Edmond v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE DAVID CLARKE |
| Judgment Date | 23 February 2006 |
| Neutral Citation | [2006] EWHC 463 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 February 2006 |
| Docket Number | CO/5875/2005 |
[2006] EWHC 463 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Richards
Mr Justice David Clarke
CO/5875/2005
MR A VAITILINGAM (instructed by BAY ADVOCATES) appeared on behalf of the CLAIMANT
MISS E PITTS (instructed by CROWN PROSECUTION SERVICE) appeared on behalf of the DEFENDANT
Thursday, 23rd February 2006
This is an appeal by way of case stated from a decision of the South Devon Justices sitting at Totnes Magistrates' Court on 24th January 2005 by which they convicted the appellant of driving a motor vehicle after consuming excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.
The facts found by the justices are very clearly set out in the case stated. At about 11.30 hours on 10th January 2004 the appellant was stopped by the police while driving his motor vehicle in Rathmore Road, Torquay. At 11.32 hours, on the same date, he provided a positive roadside breath test. He was conveyed to Torquay police station. At the police station Police Constable Wickenden requested him to provide two specimens of breath for analysis, using the Lion Intoxiliser equipment. Before commencing the Intoxiliser procedure the officer warned the appellant that a failure to provide such specimens might render him liable to prosecution. At 12.13 hours, on the same day, the appellant provided a specimen of breath which gave a reading of 90 micrograms of alcohol in 100 millilitres of breath. A minute later he provided a specimen of breath which gave a reading of 76 micrograms of alcohol in 100 millilitres of breath.
The officer concluded that the variance between the two readings was too great and that the test he had just conducted was not reliable. He then invited the appellant to provide two further specimens of breath for analysis, stating:
"I am going to do another test. I am not happy about it, I can't use that one. If we get the same reading we will have to go for blood."
The officer did not offer the appellant the option of providing blood or urine. The appellant agreed to provide two further specimens of breath for analysis. The officer then commenced the Intoxiliser procedure anew, although he accepted that he did not warn the appellant a second time that a failure to provide such specimens might render him liable to prosecution. At 12.21 hours the appellant provided a specimen of breath which gave a reading of 89 micrograms of alcohol in 100 millilitres of breath. A minute later he provided a specimen of breath which gave a reading of 86 micrograms of alcohol in 100 millilitres of breath.
The appellant was convicted, fined and disqualified.
It was contended by the appellant before the justices that the procedure whereby he provided two further specimens of breath for analysis was defective because the police officer, before commencing the procedure, did not administer a fresh warning to the appellant under section 7(7) of the 1988 Act that a failure to provide such specimens might render him liable to prosecution.
The justices rejected that contention. The question they ask in the case stated is effectively whether they were right to do so. The question in full is as follows:
"When in the course of an investigation into whether a person has committed an offence contrary to section 5(1)(a) of the Road Traffic Act 1988, that person provides two specimens of breath into an approved device and the operator has reasonable cause to believe that the device has not given a reliable indication of the proportion of alcohol in the breath and thus the operator requests that further specimens be provided, is it incumbent upon the operator (the request having been acceded to in principle) to formally require that those two further specimens of breath be provided and to issue the warning detailed in section 7(7) of the Road Traffic Act 1988, irrespective of the shortness in time that has elapsed since such a warning was given when an earlier, and void, test took place?"
For an understanding of the authorities to which I will refer in a moment, I need to go wider than the provisions directly in issue in this case. Section 7 provides:
"(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.
…
(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 -
…
(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 the person concerned…
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.
…
(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(3) provides:
"A person does not provide a specimen of breath for… analysis unless the specimen -
(a) is sufficient to enable the… analysis to be carried out, and
(b) is provided in such a way as to enable the objective of the… analysis to be satisfactorily achieved."
There are three relevant authorities which form the backdrop to the submissions. The first is Murray v Director of Public Prosecutions [1993] Crim LR 968, a judgment of a Divisional Court dated 4th February 1993. In that case the court held that the relevant statutory provisions constitute a strict and compulsory code whereby a set of preconditions must be fulfilled before any specimen produced by the defendant can be adduced in evidence, and that that is so irrespective of whether non-compliance with the preconditions has in fact caused any discernible prejudice.
In Jubb v Director of Public Prosecutions [2002] EWHC 2317 Admin, a warning under section 7(7) was given before two specimens of breath were obtained. The officer formed the view that those specimens were unreliable owing to the appellant having provided specimens of uneven volume. The officer then gave the appellant the chance to repeat the breath analysis procedure, but stressed that the appellant was under no obligation to do so. The appellant declined. He was then required to provide a specimen of blood. One of the issues on the appeal was whether the officer was entitled to require a specimen of blood in those circumstances.
It was argued on the appellant's behalf that if the officer believed that the breath test device would provide a reliable reading if used again he should have required a second set of specimens of breath rather than requiring a specimen of blood.
That argument was rejected by McCombe J who stated in paragraph 44 of his judgment that the officer was lawfully entitled to invite the appellant to give further specimens of breath, as he did, but he could not require the appellant to do so. The effect of section 7(3), however, was that he was entitled, in the circumstances, to require a specimen of blood or urine, and by section 7(4) (which I have not read) it was for the officer to choose whether it should be blood rather than urine.
The third of the cases is Stewart v Director of Public Prosecutions [2003] EWHC 1323 Admin. The facts in that case were that the appellant provided two specimens of breath but there was a considerable difference between them. For...
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Table of Cases
...Edge v DPP [1993] RTR 146, QBD! 66 ....................... Edmond v DPP [2006] EWHC 463 (Admin), [2006] RTR 18, DC! 102 .................................................... Edwards v DPP, unreported, Case 1782/93, DC! 439 .................................................... Ellery, DPP v [2......
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The Requirement to Provide Specimens
...was yes; it was not necessary to answer question (2). Appeal dismissed. CHAPTER 1: THE REQUIREMENT TO PROVIDE SPECIMENS Edmond v DPP [2006] EWHC 463 (Admin), [2006] RTR 18, 23 February 2006, QBD (DC) Where an officer invited further breath specimens because the analysis of the first two w......