Failing Without Reasonable Excuse to Co-operate or to Provide Specimens
| Author | Pauline M Callow |
| Pages | 191-218 |
The Meaning of Failing
Chapter 4
Failing Without Reasonable Excuse to Cooperate or to Provide Specimens
See s 6(6), Road Traffic Act 1988 (failing without reasonable excuse to co-operate with a preliminary test), replacing s 6(4), Road Traffic Act 1988 (failing without reasonable excuse to provide a specimen of breath for a breath test); and s 7(6), Road Traffic Act 1988 (failing without reasonable excuse to provide specimens for analysis). See also Chapter 5, on reasonable excuse; and Culleton v Palmer, page 386, on oral evidence of failing to provide
1. The Meaning of Failing
See also Burke v DPP, page 74, where the defendant’s words in response to the requirement amounted to failure to provide; DPP v Byrne (David Stephen), page 208 – providing a single breath specimen amounts to failing to provide; DPP v Radford, page 209 – a motorist who held the mouthpiece to his mouth but the device registered no breath provided, failed to provide; and DPP v Fountain, page 251 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 under the heading “Conditional Agreement” in Chapter
5.
A motorist 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
CHAPTER 4: FAILING TO CO-OPERATE OR PROVIDE
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 is 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 case had an opportunity … He was asked to provide the specimen at a police station where a device was in fact present and the defendant could reasonably be expected to know that a device was present and readily available … it was not necessary actually to show the defendant the device in order to establish that the opportunity was provided.
192
The Meaning of Failing
“… the fact the failure to reply followed a caution [has no] bearing upon whether the defendant met the statutory requirements under s 8(7).”
Appeal dismissed.!
DPP v Shuker
Unreported, CO 2822/94, 7 March 1995, QBD (DC)
In the circumstances of this case (feigned attack; saying “bronchitis”; demanding a doctor etc), the motorist failed without reasonable excuse to provide breath specimens.
A motorist had been charged with failing without reasonable excuse to provide two specimens of breath for analysis, contrary to s 7(6), Road Traffic Act 1988. A roadside breath test had been positive; he had been arrested and, at the police station, agreed to provide specimens of breath for analysis. When taken to the breath analysis device, he clutched his chest as though having an attack. When asked if there was any medical reason why he could not provide specimens, he replied “Bronchitis”. The police officer administering the procedure thought he was feigning the attack because he had already provided a sample for a roadside breath test, he refused to make any effort to provide the specimens, and the attack did not take place until the precise moment when he was to give the specimens. The police surgeon arrived at the police station nearly an hour later; the defendant was taken to the police surgeon, where he immediately said he would blow into the machine but only if the doctor gave him a certificate saying he was fit to do so. He then demanded his solicitor and an ambulance. He provided no specimen for analysis.
The magistrates accepted the defendant’s submission that the procedure had been suspended pending medical advice and should have been restarted when the doctor said the motorist was fit; they concluded that the motorist had not been required to provide a breath specimen, and dismissed the information. The prosecutor appealed.
Question(s) for the Court: (1) Was the court right to decide that the respondent had not failed to provide a specimen without reasonable excuse? (2) Was the court right to conclude that the procedure should have been restarted and the defendant required to provide two specimens of breath following the defendant’s failure to give specimens of breath and the pronouncement that he was fit to do so?
Held: “ … in the case stated the Magistrates set out … an incontrovertible statement that the Respondent had been required … to provide a breath sample and failed to do so …
“… if the decision of the Magistrates … was correct, it gives virtually a charter to recalcitrant motorists to play the system to the best of their ability. At the very least they could succeed in getting some sort of delay …
“The section is quite clear; it is quite simple. Once you are required to provide specimens of breath for analysis, as this Respondent was, you are guilty of an offence if, without the reasonable excuse, you fail to provide a specimen … this Respondent did fail to provide the specimen. He did not seek to raise by way of his defence … any reasonable excuse, and that seems … to be the end of the matter.”
The answers to both questions were “no”. Appeal allowed.
CHAPTER 4: FAILING TO CO-OPERATE OR PROVIDE
Smyth v DPP
[1996] RTR 59, 18 May 1995, QBD (DC)
Where a motorist at first refused to provide breath specimens but within five seconds changed his mind, the offence of failing to provide specimens was not made out.
A motorist had been charged with failing without reasonable excuse to provide two specimens of breath for analysis, contrary to s 7(6), Road Traffic Act 1988. At the police station, he was asked to provide breath specimens for analysis; he said “no”, but within five seconds, said “Can I change my mind? I want to change my mind”.
The justices found that his refusal was unequivocal and convicted him. The motorist appealed.
Question(s) for the Court: Whether the justices were correct in their finding that the defendant had failed to provide specimens.
Held: “ … it is a matter of fact for decision by the tribunal of fact … whether the defendant’s words and conduct amount to a refusal …
“… the justices [must have] ignored the defendant’s words ‘Can I change my mind?’ and ‘I want to change my mind’, which followed as little as five seconds after his ‘No’, and must be relevant words and conduct to be taken into account …
“… the only conclusions that could reasonably be arrived at, having regard to all the words and conduct of the defendant, was that he was...
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