Reasonable excuse
| Pages | 211-258 |
| Author | Pauline M. Callow |
Chapter 4
Reasonable Excuse
See s 6(6), Road Traffic Act 1988 (failing without reasonable excuse to co-operate
with a preliminary test) and s 7(6), Road Traffic Act 1988 (failing without
reasonable excuse to provide specimens for analysis). See also the cases in
Chapter 3 under the heading “The Meaning of ‘Failing’”, page 183.
1. THE BURDEN OF PROOF
Neale v DPP
Unreported, CO/1333/88, 11 October 1988, QBD (DC)
Where the court rejected the defence evidence of reasonable excuse for failing to
provide, there was nothing for the prosecution to negate.
A motor cyclist had been charged with failing without reasonable excuse to
provide a specimen for a breath test, contrary to s 7(4), Road Traffic Act 1972 as
substituted by s 25 and Sch 8, Transport Act 1981; and with failing without
reasonable excuse to provide a specimen of breath for analysis, contrary to s 8(7),
Road Traffic Act 1972 as likewise substituted.
At the hearing the motor cyclist adduced evidence, including medical evidence,
in support of an argument that he had a reasonable excuse for failing to provide
the specimens. The justices rejected that evidence, finding that since the defence
of reasonable excuse had not been raised by any evidence which they believed,
there was no burden on the prosecution to negate such a defence. They convicted
the motor cyclist. He appealed.
QUESTION(S) FOR THE COURT: Whether the justices were able, on the
evidence and having the benefit of seeing the appellant’s demeanour before them,
to come to the conclusion that he was lying and therefore had failed to raise the
defence of reasonable excuse.
HELD: “I would answer that question unhesitatingly in the affirmative. [The
justices] were clearly entitled to come to the conclusion, as a matter of fact, that
the appellant had been lying when giving evidence before them, and that
consequently … there was no issue raised before them as to there being in
existence a reasonable excuse … They rejected the evidence provided by the
defence, and accordingly there was … nothing for the prosecution to negate.”
Appeal dismissed.
212 4. Reasonable Excuse
DPP v Crofton
[1994] RTR 279, 24 February 1994, QBD (DC)
Where the defendant said (but did not adduce medical evidence) that he could
not provide breath specimens because he was depressed, suicidal and shaking,
and the justices applied the correct test but were not satisfied that the prosecutor
had negatived the defence of reasonable excuse, the acquittal of the motorist
was upheld.
A motorist had been charged with failing without reasonable excuse to provide
two specimens of breath for analysis, contrary to s 7(6), Road Traffic Act 1988.
He had been arrested following a positive roadside breath test. At the police
station, he was polite and co-operative. He tried three or four times to provide a
specimen, but each time just failed to provide sufficient breath.
At the hearing, the motorist submitted that he had a reasonable excuse for failure
to provide the specimens. He had been depressed, felt suicidal, and was shaking.
Depression caused him to be breathless. He did not call any medical evidence.
The justices found him an honest witness; his evidence of depression had been
wholly convincing and supported by the evidence of police officers; his
breathlessness was not self-precipitated; it had prevented him from blowing hard
or long enough to provide a satisfactory specimen. Despite the absence of medical
evidence, they accepted that he had a reasonable excuse and dismissed the charge.
The prosecutor appealed.
QUESTION(S) FOR THE COURT: Whether the evidence entitled the justices to
find that the defendant had a reasonable excuse for failing to provide two
specimens of breath for analysis.
HELD: “It was clear … that the justices did direct their minds to the three
important matters that they had to consider: (i) the need for evidence of physical
or mental incapability to provide the specimen; (ii) that medical evidence would
normally be required to support such a claim …; and … (iii) the necessary
causative link between the physical or mental conditions and the failure to provide
the specimen … the justices were not satisfied that the prosecutor had negatived
the defence of reasonable excuse.
“… the findings of fact are unimpeachable once the justices believed the
defendant on the three issues … and … the justices clearly did go through the
necessary steps … before reaching their decision … .”
The answer to the question was “yes”. Appeal dismissed.
The Burden of Proof 213
McKeon v DPP
[2007] EWHC 3216 (Admin), [2008] RTR 14, 19 December 2007, QBD (DC)
On the facts of this case, discarding the mouthpiece did not amount to an abuse
of process, but the justices applied the wrong standard of proof in respect of
“reasonable excuse”. See also Longstaff v DPP, page 237, where, again, the
defendant was not prejudiced by failure to keep the mouthpiece.
A motorist had been charged with, inter alia, failing without reasonable excuse
to provide two specimens of breath for analysis, contrary to s 7(6), Road Traffic
Act 1988. He had provided incomplete specimens. He was asked if there was any
medical reason why he could not provide a specimen and he replied that he had
“no more puff”. The officer administering the procedure concluded that he was
not trying. The breath testing instrument prompted the officer to keep the
mouthpiece for forensic examination, but he did not do so, because he had seen
the suspect’s breath go through the mouthpiece and had seen it working properly.
The magistrates convicted the motorist, who appealed.
QUESTION(S) FOR THE COURT: (1) Whether it was Wednesbury unreasonable to
refuse to stay the case as an abuse of process because the mouthpiece had not been
retained; (2) whether it was Wednesbury unreasonable to have found the defendant
guilty; (3) whether the reasons given for convicting the defendant were adequate,
or whether they contravened art 6, European Convention on Human Rights.
HELD: “[On (1)] 6. … The justices held … that the appellant had not shown on the
balance of probabilities that [the absence of the mouthpiece] has caused prejudice
to his right to a fair trial … [the officer] had felt the appellant’s breath go through
the mouthpiece and had seen that the mouthpiece was working properly. This is to
be combined with the fact that the appellant did not blow for any long periods but
only for the very short periods recorded. This would not have been caused by the
mouthpiece being faulty. Thirdly, the appellant had called medical evidence that he
had a chest condition which could have caused him not to blow for longer. That is
in reality inconsistent with a faulty mouthpiece being to blame. [The justices’]
approach to the issue of abuse of process was correct as a matter of law … .
“[On (2)] 10. …the burden under section 7(3) as to reasonable excuse is on the
defendant to raise the issue on the evidence and once that is done it is for the
prosecution to prove the absence of reasonable excuse to the criminal standard.
Here the appellant had raised the issue by the medical evidence … .
“11. … the sentence in the case stated ‘We were of the opinion that the appellant
had failed to make out a reasonable excuse …’ … clearly suggests that the justices
considered there was a burden on the appellant to make out, that is to prove, a
reasonable excuse … by reason of this, the decision to conv ict the appellant
should be quashed.
“[On (3)] 13. … [the justices’ reasons] were not so inadequate as to leave the
appellant in doubt as to why the justices had found against him on the main points.”
Appeal allowed.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
