John Kimball Stewart and DPP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goldring,Lord Chief Justice |
| Judgment Date | 12 June 2003 |
| Neutral Citation | [2003] EWHC 1323 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1138/2003 |
| Date | 12 June 2003 |
[2003] EWHC 1323 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Lord Chief Justice Of England and Wales
The Honourable Mr Justice Goldring
Case No: CO/1138/2003
Mr. N. Corre (Solicitor Advocate) (instructed by Sonn Macmillan Solicitors) for the Appellant
Ms. M. Jacobson (instructed by Crown Prosecution Service) for the Respondent
This is a case stated by the Justices for the Petty Sessional Division of Faversham and Sittingbourne sitting at Sittingbourne. On 28 October 2002 they convicted the appellant of driving "after consuming so much alcohol that the proportion of it in his breath, namely 59 microgrammes in 100 mililitres of breath, exceeded the prescribed limit, contrary to section 5(1) of the Road Traffic Act 1988…"
The issue in this appeal
It can simply be stated. The appellant provided two specimens of breath for analysis at the police station. There was a considerable difference between them. For that reason they were an unreliable indication of the amount of alcohol in his breath. The police officer gave the appellant the choice of either providing two more specimens of breath, or specimens of blood or urine. The appellant chose to provide two more specimens of breath. The lower reading of those two specimens was relied upon by the prosecution and formed the basis of the conviction. It is said that the relevant statutory provisions, in particular section 7 of the Road Traffic Act 1988 ("the Act"), did not permit reliance on that further specimen. The police officer was not entitled to give the appellant the option of providing further specimens of breath. He was obliged to require him to provide specimens either of blood or urine.
The facts
They are set out in paragraph 2 of the Case.
"(i) At 7.40 am on 16 th November 2001, the Appellant was found asleep in the driving seat of his motor vehicle…parked in a lay-by…at Hollingbourne, Kent. The vehicle's engine was running and there was accident damage to its front…offside;
(ii) The Appellant had driven the vehicle to that location after having consumed alcohol in excess of the legal limit.
(iii) The Appellant was lawfully required by a police officer to provide a roadside breath specimen, which was positive. The Appellant was arrested and taken to Maidstone Police Station, arriving at 8.05am.
(iv) Police Constable Sanders again required the Appellant to provide two specimens of breath for analysis on an approved machine, namely an Intoximeter machine (…"the machine")
(v) In his first attempt at providing a specimen of breath, the Appellant blew incorrectly with the result that no reading was recorded by the machine.
(vi) PC Sanders again required the Appellant to provide two specimens of breath on the machine.
(vii) The procedure commenced at 8.21am. The Appellant provided two specimens of breath which were recorded by the machine as 66 microgrammes and 56 microgrammes respectively in 100 millilitres of breath, with the message "breath difference" recorded on the machine print out.
(viii) In view of the difference between the two breath readings being more than 15%, PC Sanders could not rely on the lower of the two readings.
(ix) After consulting with the Custody Sergeant, PC Sanders explained the circumstances to the Appellant and invited him to choose between providing two further samples of breath or providing a sample of blood. The Appellant chose to provide two more specimens of breath.
(x) The procedure recommenced at 8.46am and was repeated in its entirety including the warning under section 7(7) of the Act. The appellant provided two reliable specimens of breath which were recorded by the machine as 63 and 59 microgrammes of alcohol in 100 millilitres of breath, with the message "NO ERRORS" recorded on the machine printout.
(xi) The Appellant was subsequently charged with driving a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit."
The statutory framework
By section 5 of the Act it is an offence to drive a motor vehicle on a road having consumed so much alcohol that the proportion in a person's breath, blood or urine exceeds the prescribed limit.
Section 7 of the Act states,
(1) In the course of an investigation into whether a person has committed an offence under section…5…a constable may, subject to the following provisions of this section…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 or
(b) To provide a specimen of blood or urine for a laboratory test.
(2) A requirement under this section to provide specimens of breath can only be made at a police station.
(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station…and it cannot be made at a police station unless…
(bb) a device of the type mentioned in subsection (1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the machine has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned…
but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath…
(7) A constable must, in requiring any person to provide a specimen in pursuance of this section, warn him that failure to provide it may render him liable for prosecution."
Section 8 of the Act states,
"Choice of specimens of breath. (1)…of any two specimens of breath provided by any person in pursuance of section 7…the lower proportion of alcohol in the breath shall be used and the other shall be disregarded…"
Section 11 states,
"(1) The following provisions apply for the interpretation of [section 7]…
(3) A person does not provide a specimen of breath for…analysis…unless the specimen-
(a) is sufficient to enable the…analysis to be carried out, and
(b) is provided in such a way as to enable the objective of the…analysis to be satisfactorily achieved…"
In addition to the statutory provisions, this court's (and I assume the Magistrates') attention was drawn by Mr. Corre on behalf of the appellant to two particular documents concerning the machine and the procedure to be followed.
The first was a document published by the Home Office in 1994 and titled "Evidential Breath Alcohol Testing Instruments ("the Guide")." It is said to be a "Guide to the type approval procedures for evidential breath alcohol testing instruments used for road traffic law enforcement in Great Britain.
Paragraph 5.5.5 states,
"…Any breath specimen commenced within the 3 minute period which fully satisfies the breath sampling requirements shall be valid and allowed to proceed to completion.
If no satisfactory breath specimen is provided within the 3 minute allowance the instrument shall print a report indicating that no specimen has been supplied."
Paragraph 5.6.1 states,
"Samples: Readings from the two required breath specimens shall only be accepted if separated by no more than 15% of the lower reading…"
The second document Mr. Corre referred to was Form MG DD/A ("MG DD/A"). That is the pro-forma used by the police officer at the police station. Paragraph A13 deals with "instrument and sample reliability." It states,
"…where a machine produces an instrument message of…breath difference…then whilst the machine may be operating reliably a reliable indication of the proportion of alcohol in a person's breath may not have been obtained and it will be usual to proceed to a requirement for blood under section 7(3)(bb)…
Paragraph A15, dealing with "breath specimens provided," states,
"If the accused has provided…one or two specimens of breath but a reliable indication may not have been obtained…go to A17.
Paragraph A17 states,
"If specimens have been provided but no reliable indication of the proportion of alcohol in the…breath has been obtained give details."
There is a space for the details. The paragraph then effectively provides for the officer, if he wishes, to require a laboratory specimen. The obtaining of such a specimen (blood or urine) is dealt with in a different form.
The contentions on both sides
The Magistrates summarised them. They were to some extent repeated to us. On behalf of the Appellant it was contended,
"The procedure conducted by PC Sanders in obtaining the second set of breath samples had been unlawful, and that any evidence resulting from it was inadmissible. In particular, section 7(1)(a), read in conjunction with section 8(1), of the Road Traffic Act 1988, allowed the officer to require only two specimens of breath for analysis on the machine. There was no provision to enable the Appellant to choose between providing breath or blood. Therefore the officer had exceeded his powers in requiring a second set of breath samples and evidence of the lower reading of 59 microgrammes had been unlawfully obtained…The court should exercise its discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984."
On behalf of the Respondent it was contended,
"The first attempt at providing a...
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