Director of Public Prosecutions v Michael Camp
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Mr Justice Edis |
| Judgment Date | 15 December 2017 |
| Neutral Citation | [2017] EWHC 3119 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2477/2017 |
| Date | 15 December 2017 |
[2017] EWHC 3119 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
and
Mr Justice Edis
Case No: CO/2477/2017
Mr Mark Weekes (instructed by the Crown Prosecution Service Appeals and Review Unit) for the Appellant
Mr Ashley Barnes (instructed by Kenway Miller Solicitors) for the Respondent
Hearing date: 14 November 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
The central question in this appeal is whether, at least in the particular circumstances of the case, self-induced intoxication could properly amount to a “reasonable excuse” for failing to provide a specimen of breath for analysis, for the purposes of an alleged offence under section 7(6) of the Road Traffic Act 1988.
The appeal is by way of case stated. The appellant, the Director of Public Prosecutions (“the DPP”), appeals against the decision of District Judge Veits, sitting at Lincoln Magistrates' Court on 16 February 2017, to acquit the respondent, Michael Camp, of the single charge that he faced at his trial, which was an offence contrary to section 7(6) of the 1988 Act.
The facts are straightforward. On the evening of 7 November 2015, the respondent was driving his Vauxhall Astra on Oakley Drive in Spalding. He was, it seems, driving erratically. He was stopped by P.C. Sarah Draper. He showed obvious signs of drunkenness and had wet himself. He had to be helped out of his car, and was very unsteady on his feet. He provided a roadside specimen of breath, which was 120 microgrammes of alcohol in 100 millilitres of breath. Later, at the police station, P.C. Draper carried out the “MG DD/A” procedure. Her evidence at trial was that the respondent had tried to provide a sample of breath. She volunteered her belief that he was too drunk to do so. She told the court she had been satisfied that the respondent understood what was required of him. The respondent apparently mentioned that he suffered from asthma, but the officer did not consider this a sufficient “medical reason” to abort the procedure. Nor did she note on the relevant form – “Form MG DD/A” – that she thought the respondent was too drunk to be able physically to provide a breath sample. The reason she had stated for the “incomplete procedure” was “Subject unable to blow long enough to provide a sample”. She told the court that the respondent had clearly been trying to blow, and had been given several opportunities to provide a sample of breath. In cross-examination she again said she thought he had been too drunk to complete the procedure, and again asserted that excessive drunkenness was not a “medical reason”. Evidence was also given by P.S. Baines, who stated his view that the respondent had been under the influence of alcohol. He confirmed that no reason had been entered on the respondent's custody record for his failure to provide a specimen of breath. Any decision to require a specimen of blood or urine would have been his to make. Dr Williams gave expert medical evidence for the prosecution. Having viewed the video of the procedure undertaken at the policy station, he said that in his opinion there was no obvious sign of the respondent suffering from asthma, and that the respondent appeared to stop blowing. He observed that, before the respondent made his fourth attempt to blow, he had been told to take a deep breath as he had done before. The respondent did not give evidence. Nor was any other witness called for the defence. Counsel on either side made submissions. And in the light of those submissions the district judge gave judgment, concluding that he must acquit, because he found that the respondent “had a reasonable excuse, he was simply too drunk to provide”.
The issues in the appeal
In the case stated by the magistrates' court, two questions are raised:
“(a) Whether the fact that the [respondent] was so intoxicated, such intoxication being self-induced, that he was physically unable to provide a breath specimen for analysis, can amount to a reasonable excuse for failing to provide a specimen of breath for analysis under section 7 of [the 1988 Act].
(b) Was I correct to find in the particular circumstances of this case and given the officer's clear evidence, that she should simply have aborted the procedure for breath, notwithstanding the discretion given in section 7(3)(a)?”
Those, therefore, are the two issues for us to decide.
The statutory provisions
Section 7 of the 1988 Act provides, so far as is relevant here:
“7. (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 and section 9 of this Act, 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 constable may make a requirement under this section to provide specimens of breath only if –
(a) the requirement is made at a police station or hospital,
(b) … or
(c) the constable is in uniform.
…
(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 …
…
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 and, in the case of a specimen of blood, the question who is to be asked to take it shall be decided (subject to subsection 4A)) by the constable making the requirement.
(4A) Where a constable decides for the purposes of subsection (4) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if –
(a) the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or
(b) the registered health care professional who is asked to take it is of the opinion that there is no contrary opinion from a medical practitioner;
and, where by virtue of this subsection there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead.
(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) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.
(7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.”
Section 11(2) provides that, in sections 3A to 10, “‘fail’ includes refuse”.
The district judge's judgment
In his judgment the district judge said this:
“In order to convict I must be satisfied beyond reasonable doubt. The evidence is clear in that Mr Camp was very drunk and should not have been driving. He blew 120 at the roadside and had he been charged with driving whilst unfit he may have had no defence. He was so drunk that he had wet himself in the car. He is charged however with failing to provide a specimen without reasonable excuse. PC Draper went out of her way to explain the procedure and gave a lot of detail over and above the requirements of the MGDDA procedure. She gave the defendant more chances to provide a sample than he was entitled to. Only at the conclusion of the procedure does the defendant raise the issue of asthma and the officer formed the opinion, as she is entitled to do, that based on evidence there was no valid medical reason for failure to comply. There had been no [wheezing] or breathlessness and the defendant could take deep breaths. At one point he almost provide[d] a long enough breath for a sample. There is no evidence of asthma before me, I have not heard from the defendant and not heard any medical evidence. Were this the only issue I would be bound to convict the defendant, however PC Draper clearly stated in her evidence that she thought the failure to provide was due to the fact that the defendant was too drunk to physically provide the specimen. That is telling evidence in this case. Why did she then not put this on the MGDDA form or mention it to the custody sergeant? I have had the benefit of viewing the video of the procedure and Mr Camp was clearly a very drunken man who was struggling to comprehend what was happening. The obvious choice for the officer was to abort the procedure and revert to blood or urine due to his state of intoxication. Self-induced intoxication in itself cannot be a defence, but can it be a reasonable excuse for failing to provide a specimen. This is not a failure to comprehend but physical incapacity. [ R. v Lennard … makes] it clear that a reasonable excuse “must arise out of a physical or mental inability to provide”. If someone is so intoxicated that they are not really following the procedure wilfully refusing? My note of [P.C.] Draper's evidence is clear “I thought he was just too drunk to complete the procedure”. Surely he would not have been interviewed in that state, and they should have aborted the procedure and arranged for a blood sample....
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