Reasonable Excuse
| Author | Pauline M Callow |
| Pages | 219-258 |
The Burden of Proof
Chapter 5
Reasonable Excuse
See s 6(6), Road Traffic Act 1988 (failing without reasonable excuse to co-operate with a preliminary test), replacing s 6(4), Road Traffic Act 1988 (failing without reasonable excuse to provide a specimen of breath for a breath test); and s 7(6), Road Traffic Act 1988 (failing without reasonable excuse to provide specimens for analysis). See also the cases under the heading “The Meaning of Failing” in Chapter 4, page 191.
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.
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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 cooperative. 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.
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 241, 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
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The Burden of Proof
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 article 6 of the European Convention on Human Rights.
Held: [On (1)] “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)] “…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 … 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 convict the appellant should be quashed.
[On (3)] “[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.
Piggott v DPP
[2008] EWHC 305 (Admin), [2008] RTR 16, 8 February 2008, QBD (DC) There is no requirement that a suspect communicate a reasonable excuse for failing to provide a breath specimen, although failure to do so may lead the court to conclude that an excuse belatedly proffered was not a reasonable one because in reality there was a wilful refusal or failure to provide. Compare DPP v Lonsdale, page 235, where the officer conducting the evidential breath testing did not know that the motorist had told the arresting officer that he suffered from bronchitis, and that he had a prescription in his pocket.
A motorist had been charged with failing without reasonable excuse to provide specimens of breath for analysis, contrary to s 7(6), Road Traffic Act 1988. She had been arrested and, at the police station, failed to provide a satisfactory breath specimen after four attempts. When asked if there were any medical reasons, she replied “no”. At her trial, a medical report was adduced,
CHAPTER 5: REASONABLE EXCUSE
in which it was said she suffered from asthma and hyperventilation syndrome. That report was accepted. She also said she had told the arresting officer she suffered from asthma but did not think it necessary also to tell the investigating officer.
She was convicted and appealed.
Question(s) for the Court: (i) Whether the justices were correct to find that it was essential for the motorist to inform the officer requiring the specimens of breath whether she suffered from any medical condition which could prevent her providing the specimens, or (ii) should the justices have found that the motorist informing another officer who witnessed the breath test procedure was sufficient.
Held: [After a discussion of the contents of the case stated] “… it is clear that the justices did not convict the appellant because they believed that there was no medical reason for her failure or because they believed that she had not genuinely tried to give a sample. She was convicted because she had told the wrong officer, … the arresting officer, rather than … the officer responsible for obtaining the specimens, about the medical problem that was the reason for her failure to give a specimen …
“… the statutory question is whether there was a reasonable excuse for the...
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