R v John
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 15 March 1974 |
| Judgment citation (vLex) | [1974] EWCA Crim J0315-8 |
| Docket Number | No. 825/C/73 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 March 1974 |
[1974] EWCA Crim J0315-8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice James
and
Mr. Justice Caulfield
No. 825/C/73
MR. P. CONI was not present and was not represented.
MR. D. FARQUHARSON, Q.C. and MR. R. J. PRENDERGAST appeared on behalf of the Crown.
This appeal brought by leave of the full Court, granted on 8th October 1973, raises a point of general importance in connection with what is popularly called breathalyser law. The Court is grateful to counsel for the Appellant and the Crown for the clear way in which they have placed the rival contentions before it. In a sentence the point is this: where a man is required by law, after all due formalities have been complied with, to supply a sample in accordance with the provisions of the Road Traffic Act, is a reasonable excuse for him to say to the police officer My personal religious belief or faith or tenet does not allow me to comply with that request, albeit it is one which you properly make to me in accordance with your duty under the statute' was to enable that point to be argued that the full Court gave leave.
The facts fall within a very narrow compass On the night of 2nd May 1972 – why this case has taken so long to come on is not the fault of the Court – the Appellant drove on a restricted road at a speed exceeding 30 miles an hour. He was stopped. His breath smelt of drink. A breathalyser test taken at 9.40 p.m. was positive. is not disputed that he was then properly arrested. He was taken to the local police station. He was breathalysed a second time at one minute past ten. That second breath test proved positive. He was asked for a smaple of blood. He refused for the reason I have already indicated. The statutory procedure laid down in section 9 was then gone through. A first sample of urine was taken and thrown away, as the statute requires. He was unable, and the reason was genuine, to supply a second. He was asked for a second sample of blood. Again he refused. Accordingly he was charged with an offence against section 3(3) of the 1967 Act (now section 9(3) of the 1972 Act), which provides "A person who, without reasonable excuse, fails to provide a specimen for a laboratory test in pursuance of a requirement imposed under this section shall be guilty of an offence."
The sole question is whether or not the Appellant had reasonable use. Mr. Coni on his behalf says that he had. His personal belief can be shortly and simply stated. No one has doubted their sincerity or his sincerity. He is apparently a follower of and a believer in the doctrines enunciated in the last century by Mesmer. He believes that he is possessed of certain faith healing powers derived from the presence in his blood of divinely given gifts. It is not for this Court to presume to comment upon those beliefs. They are, it is accepted on all sides, genuinely a; sincerely held. It was for that reason that he said, and there is no doubt that he believed, that his beliefs precluded him from complying with what would otherwise have been his obligation.
Is that a reasonable excuse? It is said that it is. when the matter came before the learned Judge, the learned Judge heard the evidence of the Appellant. After hearing arguments advanced by counsel on both sides, he ruled as a matter of law – and he did not have the benefit, if benefit it be, of the citation of authorities which we have had – that those beliefs were incapable of affording the Appellant a reasonable excuse. Accordingly, and perfectly properly in accordance with his view of the law, he directed the jury that there was no defence and the jury, under his direction, returned a verdict of guilty. The Appellant, a man of otherwise impeccable antecedents, was thereupon fined £40, disqualified from driving for twelve months and ordered to pay £20 towards the costs of the prosecution.
We have been referred to a number of authorities in this field. I do not propose to go through all of them. In Law V. Stephens 1971 Road Traffic Reports 358, the Divisional Court. (Lord Parker, then Lord Chief Justice, Lord Justice widgery, as he then was, and Mr. Justice Bean), stated categorically when considering what was capable of being reasonable excuse, that that question was in the first instance a question of law. Lord Parker at page 361, said "In that connection I think it is only right to say that it is a question of law in the first instance whether something put forward is capable of being a reasonable excuse; if it is capable of being one, then it becomes a matter of fact and degree as to whether or not it amounts to a reasonable excuse, and the burden of course then is on the prosecution to negative it."
MR. Coni in this Court has not challenged that statement. This Court therefore proceeds upon the basis, accepted on both sides, that the first question it has to ask is whether or not a particular excuse is capable in law of being a reasonable excuse. If the present facts are capable in law of being a reasonable excuse, then the learned Judge's ruling and direction to the jury were wrong, and this conviction must be quashed. But if those facts are incapable in law of being a reasonable excuse, it was of course the Judge's duty to rule as he did, and his ruling was plainly right.
Since that decision of the Divisional Court there have been three decisions of this court to which it is necessary to refer. This Court on each occasion included Lord Justice Lawton and Lord Justice Scarman. The first R. V. Lennard 1973 Road Traffic Reports 252. Lord justice Lawton read the reserved judgment of the Court. It is not necessary to relate the facts. At page 255 A he said "The problem whether an excuse such as that put forward by the appellant is capable of being a reasonable one necessitated the court construing section 3(3) in its context and considering a number of authorities." The learned Lord Justice then went on to deal with the various statutory provisions. At H on that page he said: In our judgment no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health." Mr. Coni realistically accepted that if those final words used by the learned Lord Justice were to be Followed without qualification, they presented difficulties for him in this appeal.
Immediately after Lennard, this Court, in fact on the very next day, again had to consider the same point in R. V. Najran, 1973 Road Traffic Reports 451. There the learned Recorder at Birmingham Crown Court had expressed the view that...
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