Scottish High Court of Justiciary Decisons

PROCURATOR FISCAL, ALLOA v. PETER BAINBRIDGE [2000] ScotHC 38 (22nd March, 2000)

[1] On 18 March 1999 the Respondent went to trial on a complaint charging him with driving a motor vehicle with more than the prescribed limit of alcohol in his blood contrary to section 5(1)(a) of the Road Traffic Act 1988. At the conclusion of the trial the sheriff acquitted the respondent. The Crown has appealed against the acquittal by way of stated case.

[2] In his note the sheriff records that in the course of evidence for the Crown given by two police officers objection was taken to any evidence in respect of the requirement by the respondent to provide a specimen of blood on the ground that the police had no reasonable cause to believe that such a specimen was required for medical reasons in terms of section 7(3)(a) of the 1988 Act. The sheriff heard the evidence of the police officers under reservation of the competency and relevancy of that evidence. At the conclusion of the evidence for the Crown, no evidence was led for the respondent. The sheriff thereupon acquitted the respondent. In doing so he proceeded upon the view that the police officers had no reasonable cause to believe that the respondent was unable to provide a specimen of breath for medical reasons.

[3] Section 7(3) provides that a requirement under the section to provide a specimen of blood or urine cannot be made

(a) the constable making the requirement has reasonable cause to believe

[4] The relevant findings in fact set out in the stated case are to the following effect. The respondent had been stopped by the two police officers. A requirement to provide a specimen of breath by means of an approved device was made. The specimen proved positive. The respondent was arrested and taken to a police office. He was there required to provide breath for analysis by means of a "camic" device. The appropriate procedure was followed and recorded.

[5] The relevant findings in fact continue as follows:

[6] The questions for the opinion of the court are stated as follows:

1. Did I misdirect myself in holding that the police constables had no reasonable cause to conclude that the use by the respondent of his inhaler would interfere with the operation of the camic machine?

2. Were the constables entitled notwithstanding their lack of medical training to conclude the respondent had a reasonable excuse for not providing a specimen of breath for analysis by means of a camic device?

3. Esto the constables were entitled to so conclude were they entitled on the facts found to require the respondents to provide a specimen of blood for analysis?

4. Did I misdirect myself in finding the evidence of the blood/alcohol analysis was inadmissible?

5. Did I misdirect myself in law in finding the respondent not guilty?

[7] In his note the sheriff explains the view upon which he proceeded as follows:

[8] In presenting the appeal the advocate depute submitted that the sheriff had misdirected himself as to the proper approach to be adopted and the tests to be applied in the situation which pertained in the police station. In particular he had misdirected himself in relation to when it is open to a constable to make a requirement to provide a specimen of blood in terms of section 7(3)(a). That subsection permits the making of the requirement where the constable "has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided..." The question as to whether there was ground for the constable to have such reasonable cause to believe was a question of fact to be determined by an objective test - see Davis v. DPP [1988] RTR 156. The test was to be applied to the facts known to the constable at the time and the constable should be treated as a layman in medical matters - Davies v. DPP [1989] RTR 391. In the face of his findings that the police officers were concerned that the use of an inhaler in advance of a specimen of breath being provided might interfere with the accurate working of the camic machine and that neither officer had any medical training, the sheriff had no justification for describing such concern as a fanciful notion and as not being based on any reason. At the time that the requirement was made, the respondent, who claimed that he was asthmatic and had an inhaler in his possession, had made an unsuccessful attempt to provide a specimen of breath. In these circumstances the constables had ample material from which to derive reasonable cause to believe that the specimen could not be provided for medical reasons, namely because he was asthmatic. The sheriff had confused reasonable cause to believe under section 7(3)(a) with reasonable excuse for the purposes of the offence created by section 7(6) of the 1988 Act. That confusion was exemplified by the sheriff's findings in fact, and in particular those numbered 9 and 10. It was also exemplified by the terms of the first two questions stated for the opinion of the court.

[9] For the respondent it was submitted that the sheriff had not erred in his approach to the question which he had to decide. He was required to determine the issue as a matter of fact. He had done so albeit it was accepted that a condition such as asthma could constitute a medical reason for the purposes of the subsection. But he was entitled to proceed upon the basis that no good reason for not permitting the respondent to use the inhaler had been advanced and that this vitiated the subsequent conduct of the police officers in making the requirement to provide a specimen of blood.

[10] We are in no doubt that the sheriff erred in his approach to the question that he had to decide in determining whether the requirement to provide a specimen of blood was lawfully made and thus the evidence in relation to the provision of the specimen of blood was admissible. At the stage when the requirement came to be made the constables had been informed by the respondent that he was asthmatic and that he required to use an inhaler for this condition. He had produced an inhaler. They were entitled, not having any medical training, to be concerned about the possible effect on the accuracy of the test of allowing the respondent to use the inhaler in advance of providing, or attempting to provide, a specimen of breath for testing by the camic machine. In this connection we see that in the case of Davis v. DPP, a case concerning the similarly worded predecessor to section 7 of the 1988 Act, the court considered that medical reasons might include the reason that a specimen, if provided, might prove unsatisfactory as evidence. In that case the motorist claimed to have been taking a prescribed drug which would distort the analysis of any breath specimen. Neill L.J. said at p. 396:

In the present case, after the respondent had attempted but failed to provide a specimen of breath, the police officers had reasonable cause to believe that there was a medical reason why they should not persist in asking him for specimens of breath. The sheriff decided to acquit the respondent because he considered that the proper course for the police to take was to have allowed the respondent to use his inhaler prior to any use of the camic machine. The sheriff went on to suggest that if the specimens of breath had then been provided and the operation of the machine was "affected", the requirement to provide a specimen of blood could thereafter be given. The sheriff gives no indication as to how the police officers were to determine whether or not the operation of the machine was "affected", let alone to decide whether any readings obtained were or were not reliable. In this regard he appears to have entered the realms of speculation. The course upon which the sheriff's decision was based had no support in the evidence and no foundation in the statutory provisions. It was irrelevant to the question which the police had to address when they came to consider whether they could make the requirement to provide a specimen of blood. Indeed the form in which the first two questions are put demonstrate that the sheriff applied the wrong tests to the issue which he was called upon to decide.

[11] In the result we have found it unnecessary to answer any but question 3. That question is answered in the negative. Since the matter cannot be remitted back to the temporary sheriff who took the trial, we have granted the Crown motion in terms of section 183(1)(d) of the Criminal Procedure (Scotland) Act 1995 to set aside the verdict of the sheriff. At the same time we have granted authority to bring a new prosecution in accordance with section 185 of the Act.