DPP v John Kay
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,MR JUSTICE POTTS |
| Judgment Date | 04 March 1998 |
| Judgment citation (vLex) | [1998] EWHC J0304-5 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3669/97 |
| Date | 04 March 1998 |
[1998] EWHC J0304-5
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Roch
and
Mr Justice Potts
CO/3669/97
MR S NEALE [MR S THAPA-TODAY ONLY] (Instructed by the Crown Prosecution Service, Rochdale/Bury Branch, Newgate, Rochdale O116 1XD) appeared on behalf of the Appellant.
MR N LEY (Instructed by Burton Copeland, Manchester M3 3NE) appeared on behalf of the Respondent.
Wednesday, 4th March 1998
This is an appeal by way of case stated from a decision of the Justices for the Petty Sessional Division of Bury given on the 3rd July 1997. On that day the respondent, Mr Kay, appeared before the Justices on an information charging that on the 29th October 1996 at Bury having been driving a motor vehicle and having been required to provide a specimen of breath for analysis pursuant to s. 7 of the Road Traffic Act 1988, failed without reasonable excuse to do so, contrary to s. 7(6) of that Act.
The magistrates dismissed that information having heard evidence from two police officers, PC Baird and PC Kent, but not having heard evidence from Mr Kay, on the basis that it would have been unfair to Mr Kay to allow the prosecution to rely on the evidence of PC Baird and "any evidence which was obtained as a result of the respondent providing a positive sample".
In the case stated the magistrates set out what they refer to as "a short statement of evidence". It reads:
"PC Baird on oath said: at 8.35 p.m. on 29th October 1996 I saw a Leyland Goods vehicle registered no. B730 OEF, carrying a skip, being driven on Bridge Street, Bury. I noticed that this vehicle was not displaying obligatory lights and therefore attempted to stop the vehicle. After a series of turns the goods vehicle eventually came to a halt.
This vehicle was being driven by the respondent John Kay who when asked by me said he was not aware of the fact that his rear light was not working.
I noticed that the respondents eyes were glazed, his speech was slurred and his breath smelled of alcohol. Accordingly I asked the respondent whether or not he had consumed alcohol to which he replied "you fucking know I have, I've had a bad day".
At this the respondent was then required by me to take a breath test and his response to this was "Don't bother, I'm over".
I then assembled the S1400 breath testing service and the defendant provided a positive sample. The defendant was then arrested on suspicion of driving a motor vehicle having consumed alcohol above the prescribed limit. He was cautioned and taken to Bury Police Station where he was handed over to PC Kent, a qualified Lion Intoximeter Operator.
Cross Examined:
At no time prior to administering the breath test did I ask the defendant when he had last consumed an alcohol beverage. I was not aware of the manufacturers instructions for use of the breath test device in particular that twenty minutes should elapse between the consumption of alcohol and the use of the breath test device.
PC Kent on oath stated: I am a qualified Lion Intoximeter Operator. At 8.56 p.m. I required the defendant to provide two specimens of breath for analysis I told him that the specimen with the lower proportion of alcohol in it would be used in evidence. The defendant was also warned that failure to provide a specimen without reasonable excuse would render him liable to prosecution. The defendant agreed to provide a specimen.
The following conversation took place between the defendant and myself.
PC "Is there any medical reason why you cannot supply two samples of breath for analysis"
Defendant: "No"
PC "When did you last consume alcohol"
Defendant: "At about 8.30 p.m."
PC "Do you smoke? If so, how long is it since you last smoked?"
Defendant: "No".
PC "I want you to take a deep breath, put the mouthpiece between your lips and blow into the instrument in one steady continuous breath until I tell you to stop."
This the respondent did, however, none of the air went into the mouthpiece but escaped down the sides causing the Lion Intoximeter to abort.
After four further attempts I formed the opinion that the respondent had deliberately refused to supply two samples of breath and he was arrested and charged."
On that evidence the magistrates found the following facts:
"a. PC Baird observed a Leyland motor goods vehicle being driven on Bridge Street, Bury at 8.35 p.m. on the 29th October 1996.
b. The vehicle was not displaying obligatory lights to the rear.
c. The constable stopped the vehicle and established that the driver was the respondent John Kay, (DOB 23/09/35) of 19, Fir Street, Bury.
d. He formed the opinion that the respondent had consumed alcohol prior to driving the said vehicle.
e. After being requested by the officer the respondent submitted to a roadside breath test using the S1400 breath testing device.
f. The sample breath was positive.
g. The respondent was not asked by the constable, prior to the test being administered, when he had last taken alcoholic drink.
h. The constable was not fully aware of the manufacturers instructions for use of the S1400 breath testing device.
i. He was specifically unaware that it was the manufacturers requirement that there should be a time interval of not less than 20 minutes between a defendants last drink and the administration of the test.
j. The respondent was arrested after caution and taken to Bury Police Station.
k. He was delivered into the custody of PC Kent, a qualified Lion Intoximeter operator.
l. The respondent last consumed an alcoholic drink at 8.30 p.m.
m. The respondent provided a roadside breath test at 8.35 p.m.
n. At 08.56 p.m. respondent was required by PC Kent to provide a specimen of breath for analysis on the Lion Intoximeter Machine.
o. The respondent failed to provide a specimen of breath for analysis."
It was contended on behalf of Mr Kay before the magistrates that the failure by PC Baird to comply with the manufacturers instructions for the use of the S1400 breath testing device owing to his ignorance of them vitiated the test. This contention was supported by reference to Attorney Generals Reference No 2 of 1974 [1975] RTR 142. It was further contended that if the magistrates found that the breath test was vitiated for this reason, they should exclude any evidence obtained thereafter on the basis that the outcome of the breath test could not have been reliable and it would be unfair to the respondent to allow the prosecution to rely on that evidence and any evidence which was obtained as a result of the respondent providing a positive breath test, exercising their discretion under s. 78 of the Police and Criminal Evidence Act 1984.
For the prosecution before the magistrates it was argued that PC Baird's failure to comply with the manufacturers instructions for use of the S1400 breath testing device did not necessarily vitiate that test and in any event the test need not have been administered because the respondent could have been arrested by the officer if he had cause to believe an offence against s. 5 of the Road Traffic Act 1988 had been committed. I suspect that s. 5 should read s. 4.
The magistrates were of the opinion that:
a. PC Baird's failure to comply with the manufacturer's instructions due to his lack of knowledge of them rendered the result of the breath test so unreliable that it would not have been fair to the respondent to allow the Crown Prosecution Service to rely upon it.
b. PC Baird at best acted negligently and at worst acted in bad faith and accordingly magistrates decided to exercise their discretion under s. 78 in the respondents' favour by excluding the evidence of PC Baird and any further evidence obtained as a consequence of PC Baird's involvement in this case, on the grounds that to have done so would have had an adverse affect on the fairness of the proceedings.
The magistrates have submitted these question for the opinion of this court:
"1. Was there any requirement on the part of PC Baird (the arresting officer) to enquire as to when the respondent had taken his last drink?
2. Was there any evidence upon which any bench of justices properly directed on the facts and the law could have found that there was any evidence of bad faith on the part of PC Baird?
3. Even if there was [no] evidence of bad faith was there any basis upon which any bench of justices properly directed on the facts and the law could have exercised a discretion to exclude the evidence of the Intoximeter procedure under s. 78 of the Police and Criminal Evidence Act, 1984?"
This question in the case stated does not contain the word "no" before the word "evidence". Mr Ley informed us that those instructing him had confirmed with the Magistrates' Clerk that the word "no" should appear in the question. Although the question without the word "no" is a possible question to be asked in this case, the inclusion of the word "no" does provide a question which makes better sense in the circumstances.
The submissions made on behalf of the appellant before this court were that there was no evidence on which any bench of magistrates could properly have found bad faith on the part of PC Baird. The failure of PC Baird to ask the respondent when he had his last drink was not a circumstance which could lead to the admission of PC Kent's evidence having an adverse effect on the fairness of the proceedings. The magistrates had not exercised their discretion under s. 78 properly. The magistrates had misdirected themselves on the role of the road side breath test.
On behalf of the respondent, Mr Ley did not seek to argue that there was evidence on which the magistrates were entitled to conclude that PC Baird had acted in bad faith. The absence of bad faith did not undermine the magistrates' decision because it was...
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