Scottish High Court of Justiciary Decisons

JAMES JENKINSON WILSON v. PROCURATOR FISCAL, DUNOON [1999] ScotHC 180 (7th July, 1999)

This is the appeal of James Jenkinson Wilson, who was convicted of a contravention of Section 5(1)(a) of the Road Traffic Act 1988. The circumstances were that the appellant was driving a car, was stopped, smelled of alcohol, and was breath tested at the locus which proved positive. He was then taken to Dunoon Police Office. Police officers radioed in in advance asking that the Camic machine be tested. The machine was in fact tested by a civilian support officer, who found that the machine was calibrating and analysing properly. At the police station when the police and the appellant arrived, the police correctly went through the Camic procedure and the breath test results were figures of 77 and 79. At the end of the procedure, three copies of the printout were produced. The appellant was offered and accepted one of the certified copies. He was then cautioned and charged with a contravention of Section 5(1) and made no reply. At the stage of paperwork for release of the appellant, the police officers noted that the dates and times on the printout from the Camic machine did not make sense. The figures for the date read "0 = /02/98 10.52". The officers believed that the analytical function of the Camic machine was working perfectly reliably, but that something had gone wrong with the machine's clock, which is an entirely separate part of the machine. It subsequently transpired that there had been a power cut affecting part of Dunoon including the Dunoon Police Station and this may well have upset the machine's clock. Because of this problem about the dates, the constables were unsure what to do and spoke to the duty sergeant, and he took the view that the appellant should be required to provide a sample of blood. The procedure was then correctly gone through for obtaining a sample of blood set out in the appropriate form. Unfortunately, or perhaps fortunately, the quantity of blood obtained was found to be of insufficient volume for analysis. What then happened was that the appellant was charged on the basis on the original Camic figures.

Miss Scott, on the appellant's behalf today, has accepted that if the matter had proceeded up to the cautioning and charging of the appellant on the Camic procedure, notwithstanding the error in the date, because the constable was satisfied that the machine was analysing properly there could be no quibble with any conviction. This is made quite clear from the case of Hodgins v Carmichael 1989 SLT 514 1989 SCCR 69. What Miss Scott argued, however, was that the error of the duty sergeant lay in requiring the appellant to give a blood sample and that the taking of this blood sample was unlawful. That unlawfulness, in Miss Scott's submission, was unfair and vitiated the whole procedure to such an extent that the Crown could not go back to the Camic figures in order to support a conviction. Miss Scott accepted that there was no actual prejudice to the appellant but it was unfair, she said, to change from one procedure back to another just because the second procedure was an unlawful one. Furthermore, the appellant left the police station thinking that he was going to be charged on the basis of the blood sample, whereas in fact it turned out he was charged, quite properly, on the basis of the Camic figures.

In our view, Miss Scott's submission cannot succeed. It is quite clear from the case of Hodgins that even though a requirement as in that case was made for a blood sample although not carried through, the Crown were entitled to go back to the original Camic procedure if there was nothing wrong with the analytical function of that machine. That is precisely what has happened here. Indeed this case went further than Hodgins, because the whole Camic procedure was followed through to the extent of charging the appellant on the basis of that procedure. It was only after that that the entirely separate chapter opened with the irregular request for a blood sample. As the Sheriff points out, if the blood sample had in fact been sufficient to provide a figure in excess of the limit and the prosecution had been taken on the basis of that blood sample, that prosecution would inevitably have failed because the defence would be that the Camic procedure had been properly carried through and the blood sample must therefore have been improperly required. On the whole matter therefore, we are quite satisfied that no questions of unfairness arises and that the prosecution, based as it was on the Camic figures, was a perfectly legitimate one and not in any way unfair to the appellant. We shall therefore answer the question in the affirmative and refuse this appeal.

AUD