R v Holah
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 03 November 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J1103-5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 November 1972 |
| Docket Number | No. 218/B/72 |
[1972] EWCA Crim J1103-5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Mr. Justice Bristow
and
Mr. Justice Forbes
No. 218/B/72
MR. W. DENNY appeared on behalf of the Appellant.
MISS A. GODDARD appeared on behalf of the Crown.
At the beginning of his speech in Sakhuja v. Allen (1972) 2 Weekly Law Reports 1116, the latest of the appeals under the Road Safety Act 1967 to reach the House of Lords, Lord Hailsham of St. Marylebone, Lord Chancellor, observed that "like many appeals under the Road Safety Act 1967, this appeal is wholly without merit"; that observation is especially pertinent to the present appeal.
The Appellant was arrested by two Police Officers in the early hours of the morning of Monday, 22nd March, 1971. They had observed a Rolls Royce car being driven in Church Road, Upper Norwood, in South London in a highly erratic and indeed dangerous manner. After the Rolls Royce car stopped, a man, later identified as the Appellant, staggered towards the Officers. One Officer - Sergeant Turner - asked the Appellant if he had been drinking. The Appellant replied truthfully in the affirmative adding that he had last drunk about five minutes before. The two Police Officers then fetched the Alcotest equipment and the Appellant agreed to take the test after twenty minutes had elapsed from his last drink.
The Appellant and the Police Officers compared their watches and waited. At 1.59 a.m., by which time Sergeant Turner had told the Appellant how to provide the sample, the Appellant was given the equipment. He began to breathe into it but failed fully to inflate the bag. The Officers observed that the reading was positive but Sergeant Turner nevertheless considered that the Appellant had failed to take the test properly. The Sergeant arrested the Appellant for failure to provide a specimen of breath. There was no question but that both Police Officers acted in complete good faith at all times.
It was common ground at the trial that the intention of the Police Officers was to arrest the Appellant for failure to comply with Section 2(5) of the 1967 Act in purported pursuance of the power to arrest without warrant which that sub-section confers. It was not disputed that the arresting Officer had ample reasonable cause to suspect the Appellant of having alcohol in his body. At no time was the arrest effected in purported pursuance either of Section 2(4) of the 1967 Act or Section 6(4) of the Road Traffic Act 1960.
When a sample of the Appellant's urine was taken it showed a concentration of 257 milligrams of alcohol in 100 millilitres of urine.
The Appellant was tried at Croydon Crown Court on the 5th and 6th January, 1972 before His Honour Judge Grieves and a Jury. The primary facts outlined above were not in dispute. The Appellant did not give evidence. At the close of the case for the Crown a number of submissions were made by Mr. Denny on behalf of the Appellant. Certain of those submissions have been overtaken by subsequent events, notably the decision of the House of Lords in Sakhuja v. Allenalready referred to. These were not repeated in this Court.
Mr. Denny made other submissions to the learned Judge which were repeated by him in this Court., principally that on those facts the learned Judge ought to have withdrawn the case from the Jury and directed a verdict of "Not Guilty" to be entered.
Stated in summary form his submissions were as follows: 1. The Appellant was only obliged to give a specimen of blood or urine pursuant to Section 3(1) of the 1967 Act if he had previously been lawfully arrested without warrant either under Section 2(4) or Section 2(5) of that Act. 2. Unless the Appellant had been lawfully arrested, the result of the analysis of that specimen could not properly be adduced in evidence against him - see Scott v. Baker (1969) 1 Queen's Bench 659 per Lord Parker, Chief Justice, at 671, Webber v. Carey (1971) Appeal Cases 1072 per Lord Diplock at page 1094 and Sakhuja v. Allen (1972) 2 Weekly Law Reports 1116 per Lord Hailsham of St. Marylebone, Lord Chancellor, at page 1120. 3. The only ground given and intended to be given for the Appellant's arrest was that the Appellant had failed to supply a specimen of breath for a breath test contrary to Section 4(5) of the 1967 Act. 4. The Appellant had manifestly not so failed since the specimen of breath in fact supplied by him sufficed to give a positive reading on the breathalyser. 5. The Appellant could have been lawfully arrested pursuant to Section 2(4) of the 1967 Act since in truth and in fact it appeared to the arresting Officer that the breathalyser indicated that the proportion of alcohol in the Appellant's blood exceeded the prescribed limit but the Appellant was not so arrested. 6. The arrest having been unlawfully effected pursuant to Section 2(5) it was not now open to the Crown to justify the arrest retrospectively on the ground that the Appellant might have been lawfully arrested under Section 2(4). 7. The analysis of the sample taken pursuant to Section 3(1) was therefore inadmissible since the conditions precedent to its admissibility had not been complied with. 8. The learned trial Judge was wrong in leaving to the Jury the issue whether the Appellant had failed to supply a specimen of breath pursuant to Section 2(5) - even though the Judge gave a strong indication that the Jury should conclude that the Appellant had not so failed since there was no evidence on which a Jury properly directed could find that he had so failed. 9. The trial Judge was also wrong in directing the Jury that even if they found that there was no such failure to take the breath test, it was enough to justify the arrest and thus make the analysis of the sample of urine admissible, if the Appellant had been told the substance of the offence for which he was being arrested -transcript pages 39(a) C and 40 E.
The Jury convicted the Appellant. As already stated the Appellant did not give evidence. He was fined £100 and disqualified for three years. On the 10th January, 1972 the learned Judge granted a certificate in the following terms: "whether I was right in telling the jury that it was open to them on the evidence in the case to find that the arrest was valid and that the defendant was sufficiently informed of the substance of the matter for which he was arrested."
Though leave to appeal was sought from this Court on other grounds, the argument in this Court on the hearing of the appeal was limited to the subject matter of that certificate.
If it be admissible to look at the true facts of this case, the Appellant who, this Court was told, had a previous conviction for an offence against the Road Safety Act 1967 was driving a Rolls Royce car when he was clearly unfit to do so by reason of the amount of alcohol which he had consumed and when the analysis of the sample of his urine showed him to be in very grave breach indeed of the law. Nonetheless he seeks to avoid conviction on the ground that his arrest was unlawful because the arresting Officer, honestly believing that because the Appellant had not fully inflated the bag, he had failed to provide a specimen of breath (despite the positive result shown on the breathalyser) wrongly arrested him under Section 2(5) when he could and should have arrested him under Section 2(4).
The difficulties of Police Officers in enforcing the 1967 Act are notorious...
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