Cracknell v Willis
|Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Griffiths,Lord Oliver of Aylmerton,Lord Goff of Chieveley
|05 November 1987
|Judgment citation (vLex)
| UKHL J1105-2
|05 November 1987
|House of Lords
 UKHL J1105-2
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Oliver of Aylmerton
Lord Goff of Chieveley
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Griffiths. I agree with it, and for the reasons he gives would allow the appeal to the extent which he proposes, and dismiss it as regards the conviction under the substituted section 8(7) of the Road Traffic Act 1972.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Griffiths. I agree with it, and for the reasons which he gives I would allow the appeal to the extent proposed by him.
On the 13 February 1986 the appellant was followed by the police because of the speed at which he was driving. When he stopped outside his house he was asked by the police to take a roadside breath test. The test proved positive, he was arrested and taken to Orpington Police Station. At the police station he was asked to provide a specimen of breath on a Lion intoximeter. He provided a specimen which gave a reading of 78 microgrammes of alcohol in 100 millilitres of breath, a reading well above the permitted maximum. When he was asked to give a further specimen the appellant did not blow properly into the machine which aborted the test. The police sergeant conducting the test explained to the appellant that he should blow continuously into the mouthpiece and asked for a further specimen. The appellant did not follow this instruction: at the next and subsequent attempts, he blew so that some of his breath went into the machine and some escaped through his hands. Four such attempts to obtain a specimen were aborted by the machine. The appellant then refused to provide a further specimen.
On these facts he was convicted on 7 April 1986 by the Bromley magistrates of the offence of driving a motor vehicle on a road with excess alcohol in his breath contrary to section 6(1) of the Road Traffic Act 1972 as substituted by the Transport Act 1981 for which he was fined £150 and disqualified from driving for 18 months and of the offence of failing to provide a specimen of breath contrary to section 8(7) of the Road Traffic Act 1972 as substituted by the Transport Act 1981 for which he was also fined £150 and disqualified for driving for 18 months.
At the request of the appellant the magistrates stated a case for the opinion of the High Court upon the following two questions:
"1. Whether we were correct in following the case of in prohibiting the appellant from adducing evidence of the amount of alcohol which he had consumed, in order to show that the Lion intoximeter machine was defective, and
2. Whether we were correct in following the case of in convicting the appellant of both the offence of failing to supply a specimen of breath and actually suplying a specimen of breath which exceeded the prescribed limit."
The Divisional Court upheld the decision of the magistrates and answered both questions in the affirmative. In so doing they followed the previous decisions of the Divisional Court in and . The appellant now appeals to your Lordships' House and submits that both these previous decisions were wrongly decided.
It will be convenient to deal first with the second question. It is common knowledge that in times past juries were very reluctant to convict motorists of the offence of driving a motor vehicle on a road when unfit to drive through drink or drugs. Why this should have been so I do not know, perhaps the public conscience had not yet fully awoken to the menace of the drink-affected driver, perhaps too many jurors in those days thought that they might one day be in the same predicament as the defendant and were over confident of their own ability to drink and drive, perhaps the public did not yet realise that relatively small quantities of alcohol seriously affect the reaction times of most people. Whatever the reasons, those with experience of such cases know that they were invariably bitterly contested and it was unlikely that a conviction would be secured unless the defendant was very drunk. As the law was clearly failing to provide an adequate deterrent to drinking and driving, Parliament decided to introduce in the Road Safety Act 1967 an absolute standard and to provide that it would in future be an offence to drive with more than a permitted proportion of alcohol in the blood, and to make provision for laboratory tests of blood or urine to establish the proportion of alcohol in the blood. The level of alcohol consumption which corresponded to the level at which Parliament set the limit, although no doubt justifying the view that anyone exceeding the limit should not be driving, was undoubtedly much lower than that required to secure a conviction of the old offence and much easier to prove. When the Act of 1967 was replaced by the Road Traffic Act 1972 the old offence remained as section 5 and the new offence became section 6 of the Act. In practice from that time onward nearly all cases of drunken driving have been prosecuted under section 6 rather than section 5 of the Act of 1972. For some years the offence was proved by producing an analysis of a blood or urine sample provided by the motorist, but then a new device was invented that enabled the proportion of alcohol in the breath to be determined by immediate analysis. Provided that such a machine is reliable it has obvious advantages over the use of urine or blood samples. It can be operated by a trained police officer and prints out an immediate analysis of the breath, cutting out the delay involved in the laboratory analysis of urine and blood samples and the attendance of a doctor in the case of a blood sample. But the motorist is at the mercy of the machine in the sense that he has no means of checking its performance, whereas in the case of a urine or blood sample, the statutory provisions require that the sample is divided into two, and one half given to the motorist who can, if he wishes, have it analysed himself to check the accuracy of the analysis provided by the prosecution. It was no doubt with these considerations in mind that Parliament provided certain safeguards to protect the motorist when it introduced the use of breath testing devices by the Transport Act 1981.
Section 25(3) of the Transport Act 1981 substituted the sections set out in Schedule 8 of the Act for sections 6 to 12 of the Act of 1972.
Section 6 now makes it an offence to drive with more than the prescribed limit of alcohol in breath, blood or urine. It is no longer necessary for an analyst to equate the percentage of alcohol in the urine to the alcohol in the blood. Section 12 provides that the prescribed limits are 35 microgrammes of alcohol in 100 millilitres of breath, 80 milligrammes of alcohol in 100 millilitres of blood and 107 milligrammes of alcohol in 100 millilitres of urine.
The substituted section 8 I must set out in full:
"8.(1) In the course of an investigation whether a person has committed an offence under section 5 or section 6 of this Act a constable may, subject to the following provisions of this section and section 9 below, 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 at a police station.
(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)at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)( a) is not available at the police station or it is then for any other reason not practicable to use such a device there; or ( c) the suspected offence is one under section 5 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug; but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.
(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, except that if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.
(6) Of any two specimens of breath provided by any person in pursuance of this section that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded; but if the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath the person who provided it may claim that it should be replaced by such a specimen as may be required under subsection...
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Challenging the Breath Testing and Breath Analysis Devices
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