DPP v Cathryn Helen Heywood
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE BUXTON |
| Judgment Date | 08 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0708-7 |
| Date | 08 July 1997 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/1182/97 |
[1997] EWCA Civ J0708-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice Of England
(Lord Bingham of Cornhill)
and
Mr Justice Buxton
CO/1182/97
MR JOHN MCGUINNESS (instructed the Crown Prosecution Service, Horseferry Road) appeared on behalf of THE APPELLANT
MR NIGEL LEY (instructed by Messrs Dibb & Clegg, London WC2A) appeared on behalf of THE RESPONDENT
Tuesday 8 July 1997
This is a prosecutor's appeal by way of case stated against a decision of an acting Metropolitan Stipendiary Magistrate sitting at Horseferry Road when he dismissed an information preferred against the respondent, alleging that she had on a date in May 1996 driven a motor vehicle on a road after consuming so much alcohol that the proportion of it in her breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988.
The issue raised by this appeal is whether, for purposes of section 6(4) of the Road Traffic Act 1988, a person fails to provide a specimen of breath for a roadside breath test if the person blows into the Alcolmeter testing device in such a way as to illuminate light 'A' but not light 'B', when the device so operates that if in such circumstances the 'Read' button is pressed a positive result may be given which (if given) will be reliable, but a negative result may be given which (if given) may be false.
The stipendiary magistrate records that the facts of the case were agreed and he sets them out as follows:
"On Wednesday, the 15th May 1996 at 11.40 pm the Respondent was driving her car in Waterloo Road when she executed a U-turn in the path of a marked police car. Because of this manoeuvre she was stopped and she was asked by WPC Pemberthy to provide a specimen of breath for a breath test. The device tendered to the Respondent for the provision of the specimen of breath was an Alcolmeter. WPC Pemberthy explained to the Respondent the procedure for provision of the specimen and the Respondent indicated that she understood what was required of her. On two occasions the Respondent blew into the Alcolmeter but not with sufficient force to illuminate either of the two lights on that device. Twice more the Respondent blew into the Alcolmeter so as to illuminate only the first light on the device, namely light 'A'. On neither of these two occasions did WPC Pemberthy press the 'Read' button on the device. Following this fourth attempt to blow into the device so as to illuminate both light 'A' and the second light, namely, light 'B', the Respondent was arrested for failing to supply a specimen."
Having regard to the course which the case took, the primary findings of fact stop at that point. It is, however, to be inferred that it was the prosecution case against the respondent that when she reached the police station specimens of breath were again taken and proved positive: hence the information preferred against her under section 5(1)(a) of the 1988 Act.
In paragraph 2 the stipendiary magistrate sets out the findings which were accepted by both sides as to how the Alcolmeter device worked, namely:
"(1) had the Officer pressed the 'Read' button on either of the two occasions that the Respondent illuminated light 'A', the device would have analysed the breath provided and it may have given a positive reading;
(2) had a positive reading been given it would have been reliable;
(3) had a negative reading been given, it would not have been reliable. In other words there was a risk of the device providing a 'false negative'."
The magistrate then very helpfully sets out the submissions on the law which were made before him in a series of paragraphs as follows:
"3. The question before me on the above facts is whether the Respondent failed to provide a specimen of breath under Section 6(4) of the Road Traffic Act 1988 so as to commit an offence. The case advanced by Mr Ley on behalf of the Respondent is that, following the case of Fawcett, the officer should have pressed the 'Read' button on the first or second occasion that the Respondent succeeded in illuminating light 'A'. Had this been done and had the Alcolmeter then registered a positive reading, this would have been reliable and the Respondent, he submitted, could not be convicted of failing to provide a specimen. This had been the result in Fawcett and Mr Ley submitted that, notwithstanding a change to the wording of the interpretation section of the 1988 Act as compared with the 1972 Act, the result remained the same now.
4. Mr Milford, on behalf of the Prosecution submitted that the new wording in Section 11(3) of the Road Traffic Act 1988, meant that Fawcett could be distinguished.
5. Under Section 6(5) of the 1988 Act, the relevant purpose of the breath test is to ascertain whether the constable has reasonable cause to suspect the driver of having a breath or blood proportion of alcohol above the prescribed limit. This is the same purpose as was the case under Section 8(4) of the 1972 Act. However, under Section 12(3) of the 1972 Act, 'References …. in this Act to providing a specimen of breath for a breath test are references to providing a specimen thereof in sufficient quantity to enable that test to be carried out'. By contrast, Section 11(3) of the 1988 Act provides 'A person does not provide a specimen of breath …. unless the specimen -- (a) is sufficient to enable the test or analysis to be carried out and (b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved'.
6. Mr Milford submitted that the Respondent had not provided a specimen 'in such a way as to enable the objective of the test …. to be satisfactorily achieved'. Mr Ley said that the extra words at Section 11(3)(b) had been added in order to overrule Corps v Dalton [1983] RTR 160. In that case the Respondent was acquitted of failing to provide a specimen, albeit that he had supplied a specimen filling the bag in 2 rather than in a single breath, thereby producing a specimen which could give a false negative reading. The result in that case was, in my view, somewhat surprising, given that Section 12(3) of the 1972 Act did in any event require the specimen [i.e. each specimen] to be sufficient to enable the test to be carried out. Mr Ley showed me the relevant parts of Hansard, both in the Lords and in the Commons, in order to make good his submission that Section 11(3)(b) of the 1988 Act was to deal with Corps v Dalton and was not designed to reverse Fawcett v Tebb. I have read this material but in my judgment the statutory wording is sufficiently clear to enable me to construe its meaning without reference to Parliamentary debates.
7. The crucial phrase is 'the objective of the test'. In this case, the Respondent provided a specimen of breath which could, if the 'Read' button had been pressed, have shown a positive result. If that had taken place, the 'objective' of the test would have been achieved. Of course, on both occasions that the Respondent illuminated light 'A', the result might have been negative, in which case the result would have been unreliable and the 'objective' of the test would not have been achieved. Is it enough that the motorist provides a specimen which might suffice or must the motorist provide a specimen that will suffice? In my judgment the correct approach is to have regard to the specific case. The Respondent did provide a specimen on two occasions. Either of those specimens would either have tested positive or not. If positive, then the object of the test is achieved. The benefit of an alternative must always lie with the accused and if Parliament had wished to make simple failure to illuminate light 'B' an offence, it could have said so. In this case the officer did not test either of the specimens that illuminated light 'A' and it is therefore not possible to know whether the Respondent did or did not provide a specimen of breath so as to enable the constable to ascertain whether there is 'reasonable cause to suspect that the Respondent's proportion of alcohol …. exceeded the prescribed limit'. That being the case, the prosecution have not established that the Respondent committed an offence under Section 6(4) of the 1988 Act and therefore the arrest was unlawful.
I found no evidence of bad faith on behalf of the police officer involved. I noted DPP v Godwin (29.4.91) on this point. I was fully aware of my discretion under S.78(1) PACE 1984 and listened to full argument. I had decided that the arrest was unlawful. Any subsequent evidence against the Respondent could not have been obtained but for that unlawful arrest. The Respondent was denied the protection given to her by Parliament. The subsequent evidence obtained against the Defendant was, in my view, obtained by unlawful means. Though the matter was finely balanced, I decided to exercise my discretion in the Defendant's favour and exclude the evidence in question, concluding as I did that the Prosecutor obtained evidence against the Respondent which would not have been obtained but for an unlawful arrest and the Respondent was thereby prejudiced.
A submission was made on behalf of the Respondent at the close of the Prosecution case which I allowed and acquitted the Respondent."
The magistrate then poses two questions for the opinion of this court, namely:
"1. Was I right in law to determine that the arrest of the respondent for failing to provide a specimen of breath was unlawful on the basis that she had in fact provided a specimen of breath?
2. If the answer to question 1 is yes, was I...
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