Recent Judicial Decisions
| Published date | 01 October 1979 |
| Date | 01 October 1979 |
| Author | John Wood |
| DOI | 10.1177/0032258X7905200410 |
| Subject Matter | Article |
PROFESSOR SIR JOHN WOOD, C.B.E., LL.M.,
The University
of
Sheffield.
Legal Correspondent
of
the
POLICE
JOURNAL
RECENT
JUDICIAL
DECISIONS
APRIVATE BREATH TEST
Morris v. Beardmore [1979] 3 W.L.R. 93 Divisional Court
Beardmore was charged under s.8(3) of the Road Traffic Act 1972
with failing to provide a specimen of breath and of further failure to
provide specimens under s.8(3). An accident had occurred one night
at Brownhills involving two motor cars. Two senior police officers,
who knew of the accident and were in uniform, went to the
defendant's house about an hour and a half after the accident. They
were invited into the house by the defendant's son but the defendant,
although asked five times, refused to come from upstairsand discuss
the accident. He finally sent word that the officers should leave.
Notwithstanding
this they
went'
upstairs, explained the
circumstances of their visit and asked the defendant to take a breath
test. He refused and said that the officers had no right to be there.
Since it appeared to the officers that he had been drinking, he was
arrested and taken to Walsall Police Station. There he refused
further requests for breath and for a specimen of either blood or
urine.
At the hearing before the magistrates asolicitor for the defendant
challenged the legalityof the police action. At the timethe request for
breath was made it had been made clear that they were not welcome
on the premises and so they were trespassers and not acting as
constables. This made, it was argued, the arrest invalid as were, as a
consequence, all subsequent actions. The magistrates accepted the
defence contention and so dismissed the information. The
prosecutors appealed.
Cumming, Bruce L.J., in the Divisional Court, made the point that
the issue was an important one since it concerned the rare occasion
when a police officer is carryingout the breathalyser procedure when
he is an unwelcome or prohibited visitor in the home
ofthe
person in
question. The point was formulated as to whether, once permission
to stay on the premises was withdrawn, the officers wereconstables in
uniform empowered under the Road Traffic Act.
For
the Crown it
was argued that although withdrawal of permission to stay made the
officers trespassers, it did not affect their powers under the Act.
Spicer v. Holt [1977] A.C. 987 has established that the breathalyser
procedure must be properly followed or else the informationwill fail.
It
was argued that this proposition did not cover the present facts,
394 October /979
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