R v Reid (Philip)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE SCARMAN |
| Judgment Date | 15 June 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J0615-5 |
| Docket Number | No. 4592/C/73 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 June 1973 |
[1973] EWCA Crim J0615-5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Scarman
and
Mr. Justice Ackner
No. 4592/C/73
MR. K.C.L. SMITHIES appeared on behalf of the Appellant.
MR. D. SMITH appeared on behalf of the Crown.
Lord Justice Scarman will deliver the judgment of the Court.
On 23rd August last year at Southampton Crown Court, the Appellant, Philip John Wilson Reid, was convicted of failing to provide a specimen for a laboratory test. He was fined £25 and his licence was endorsed. He was convicted of an offence under section 3 of the Road Safety Act 1967. The case is therefore another of the growing list of cases concerned with the interpretation of sections 2 and 3 of that Act. The Appellant appeals against his conviction on questions of law, and therefore comes to this Court without the necessity of having to obtain leave.
The facts are these. At about 2.45 to 3 on the afternoon of 1st June last year Mr. Reid, the Appellant, was driving his motor car in Bursledon. A police officer noticed that he was not displaying on his windscreen an excise licence. Mr. Reid was driving in a perfectly proper manner. The police constable stopped him. Mr. Reid then got out of his car and explained to the police officer that he had lost his road fund licence about a month earlier. At that stage the police constable did not smell alcohol; neither had he any reason to believe that Mr. Reid had had anything to drink.
The police constable then began to obtain and note down the information which a police officer in these circumstances, as a matter of police routine, is required to obtain. He noted his name, and, as he noted his name, he remembered that Mr. Reid had at one time served in the Police Force. He then began to write down Mr. Reid's address, which was that of licensed premises in Bursledon where Mr. Reid was the Manager. The officer said in evidence that it was at this stage of his routine inquiries that he, for the first time, smelt drink on Mr. Reid's breath. The police constable then asked Mr. Reid whether he had taken anything to drink, and according to the officer Mr. Reid said he had a lager, half a pint of lager, some five or so minutes previously. It was then that the police constable asked Mr. Reid to provide a specimen of his breath for a breath test, and indicated, obviously in the light of the answer he had just had, he would be asking Mr. Reid to wait for fifteen minutes before taking the test. Mr. Reid replied 'no'; he refused to provide a specimen of his breath. He said "You have no power to make me take a test. You can only give me one after an accident, a moving traffic offence or if you suspected drink from the manner of my driving. An excise licence is not a moving traffic offence". Mr. Reid was therefore challenging the right in law of the police constable at that moment to require him to provide a specimen of breath. The police constable then asked him for a second time to provide a specimen and for a second time Mr. Reid refused. The police constable then arrested him and took him to a police station, where, in accordance with the usual procedure in cases of this class, and indeed in accordance with the statute, Mr. Reid was given a further opportunity to provide a specimen of breath, but again Mr. Reid refused saying that he did so for the same reasons as before.
"When Mr. Reid and the police constable reached the police station, they were received or met in a room by a Sergeant of the constabulary, who also knew Mr. Reid. After Mr. Reid had refused again to provide a specimen of breath and had also refused to provide a specimen for a laboratory test, the police constable went out of the room for some purpose, and, while he was put of the room, the more senior policeman talked to Mr. Reid, probably in an avuncular way. As a result, when the police constable who had made the arrest returned to the room, Mr. Reid now offered to provide a specimen for a laboratory test but the constable was unyielding. He said"…"No, you have had your chance".
Mr. Reid did not give evidence at the trial, and upon the facts as I have outlined them, the prosecution submitted that Mr. Reid was one who without reasonable excuse had failed to provide a specimen for a laboratory test, and was therefore guilty of an offence under section 3(3) of the 1967 Act. The facts which the prosecution had to prove in order to establish the commission of that offence included a lawful requirement by the police constable at the roadside for Mr. Reid to provide a specimen of breath for a breath test.
Mr. Smithies, on behalf of Mr. Reid, takes three points. First he submits that the police constable had no power to require Mr. Reid to provide a specimen of breath at the roadside, because at the time that the constable formed his suspicion that Mr. Reid had alcohol in his body, Mr. Reid was not a person driving or attempting to drive a motor vehicle. It is important to observe that this case is concerned not with the time when the requirement was made of the alleged driver, but with the time at which the police constable formed his suspicion. Mr. Smithies' second point is that, even if it be correct as a matter of law that Mr. Reid had failed to comply with a lawful requirement made upon him by the constable, nevertheless because of the circumstances of that street side scene, he had reasonable excuse for failing to provide a specimen for a laboratory test. Mr. Smithies' third point is that upon a proper direction and upon a proper view of the law, there was in this case no failure by Mr. Reid to provide a specimen at the police station.
I take these three points in the order in which I have set them out. First of all, was Mr. Reid a person who was driving or attempting to drive a motor vehicle on a road when the constable first suspected him of having alcohol in his body? The learned trial Judge directed that this was a question of fact for the jury. He gave an admirably careful direction, based upon the majority speeches in Pinner v. Everett, reported in 1969 3 All England Reports at page 257. Mr. Smithies argued that, though the question as to whether Mr. Reid was driving or attempting to drive was a question of fact and degree, nevertheless it was incumbent upon the Court to give the jury a proper direction as to the interpretation of section 2; and he submitted that in the light of the authorities someone who has got out of his car can no longer be regarded as a person who is driving or attempting to drive.
In our judgment this submission is unfounded. I do not propose to consider at any length the authorities, but the case which is nearest to the present case on the facts is undoubtedly that of Pinner v. Everett. In Pinner v. Everett, as the headnote succinctly states "Whether a person is, or is not, a 'person driving or attempting to drive' for the purposes of section 2(1) is not necessarily determined by whether the vehicle in question is in motion but is a question of degree and fact in each case". In Pinner v. Everett, the successful appellant had indeed got out of his motor car, and the facts were that an appreciable period of time had elapsed before the police officers noticed the smell of alcohol; and, before they had noticed that smell, there had been a conversation about other matters which had nothing whatever to do with the driving. In Lord Reid's view the case was very near the border line.
Pinner v. Everett has been considered in the recent decision of the House of Lords, Sakhuja v. Allen 1972 2 All England Reports 311. That was a case concerned, not with the time at which suspicion arose, but with the time at which the requirement was made. In the course of his speech Lord Salmon said of Pinner v. Everett that it laid down plainly that the suspicion that the motorist has alcohol in his body must arise while he is driving or attempting to drive. "The decision gives some protection to the public against random checks and does not seriously hamper the police if the word 'driving' is given a reasonably liberal construction. I would deprecate that decision being questioned, even if I disagreed with it," and he goes on to add that the law should be regarded as settled by Pinner v. Everett.
It is clear from the speeches of the majority of the Lords in Sakhuja v. Allen that, while Pinner v. Everett must be regarded as authority for the proposition that suspicion must arise while the person is driving or attempting to drive the car, a liberal construction may be put upon those words and indeed must be put upon those words; and a temporary interruption in the course of driving, where there is every indication that the driving will be resumed after that interruption is not necessarily an end to the driving or attempt to drive. It is a question of fact and degree as to whether in the circumstances of the interruption the suspect is still driving or attempting to drive his motor car.
These authorities have recently been considered in two cases, one in the Divisional Court by a full Court assisted by no less than three leading counsel, Edkins v. Knowles, 1973 2 All England Reports 503, and the other by the Court of Appeal in R. v. Bates 1973 2 All England Reports 509. In Bates' case...
To continue reading
Request your trial
- Newsome v Hayton
- DPP v Fountain
- Payne v Diccox
-
Morris v Beardmore
...to "reasonable excuse" in the context of subsection (3): see Reg. v. Lennard [1973] 1 W.L.R. 483. Though, as I indicated was possible in Reg. v. Reid [1973] 1 W.L.R. 1283 at page 1289 and as my noble and learned friend Lord Roskill has observed in this case, the restriction should, perhaps,......