Scottish High Court of Justiciary Decisons

LEE McGUCKIN v. PROCURATOR FISCAL, AYR [2000] ScotHC 73 (5th July, 2000)

5 July 2000

The appellant in this stated case is Lee McGuckin. He went to trial before the Sheriff at Ayr on 3 August 1999. At the conclusion of the whole evidence, in the course of which the appellant himself gave evidence, he was convicted on a charge of failing to provide specimen of urine contrary to section 7(6) of the Road Traffic Act 1988.

The facts as found by the Sheriff establish that the appellant had been stopped in his car and noticed to be appearing to be smelling of alcohol. He had been required to take a roadside breath test. He had complied with the request. As the test proved positive, he was arrested. He was taken to police headquarters for a further breath test with the Camic machine. At police headquarters it was found that the Camic machine did not calibrate correctly. The officers therefore required the appellant to provide a specimen of blood and warned him of the consequences of failure to provide such a specimen. The appellant declined to do so, stating as his reason that he had a fear of needles. This explanation was accepted by the officers. They then lawfully required the appellant to provide a specimen of urine.

The Sheriff goes on to find that the officers explained that the first specimen of urine would discarded and that the appellant required to provide a further specimen for analysis within the hour. That second specimen would thereafter be sent for analysis to ascertain the level of any alcohol content present in the urine. The appellant agreed to this procedure and without difficulty gave a first sample which was then discarded.

The findings in fact thereafter proceed as follows.

The police repeatedly requested further samples of urine at regular intervals throughout the prescribed hour and in particular made a request very shortly before the expiry of the period. On each occasion the appellant said he was unable to provide a specimen and did not do so.

At all times the appellant was held in the same suite which has toilet facilities within King Street Police Office. At no time after the passing of the first specimen did the appellant leave the suite. On being requested for further samples of urine by the police officers present he indicated that he was unable to provide a specimen.

When cautioned and charged after the expiry of the prescribed hour, the appellant replied "I can't provide it - I'm not ready for one"."

Findings in fact 11 and 12 are to the effect that the appellant does not suffer from any medical condition which affects his urinary system and that he was not physically incapable of providing a specimen of urine for analysis within the prescribed period.

Before us today, Mr Hamilton has argued that the appellant's statements that he was unable to provide a specimen and his reply, when cautioned and charged, that he could not provide a specimen, that he was not ready for one, taken together, constituted evidence of a reasonable excuse for his failure to provide a specimen during the course of the period prescribed. He drew our attention to the case of McGregor v Jessop. He pointed out that where the issue of reasonable excuse was sufficiently raised by the police evidence, in that event it was for the Crown to lead evidence to prove its absence. In the present case, he said, the material to which he referred, was such as to constitute reasonable excuse and there was nothing in the findings in fact to which the Sheriff pointed, which would entitle him to hold that the Crown had proved that the excuse was not reasonable.

For the Crown, the Advocate Depute has submitted to the contrary effect. He has said that the mere statements of inability to provide a specimen during the course of the prescribed period were insufficient to raise the matter of reasonable excuse. But, in any event, having regard to what was said in MacGregor v Jessop, the circumstances here were such that, on any view, the Sheriff was entitled to infer from those facts that there had been no reasonable excuse for failure to provide a specimen, particularly since the appellant had made no attempt whatsoever to provide a sample during the prescribed period.

In his Note, the Sheriff makes reference to the case of McGregor v Jessop. He says that he found a vital distinction between the present case and that of McGregor in that in the latter case the appellant had appeared to make several attempts to provide a specimen and had told the police that he was unable to do so. He also made specific reference to the findings in fact in the case of McGregor v Jessop. In particular he noted the fact that the appellant in McGregor v Jessop had been co-operative during the procedure and further that the findings of fact stated that the appellant had appeared to make several attempts to provide the second specimen. The Sheriff goes on to say this:

It is clear from what was said in McGregor v Jessop that each case depends upon its own facts and, furthermore, that it may not be easy in certain cases to distinguish between inability to provide a sample of urine and the refusal to do so. However, if the evidence shows unwillingness or a refusal to provide a sample of urine, there can be no question of a reasonable excuse. In the present case, the Sheriff has held that there was nothing in the appellant's attitude to the requirement that had been made of him to suggest that there was any reasonable excuse for his failure to provide a specimen, because he made no attempt even to pass a specimen when asked to do so on a number of occasions by the police during the course of the hour. In these circumstances, it appears to us that the Sheriff was entitled, in the light of the fact that there was nothing in the way of a medical condition or physical incapacity to prevent, at the very least, an attempt being made by the appellant to pass urine during the specified period, to reach the view that the appellant was in effect refusing to provide a sample when required to do so. On the facts of this case, therefore, we are of a view that the Sheriff was entitled to reach the conclusion that he did and therefore to convict the appellant of the offence with which he was charged.

In these circumstances, we shall answer the question of law in the affirmative.

dav