R v Lennard
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 08 March 1973 |
| Neutral Citation | [1973] EWCA Crim J0308-9 |
| Judgment citation (vLex) | [1973] EWCA Crim J0308-4 |
| Docket Number | No. 5538/C/72 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 March 1973 |
[1973] EWCA Crim J0308-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Scarman
and
Mr. Justice Phillips
No. 5538/C/72
MR. BLAIR GOULD for MR. L. PORTNOY appeared on behalf of the Appellant.
MR. BARRINGTON for MR. A. JOLLY appeared on behalf of the Crown.
On September 13th, 1972, at the Manchester Crown Court the Appellant was convicted after a trial before His Honour Judge Bailey and a jury, of failing to supply a specimen of blood or urine for laboratory tests and was fined £50 and disqualified from holding or obtaining a driving licence for three years. He now appeals against that conviction by leave of the single Judge.
He was charged under section 3(3) of the Road Safety Act. 1967, which provides as follows: "A person who, without reasonable excuse, fails to provide a specimen for a laboratory test … shall be guilty of an offence …". The sole question in this appeal is whether the excuse put forward by the Appellant was capable in law of being a reasonable one. This excuse was that after ceasing to drive and before being asked to give a specimen of either breath or blood he had consumed a substantial quantity of alcohol.
The jury were never asked to decide whether the Appellant had consumed alcohol as he alleged because of the unusual, and in the judgment of this Court, untoward course which the trial took. The Judge ruled that this excuse was incapable in law of being a reasonable one and he directed the jury to convict.
On March 30th, 1972, the Appellant whilst driving a motor vehicle was involved in a minor accident. When the police arrived he smelt of drink and in answer to their questions he was alleged to have said that he had just drunk a bottle of brandy. He refused to take the breath test. He was arrested and taken to a police station. There he again refused to take the breath test or ro provide a specimen of blood or urine.
It was accepted at the trial that the Appellant had been properly arrested and that the requirements of sections 2 and 3 of the Act had been complied with.
No evidence was called. That unusual situation came about in this way. Outside the Court, counsel for the Appellant told counsel for the Crown that his client admitted that the statutory conditions for requiring a blood or urine test had been complied with and that the defence would be that his client's drinking of alcohol after ceasing to drive was in law a reasonable excuse. Both counsel were anxious that the Court's time should not be wasted and counsel for the Appellant intended that his opponent should accept his statements as admissions for the purpose of section 19 of the Criminal Justice Act, 1967, and they were. Counsel on both sides do not seem to have appreciated that the police evidence about the Appellant's alleged consumption of brandy was nothing more than evidence of what he had said he had done. The fact that he had consumed alcohol after ceasing to drive could only be established by his own evidence or that of some one who had seen him drinking. There could not be the beginnings of an argument that the drinking of alcohol provided a reasonable excuse until that drinking had been proved.
Relying on what the Appellant's counsel had said outside the Court, counsel for the Crown opened the case to the jury on the basis that the Appellant was not contesting the facts which had to be proved in order to justify the police requiring the Appellant to provide a specimen of blood or urine; and he told the jury that in the Crown's submission it was not a reasonable excuse in law for the Appellant to say, as he had said to the police, that he had been drinking since ceasing to drive. We were informed by counsel that towards the end of the opening speech the Judge raised his eyebrows implying that he wanted to know whether the Appellant was making the admissions referred to by counsel for the Crown. There upon counsel for the Appellant said that he was. As this all happened during the opening speech, nothing got on to the shorthand note. As soon as the opening had finished the Judge refened to the Crown's submission that the taking of drink after ceasing to drive was no excuse for failing to provide a specimen and indicated that he agreed with it. Some discussion with counsel followed: counsel for the Crown said that if the Judge ruled to that effect, there would be no issue of fact for the jury to try. The following exchange then took place between the Judge and counsel for the Appellant: Judge: "Is the refusal conceded to?" Counsel: "Yes, Your Honour. It seems to me that my friend is quite right. If your Honour is intending to give that direction to the jury, then there is no issue of fact before the jury". Counsel then asked to be allowed to argue the point and did so. At the end of the argument the Judge ruled as follows: "I am quite satisfied that in law, as well as in common sense, that even if he had consumed post hoc alcohol, that could not form any reasonable excuse of any kind for his refusal to supply any form of specimen … That being so, if the case proceeds I must tell the jury that there is no defence open to the defendant". Counsel for the Crown then said once again that there was no issue of fact for the jury to determine. The Judge agreed and asked if there was any point in calling evidence. Counsel for the Crown said there was not. The Judge asked if the Appellant wanted to reconsider his plea. His counsel said he did not and went on to say: "I think that it is necessary for your Honour to direct the jury in the circumstances". This the Judge did and on his direction, the jury returned a verdict of guilty.
This Court does not approve of the informal way in which this trial was conducted. We appreciate that counsel were trying to save the time of the Court; but experience has often shown that forensic short cuts do not always result in justice being done. If this case had been tried as it should have been, the jury might have decided that the Appellant had not consumed alcohol after he had ceased to drive. The story he was alleged to have told the police was highly improbable and the one we were told by his counsel he would have told had he given evidence was only a little more probable: he would have said that he had drunk a bottle of wine, not brandy. Statements by those suspected of driving with too much alcohol in them to the effect that they have drunk alcohol between ceasing to drive and being asked to take the breath test are easy to make and should be carefully tested in Court unless the prosecution is prepared to make an admission. We would add, too, that the way the Appellant's admissions were dealt with was unsatisfactory. Admissions can be made in many ways and it is not for this Court to issue a Practice Direction; but we do say that whenever admissions are made the manner of doing so should be such that what has been admitted should appear clearly on the shorthand note.
Whatever irregularities there were in the trial did not amount to a mistrial nor did they cause a miscarriage of justice. The Appellant benefitted from them because the issue upon which the Judge ruled was whether the excuse foreshadowed by the Appellant, but not proved to have had any factual basis, was capable of being a reasonable one.
The problem whether an excuse such as that put forward by this Appellant is capable of being a reasonable one necessitated the Court construing section 3(3) in its context and considering a number of authorities.
Part I of the Road Safety Act, 1967, was clearly intended to overcome the problem of proof which often arose when a motorist was charged under section 6 of the Road Traffic Act, 1960, with driving, or being in charge of, a motor vehicle when under the influence of drink or drugs. By section 1 of the 1967 Act Parliament established a limit to the amount of alcohol which a motorist could drink if he was going to drive, and this limit was to be fixed by reference to the proportion of alcohol in his blood when he was driving. Provision had to be made for getting evidence of this proportion. This was done by means of the statutory requirements for breath and blood or urine tests. See sections 2 and 3. The motorist who refuses to take the breath test or to provide a specimen of blood or urine obstructs the gathering of the evidence which Parliament has decreed is the reliable evidence for the purpose of establishing whether an offence has been committed under section 1. A motorist, however, may not be able to take the breath test or provide a specimen because of his physical or mental condition. The Statute made provision for refusals which were excusable. Thus in R. v. Kelly 1972 Road Traffic Reports 447, this Court expressed the opinion (albeit obiter) that a man with a permanent tracheoctomy would have had a reasonable excuse for refusing to take the breath test; and in Scobie v. Graham 1970 Road Traffic Reports 358 the Divisional Court expressed the opinion that a man who was in pain and confused might have a reasonable excuse for failing to provide a specimen. A state of affairs which does not affect ability to take a breath test or supply a specimen does not seem, on the authorities, to amount to a reasonable excuse. Thus, a motorist who declined to give a specimen saying that he wanted to see his solicitor was adjudged by the Divisional Court not to have had a reasonable excuse (see Law v. Stephensz 1971 Road Traffic Reports 358). The Court of Appeal gave judgment to the same effect in the case of an overseas visitor who wanted to speak to the diplomatic representative of his country before giving a specimen (see R. v. Seaman, 1971 Road...
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