Hussain v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES,LORD JUSTICE LEVESON |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2008] EWHC 901 (Admin) |
| Date | 19 March 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3501/2007 |
[2008] EWHC 901 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Leveson
Mr Justice Lloyd Jones
CO/3501/2007
Mr N Ley (instructed by Howells Solicitors) appeared on behalf of the Claimant
Mr C Tonge (instructed by the CPS) appeared on behalf of the Defendant
This is an appeal by case stated against a decision of District Judge Hadfield, sitting at Sheffield Magistrates' Court on 11th December 2006, convicting the appellant, Mr Asif Hussain, of an offence of failing to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988. The appellant pleaded not guilty.
The District Judge found the following facts as set out in the case stated. At 01.50 hours on 24th September 2005 the appellant was observed driving a motor vehicle along Abbeydale Road, Sheffield by two police officers. After losing sight of the vehicle for a matter of a few seconds the officers found the vehicle parked further along Abbeydale Road. The appellant was sitting in the driver's seat. The appellant provided a positive roadside breath test, following which he was arrested and taken to Mossway Police Station. There, Police Constable Houston required the appellant to provide two specimens of breath for analysis by means of an approved device, to ascertain whether the appellant had committed an offence under section 5 of the Road Traffic Act. The appellant was warned that failure to provide either of the specimens would render him liable to prosecution. He agreed to do so.
The breath test procedure began and at 02.55 hours the appellant provided the first specimen of breath. The machine would not allow the second specimen to be provided and the words “ambient fail” appeared on the screen of the machine and on the print out subsequently produced. Police Constable Houston confirmed that those words indicated to him that the machine had not done the test properly and that there was a problem with the machine. The machine was reset for a second cycle and at 03.04 hours the appellant once again provided a specimen of breath. Once again it would not allow a second specimen, displaying the words “ambient fail” on the display and print out.
Constable Houston believed that the device had not produced a reliable indication of the level of alcohol in the appellant's breath. The appellant was then taken to Bridge Street Police Station where he was taken to the Intoximeter room. At approximately 03.55 hours Police Sergeant Hayes requested that he provide two specimens of breath for analysis. The appellant was warned that failure to provide either of the specimens would render him liable to prosecution. The appellant refused and was warned again as to the consequences of refusal. The appellant again refused to provide the specimens.
On behalf of the appellant, it was contended before the court below that the breath specimens provided by the appellant on each of the two cycles should have been relied upon for the purpose of analysis of the breath alcohol level; that if those specimens were not to be relied upon then the police were able to request further specimens of breath but by virtue of section 7(3)(bb) of the Road Traffic Act 1988 could only require a specimen of blood or urine. Thirdly, it was contended on behalf of the appellant that Sergeant Hayes was entitled to request that the appellant provide further specimens but was not entitled to require him to do so.
On behalf of the respondent it was said that if the specimens provided on each of the cycles were reliable, they could be relied upon. The specimens, however, were not reliable for the reasons outlined by Constable Houston. If the specimen was not reliable, the officer was entitled to require further breath specimens rather than blood or urine specimens.
The District Judge concluded that Constable Houston had reasonable cause to believe that the device had not produced a reliable indication of the proportion of alcohol in the appellant's breath. Secondly, pursuant to section 11(3) of the Road Traffic Act 1988, the appellant had not provided a specimen of breath for analysis in such a way to enable the objective of the analysis to be carried out. Thirdly, Sergeant Hayes was entitled to require further specimens of breath as each of the initial specimens had not been provided in such a way as to enable the objective of the analysis to be satisfactorily achieved pursuant to section 11(3)(b) of the Road Traffic Act 1988. Fourthly, that section 7(3)(bb) permitted the Sergeant to require a blood or urine specimen but he was not obliged to do so. Fifthly, the appellant had, without reasonable excuse, failed to provide a specimen when required to do so pursuant to section 7 of the Road Traffic Act 1988.
Against this background the following questions have been referred for the opinion of this court:
“(1) Did the specimens of breath provided by the appellant at Mossway Police Station at 02.55 hours and 03.04 hours on 24th September 2005 constitute valid specimens of breath for the purposes of section 11(3) of the Road Traffic Act 1988?
(2) Where the officer had reasonable cause to believe that the breath testing device had not produced a reliable indication of the proportion of alcohol in the breath of the person, could another officer require that person to provide further specimens of breath?”
The relevant statutory provisions are set out in section 7(1) and section 11(3) of the Road Traffic Act 1988:
“7. Provision of specimens for analysis
(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 devise of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test …
11 … (3) A person does not cooperate with a preliminary test or provide a specimen of breath for analysis unless his cooperation or the specimen —
(a) is sufficient to enable the test or the analysis to be carried out, and
(b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.”
There is a line of authority before this court which supports the proposition that an officer would be entitled to require the provision of two further specimens of breath only if the first two samples were not such as to enable the analysis to be satisfactorily carried out. In Denny v Director of Public Prosecutions [1990] RTR 417, this court considered the corresponding provisions of the Road Traffic Act 1972 which were...
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