Webber v Carey ; DPP v Carey

APPEAL from the Divisional Court.

This was an appeal by leave of the Appeal Committee of the House of Lords from a decision of the Divisional Court (Lord Parker C.J., Melford Stevenson and Bridge JJ.) dated July 4, 1969, dismissing the appeal of the prosecutor, Michael Guy Webber, a superintendent of police, against the dismissal by St. Albans justices of an information preferred against the respondent, Michael Percival Carey.

The justices stated the following case: On October 21, 1968, an information was preferred by the prosecutor against the respondent that he did on October 10, 1968, in St. Albans drive a motor vehicle namely a motor Dormobile on a road called Sandridge Road having consumed alcohol in such a quantity that the proportion thereof in his blood as ascertained from a laboratory test for which he subsequently provided a specimen under section 3 of the Road Safety Act, 1967, exceeded the prescribed limit at the time he provided the specimen, contrary to section 1 (1) of the Road Safety Act, 1967.

The justices heard the information on December 17, 1968, and found the following facts: the “breath tests” were carried out by means of the device called “Alcotest (R) 80.” A sample box of the device, being produced to the justices there were “instructions” for its use attached to the box (together with an instruction booklet contained in the sample box). The first of these instructions being that the device should not be used to test a person who had consumed alcohol within the last 20 minutes and other instructions were that the bag of the device should be inflated by one single breath in not less than 10 and not more than 20 seconds and that the person should not smoke during or have been smoking immediately prior to the test. The respondent was at all material times a driver of a motor vehicle on a road and the police officers who stopped the vehicle driven by the respondent had reasonable cause to suspect the driver of the vehicle of having alcohol in his body. One of the police officers, who stopped the respondent, required him to provide a specimen of breath for a breath test and a specimen was taken providing a positive reading but the police officer failed to comply with the instructions for use of the device in that he did not ascertain or endeavour to ascertain when the respondent had last drunk alcohol or whether he had been smoking immediately prior to the test and did not require the respondent to fill the bag within the period mentioned on the instructions issued with the device. When the respondent was required to provide the first specimen of breath he was told by the arresting police officer to take a deep breath and blow into the equipment with one breath. When the respondent was given an opportunity at the police station to provide a further specimen of breath he was told by the police sergeant that the bag which comprised part of the breath test equipment had to be fully inflated and that he should take a deep breath. Both the police officers who stopped the respondent had read the instructions in the lid and one of the officers had read the instruction booklet. The respondent had drunk alcohol at both the Rose and Crown and the Green Man at Sandridge and it was between 10 but less than 20 minutes between the last drink and the time the test was taken by the police officer and the respondent had been smoking shortly before the test was taken and had not been required to fill the bag within a certain period of time. The breath test had not been properly taken by the police officer. The respondent was arrested and taken to St. Albans Police Station but the arrest was unlawful as the breath test had not been properly taken in accordance with the instructions issued with the device. At the police station, the police sergeant took another breath test from the respondent but failed to comply with the instructions that the bag should be filled within a specified period. The test provided a positive reading. The respondent provided a specimen of blood and the laboratory tests subsequently showed that the alcohol content of the specimen was 206 milligrammes of alcohol in 100 millilitres of blood. A certificate from the Forensic Science Laboratory was produced by the prosecutor.

It was contended on behalf of the prosecutor that, despite the apparent failure of the police officer to comply...