Failing without reasonable excuse to co-operate or to provide specimens
| Pages | 183-210 |
| Author | Pauline M. Callow |
Chapter 3
Failing without Reasonable Excuse to
Co-operate or to Provide Specimens
See s 6(6), Road Traffic Act 1988 (failing without reasonable excuse to co-operate
with a preliminary test), and s 7(6), Road Traffic Act 1988 (failing without
reasonable excuse to provide specimens for analysis). See also Chapter 4, on
reasonable excuse; and Culleton v Palmer, page 402, on oral evidence of failing
to provide.
1. THE MEANING OF “FAILING”
See also Burke v DPP, page 83, where the defendant’s words in response to
the requirement amounted to failure to provide; DPP v Byrne (David
Stephen), page 201 – providing a single breath specimen amounts to failing
to provide; DPP v Radford, page 202 – a motorist who held the mouthpiece
to his mouth but the device registered no breath provided, failed to provide;
and DPP v Fountain, page 248 where the words “In view of the danger of
AIDS, I’d rather not give blood”, amounted to refusal to provide.
Smith v Hand
[1986] RTR 265, 19 May 1986, QBD (DC)
In the circumstances of this case – the motorist asked to speak to his solicitor
before deciding whether or not to provide breath specimens, the police gave him
permission to do so, the motorist spoke to his solicitor and then provided the
specimens – the motorist did not refuse to provide specimens. Compare the cases
in Chapter 4 under the heading “Conditional Agreement”, page 216.
A motorist had been charged with failing without reasonable excuse to provide a
specimen of breath for analysis, contrary to s 8(7), Road Traffic Act 1972
as substituted by s 25 and Sch 8, Transport Act 1981. Having been asked to
provide specimens, he indicated that he wished to consult his solicitor first. The
police permitted this; the motorist did so, and then provided the specimens.
The justices dismissed the charge, finding that there had been no refusal. The
prosecutor appealed.
QUESTION(S) FOR THE COURT: (1) Whether the defendant’s request to speak
to a solicitor first before agreeing to provide specimens amounted in law to a
failure to provide a specimen of breath; (2) whether on the facts as found, if it was
184 3. Failing without Reasonable Excuse to Co-operate or Provide Specimens
considered that there was a failure in law on the part of the defendant to provide
a specimen of breath, such failure was with reasonable excuse in law.
HELD: “[Quoting from Pettigrew v Northumbria Police Authority [1976] RTR
177, [1976] Crim LR 259 (DC)] ‘the motorist … refuses to comply with the
request if he gives an acceptance which is subject to a condition … in practice
there will be many cases in which the motorist will wish not immediately to give
a specimen. Sometimes it is because he wants a solicitor … a distinction must be
made between the motorist who says “I will not unless –” and the motorist who
says “I will but may I do so-and-so beforehand?” In the second instance there is
no refusal …’
“… I … have not found it entirely easy to decide which of those is the right
interpretation to give to that sentence [‘We resolved that his conversation with the
police only amounted to a request to speak to his solicitor before deciding whether
to give a specimen’] in the findings of fact. But, left as I am in some doubt, I feel
it right to give the benefit of the doubt to the defendant and decide this case on
the basis that he requested to speak to his solicitor before deciding whether to give
a specimen … The police gave him that permission and, therefore, there is no
question of estoppel here.”
Appeal dismissed.
Campbell v DPP
[1989] RTR 256, 11 November 1988, QBD (DC)
A motorist was guilty of the offence of failing to provide breath specimens for
analysis even though the requirement was made in a room where there was no
breath analysis device, and no breath analysis device was presented to him.
A motorist had been charged with failing without reasonable excuse to provide a
specimen of breath for analysis, contrary to s 8(7), Road Traffic Act 1972 as
substituted by s 25 and Sch 8, Transport Act 1981. He had been arrested and
cautioned. The requirement for breath specimens was made at the police station
in a room other than the room where the breath analysis machine was installed.
The motorist made no reply to the request, or to two more requests.
The magistrates convicted. The motorist appealed.
QUESTION(S) FOR THE COURT: Whether, the defendant, having been
cautioned that he need not say anything, his silence amounted to a failure to
provide a breath specimen without reasonable excuse if the approved device was
not presented to him for use.
HELD: “The question … is … whether the principle applies that a person cannot
fail to do something unless he is enabled to do it by the production immediately
before him of the equipment. In R v Ferguson [[1970] RTR 395 (CA)] it was held
that the opportunity was provided, even though a device was not presented to the
defendant and even though a fresh request was not made when the situation arose
in which the defendant had previously said he would supply a specimen. If the
defendant had an opportunity in those circumstances, the defendant in the present
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