road Traffic Act 1988. 
8.	Against this background the following questions have been referred for the opinion of this court: 
"(1) Did the specimens of breath provided by the appellant at Mossway Police Station at 02.55 hours and 03.04 hours on 24th September 2005  constitute valid specimens of breath for the purposes of section 11(3) of the Road Traffic Act 1988? 
 (2) Where the officer had reasonable cause to believe that the breath testing device had not produced a reliable indication of the proportion of alcohol in the breath of the person, could another officer require that person to provide further specimens of breath?" 
9.	The relevant statutory provisions are set out in section 7(1) and section 11(3) of the Road Traffic Act 1988:  
"7.  Provision of specimens for analysis 
 (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 devise of a type approved by the Secretary of State, or 
(b) to provide a specimen of blood or urine for a laboratory test . . .  
11 . . . (3) A person does not cooperate with a preliminary test or provide a specimen of breath for analysis unless his cooperation or the specimen ‑‑  
 (a) is sufficient to enable the test or the analysis to be carried out, and 
(b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved." 
10.	There is a line of authority before this court which supports the proposition that an officer would be entitled to require the provision of two further specimens of breath only if the first two samples were not such as to enable the analysis to be satisfactorily carried out.  In Denny v Director of Public Prosecutions [1990] RTR 417, this court considered the corresponding provisions of the Road Traffic Act 1972 which were in rather different terms.  There, the appellant was arrested and taken to a police station where he was required to provide two specimens of breath for analysis.  After he provided the second, the device indicated that it was not functioning normally, so the officer could not say that he had been provided by the defendant with two specimens of breath which had been analysed reliably, if at all.  He was then taken to another police station where he provided two further specimens of breath which revealed that the level of alcohol was in excess of the prescribed limit.  He was duly convicted by the Magistrates.  He appealed on the ground that he could not be lawfully required to provide two further specimens of breath and should instead have been required to provide a sample of blood or urine.
11.	This court dismissed the appeal, holding that since the material words in section 8(1)(a) of the 1972 Act were "to provide two specimens of breath for analysis", there was no such provision of specimens unless the result of the motorist blowing properly into the device, and it working properly so as to receive and analyse the specimens and record the result, was the provision of two valid breath specimens.  Accordingly, the officer was entitled to require the provision of two further specimens and was not limited to the alternative course of requiring the provision of blood or urine specimens.
12.	The judgment of this court in Stewart v Director of Public Prosecutions [2003] EWHC 1323 Admin, [2003] RTR 35, is a more recent authority to the same effect.  The decision in Jubb v Director of Public Prosecutions [2002] EWHC 2317 Admin departs from this line of authority.  However, it appears that in that case the judge's attention was not drawn to Denny, and indeed it does not appear that section 11(3) was drawn to the judge's attention.  
13.	I note that Denny and Stewart proceed on the basis that the officer would be entitled to require the provision of two further samples only if the first two samples were not such as to enable the analysis to be satisfactorily carried out.  They do not proceed on the basis of a reasonable belief on the part of the officer that this is the case.  In this regard, they are to be contrasted with the express provisions in section 7(2)(d) and section 7(3)(bb).  It appears, therefore, that once two reliable samples have been produced there is no power to demand further breath specimens merely because the officer mistakenly thinks that they are unreliable.
14.	The question which then arises is whether, in the particular circumstances of this case, the District Judge was entitled to conclude that the initial specimens in each cycle had not been provided in such a way as to enable the objective of the analysis to be satisfactorily achieved pursuant to section 11(3)(b) of the Road Traffic Act 1988.  
15.	Before us, Mr Ley has made submissions on the basis of the two MG DD/A documents which are annexed to the statement of case.  I note that although the DD/A documents are annexed to the amended case, that was done at the request of the appellant.  The contents of that document are not incorporated into the findings of fact.  Accordingly, contrary to the submission of Mr Ley in his skeleton, its contents, or all matters which may be derived from its content, are not facts found by the lower court.  Nevertheless, I accept that it is necessary and appropriate to examine the documents which were before the District Judge in considering the first question, which is essentially whether the first two specimens of breath provided in each cycle were valid specimens for the purposes of section 11(3).
16.	Mr Ley presents his case against the background of two submissions of law.  First, he submits that the prosecution does not have to prove the exact amount of alcohol in the blood or in the breath.  It is sufficient if the level exceeds the prescribed limit.  In that regard he relies on Gordon v Thorpe [1986] RTR 358.  Secondly, Mr Ley submits that there is no requirement that a driver be prosecuted on the basis of specimens provided in the same cycle.  Here he relies on Howard v Hallett [1984] RTR 353 and Mercer v Director of Public Prosecutions which is not reported but its citation number is [2003] EWHC 225 Admin.
17.	Mr Ley then submits, against that background, that the first specimen provided in each cycle was a reliable specimen.  His argument runs as follows.  He says that the device successfully carried out the standard blank check at the start of the first cycle.  This showed zero which established that there was no alcohol left in the device from the previous test.  The appellant then provided his first sample which gave a reading of 104.  That was followed by a blank check which again showed zero.  The defendant then blew into the device for the second time but no analysis took place.  Instead the device showed "ambient fail".  This meant that alcohol or another substance in the environment had got into the device.  The device was restarted.  The first two blank checks showed zero.  The appellant's breath was then analysed and gave a reading of 101.  A blank check was carried out and this gave a reading of 1.  Then the message "ambient fail" was displayed and it was not possible to take a second reading.  It was in those circumstances that the appellant was then taken to another police station and required to provide further breath specimens which he refused to provide.
18.	The question for decision is simply whether the first specimen in each cycle was a reliable specimen; that is whether it was sufficient to enable the test or analysis to be carried out within section 11(3).  I have no hesitation in saying that it was open to the District Judge on the basis of the material before him to conclude, as he did, that the initial specimens had not been provided in such a way as to enable the objective of the analysis to be satisfactorily achieved.  The submission made by Mr Ley assumes that the early readings provided in the course of each cycle are reliable readings.  He invites the court to regard those readings in isolation and to accept their validity which would involve ignoring the later malfunction of the machine.  The fact, however, is that the machine indicated during the course of each of the cycles that there was an ambient fail.  That seems to me to provide a clear indication that the readings provided during the course of the cycle could not be relied upon for the purposes of section 11(3)(b).  They were not reliable readings.  Moreover, it is a striking feature of this case that the ambient fail was indicated by the machine not on one occasion but on two occasions.  Those two occasions were only minutes apart.  The fact that on each occasion the machine indicated "ambient fail" before the second reading could be taken demonstrates to my mind that there was something wrong with this machine which rendered the readings unreliable.
19.	I am supported in this conclusion by the note A16 on Form DD/A.  That states: 
"Where a device produces an instrument message of . . . 'ambient fail' . . . this may indicate alcohol or some other substance in the environment.  Whilst the instrument may be operating correctly it will not allow the test to continue.  In these circumstances it will be usual to proceed to a requirement for blood or urine under section 7(3)(b) of the Road Traffic Act 1988." 
I note that it would be possible to proceed to a blood or urine test under section 7(3)(b) only if a reliable device is not available.  It seems to me that this is an indication that a device which gives this message is not to be regarded as a reliable device.
20.	In all the circumstances, therefore, I would answer the first question posed as follows: the specimens of breath provided by the appellant at Mossway Police Station at 02.55 hours and 03.04 hours on 24th September 2005 did not constitute valid specimens of breath for the purposes of section 11(3) of the Road Traffic Act 1988.  I consider that the second question posed is not in fact an appropriate question, because it is directed to whether the officer had reasonable cause to believe that the device was not producing a reliable indication.  In the circumstances, I do not consider it appropriate to answer the second question.  However, I make clear that in the circumstances of this case, where no valid specimens of breath have been provided, the officer was entitled to require the appellant to provide two further specimens of breath.  His refusal to do so constituted the offence of which he was convicted.  
21.	LORD JUSTICE LEVESON:  I agree.  Mr Ley submits that it is entirely feasible that the first sample had been provided and taken in such a way as to enable the objective of the analysis to be satisfactorily achieved, pursuant to section 11(3)(b) of the Road Traffic Act 1988 and that thereafter, following a successful blank, the second breath test records an ambient failure because the appellant had breathed into, or in the proximity of, the machine after the blank but before the second specimen.  That, he says, is a proper reading of the record.
22.	The difficulty is that when the operation was undertaken six minutes later after one breath specimen, another ambient fail was recorded following a blank.  In my judgment, it was open to the District Judge to conclude, as the officer had in fact concluded, that the machine was not working properly.  The District Judge reflected his finding in the case in that way, and it is dispositive of the first question of this appeal as Lloyd Jones J has indicated.  I agree with his views as to the second question as well.