Fox v Chief Constable of Gwent

This is another case about the "breathalyser" procedure. On 14 July 1983 the appellant was convicted at Usk Magistrates' Court of two offences under the Road Traffic Act 1972 as amended by the Transport Act 1981. The Act of 1972 was amended in several respects by the Act of 1981, and, in particular, by section 25(3) of and Schedule 8 to the latter Act; new sections 6 to 12 inclusive were substituted in the Act of 1972 for those sections as originally enacted. I shall hereinafter refer to the Act of 1972 as amended by the Act of 1981, and including the substituted sections 6 to 12, as "the Act."

One of the offences for which the appellant was convicted was the offence which I may describe with sufficient accuracy for the moment as driving a motor vehicle when the proportion of alcohol in his breath exceeded the prescribed limit, contrary to section 6(1) of the Act. The other was failing to provide a specimen of breath when required to do so, contrary to section 7(4) of the Act. The Divisional Court of the Queen's Bench Division (Robert Goff L.J. and Mann J.) allowed the appeal against the latter conviction (for failing to provide a specimen of breath). They dismissed the appeal against the conviction for driving with excess alcohol in the breath but they certified that the following point of general public importance was involved in their decision:

"Were the justices correct in convicting the appellant under section 6(1) of the Road Traffic Act 1972 (as substituted by the Transport Act 1981) on the basis of the proportion of alcohol in a specimen of breath which he had been required to provide at a police station when the appellant was present at that police station because he had been wrongfully arrested."

Section 6(1)( a) of the Act, so far as relevant, provides as follows:

"6(1) If a person - ( a) drives or attempts to drive a motor vehicle on a road or other public place; … after consuming so much alcohol that the proportion of it in his breath, … exceeds the prescribed limit he shall be guilty of an offence.

It will be convenient to set out here the relevant provisions of sections 8 and 10 of the Act.

"8(1) In the course of an investigation whether a person has committed an offence under … section 6 of this Act a constable may, subject to the following provisions of this section and section 9 below, 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; … (2) A requirement under this section to provide specimens of breath can only be made at a police station. … (8) On requiring any person to provide a specimen in pursuance of this section a constable shall warn him that a failure to provide it may render him liable to prosecution…. 10(1) The following provisions apply with respect to proceedings for an offence under … section 6 of this Act. (2) Evidence of the proportion of alcohol or any drug in a specimen of breath, … provided by the accused shall, in all cases, be taken into account, and it shall be assumed that the proportion of alcohol in the accused's breath, … at the time of the alleged offence was not less than in the specimen; …"

The facts of the case are in small compass and I gratefully adopt the summary included in the judgment of Mann J. who delivered the judgment of the Divisional Court [1985] 1 W.L.R. 33, 36. On 8 May 1983 the appellant was the driver of a motor vehicle when it met with an accident. There was a passenger in the vehicle. No other person and no other vehicles were involved in the accident. When police officers arrived at the scene they found that the appellant and his passenger had left. The justices found that the officers "had no information about the appellant or his passenger" which was a finding treated in the Divisional Court as meaning that they "had no information about the physical condition of the appellant or his passenger." The officers left the scene and went directly to the appellant's house and knocked. The door was shut but not locked. There was no response to the knock but after hearing voices within the officers entered the house and required the appellant to provide a specimen of breath for a breath test. He refused. He was arrested and taken to a police station where he was required to provide specimens of breath. (My emphasis.) A specimen contained 57 microgrammes of alcohol in 100 millilitres of breath, that is to say 22 microgrammes above the prescribed limit (see the substituted section 12(2) of the Act.)

The conviction for failure to provide a specimen of breath was quashed by the Divisional Court on the ground that, at the time when the police officers required the appellant to provide the specimen, they were trespassers in his house, having entered it without his consent and without authority under the Act. The court followed the decision of this House in Morris v. Beardmore [1981] A.C. 446, and further held that, on the facts found by the magistrates, subsection 7(6) of the Act, which is a new subsection added by the Act of 1981 since the date of the decision in Morris v. Beardmore, was not applicable. The Divisional Court held, therefore, that the requirement to provide a specimen was not a valid requirement and that the appellant had committed no offence by failing to comply with it. The correctness of that decision is not now in question. It follows that his arrest for failing to provide the specimen could not be justified under section 7(5) of the Act and was unlawful. It was while he was held under that unlawful arrest that he was taken to the police station and that he provided the specimen which was the crucial piece of evidence which led to his conviction of the offence under section 6(1). In these circumstances the certified question arises.

In the Divisional Court, counsel for the appellant accepted that the specimen was relevant and admissible evidence tending to prove the offence of driving with excess alcohol in the system. But he submitted that the justices ought to have excluded the evidence, in an exercise of their discretion. The argument was based on the decision of this House in Reg. v. Sang [1980] A.C. 402, and earlier cases including Noor Mohamed v. The King [1949] A.C. 182. The Divisional Court rejected that argument and Mann J. mentioned that none of the police officers who were at any stage concerned with the appellant had acted otherwise than in good faith, and that the specimen itself had been obtained without inducement, threat (apart from the statutory warning under section 8(8) of the Act), trick or other impropriety. In these circumstances, the court held, rightly in my view, that (the admissibility of the evidence having been conceded) the magistrates were not entitled to exclude it by an exercise of their discretion.

In your Lordships' House a frontal attack was mounted on the admissibility of the specimen as evidence, on the ground that it had been obtained by means which were not authorised by the Act and which were illegal, and that it was, therefore, tainted by illegality. The submission on behalf of the appellant was largely based on the decisions of this House in Morris v. Beardmore and in Clowser v. Chaplin [1981] 1 W.L.R. 837 (and more particularly in Finnigan v. Sandiford which is included in the same report as Clowser v. Chaplin). In my opinion the submission is not well founded. Since Morris and Clowser, the relevant statutory provisions have been amended in two respects which are important for the present purposes. The amendments were made by the Act of 1981, probably in response to the criticisms made by my noble and learned friend, Lord Hailsham of St. Marylebone L.C., at p. 839 of Clowser, and by other members of your Lordships' House of the technicality of the procedure laid down in the Act of 1972. The offence created by section 6(1) of that Act was committed by driving when the proportion of alcohol in the blood "as ascertained from a laboratory test for which [the accused] subsequently provides a specimen under section 9 of this Act" exceeds the prescribed limit. Section 9(1), as originally enacted, provided that a person "who has been arrested under section 5( 5) or 8 of this Act" might while at a police station be called on to provide a specimen of blood or urine for a voluntary test. So a valid arrest was an essential prerequisite of a requirement to provide a specimen under section 9, and such a specimen was an essential prerequisite of a laboratory test under section 6(1). Accordingly in Finnigan, when the Divisional Court, and on appeal this House, held that the initial arrest had been unlawful, that invalidated all that followed, including the conviction under section 6(1). But the substituted section 6(1) of the Act no longer contains the words "as ascertained from a laboratory test …" etc. so proof of the offence under section 6(1) is not now dependent upon the accused having been validly arrested. Secondly, and more important for present purposes, the substituted section 8(1) (which corresponds to section 9(1) of the Act of 1972) does not contain the words "A person who has been arrested under section 5( 5) or 8 of this Act…." Accordingly a lawful arrest is not now specified as an essential prerequisite of a breath test.

Apart from the detailed provisions of the Act, there is nothing in Morris v. Beardmore [1981] A.C. 446 which supports a general principle that conviction for an offence under section 6(1) will be invalid if the evidence by which it is proved has been obtained unlawfully. In that case the appellant was charged with failing to supply a specimen...