Morris v Beardmore

JurisdictionUK Non-devolved
JudgeLord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Scarman,Lord Roskill
Judgment Date17 July 1980
Judgment citation (vLex)[1980] UKHL J0717-1
Date17 July 1980
CourtHouse of Lords
(on Appeal from a Divisional Court of the Queen's Bench Division.)

[1980] UKHL J0717-1

Lord Diplock

Lord Edmund-Davies

Lord Keith of Kinkel

Lord Scarman

Lord Roskill

House of Lords

Lord Diplock

My Lords,


This is yet another of the "breathalyser" cases to reach this House. The facts are simple and undisputed. The appellant, Beardmore, was driving a motor car on a public road. It came into collision with another vehicle at 10.45 p.m. After the accident Beardmore went home. Some one-and-a-half hours later, it having by then been ascertained by the police that Beardmore was the driver of one of the cars involved in the accident, three policemen in uniform headed by a Superintendent, went to Beardmore's house. They were admitted by Beardmore's son, but Beardmore himself was upstairs in a bedroom. In response to five successive requests by the Superintendent, he refused to come down and discuss the accident with the officers and sent a message through his son that they were trespassers and their continued presence in his house was against his wishes. Notwithstanding this, the three police officers went up the stairs and entered the bedroom where Beardmore was and the Superintendent required him to undergo a breath test. This Beardmore refused to do indicating, as the magistrates delicately put it, that the police had no right to be there. The Superintendent, having smelt alcohol upon Beardmore's breath, there and then arrested him and took him to a police station where he again refused to take a breath test and subsequently refused to supply a specimen of blood or urine for a laboratory test.


Beardmore was duly charged before the Walsall Magistrates' Court with two offences: one under section 8(3) of the Road Traffic Act 1972 of failing without reasonable excuse to provide a specimen of breath for a breath test when required to do so while at his home, the other under section 8(7) of the Act of failing without reasonable excuse to provide, while at the police station, a specimen of blood or urine for a laboratory test.


The magistrates dismissed both charges on the ground that the requirement to undergo a breath test made in the circumstances that I have recounted was unlawful; that, accordingly, an arrest based upon the failure to comply with that requirement was unlawful too, and brought down with it the lawfulness of the subsequent requirement to provide a specimen of blood or urine at the police station, (c.f.: Spicer v. Holt [1977] A.C. 987). They stated a special case for the opinion of the High Court, in which the reason that they gave for reaching this conclusion was that a trespassing constable ceases to be a constable in uniform within the meaning of section 8.


The special case was heard by a Divisional Court. The appeal was allowed and the case remitted to the magistrates' court to resume the hearing. The Divisional Court (Cumming-Bruce L.J. and Neill J.) held that the only conditions that must be complied with by the constable in order to make lawful a requirement to provide a specimen of breath for a breath test and a subsequent arrest for failure to do so, are those expressly stated in the statute. They considered that the fact that the constable had been unable to put himself in a position where it was possible for him to make the requirement except by acting in intentional violation of the common law rights of the person to whom the requirement was addressed did not make it an unlawful requirement which that person was entitled to ignore. The judgment of the Divisional Court was delivered before the decision of this House in Reg. v. Sang [1979] 3 W.L.R. 263. In reaching their decision to allow the appeal the members of the court were plainly influenced by their belief that the magistrates would have a wide discretion to exclude evidence of the Superintendent's requiring the accused to undergo a breath test and of the subsequent arrest of the accused, if they thought that the behaviour of the police officers in intruding into the accused's bedroom against his will in order to make the requirement had been seriously oppressive. For tortious conduct by the police which the court of trial did not consider to be sufficiently outrageous to justify exclusion of evidence of it and the consequent acquittal of the accused, the Divisional Court considered that there would be an adequate remedy in a subsequent civil action for trespass to land brought against the police by the accused.


My Lords, in Reg. v. Sang this House held that there was no such general exclusionary discretion vested in a trial judge as had been suggested in a number of comparatively recent cases and which the Divisional Court assumed would have entitled the magistrates in the instant case to exclude evidence of the requirement to undergo a breath test and of the arrest if they thought the conduct of the police officers in making them was seriously oppressive. This evidence does not fall within either of the two categories to which the exclusionary discretion of the trial judge was held by this House to be confined. Where the charge is one of failure to produce a specimen of breath for a breath test under section 8(3), evidence of a requirement to provide a specimen of breath made in the circumstances specified in section 8(2), and of the failure of the accused to provide it, is direct evidence of the two essential elements of the actus reus of the offence itself. No question of weighing its probative value against its prejudicial effect can arise; if believed, it is conclusive of the guilt of the accused. Nor is it evidence subsequently obtained from the accused himself relating to an offence that has already been committed by him, so as to be capable of falling within the secondary category of evidence which, although it was not discussed in detail, was recognised in Reg. v. Sang as subject to the trial judge's exclusionary discretion. Like the evidence of acts done by the accused on the (assumed) instigation of the police as agents provocateurs, which was held in Reg. v. Sang not to be subject to the exclusionary discretion, it is evidence of conduct by the accused which in itself constitutes the offence charged and is given by a witness who himself observed that conduct.


My Lords, sections 8 and 9 of the Road Traffic Act 1972 and their statutory predecessors provide for considerable inroads by the police upon rights and liberties of private citizens that are recognised and protected by the common law. With the laudable object of reducing the appalling toll of death and injury caused by drunken drivers on the roads, these sections authorise constables to do several things to private individuals which, in the absence of statutory authorisation, would amount to torts actionable in damages at the suit of the person whose common law rights had been infringed, and restrainable by a court of justice if the infringement had been threatened but not carried to completion before it was possible to apply for an injunction. For the purposes of the instant case, consideration can be limited to infringements of the common law rights of a driver who is required by a constable to undergo a breath test in the circumstances specified in subsection (2) of section 8 and is charged with an offence under subsection (3) because of his failure to do so. Different considerations may apply where the requirement to undergo a breath test is made under subsection (1).


Except to the extent that such conduct by a constable is authorised by statute it is a serious violation of the common law rights of the driver to be required, under threat of forcible detention in the event of noncompliance, to do the physical act of blowing into a breathalyser against his will; to be detained by force or threat of force at the place where the constable requires the breath test to be taken until the test has been completed—which in some circumstances may take a considerable time; and to be compelled by force or threat of it to go to a police station to take the breath test if the constable thinks fit. I have used the word "detained" rather than "arrested" because the power which section 8 confers upon a constable to restrain the liberty of movement of a person required by him to take a breath test, particularly where that requirement is made under subsection (2), is of a wholly different legal nature from the arrest of a suspected offender effected by a constable under powers conferred upon him at common law or under section 2 of the Criminal Law Act 1967.


Parliament in section 8(2) of the Road Traffic Act 1972 has been at pains to lay down the conditions which must be satisfied to remove what would otherwise be their tortious character from the inroads upon common law rights of the individual to which I have referred above. Those inroads are the necessary consequences of a constable doing that which he is expressly authorised to do by the subsection. The conditions are three in number: (1) that an accident should have occurred involving a vehicle on a road or other public place, ( 2) that the constable should have reasonable cause to believe that the person whom he requires to undergo a breath test was driving or attempting to drive that vehicle at the time of the accident; and (3) that the constable should be in uniform when he makes the requirement. The constable need have no suspicion that the person whom he requires to undergo the breath test has committed any offence whatever, nor even that he had any alcohol in his body when the accident occurred; so for the purpose of testing whether, in the instant case, a lawful requirement was made on Beardmore to undergo a breath test in his own home one must proceed on the assumption that at the time when the requirement was made he had not been guilty of any offence; none has been proved...

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