Scottish High Court of Justiciary Decisons

MICHAEL ANTHONY PEEBLES v. THE PROCURATOR FISCAL, HAMILTON [2000] ScotHC 57 (3rd May, 2000)

[1] The appellant is Anthony Michael Peebles who was convicted at Hamilton Sheriff Court of failing on 14 July 1998, without reasonable excuse, to provide two specimens of breath for analysis by means of a Camic device in pursuance of a requirement imposed under Section 7 of the Road Traffic Act 1988, contrary to Section 7(6). He appealed against his conviction. The appeal was originally heard by this court, differently composed, on 2 July 1999 when the court remitted the case to the Sheriff to report on the evidence given by the appellant regarding his alleged inability to provide a specimen of breath due to his medical condition, and on the Sheriff's views on that evidence. The Sheriff has duly reported.

[2] The focus of the appeal is on the reason for the appellant's failure to provide a specimen of breath. The evidence of the police officers was to the effect that the appellant made several apparent attempts to provide a breath sample but failed to do so. Both police officers said that, in the light of their combined experience over some 11 years, any person who had been able, like the appellant, to provide a sample of breath for a roadside breath test could also provide enough breath to obtain a calculated reading on the Camic device. It was also their evidence that they could not say why or how the appellant had failed to provide the necessary breath sample. He was not, for instance, blowing down the side of the tube as some drivers had done in their experience. The Sheriff accepted the evidence of the police officers that the appellant had at no time made any suggestion as to there being any medical reason why he could not provide the necessary sample. Before this court Miss Ogg, who appeared for the appellant, accepted that, as was recorded by the police officers at the time on the Strathclyde Police Force Form 4:8:1, when asked the question "Is there any reason for your failure to supply a specimen of breath?", the appellant had replied "No". In those circumstances the Sheriff drew the inference that, although it was not clear how he had done so, the appellant had failed, without reasonable excuse, to provide a sample of breath for the Camic device.

[3] For the purposes of the trial the procurator fiscal depute and the defence agent entered into a Joint Minute relating to the appellant's state of health. They agreed that on the date in question the appellant was taking three drugs on a daily basis, Atenolol, Naproxen and Ramipril. They also agreed that on 13 July 1998, the day before the offence, the appellant had been referred by his practitioner to Ross Hall Hospital for a twenty-four hour blood pressure monitor to be fitted. The monitor was fitted on 15 and removed on 16 July. Finally, they agreed that the appellant suffered from hypertension and obesity. It is a striking feature of the stated case that the Sheriff makes no reference to the evidence contained in the Joint Minute except when explaining how he dealt with various proposed adjustments to the case. He says:

[4] We understand that it was in order to clarify the Sheriff's approach, particularly in the light of the Joint Minute, that the court remitted the case to him to report.

[5] So far as the appellant's reasons for not giving the specimens are concerned, the report from the Sheriff indicates that the appellant gave evidence to the effect that he had indeed failed the roadside test and had been taken to a police station where he was told to blow into a machine and told that he would need to provide two specimens. He said that he was unable to blow and had told the police officer that he was not trying to cause trouble and that he was on medication. He also gave evidence that he had indicated to the police officers that he was on medication and that there was a letter in his car relating to his condition. He said that he subsequently attended Ross Hall Clinic on 15th or 16th of the month. He was positive that he had told the police. He said that he had been sent to Hairmyres [Hospital] because of asthma and insisted that he had co-operated throughout with the police. We observe that, at least in the account of his evidence given by the Sheriff, the appellant does not appear to have said specifically that his inability to blow was caused by his medical condition.

[6] In conformity with his remit, the Sheriff also commented on the appellant's evidence. He says:

[7] Miss Ogg argued that the Sheriff had erred in his approach to the evidence in the case. The Joint Minute established that the appellant was suffering from hypertension and obesity and not only was he taking a prescribed course of three drugs at the relevant time, but he had actually been referred to Ross Hall Hospital to have a blood pressure monitor fitted. He had given evidence that he had co-operated with the police but had been unable to blow into the Camic device. The Joint Minute and the appellant's evidence when taken together were sufficient to raise the issue that the appellant had had a reasonable excuse on medical grounds for failing to provide the necessary specimens of breath. While the Joint Minute did not go so far as to say that the appellant's medical condition had made him unfit to give the required specimens, the appellant's own evidence, even though coming from a lay person, could be taken into account. Reference was made to D.P.P. v. Pearman [1992] R.T.R. 407 at p. 412 per Lloyd L.J. and to D.P.P. v. Crofton [1994] R.T.R. 279 at p. 285 per Curtis J. That being so, it had been for the Crown to prove beyond reasonable doubt that the appellant had no such reasonable excuse. In reality, however, the Sheriff had not even referred to the agreed facts in the Joint Minute and had had no regard to the onus of proof which lay on the Crown. By failing to have regard to the contents of the Joint Minute when considering the appellant's credibility, the Sheriff had left an important factor out of account.

[8] The Advocate Depute argued that the Sheriff's decision turned essentially on credibility: he had not believed the appellant's evidence to the effect that he had been unable to provide the specimens because of his medical condition. Moreover, the Sheriff had been fully entitled to take the view that, in the absence of any medical evidence that the condition from which he was suffering would have affected his ability to provide a specimen, he could derive no assistance from the agreed facts in the Joint Minute.

[9] The issues in the appeal are not well focused in the rather unsatisfactory stated case and, even with the report from the Sheriff, we have not found it altogether easy to identify the precise basis of his reasoning. But we have come to the conclusion that the Advocate Depute was correct to say that, essentially, the Sheriff reached his decision on the basis of his view of the credibility of the appellant's evidence. Indeed Miss Ogg recognised that this was at least an important strand in his approach.

[10] The decisions in Pearman and Crofton show that it is open to a court to find that an accused was physically unable to provide a breath specimen without there being medical evidence to that effect. The court may properly form such a view on the basis of the evidence of the accused himself, even though in the normal case medical evidence will be required and courts should take great care not to be gullible: D.P.P. v. Eddowes [1991] R.T.R. 35 at p. 41 B per Watkins L.J. Had the Sheriff reached the conclusion that the appellant had been physically unable to provide the specimen on the basis of the appellant's evidence alone, therefore, he would have been entitled to do so. On the other hand, as the warning in Eddowes indeed makes clear, a court is not bound to accept such evidence and should scrutinise it appropriately.

[11] In the present case therefore it was indeed open to the Sheriff to reject the appellant's evidence that he had been unable to blow into the machine. And in adopting that course and deciding to reject the evidence the Sheriff was, of course, entitled to have regard to his overall impression of the appellant as a witness. That impression was clearly unfavourable since, for instance, on the matter of the reading of Form 4:8:1, he "much preferred" the evidence of the police officers and rejected the evidence of the appellant. Similarly, he preferred the evidence of the police officers that the appellant had not told them that he was attending his doctor for treatment in relation to blood pressure and tension difficulties. Of course, the Joint Minute was also before the Sheriff. But in the absence of any expert evidence that the appellant's medical condition or the drugs which he was taking affected his ability to provide the specimens, the Sheriff could properly take the view that the facts agreed in the Joint Minute were not in themselves a reason why he should accept the appellant's evidence on this matter, if he would not otherwise do so. In these circumstances the Sheriff was entitled to disbelieve the appellant's evidence that he was physically unable to provide a specimen because of his medical condition. Since the Sheriff disbelieved the appellant's evidence on this matter and accepted the police evidence, no issue of onus arose: Stewart v. Aitchison 1984 S.C.C.R. 357. It follows that it was open to the Sheriff to make the findings in fact which he did. The Question in the case therefore falls to be answered in the affirmative and the appeal refused.