Walker v Lovell (on Appeal from a Divisional Court of the Queen's Bench Division)

JurisdictionEngland & Wales
JudgeLord Diplock,Viscount Dilhorne,Lord Hailsham of St. Marylebone,Lord Kilbrandon,Lord Edmund-Davies
Judgment Date16 July 1975
Judgment citation (vLex)[1975] UKHL J0716-1
Date16 July 1975
CourtHouse of Lords

[1975] UKHL J0716-1

House of Lords

Lord Diplock

Viscount Dilhorne

Lord Hailsham of St. Marylebone

Lord Kilbrandon

Lord Edmund-Davies

Walker
(Appellant)
and
Lovell
(Respondent)

Upon Report from the Appellate Committee, to whom was referred the Cause Walker against Lovell (on Appeal from a Divisional Court of the Queen's Bench Division), That the Committee had heard Counsel, as well on Thursday the 24th, as on Monday the 28th, Tuesday the 29th and Wednesday the 30th days of April last, upon the Petition and Appeal of Leslie Walker of Thames Valley Police, Aylesbury Divisional Headquarters, Walton Street, Aylesbury in the County of Buckingham 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 13th of December 1974, 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 David Thomas Lovell, 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 13th day of December 1974, 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 in accordance with section 6 of the Costs in Criminal Cases Act 1973, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Diplock

My Lords,

1

The respondent ("the driver") was driving a car with a deflated tyre in High Street, Thame, in the early hours of New Year's Day. He was stopped by a police constable. On emerging from the car he staggered and fell against it. He smelt of drink. He was required by the constable to take a breath test. He was told that the bag of the breathalyser must be fully inflated with a single breath in ten to twenty seconds. Such was his condition that all he could manage was two puffs lasting about four seconds each. These left the bag only half-inflated. Without waiting to see what effect this had had upon the crystals, the constable thereupon said to the driver: "I am arresting you for failing to supply a sample of breath"—thus indicating to the driver that he was purporting to exercise the power of arrest conferred upon him by section 8(5) of the Road Traffic Act 1972. The constable then examined the breathalyser in the light of the headlights of the police car. He found that even the feeble exhalation that had been all that the driver could accomplish had been sufficient to turn the crystals green. The reason for this became apparent when the driver was taken to the police station. The sample of his blood which he provided there, when it was analysed, shewed a concentration of alcohol more than two and a half times the prescribed limit of 80 milligrammes per 100 millilitres.

2

The driver was charged with two offences. One was an offence under section 8(3) of the Road Traffic Act 1972 of failing without reasonable excuse to provide a specimen of breath for a breath test carried out with a breathalyser. The other was an offence under section 6(1) of that Act of having consumed alcohol in such a quantity that the proportion of alcohol in his blood as ascertained by the subsequent blood test exceeded the prescribed limit.

3

Both charges were dismissed by the magistrates. The prosecutor appealed by way of case stated to the Divisional Court. That court upheld the magistrates' decision; but certified that two points of law of general public importance were involved in the decision and gave leave to the prosecutor to appeal to your Lordships' House.

4

The ground of acquittal on the first charge was that the driver could not be guilty of failing to provide a specimen of breath in sufficient quantity to enable a breath test to be carried out by means of a breathalyser when he had provided enough breath to turn the crystals green, even though it was less than was needed to inflate the bag fully and was not provided by a single exhalation.

5

To an ordinary member of the public this might seem to be no more than common sense. Although a series of decisions of the courts has made common sense an unreliable guide to the provisions of the Road Traffic Act 1972 which deal with breath tests, the magistrates' decision on the first charge has the support of a recent decision of the Court of Appeal in R. v. Holah [1973] 1 All E.R. 106 and accords with the guidance which this House gave obiter in a passage in my own speech in Webber v. Carey [1970] A.C. 1072 at p. 1096, with which my noble and learned friends Lords Hodson, Pearson and Wilberforce expressed their agreement.

6

The ground of acquittal on the second charge was that the constable had blundered. All would have been well if, as soon as he became aware that the crystals had turned green beyond the yellow line on the breathalyser. he had said to the driver: "I am now arresting you because the breathalyser indicates that the proportion of alcohol in your blood exceeds the prescribed limit", thus indicating to the driver that he was purporting to exercise the power of arrest conferred upon him by section 8(4) of the Road Traffic Act 1972. His failure to do so made everything that was done to the driver thereafter by the constable and by all those concerned in the matter at the police station unlawful; with the consequence that the result of the analysis of the specimen of blood which he provided there was not admissible in evidence to prove that the proportion of alcohol in his blood exceeded the prescribed limit.

7

To an ordinary member of the public it must seem that "the law is a ass" if a driver who was indisputably driving when the proportion of alcohol in his blood was more than two and a half times as much as would be lawful and who was indisputably liable to be arrested and taken to the police station for the purpose of providing a specimen of his blood for a blood test, should get off scot free merely because the constable in arresting him made a mistake in his choice of the right words to use. The driver can have been in no doubt that he was being taken to the police station for the purpose of providing a specimen of his blood for analysis with a view to his subsequent prosecution for an offence under section 6(1) of the Road Traffic Act 1972 if the analysis showed the concentration of alcohol in his blood to be more than 80 milligrams per 100 millilitres. Yet the Act may have this bizarre consequence if what was said as to its construction by Lord Parker C.J. in the course of his judgment in the Divisional Court in Scott v. Baker [1969] 1 Q.B.659 is correct. He there said:

"… I think it is fundamental to the offence created by section 1" [now replaced by section 6(1) of the Road Traffic Act 19721 "that there should have been valid breath tests, and a valid arrest, before a specimen of blood or urine is provided."

8

The reference to "a valid arrest" was unnecessary to the actual decision in Scott v. Baker, where the breath tests had been carried out by means of a device of a type which had not been shown by the evidence to have been approved by the Secretary of State. In Webber v. Carey ( ubi sup.) it was not necessary for the appellant in your Lordships' House to contend that Scott v. Baker was wrongly decided. No argument was directed to the correctness or otherwise of the passage that I have just cited. In these circumstances this House refrained from expressing a view as to the decision in that case or as to its ratio decidendi, but such references as there are in the speeches in this House to the wider principle which appears to have been laid down by the Divisional Court in Scott v. Baker were less than enthusiastic.

9

On giving leave to appeal to your Lordships' House in the instant case the first question certified by the Divisional Court as involving a point of law of general public importance is:

"When a constable acting bona fide and genuinely conducting a breath test in accordance with the instructions of the manufacturer of the Alcotest R80 concludes that a motorist has failed to provide a specimen of breath for a breath test in as much as he had not properly inflated the bag contrary to the constable's instructions is the resulting arrest under section 8(5) unlawful if it later transpires that the alcotest shows a positive reading?"

10

This question is directed to the first charge and invites this House to consider the correctness of the decision of the Court of Appeal in R. v. Holah ( ubi sup.). It is important to the police and to the courts which deal with offences under the Act that the law on the matter raised by this question should be certain; but whichever way it is answered it is unlikely to give rise to much practical difficulty in the administration of the Act so long as the constable knows which is the right formula to use when arresting a driver in the circumstance postulated in the question.

11

The second question certified by the Divisional Court is: —

"Where a constable fails to properly carry out the procedure laid down in section 8 of the Road Traffic Act 1972 relating to the obtaining of a specimen of breath but nevertheless arrests the Defendant is evidence of the alcoholic content of a specimen of blood or urine subsequently...

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5 cases
  • Wills (A.p.) v Bowley (on Appeal from a Divisional Court of the Queen's Bench Division)
    • United Kingdom
    • House of Lords
    • 26 May 1982
    ...unquestioningly accepted on the narrow point which grounded its decision: see Wiltshire v. Barrett ( supra) and Walker v. Lovell [1975] 1 W.L.R. 1141, 1149-50, which show that "drink and drive" cases have acquired a special place in the "found committing" category by reason of the potential......
  • R Shahpoor Mohammed v The Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 December 2014
    ...and criminal law). In my judgment, there are four cases which are most directly relevant to the issue that arises here: Walker v Lovell [1975] 1 WLR 1141 (HL); Percy v Hall [1997] QB 924 (CA); R v. Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19 (HL) and the decision of the High ......
  • R v Littell
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 6 March 1981
    ...the test if the test result is positive. See D.P.P. v. Carey (1970) A.C. 1072, R. v. Holah (1973) 1 W.L.R. 127, Walker v. Lovell (1975) 1 W.L.R. 1141 and Attorney-General's Reference No. 1 of 1978 (1978) 67 Cr. App. R. 387. 12 In this appeal we have to consider a situation where the test re......
  • R v Isbell
    • Cayman Islands
    • Summary Court (Cayman Islands)
    • 13 August 1982
    ...he understood what was required, the accused was deliberately doing otherwise in order to frustrate the test (Walker v. Lovell, [1975] 1 W.L.R. 1141, dictum of Lord Diplock applied). (Summary Ct. Alberga, Ag. Magistrate R. and Isbell ROAD TRAFFIC DRIVING UNDER INFLUENCE OF DRINK-breath test......
  • Request a trial to view additional results
2 books & journal articles
  • Divisional Court
    • United Kingdom
    • Journal of Criminal Law, The No. 62-4, August 1998
    • 1 August 1998
    ...evidence. At a time when thesequestions had to be determined under the Road Traffic Act 1972, theHouse of Lords held in Walker v Lovell[1975]RTR 377 and again inSpicer v Holt[1976]RTR 389 that if the quantityofbreath provided bythe motorist was inadequate for the purpose of filling the bag,......
  • House of Lords
    • United Kingdom
    • Journal of Criminal Law, The No. 41-1, January 1977
    • 1 January 1977
    ...theprescribedlimit,hopes have been expressedthattheHouseofLordswouldonedayreconsiderthatjudgment.Indeed,in Walker v. Lovell (1975, 1W.L.R.1141; 40j.c.L.52),thathopewas voiced bymembersoftheHouseitself.ThatdayarrivedwhentheHouseheardtheappealin Spicer v. Hunt,buttheirLordshipscould find no f......

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