Recent Judicial Decisions
| Published date | 01 January 1976 |
| Author | J. C. Wood |
| Date | 01 January 1976 |
| DOI | 10.1177/0032258X7604900109 |
| Subject Matter | Article |
PROFESSOR
J.
C.
WOOD,
C.B.E.,
L.L.M.
The University
of
Sheffield,
Legal Correspondent
of
The Police Journal
RECENT JUDICIAL DECISIONS
HALF A BAG FULL
Walker v. Lovell
[1975]
1W.L.R.
1141
House of Lords
Lovell was charged under s. 8(1) of the Road Traffic Act 1972
(failing to provide a specimen of breath) and under s. 6(1) of the
same Act (exceeding the blood/alcohol limit). The incident took
place early on New Year's Day. Lovell was seen to leave his car
which had just got a flat tyre. He was staggering, so he was asked to
take a breath test. He was told
that
this required inflating the bag
with a single breath of 10 to 20 seconds duration. He could only
manage two short puffs of about 4 seconds each. He was, therefore,
arrested for failing to supply a sample of breath under s. 8(5) of the
Road Traffic Act 1972. After so arresting him the police officer saw
that the crystals had turned green.
It
is not surprising, because sub-
sequent examination gave an alcohol content reading of more than
200 milligrams. On these facts were the two charges, failing to pro-
vide a specimen and excess alcohol, based. The magistrates dismissed
the charges and the Divisional Court dismissed the prosecutor's
appeal.
The prosecutor appealed to the House of Lords. He challenged the
legal basis of the acquittals. On the charge of failing to provide a
breath specimen it was accepted
that
the charge could not succeed
where enough breath was given to get a positive reading. This seems
common sense and is supported by recent case law - R. v. Holah
[1973]
1W.L.R. 127 and dicta in Webber v. Carey
[1970]
A.C. 1072.
The second charge, excess alcohol, failed because the arrest was not
lawful. The police officer had failed to check the crystals so had not
arrested for the obvious reason - a positive breath test. All that
followed from the unlawful arrest was, according to the rules, a
nullity.
The House of Lords only dismissed the appeal by a bare majority.
Lord Diplock expressed the majority's reasoning succinctly. The
crucial rule is stated in Scott v. Baker
[1969]
1Q.B. 659.
It
is funda-
mental to an excess alcohol offence that there should be valid tests
and a valid arrest. Lord Diplock took the view that an effective
sample cannot be the basis for a charge of failure to provide. The
argument to the contrary must be based on the argument that the
rules as to use of the Alcotest device had not been complied with.
Emphasis on strict compliance with the rules about use has pre-
viously led to considerable difficulty but the House of Lords in
55 January
1976
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