Bryan Robert Barclay V. The Procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Hardie,Lord Eassie,Lord Bonomy,Lord Carloway |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] HCJAC 168 |
| Date | 21 December 2012 |
| Docket Number | XJ94/12 |
| Court | High Court of Justiciary |
| Published date | 20 December 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Carloway Lord Hardie Lord Bonomy Lord Menzies | [2012] HCJAC 168 Appeal No: XJ94/12 OPINION OF LORD EASSIE in APPEAL AGAINST CONVICTION BY STATED CASE by BRYAN ROBERT BARCLAY Appellant; against THE PROCURATOR FISCAL, ABERDEEN Respondent: _______ |
Appellant: Latif, Jones; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Respondent: Harper, Solicitor Advocate, AD; Crown Agent
21 December 2012
Introductory
[1] The appellant in this appeal by stated case was convicted in the sheriff court in Aberdeen of four contraventions of the Road Traffic Act 1988 - "the Act" - all of which flowed from the same road traffic incident. The first charge was a contravention of section 3 of the Act, namely careless driving. The second charge (to which he pled guilty) was a contravention of section 87 of the Act, namely driving without a licence to drive the vehicle in question. The conviction on charge 1 is no longer challenged and the appeal is now directed only to the conviction on charge 3. That conviction is a charge of contravening section 5(1)(a) of the Act. But the terms of charge 4 on the complaint - a contravention of section 7(6) - also bear on the challenge to the conviction on charge 3. The terms of those charges are as follows:
"(3) On 29 December 2010 on a road or other public place, namely A96 Aberdeen to Elgin road at Broomhill Roundabout, Kintore, Aberdeenshires, You Bryan Robert Barclay did drive a motor vehicle, namely motor car registered number SB09JWU after consuming so much alcohol that the proportion of it in your breath was 112 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath; contrary to the Road Traffic Act 1988, Section 5(1)(a).
(4) On 30 December 2010 at Grampian Police, Blackhall Road, Inverurie, Aberdeenshire you Bryan Robert Barclay did without reasonable excuse, fail to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State in pursuance of a requirement imposed under the Road Traffic Act 1988, Section 7; contrary to said Act, Section 7(6), and it will be shown that the said specimens of breath were required to ascertain your ability to drive or the proportion of alcohol in your breath at the time you were driving a motor vehicle namely motor car registered number SB09JWU on 29 December 2010 on a road or other public place, namely A96 Aberdeen to Elgin road at Broomhill Roundabout, Kintore, Aberdeenshire."
[2] Although the appeal is directed against the sheriff's decision to refuse a motion made in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 at the close of the prosecution case that there was no case to answer on charge 3, the issue is ultimately one of statutory interpretation and the relevant factual circumstances were largely not in dispute. They can be narrated relatively shortly by way of summary from the findings in fact in the stated case and the sheriff's note of the evidence.
[3] At about 2300 hours on 29 December 2010, the appellant was driving a car on the A96 road between Blackburn and Kintore in Aberdeenshire. On approaching a roundabout at Kintore, the appellant lost control of his vehicle which spun through 180 degrees and crashed into the barrier in the central reservation between the two carriageways of the road. The appellant was assisted from his crashed vehicle by another motorist. The police were summoned by that motorist's wife, a passenger in his car. On their attendance the appellant, having identified himself as the driver of the car, provided a roadside breath sample for the presence of alcohol in his breath. The test was positive. The appellant was then arrested and taken to the police station in Inverurie.
[4] At that police station the appellant was required in terms of section 7(1) of the Act to provide two specimens of breath for analysis by a device of a type approved by the Secretary of State, referred to in the evidence and the stated case as the "intoximeter". At 0010 hours on 30 December 2010 the appellant provided a specimen in respect of which the intoximeter provided a reading of 112 microgrammes of alcohol per 100 millilitres of breath. Thereafter, despite several attempts, the appellant failed to provide the second sample which had been earlier required. The sheriff found that the appellant had no reasonable excuse for failing to provide the second specimen of breath which had been required by the police officers. No issue is taken in the appeal respecting the sheriff's finding of the absence of any reasonable excuse. There was accordingly no second sample of breath and the prosecution upon charge 3 (the contravention of section 5(1)(a) of the Act) rested on the single specimen of breath which the appellant had provided.
[5] The thrust of the submission of no case to answer advanced respecting charge 3 was that to establish a contravention of section 5(1)(a) it was necessary, where the Crown was relying on the provision of specimens of breath, that two readings had been obtained pursuant to a requirement made under the provisions of section 7 of the Act. The procurator fiscal depute resisted that submission invoking the decision of this court in Reid v Tudhope 1986 SLT 136 as authority for the proposition that only one specimen of breath was sufficient to found a conviction under section 5(1)(a) of the Act, if the accused motorist had failed, without reasonable excuse, to provide the second specimen required pursuant to a requirement made in terms of section 7.
[6] In rejecting the submission advanced on behalf of the appellant, the sheriff considered himself bound by the decision in Reid v Tudhope. He was not referred to the decision of the House of Lords Cracknell v Willis [1988] 1 AC 450, which may be seen as inconsistent with Reid v Tudhope. In the concluding paragraph before his formulation of the questions in the stated case the sheriff indicates that had he been referred to Cracknell v Willis he might have reached a different view on the submission of no case to answer.
[7] It is in the light of the conflict between Reid v Tudhope and the decision of the House of Lords in Cracknell v Willis that this appeal by stated case has been brought before a bench of five judges of the High Court of Justiciary.
The Legislative Provisions
[8] Section 5(1) of the Act provides:
"5.- Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.
(1) If a person -
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."
[9] Section 6 of the Act enables a police constable to require a person "to co-operate with any one or more preliminary tests administered to the person by that constable" in certain circumstances. Those circumstances include an accident having occurred owing to the presence of a motor vehicle on the road and the constable reasonably believing that the person was driving, attempting to drive, or was in charge of the vehicle at the time of the accident. The preliminary tests are described in sections 6A, 6B and 6C, the first of these being a breath test (which was administered to the appellant). If, as occurred in this case, the preliminary breath test was positive, the police constable may arrest the motorist under section 6D. Arrest may also follow if the person in question fails to co-operate in the administration of the preliminary test.
[10] Section 7 of the Act makes provision for requiring a person to provide specimens of breath for analysis or a specimen of blood or urine for laboratory testing. Its provisions include the following:
"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 ....require him -
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test.
(2) A requirement under this section to provide specimens of breath can only be made -
(a) at a police station,
(b) at a hospital, or
(c) at or near a place where a relevant breath test has been administered to the person concerned or would have been so administered but for his failure to co-operate with it.
(2A) For the purposes of this section 'a relevant breath test' is a procedure involving the provision by the person concerned of a specimen of breath to be used for the purpose of obtaining an indication whether the proportion of alcohol in his breath or blood is likely to exceed the prescribed limit.
...
(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless -
(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
(b) specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or
(bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of...
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