Excuse for Failure to Supply a Specimen
| DOI | http://doi.org/10.1177/002201839906300606 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
principle of
functus
officio
applied, that decision is in accordance with
Crossland
v
Crossland
[1993] I
FLR
175,
where
the court supported its
decision with the further argument that it was
then
too late for
the
magistrates' court to interfere,
if
only because, by then, third parties
(bailiffsand
the
police) may have already incurred costs in attempting to
execute
the
warrant.
Excuse for Failure to Supply aSpecimen
DPP
v
Varley
(1999) 163 JP 443
The defendant was charged that without reasonable excuse he failed to
provide aspecimen of breath contrary to s 7of the Road Traffic Act 1988.
Having provided a positive specimen at
the
roadside, he was cautioned
at the police station in respect of
an
offence contrary to s 5 of the Act,
but
he was informed of his right to consult a solicitor, which he stated he
wished to do.
When
he was required to provide two specimens of
breath, he replied, 'Not until I've sought legal advice';
and
when
asked
when
he
had
last consumed alcohol, he replied, 'I'd
rather
have legal
advice before I say'. The police sergeant said that he was
'not
prepared to
wait until
the
duty solicitor rings' and warned
the
defendant of
the
consequences of
any
refusal to follow
the
prescribed procedure.
When
charged
with
an
offence contrary to s 7(6) of
the
Act, he replied that, in
his agitated state, he
had
genuinely believed
that
he had
been
told
that
he had a right to a solicitor's advice before he took
any
part in
the
prescribed procedure, adding
that
he 'simply
wanted
to speak to some-
one
impartial'
and
had
no
intention to delay
the
procedure or to refuse
the
request for a specimen. The justices found
that
the
defendant
had
been
given
the
impression
that
asolicitor
had
already been contacted (so
that
any
delay would be slight). He was
not
specifically informed
that
he
had
no
right to delay
the
supplying of
the
specimen until after
the
arrival
of
the
solicitor. Nor was it explained to
him
what
reasons
there
were that
no
such delay in carrying
out
the
test should occur. The justices found
that, as he
had
no
intention of delaying
the
proceedings or of obstructing
the
police in
any
way, he
had
areasonable excuse for
not
providing
the
required specimen, for his assumption
that
he
had
a right first to see a
solicitor
had
been bolstered by
what
the
police sergeant
had
said to him.
The information was dismissed,
but
the
prosecutor appealed from
that
decision by way of case stated.
Section 7
(I)
of
the
Road Traffic Act 1988 provides that, in
the
course
of
an
investigation of an offence
under
ss 3A, 4 or 5, a constable
may
require of a defendant specimens of breath; blood or urine. Section 7(6)
enacts that aperson who, without reasonable excuse, fails to provide a
specimen
when
required to do so is guilty of
an
offence. Section
II
of
the
Act states that in the interpretation of this Part of
the
Act, 'fail'
includes 'refuse'.
Section 58 of
the
Police
and
Criminal Evidence Act 1984
(PACE)
provides
that
aperson arrested and held in custody at a police station
518
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