Spicer v Holt
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Edmund-Davies,Lord Fraser of Tullybelton |
| Judgment Date | 28 July 1976 |
| Judgment citation (vLex) | [1976] UKHL J0728-3 |
| Date | 28 July 1976 |
| Court | House of Lords |
[1976] UKHL J0728-3
House of Lords
Lord Diplock
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Edmund-Davies
Lord Fraser of Tullybelton
Upon Report from the Appellate Committee, to whom was referred the Cause Spicer against Holt (on Appeal from a Divisional Court of the Queen's Bench Division), That the Committee had heard Counsel, as well on Monday the 28th, as on Tuesday the 29th, days of June last, upon the Petition and Appeal of Richard Holt of 181 York Road, Broadstone in the County of Dorset, praying, that the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 3d of December 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Richard Holt, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 3d day of December 1975, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the Appellant and by the Respondent in respect of the said Appeal be paid out of Central Funds pursuant to section 6 of the Costs in Criminal Cases Act 1973, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The absurd and arbitrary consequences of treating a meticulous observance of every step in the procedure laid down in sections 8 and 9 of the Act as a condition precedent to the proof of the commission of an offence under section 6 had led me to hope that a closer analysis of the relevant provisions of the Act than was attempted in the judgment in Scott v. Baker [1969] 1 Q.B. 659, might bring to light a flaw in that part of the reasoning which appeared to lead to the conclusion I have stated.
Like the rest of your Lordships, I have found myself unable to do so— and not for want of trying.
I would accordingly answer the certified question in the affirmative and, reluctantly, dismiss the appeal.
My Lords,
On the afternoon of the 5th January 1974 P.C. Jordan, who was in a police car with Sergeant Heppel, saw an Austin van being driven along New Road, Ferndown, in Dorset, weaving from side to side of the road. They stopped the van. The respondent was driving it. P.C. Jordan suspected that he had alcohol in his body and asked him to provide a specimen of breath for a breath test. The device approved by the Secretary of State was assembled and P.C. Jordan told the respondent how it should be used and that he must fully inflate the bag with one breath.
The respondent inflated the bag to "no more than a third—or, as one witness said, hardly at all" and then said "I can't do it". He was then arrested and taken to Poole Police Station where he had another breath test. The crystals turned green and he then provided two specimens of urine, the second of which on analysis contained not less than 257 milligrammes of alcohol in 100 millilitres of urine, nearly 2 1/2 times the prescribed limit.
The respondent was charged with and convicted by the magistrates of an offence under section 6(1) of the Road Traffic Act 1972 which makes it an offence for a person to drive a motor vehicle on a road or other public place
"having consumed alcohol in such a quantity that the proportion thereof in his blood, as ascertained from a laboratory test for which he subsequently provides a specimen under section 9 of this Act, exceeds the prescribed limit at the time he provides the specimen."
His appeal to the Crown Court at Bournemouth was allowed on the ground that when the first breath test was administered, neither P.C. Jordan nor Sergeant Heppel had looked to see if the crystals had turned green. In the absence of evidence that they had not, it was not established that the respondent had failed to provide a specimen of breath for a breath test, and consequently it was not established that he had been lawfully arrested under section 8(5) of the 1972 Act. As he had inflated the bag "hardly at all", the police officers not unnaturally thought that he had failed to provide a specimen of breath, and the magistrates, not unnaturally in view of the respondent's statement that he could not do it, concluded that he too thought that he had failed to provide a specimen of breath.
This decision was in line with the recent decision of this House in Walker v. Lovell [1975] 1 W.L.R. 1141 where the respondent had been prosecuted under section 8(3) for failure to provide a specimen of breath and also under section 6(1). Whether, when the evidence is that the bag was not inflated at all, it would still be regarded as necessary to prove failure to provide a specimen of breath for a breath test that there should be evidence that the crystals had not turned green I do no know, but in the present case in the absence of evidence that they had not when the bag had been inflated "hardly at all", it was held that the arrest under section 8(5) was not lawful.
In view of the result of the second breath test and of the analysis of the specimen of urine there can be no doubt that if the respondent had inflated the bag, the crystals would have turned green and he would have been arrested under section 8(4) but as the crystals were not examined, he could not be lawfully arrested under section 8(4) or, and this was common ground, under section 8(5).
In Walker v. Lovell (supra) the Divisional Court certified that the question whether an unlawful arrest under section 8 had the consequence of rendering inadmissible in evidence the result of an analysis of blood or urine provided under section 9 or evidence of the accused's failure to supply such a specimen was of general public importance and gave leave to appeal to this House but that question was not argued in this House, counsel for the appellant not thinking it possible to argue that unlawful arrest did not have that consequence.
In the present case the Divisional Court dismissed the prosecutor's appeal and certified that the following question was of general public importance, namely:—
"When a constable, acting in good faith and purporting to be carrying out the procedure laid down in section 8 of the Road Traffic Act 1972, arrests a defendant, is evidence of the alcoholic content of a specimen of blood or urine subsequently provided by the defendant in accordance with the correct procedure under section 9 of the Act necessarily rendered inadmissible if the arrest proves to be unlawful?"
The Road Traffic Act 1972 is a consolidation Act with amendments to give effect to recommendations of the Law Commissions. Section 5(1) thereof replaces section 6(1) of the Road Traffic Act 1960 which made it an offence to drive a motor vehicle on a road or other public place when "unfit to drive through drink or drugs". Section 1 of the Road Traffic Act 1962 declared that such a person was to be taken to be unfit to drive "if his ability to drive properly is for the time being impaired", and section 2(1) of that Act enabled evidence to be given in support of a change under section 6(1) of the 1960 Act of
"the proportion or quantity of alcohol or of any drug which was contained in the blood or present in the body of the accused, as ascertained by analysis or measurement of a specimen of blood taken from him with his consent by a medical practitioner, or of urine or breath provided by him at any material time."
Section 6(4) of the 1960 Act, re-enacted without alteration by section 5(5) of the 1972 Act, gave a constable power to arrest without warrant
"a person committing an offence under this section."
The effect of this provision was considered in Wiltshire v. Barrett [1966] 1 Q.B. 312. Wiltshire had been arrested under section 6(4). At the police station the doctor was of the opinion that he was not unfit to drive through drink and he was released. He brought an action contending that the power of arrest given to a constable only authorised the arrest of someone actually committing the offence created by section 6(1) and so an arrest could only be justified if guilt was established. This contention was rejected by all the members of the Court, Lord Denning saying at page 321:—
"Just as Lord Wright in Barnard v. Gorman thought that in that context 'drunk' meant 'apparently drunk', so I think that in this context 'committing an offence' means 'apparently committing an offence'. My reasons are these: this statute is concerned with the safety of all of Her Majesty's subjects who use the roads in this country. It is of the first importance that any person who is unfit to drive through drink should not be allowed to drive on the road, and that the police should have power to stop him from driving any further. The most effective way to do it is by arresting him then and there. The police have to act at once, on the facts as they appear on the spot: and they should be justified by the facts as they appear to them at the time and not on any ex post facto anaysis of the situation. Their conduct should not be condemned as unlawful simply because a jury afterwards acquit the drive."
Davies L.J. also held that "committing an...
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