Yash Oberoi v DPP
Jurisdiction | England & Wales |
Judge | Mr Justice Harrison,MR JUSTICE HARRISON,THE LORD CHIEF JUSTICE |
Judgment Date | 23 November 1999 |
Judgment citation (vLex) | [1999] EWHC J1123-9 |
Date | 23 November 1999 |
Court | Queen's Bench Division (Administrative Court) |
Docket Number | CO/0936/99 |
[1999] EWHC J1123-9
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill) and
Mr Justice Harrison
CO/0936/99
MR NIGEL LEY (instructed by Messrs Arnold Fooks Chadwick, London W1Y 8AR) on behalf of THE APPELLANT
MR ANTHONY SWIFT (instructed by the Crown Prosecution Service, Brent) appeared on behalf of THE RESPONDENT
Tuesday 23 November 1999
THE LORD CHIEF JUSTICE: I will ask Mr Justice Harrison to give the first judgment.
This is an appeal by way of case stated by His Honour Judge Miller sitting at Isleworth Crown Court. On 18 February 1998 the appellant was convicted at Uxbridge Magistrates' Court of failing, on 13 May 1997, to provide a specimen of breath for analysis when required to do so, contrary to section 7(6) of the Road Traffic Act 1988. He was fined £1,400, disqualified from driving for three years and ordered to pay £75 towards the prosecution costs. Pursuant to powers under the Prosecution of Offenders Act 1985, the respondent had taken over the conduct of the prosecution.
The appellant appealed to the Crown Court against conviction and sentence. The Crown Court heard the appeal on 21 July 1998 when His Honour Judge Miller, sitting with justices, dismissed the appeal against conviction and against sentence.
The facts as found by the court were stated to be as follows:
"(1) The appellant was lawfully required to provide a specimen of breath for analysis by Police Sergeant Wolski.
(2) What occurred thereafter is set out in Metropolitan Police Book 116, a copy of which is annexed hereto. That was supplemented by oral evidence from the Sergeant and the appellant so that the facts can be summarised as follows:
(3) On arrival at the police station, the appellant asked to speak to a solicitor. Sergeant Wolski who was the custody officer told the appellant that he would not delay the Road Traffic breathalyser procedure for that purpose. The Sergeant said in evidence that he did not allow people to speak to their solicitor until they had been breathalysed.
(4) Inside the room where the breathalyser (the Intoximeter) was kept, the appellant kept saying that he could not supply a specimen until after he had spoken to a solicitor. The Sergeant started up the machine but the appellant declined to blow into it.
(5) the Intoximeter closed down at 43 minutes past midnight.
(6) Between 45 and 51 minutes past midnight, the appellant was allowed to speak to the duty solicitor on the telephone. He was told that the law required him to blow into the breathalyser and that he had no option but to obey the law and to blow into the machine, and he could not opt to give a blood or urine sample instead.
(7) As soon as he finished talking to the duty solicitor, the appellant then offered to provide specimens of breath and became very vehement when told that it was too late.
(8) The Sergeant told the court that as a matter of law once the machine had closed down, the procedure had finished and he had no discretion to allow the appellant another attempt to blow into the machine. He was asked by the appellant (through his counsel) if he had possessed a discretion to have allowed the appellant to have blown into the Intoximeter as soon as he had finished speaking to the duty solicitor, how would he have exercised that discretion, or was it an unfair question. The reply was "an unfair question".
The appellant submitted to the Crown Court that a constable can always allow another attempt to blow into the machine, provided it is within a reasonable time. It was submitted that the fact that the appellant had changed his mind seven minutes later, immediately after speaking to the solicitor, meant as a matter of law that he had not failed to provide a sample. Alternatively, it was submitted, that the court ought to use its power under section 78 of the Police and Criminal Evidence Act to refuse to allow evidence to be given of the appellant's refusal. It was said that the police officer had fettered his discretion by a mistake of law that he had not discretion to allow the appellant to attempt to blow into the Intoximeter once it had closed down, and that that mistake had deprived the appellant of any opportunity of blowing into the machine immediately after he had spoken to the duty solicitor and that it would therefore be unjust to allow the appellant's failure to be adduced to the court.
The respondent submitted that it was a question of fact for the court to decide on all the evidence.
The court, in the case stated, gave their view as follows:
"We were of the view that there was nothing to have prevented the appellant from providing two specimens when he was in the Intoximeter room before the machine closed down."
The question that is posed for this court is as follows:
"Were we right in law to have held that the appellant had failed to provide a specimen of breath?"
It is necessary, first, to have regard to the statutory framework relevant to the issue which arises in this case. Section 7(1) of the Road Traffic Act 1988 provides as follows:
"In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him—
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State; …."
Subsection (6) (under which this appellant was charged) provides:
"A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence."
Section 11 provides:
"(1) The following provisions apply for the interpretation of section 3A to 10 of this Act.
(2) In those sections—
….
'fail' includes refuse …."
Mr Ley, who has appeared on behalf of the appellant, takes one main point: that the officer in this case fettered his discretion because he misunderstood the law and, as a result of that, he was not aware that he had power to allow a second breath specimen to be taken. Mr Ley says that, pursuant to section 78 of the Police and Criminal Evidence Act 1984, it would be unfair to allow the evidence of the appellant's refusal to be given because the appellant had thereby been convicted when, if the officer had known what the law was, he might not have been convicted because he might have allowed him, in the exercise of his discretion, to blow again into the Intoximeter. That is the thrust of Mr Ley's submission. He also says that the officer's decision was Wednesbury unreasonable. Mr Ley also raised a further point relating to the sentence that was passed but that is not a matter which is raised in the case stated and is not a matter for this court to decide.
Mr Swift, who appears on behalf of the respondent, has referred us to a number of cases. In Smyth v DPP [1995] RTR 59, the defendant had been required to provide two specimens of breath for analysis and, when asked if he agreed, he declined but within some five seconds he said that he wanted to change his mind. He was nevertheless charged with failing to provide a specimen, contrary to section 7(6) of the 1988 Act. It was held, allowing the appeal against his conviction, that whether the defendant's words and conduct amounted to a refusal was a matter of fact for the decision of the tribunal and that, in that particular case, the justices had not taken into account the subsequent words spoken by the defendant some five seconds after his refusal. Mr Swift's point, derived...
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