England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: This is a prosecutor's appeal by way of case stated against a decision of an acting Metropolitan Stipendiary Magistrate sitting at Horseferry Road when he dismissed an information preferred against the respondent, alleging that she had on a date in May 1996 driven a motor vehicle on a road after consuming so much alcohol that the proportion of it in her breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988.

2. The issue raised by this appeal is whether, for purposes of section 6(4) of the Road Traffic Act 1988, a person fails to provide a specimen of breath for a roadside breath test if the person blows into the Alcolmeter testing device in such a way as to illuminate light 'A' but not light 'B', when the device so operates that if in such circumstances the 'Read' button is pressed a positive result may be given which (if given) will be reliable, but a negative result may be given which (if given) may be false.

3. The stipendiary magistrate records that the facts of the case were agreed and he sets them out as follows:

4. Having regard to the course which the case took, the primary findings of fact stop at that point. It is, however, to be inferred that it was the prosecution case against the respondent that when she reached the police station specimens of breath were again taken and proved positive: hence the information preferred against her under section 5(1)(a) of the 1988 Act.

5. In paragraph 2 the stipendiary magistrate sets out the findings which were accepted by both sides as to how the Alcolmeter device worked, namely:

6. The magistrate then very helpfully sets out the submissions on the law which were made before him in a series of paragraphs as follows:

7. I found no evidence of bad faith on behalf of the police officer involved. I noted DPP v Godwin (29.4.91) on this point. I was fully aware of my discretion under S.78(1) PACE 1984 and listened to full argument. I had decided that the arrest was unlawful. Any subsequent evidence against the Respondent could not have been obtained but for that unlawful arrest. The Respondent was denied the protection given to her by Parliament. The subsequent evidence obtained against the Defendant was, in my view, obtained by unlawful means. Though the matter was finely balanced, I decided to exercise my discretion in the Defendant's favour and exclude the evidence in question, concluding as I did that the Prosecutor obtained evidence against the Respondent which would not have been obtained but for an unlawful arrest and the Respondent was thereby prejudiced.

8. A submission was made on behalf of the Respondent at the close of the Prosecution case which I allowed and acquitted the Respondent."

9. The magistrate then poses two questions for the opinion of this court, namely:

10. For the purposes of this argument it is necessary, briefly, to return to consider the development over the last 25 years of the provisions which we are now called upon to construe. Section 8(1) of the Road Traffic Act 1972 conferred authority on a constable in uniform in defined circumstances to require a person to provide a specimen of breath. That provision corresponds with section 6(1) of the Road Traffic Act 1988. Section 8(3) of the 1972 Act made it an offence for a person without reasonable excuse to fail to provide a specimen of breath for a breath test under subsection (1). That corresponds with section 6(4) of the 1988 Act. In section 8(4) of the 1972 Act a constable was given authority to arrest a person if, in consequence of a breath test carried out by him, it appeared to him that the proportion of alcohol in the person's blood exceeded the prescribed limit. That provision, or its equivalent, is now to be found in section 6(5)(a) of the 1988 Act. Section 8(5) gave a constable authority to arrest a person who, when required to provide a specimen of breath, failed to do so. That provision corresponds with section 6(5)(b) of the 1988 Act.

11. I should draw attention to section 12 of the 1972 Act which in subsection (1) defined "breath test" to mean:

12. Section 12(3) provided:

13. The leading case decided in the House of Lords during the currency of the 1972 Act was Walker v Lovell [1975] RTR 377. In that case the driver was required to inflate fully an Alcotest bag with a single specimen of breath delivered in between 10 and 20 seconds in accordance with the manufacturer's operating instructions. However, he was only able to manage two short puffs of about 4 seconds each, which half-inflated the bag. Even that moderate quantity of breath, however, was sufficient to turn the crystals green in the bag so as to indicate a positive result. But the officer, without inspecting the crystals, arrested the driver for failing to provide a specimen under the provisions of the 1972 Act. The driver was subsequently tested and gave a positive specimen of blood. He was prosecuted both for failing to provide the screening breath test contrary to section 8(3), and for driving the motor vehicle having consumed alcohol in a quantity which exceeded the prescribed limit. In a majority decision the House of Lords held that the arrest of the driver was unlawful as he had actually provided a positive specimen of breath, and therefore it was held that he should have been arrested under section 8(4) of the 1972 Act and not section 8(5). The leading speech of the majority was delivered by Lord Diplock and heavy reliance is placed by Mr Ley in this court, as in the court below, on the effect of his speech. We have been referred, in particular, to passages at pages 379 - 380, 383, 384 and 385. We have also been referred to a passage in the speech of Lord Edmund-Davies at page 409. It is unnecessary to recite those passages at length since it is accepted that, if the language of the statute had remained unaltered, Walker v Lovell would remain authority unquestionably binding on this court and would entitle the respondent to the decision which she obtained that her arrest had been unlawful.

14. We have been reminded that Walker v Lovell was followed by the House of Lords in Spicer v Holt [1977] AC 987. That decision was, in truth, a sequel to the earlier decision of the House of Lords in Walker v Lovell .

15. Our attention has also been drawn, and reliance is placed in this court as in the court below on behalf of the respondent, on Fawcett v Tebb (1983) 148 JP 303. In that case the driver was requested to provide a specimen of breath for a screening breath test on a Lion SL/2 testing device. The manufacturer's instructions required that the driver blow through the mouthpiece strongly enough to illuminate light 'A', and long enough to illuminate light 'B'. Once light 'B' was illuminated, the officer would then press the 'Read' button on the device which would analyse the specimen provided. The driver attempted several times to provide the specimen, and illuminated light 'A' but not light 'B'. The officer did not press the 'Read' button. The driver was arrested for failing to provide a specimen of breath for a breath test, in accordance with section 8(5) of the 1972 Act, and at the police station later provided a positive specimen. He was prosecuted under section 8(3) of the 1972 Act for failing to provide a specimen, and also for having consumed alcohol in a quantity above the prescribed limit. The Divisional Court held that the principle in Walker v Lovell in relation to the Alcotest bag applied equally to the Lion device, so it was said that the driver could not be said to have failed to provide a specimen when no attempt had been made to see if such breath as he did give yielded a positive reading or not. The case was an application of Walker v Lovell , and it is evident that the 1972 Act in its unamended form was what the court were considering.

16. By that time, however, the 1972 Act had been amended. The definition of "breath test" in the 1972 Act was replaced by a definition which read:

17. That definition is now to be found in section 11(2) of the 1988 Act. It is pointed out that the reference to "that person" in the older definition has been omitted, and it is submitted for the prosecutor that this significantly weakens the subjective approach which the House of Lords took to the analysis of these provisions in Walker v Lovell .

18. Subsection 12(3) of the 1972 Act was replaced by a subsection which provided:

19. A similar point is made in relation to that change, namely that the reference to "that test" has been omitted with, it is suggested, the same intention of removing the subjective element on which the majority of the House of Lords had concentrated in the earlier decision.

20. By the Transport Act 1982 the provisions in section 12(3) of the 1972 Act were amended further. The effect of that amendment is now to be found in section 11(3) which provides:

21. The amendment plainly was to add to the former wording the words "and is provided in such a way as to enable the objective for the test or analysis to be satisfactorily achieved."

22. The amendment to introduce that change was moved in the House of Lords by Lord Mackay of Clashfern (then the Lord Advocate). We see from Hansard for 14 October 1982 that he said when introducing the amendment:

23. In the course of debate a point was raised with Lord Mackay, to which he responded by saying:

24. This passage has been drawn to our attention, as it was drawn to the attention of the stipendiary magistrate, on behalf of the respondent, and it has not been suggested that it is not material which under Pepper v Hart [1993] AC 593 we are entitled to consider.

25. The simple question therefore arises: did the respondent fail to provide a specimen of breath for purposes of section 6(4) of the 1988 Act. The answer to that question depends on the application of section 11(3). Rephrased, therefore, the question is: did the respondent provide a specimen of breath which was sufficient to enable the test to be carried out and which was provided in such a way as to enable the objective of the test to be satisfactorily achieved? To that question there is, in my judgment, only one possible answer, which is "No". The objective of the test was to establish reliably whether a sample of the respondent's breath was or was not positive when tested for alcohol. The respondent gave a specimen in such a quantity or in such a way that it could not be established reliably whether a sample of her breath was or was not positive when tested for alcohol. The specimen she gave enabled a reading to be obtained, but the reading might or might not be reliable. It was reliable if it was positive, but not reliable if it was negative. That put the woman police constable potentially in a quandary. If she pressed the 'Read' button and obtained a positive result, then she was entitled to arrest the driver under section 6(5)(a) of the 1988 Act, or so it is submitted. If, however, she pressed the 'Read' button and obtained a negative result, was she entitled then to arrest the driver for failing to provide a specimen under section 6(5)(b) of the 1988 Act? On the respondent's behalf Mr Ley submits that she could indeed have been arrested if a negative reading had been obtained for failing to give a specimen. I have no doubt, however, that in cases of this kind, if the 'Read' button had been pressed and a negative result obtained, it would have been argued that the constable had no reason to suspect excess alcohol as a result of a breath test, and that the respondent had not failed to provide a specimen since the driver had provided a specimen which had yielded a result, albeit a negative result, with the consequence that there was no power of arrest under section 6(5).

26. Mr Ley's submission does, however, highlight the extreme artificiality of the situation for which he contends since, on either showing, his client was liable to be arrested had the constable pressed the 'Read' button. Had the button been pressed with a positive result, then there would have been an arrest under section 6(5); had the button been pressed and a negative result, then there would have been a lawful arrest (Mr Ley submits) under section 6(5)(b). In either event, therefore, his client would have been lawfully arrested, lawfully taken to the police station, lawfully submitted to a test and, if that proved positive, lawfully prosecuted. He, however, submits that the change in the language of the relevant section has effected no change in the law and that the binding authority of Walker v Lovell still obliges this court to hold that, in a case such as this, a specimen was provided and that, where a constable has chosen not to press the 'Read' button and not to obtain any result, there is no lawful arrest.

27. I cannot accept that view of the case. It seems to me quite plain that, although, as we are told, Lord Mackay's amendment was directed to reversing the effect of Corps v Dalton [1983] RTR 160, it had the plain effect of introducing a new test directed to the satisfying of the objective of carrying out the test which was to obtain a reliable reading one way or the other, and not to obtain a reading which was reliable in some circumstances and not in others.

28. I would accordingly answer the first question posed for the opinion of the court: "No". It follows that the second question does not arise.

29. It appears to me that, in the course of his helpful case, the stipendiary magistrate has fallen into error when in paragraph 7 he observes:

30. It is necessary to add:

31. He expresses the view that, if Parliament had wished to make simple failure to illuminate light 'B' an offence, it could have said so. But in my judgment it has, indeed, said so by the amendment which has been made.

32. He observes that it was not possible to know whether the respondent did or did not provide a specimen of breath so as to enable the constable to ascertain whether there was reasonable cause to suspect that the driver's proportion of alcohol exceeded the prescribed limit. That is because the driver did not provide a specimen in such a way as to enable the objective of the test to be carried out.

33. The magistrate also observes that any subsequent evidence against the respondent could not have been obtained but for that unlawful arrest. That, in my judgment, is not so since, as I have already pointed out, the driver was liable to be arrested, on the argument which was advanced on her behalf, whatever the result yielded on pressing the 'Read' button.

34. In my judgment, therefore, the second question does not arise, and the appropriate order for this court is to allow the prosecutor's appeal, answer question 1 in the negative, quash the magistrate's dismissal of the information, and remit the case to him with a direction that the hearing be continued.

35. MR JUSTICE BUXTON: I agree. What is now section 11(3) of the 1988 Act was plainly, when it was originally introduced, intended to alter and amend the previous law. Contrary to the submission made to us by counsel for the respondent, I cannot agree that that alteration was limited to adding in a reference to the mode of delivery of breath or to the way in which the specimen was provided to the question of the sufficiency or quantity of breath previously referred to in section 12(3) of the 1972 Act, and only to add those new considerations in the same terms and subject to the same law as had been applied to section 12(3) of the 1972 Act.

36. If one looks at the arrangement and language of section 11(3), it is to be noted, first, that section 11(3)(b) is set out separately from subsection (a) and is in different terms from it. The reference to "provision in such a way as to enable the objective of the test or analysis to be satisfactorily achieved" is plainly different from the language adopted in section 11(3)(a). In my judgement it is plain that the new wording should be looked at separately from the interpretation to be put on section 11(3)(a). The wording is "provided in such a way as to enable the objective of the test to be satisfactorily achieved". The objective of the test is that set out in section 11(2): a test for the purpose of obtaining an indication whether the proportion of alcohol in a person's breath is likely to exceed the prescribed limit.

37. In the circumstances of this case if the 'Read' button had been pressed, a positive result would be reliable; a negative result might be false. I, like my Lord, simply do not see how it can be said that the mode of provision of the breath in those circumstances meets the objective of the test and enables the objective of the test to be satisfactorily achieved. It must be the case that the objective of that test is to acquire reliable information about the matter set out in section 11(2). I do not see how it can be said that that objective is to be achieved, and has been achieved, when it is known (as it is in these circumstances) that the specimen provided may (will not necessarily, but may) give an unreliable result.

38. Those conclusions seem to me to follow self-evidently from the language of section 11(3)(b) of the 1988 Act read, as I hold it must be, differently from section 11(3)(a). The extracts from Hansard, which are relied on by the respondent and to which my Lord has referred, in my judgement do nothing but support the conclusion that flows in any event from the wording of the statute. For that reason, and for the other reasons given by my Lord, I would dispose of this matter in the way that he has proposed.

39. MR McGUINNESS: The appellants seek an order for costs. I know not if the respondent is legally aided. If she is, I would ask that the order be subject to the usual caveat, that it is not to be enforced without the leave of the court. If the respondent is not legally aided, I simply ask for an order for costs.

40. MR LEY: My Lord, my client is not legally aided. This was, if I may use the expression, a novel point of law. There is no reported case, but a number of my clients have been acquitted of failing to give roadside breath samples on the facts of this case. So in some way, this has become a test case. She is unfortunate -- or rather my other clients may have been fortunate. But this is the first time that the appeal has been taken to this court. In those circumstances I ask that there be no order as to costs. I have in front of me a quotation of Woolf LJ (as he then was) where he said --

41. THE LORD CHIEF JUSTICE: Give us the gist of it.

42. MR LEY: That, being a novel point of law, he would order that the defendant's costs come out of central funds. I would ask for that order.

43. THE LORD CHIEF JUSTICE: I do not think we are entitled to grant the prosecutor's costs out of central funds.

44. MR LEY: I am not the prosecutor, my Lord. No, I merely ask for no order as to costs. I am not asking for my client's costs. The prosecution cannot have their costs out of central funds, but in the circumstances of this case there should be no order as to costs.

45. THE LORD CHIEF JUSTICE: Mr McGuinness, is this appeal mounted on behalf of the Director because the result in this case is thought to have been wrong or because the Director is anxious to get a ruling on the point of law which the case raises?

46. MR McGUINNESS: My Lord, essentially both. Your Lordship will have seen from my skeleton argument that, apart from my learned friend's own book, the only other text book which expresses an opinion one way or the other on the new wording is Wilkinson and, as your Lordship has already commented, it has been a number of years now since the new wording has been on the statute book.

47. MR McGUINNESS: Yes, it does. The only text book, apart from my learned friend's text book, that expresses a view one way or the other of the new wording -- my Lord, I am told, too, that one of the matters that was taken into account is that, although this is a Metropolitan Police case, the matter has arisen in other cases in other parts of the country. So clearly there was a hope that the law would be clarified, not just so far as this case is concerned, but more generally. As my learned friend has already remarked, the point is clearly in some courts still being taken under Walker v Lovell .

48. MR LEY: My Lord, could I just read out part of an affidavit filed on behalf of the Director of Public Prosecutions in which she sought to explain why this appeal has been brought? It was sworn for reasons that she was late in entering her appeal. This is what she says:

49. THE LORD CHIEF JUSTICE: We think in all the circumstances, Mr McGuinness, that it is right to make no order for the costs of this appeal. We do not do that in any hostile sense because we think that the prosecuting authorities have very properly chosen this case in order to try and clarify a point of law which, by some at least, has been misunderstood. We hope that will be sufficient compensation.

50. MR LEY: My Lord, may I mention one matter? Assuming a question were put in suitable words, would your Lordship consider that this is a case which raised a point of public importance? I would say it does, by Lord, because Walker v Lovell has been interpreted (rightly or wrongly) as governing the situation until today.

51. THE LORD CHIEF JUSTICE: If you pose a question, we will consider it. I certainly would not rule it out in limine. I did suggest at the outset of the judgment what I saw the issue as being, which may perhaps be as good a question as any other.

52. MR LEY: I am much obliged to your Lordship.

53. THE LORD CHIEF JUSTICE: I think we cannot rule without a question.

54. MR LEY: I realise that, my Lord.