CO/3767/2004 
Neutral Citation Number [2004] EWHC 2432 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 21st October 2004
 
B E F O R E:

MR JUSTICE COLLINS 

MR JUSTICE SILBER 
 
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DIRECTOR OF PUBLIC PROSECUTIONS
(CLAIMANT)

-v- 

PHILIP SWAN
(DEFENDANT) 
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MR J HALL (instructed by CPS Chichester) appeared on behalf of the CLAIMANT
MR S MURRAY (instructed by Ashworths, Portsmouth) appeared on behalf of the DEFENDANT
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J U D G M E N T 
Thursday, 21st October 2004 
1.	MR JUSTICE COLLINS:  This is an appeal by way of case stated by the prosecutor following the respondent's acquittal by justices of the County of Sussex sitting at Chichester before whom the respondent appeared charged with two offences.  The first alleged that on 31st July, having been required to provide a specimen of breath for a breath test, pursuant to section 6 of the Road Traffic Act 1988, he failed without reasonable excuse to do so.  That has been described as, and I will refer to it in this judgment as, the "roadside test".  Secondly, that on the following day, the arrest being late at night and the request for the test at the police station being in the early hours of the following morning, Friday 1st August, having been required to provide a specimen or specimens of breath for analysis by means of a device of a type approved by the Secretary of State pursuant to section 7 of the Road Traffic Act 1988, he failed without reasonable excuse to do so, that offence being contrary to section 7(6) of the Road Traffic Act.
2.	The justices found the following facts.  They are set out in paragraph 2 of the case:
"A. The respondent was driving a Ford Mondeo on the 31st July 2003 at approximately 11pm [on the A27 road] when he was stopped by the Police.  In answer to questioning... [he] confirmed that he had consumed alcohol... 
"B. Both the respondent and his wife, who was a passenger in the car were in an agitated state and the respondent asked the officers to record events in their notebooks.  The officers advised the respondent that this was not necessary because it was being recorded by means of CCTV.  It was subsequently established that the car mounted CCTV equipment was not functioning.
"C. [The officer] asked the respondent to provide a specimen of breath but at no time gave him the opportunity to do so.  The respondent did ask to be given a moment to compose himself.  The breath test device was neither proffered to the respondent nor was it produced at any time.
"D. The Police officers were of the opinion that it was necessary to apply handcuffs to the respondent.  They then placed the respondent in a Police vehicle and conveyed him to the custody suite at Chichester police Station."
3.	I shall stop there because those are the material facts relating to the roadside test which led to the charge under section 6 of the Road Traffic Act 1988, which enables a constable in certain circumstances, and there is no issue that the circumstances were appropriate, to require the provision of a specimen of breath for a breath test by a person who is driving a motor vehicle.  Subsection (4) provides that a person who without reasonable excuse fails to provide a specimen of breath when required to do so in pursuance of section 7 is guilty of an offence. "Fails" includes "refuses": that is laid down in section 11(2) of the Act.
4.	The questions that the justices raise in relation to the roadside test are these:
"(a) Whether the officer who makes a road-side breath requirement has to physically produce the device lawfully to make the requirement or whether the spoken words of the requirement suffice.
"(b) Whether the admitted rude and aggressive behaviour by the respondent combined with the admitted delaying tactics by him by the road-side towards the officer making the requirement amount in law to a failure and then, to a failure without reasonable excuse."
5.	I should add that in paragraph 8 of the case the justices set out what their opinion was in relation to the matters that they had to decide.  In 8(1) they state:
"At the roadside the respondent was asked to provide a specimen of breath for a breath test pursuant to section 6 of the Road Traffic Act 1988 but was not given the opportunity to comply."
6.	The submission by Mr Murray is simple.  Since there was a finding that no opportunity was given to comply with the request for a breath test the failure cannot be said to be established.  He relies, in support of that, if any authority is needed, on observations of the Lord Chief Justice, Lord Parker, in R v Ferguson [1970] 54 Cr.App.R. 415.  That was a case where the defence was that there had been no failure because the appellant had reasonably asked that he should be able to consult with a doctor and a solicitor.  The deputy chairman had directed the jury that that was no defence.
7.	The court upheld that direction, but stated in the course of doing so: 
"The Deputy Chairman, in the opinion of this Court, ruled perfectly correctly that on those facts, which were completely agreed in all respects, the only result in law was that there was a failure, even though there was no refusal.  There is failure if the opportunity to do so something is given and you do not do it.  Here the sample of breath was not given."
8.	The case as stated is not as clear as it might be, but the way in which it is framed in the questions shows, in my judgment, that what the justices were believing was that the failure to produce the device meant that the opportunity to comply was not provided.  
9.	Mr Murray does not contend, and he is quite right not to contend, that the physical production of the breath test device is necessary; it clearly is not.  All that is needed to constitute a proper request for a breath specimen, and to give the opportunity, is that the driver is told that he is required by the officer to provide a specimen of breath.  If his conduct then shows that he is not willing to provide that specimen, or he imposes, by what he says or by his conduct, unacceptable terms upon which, and only upon which, he will provide the specimen, then a failure may well be made out.
10.	The first question, therefore, must be answered in the negative.  It is clearly not necessary for the device physically to be produced.  
11.	So far as question (b) is concerned, whether the admitted rude and aggressive behaviour, combined with the admitted delaying tactics, amounted to a failure, the only answer, in my view, to that question must be yes, it clearly did.  The justices were wrong, if necessary, I would be prepared to say perverse, in concluding, on the material before them, that there was no failure.  
12.	I should only add that Mr Murray has pointed out that at paragraph 8(v) the justices state that the respondent did not admit to employing delaying tactics.  He submits that that is inconsistent with the reference in question (b) to admitted delaying tactics.  That is, of course, a matter which could well have been clarified, and indeed should have been clarified, before the case was put before us.  
13.	We are limited to what is in the case.  If there are clear conflicts which cannot be resolved by a sensible reading of the case then it may be, if those conflicts are likely to be determinative or are highly material to the decision that this court would reach, that we should send the matter back for the case to be clarified, but, in my judgment, that is not the situation here.  
14.	If one looks at what is said in 8(v) in context, it comes after the justices were considering what was happening at the police station.  Therefore, the reference to the non-admission of employing delaying tactics is perfectly capable in context of relating, as I say, to the events at the police station.  
15.	That being so, there is no conflict between the observations in question (b) and the rest of the case.  Indeed, I would be reluctant to assume that justices who state a case, and on whose behalf that case is signed, will not have been careful to check that what is said in the case accurately reflects their findings; more importantly, that there is no conflict between what is said in one part of the case and what is said in another.
16.	That then deals with the roadside breath test offence.  I turn now to what happened at the police station.  Going back to the findings of fact in paragraph 2 of the case, the justices continue: 
"F.  The respondent accepts that whilst in the custody suite he behaved in a rude manner.  He also made reference to injuries to his wrists which he stated were caused by the application of handcuffs.
"G.  In the early hours of 1st August 2003 the respondent was placed in the room where the breath test machine was activated and the respondent was requested to provide a sample of breath in accordance with section 7...  
"H.  The respondent behaved in an abusive manner towards the officers present.  The respondent was preoccupied with the issue of injuries to his wrists and on a number of occasions indicated that he wished to have a photograph taken of these injuries before blowing into the machine.  He also indicated that he would comply with the breath test procedure if the officer would confirm whether there were marks on his wrists.  PC Adfield declined to respond.  The respondent also asked whether the officer would guarantee that the marks would be photographed.  PC Adfield stated he 'could not guarantee anything'.  
"I. It was conceded by the Police that on rare occasions they had stopped the breath test procedure to allow individuals to visit the toilet.  PC Adfield stated that he did not know where the camera was kept.  
"J.  The breath test machine indicated 'timed out' and PC Adfield indicated his view that the respondent had refused to provide a sample of breath."
17.	It is not stated in the case how long the machine runs before indicating that it is 'timed out'.  Normally we would not consider, indeed we cannot consider, any material which is not stated in or annexed to the case, but counsel before us have agreed that the machine in use at this particular police station ran for a period of 5 minutes before it indicated 'timed out'.
18.	The justices annexed to the case a transcript of what occurred in the breath test room whilst the officer was asking the respondent to provide a specimen.  The respondent is a retired Detective Sergeant in the Sussex Police and, frankly, he should have known better, whatever may have been the concerns that he had, his mother having apparently died that morning and he having been to a post-mortem.  
19.	He was, indeed, abusive.  He was behaving in a quite unacceptable fashion.  He was swearing at and indicating that he thought the traffic officers were the lowest of the low, and using strong language to support that view.  He answered questions about whether he had had anything to drink in the recent past in a thoroughly stupid manner.  
20.	He did indicate that he wanted the marks on his wrist, which he said were there, to be confirmed and to be photographed.  It is true that the officer did not directly answer his question as to whether he could see marks on his wrists when he had been handcuffed.  There came a time when he said that he would give a specimen if there was a guarantee that the marks on his wrists would be photographed by the police before they had faded.  He asked, "Can you guarantee me?" and the officer said, "I can't guarantee anything."  He continued to ask whether there could be a guarantee of a photograph before, as I say, the marks faded.  At that stage the machine having 'timed out' the officer said that he had refused and so the charge was brought.
21.	The justices in paragraph 8 expand a little on the facts that I have already recited.  They say this at paragraph 8(ii):
"At the Police Station the respondent was asked to provide a specimen or specimens of breath for analysis by means of [the correct device].  
"(iii) The respondent did not indicate an express refusal to provide a specimen. 
"(iv) The respondent did not stipulate an 'outrageous condition' by his request either for a photograph to be taken of his wrists or for the officer to confirm whether there were marks on his (the respondent's) wrists, before providing a specimen.
"(v) The respondent did not admit to employing 'delaying tactics'."  
They go on to say that they accordingly found him not guilty.
22.	Paragraph 8(iv), for reasons that will become apparent in a moment, is, in my view, an important expression of the justices' opinion.
23.	I go then to the questions that they ask about the police station.  They are these:
"(c) Whether in respect of the Police station requirement the respondent had to refuse the test by using plain words such as 'I refuse to take the test' in order for the offence to be made out..."
24.	If I may pause there, that clearly is not a requirement and again Mr Murray has not submitted that there is any need for express words of refusal to be uttered.  The question is whether the conduct of the accused, or any conditions that he stipulates before he is prepared to take a test, amount to a failure.  
25.	Going back to question (c) the justices continue:
"... or whether by his admitted conducted of shouting and swearing at everyone in the custody area, dropping his trousers in plain view, constantly shouting over the officer trying to administer the test and saying he would not take it unless the pre-condition of having photographs taken of alleged injuries to his wrists caused by handcuffs was complied with was sufficient to constitute the failure and then, the failure without reasonable excuse. 
"(d) Whether the court was wrong in law in placing sole reliance on the case of Mackey [1977] RTR 146 in respect of both charges given that Mackey relates solely to the road-side procedure and that there have been many other authorities decided since 1977 which emphasise the important public policy considerations behind the need for both requirements to be administered as soon as reasonably practicable." 
26.	I should go to Mackey straight away because that is relied on, and indeed was relied on by Mr Murray before the justices, as the authority which he submitted justified, and indeed required, the justices to acquit the respondent.  Mackey was an appeal following a conviction by the jury of an offence of failing to provide a specimen.  The law was then slightly different in as much as at that time the lawfulness of an arrest was a prerequisite for the establishment of the relevant offence.
27.	What had happened in Mackey's case was that the appellant had been stopped for speeding, alcohol had been smelt on his breath, and he was required to provide a specimen of breath.  The appellant, according to the constable who stopped him, said nothing, but took some tic tac mints from his pocket.  He was told by the constable not to put them in his mouth because they might affect the breathalyser, but he still said nothing and he then, according to the officer, moved to take the mints and was accordingly arrested.  His defence was that the arrest was unlawful.  
28.	His version of events was entirely different from that of the police officer and he denied that he had been warned against taking the mints, or that if he did it would be treated as a refusal.  So there was clearly an issue of fact as to which version was correct.
29.	The appeal arose from the direction by the judge to the jury which the Court of Appeal decided may have given the jury the impression that they had to convict if they were persuaded that the officer's version was correct.  The court decided that the facts as stated by the officer did not of themselves require that there be a conviction.  It was a matter for the jury to decide, as an issue of fact, whether there had been a failure or, in the context, a refusal.  
30.	What is relied upon are the observations of Geoffrey Lane LJ giving the judgment of the court at page 150 letter B.  What he said was this:
"Now, this type of situation - as it seems to this court - may take one of three forms.  The defendant may put such an outrageous condition on his taking of the test that it amounts to a refusal - the refusal can be inferred without difficulty.  The other extreme one can get the situation where a police officer himself may insist that he will treat some irrelevant conduct on the part of the defendant as amounting to a refusal.  In that case there will be no difficulty in determining that there was no refusal on the part of the defendant.  Finally, there is the intermediate case where the behaviour of the defendant is capable of either interpretation - either he may not have been refusing or he was refusing.  Then it becomes a matter, of course, for the jury to decide whether they feel sure that in all the circumstances of the case the defendant's actions amounted to a refusal or a failure."
31.	That observation has apparently found its way into the current edition of Archbold at paragraph 32.91 where the position is summarised in these words:
"The word 'fail' includes 'refuse': RTA 1988, s.11(2).  In the absence of an express refusal to supply a specimen or the motorist specifying an outrageous condition prior thereto, it is for the tribunal of fact to decide whether the conduct of a motorist is such as to amount to a refusal.  [Mackey]." 
32.	Of course it is always a question of fact for the tribunal whether there has or has not been a refusal.  If the condition imposed is properly to be regarded as outrageous there is only one decision of fact that could properly be reached and any other would be perverse.  Indeed, all that the court in Mackey was indicating was that it remained an issue of fact and there could not be a direction to convict unless, in the view of the court, the condition was one which could properly be labelled as outrageous.  
33.	What the court was not doing was stating that there was some sort of a threshold and that unless the condition was outrageous there should not be a decision that no failure was made out.  That is why I emphasised the justices' words in paragraph 8(iv) where they stated that the respondent did not stipulate an outrageous condition.  It rather suggests that they were looking at the facts, or may have been looking at the facts, on the basis that absent an outrageous condition then there should be acquittal, largely because they took the view, as it seems, that the request that his wrist be photographed before he provided the specimen was not outrageous.  
34.	Whether or not it was outrageous seems to me to be not necessarily material so far as the facts of this case are concerned.  What the justices clearly had to do was to look at the conduct as a whole.  It is described in question (c).  The manner in which the respondent was behaving would have led any police officer reasonably to take the view that he was being thoroughly uncooperative and that he was evincing a clear intention that he was not going to cooperate in any way unless his requirements were met.  There could be no reasonable excuse, if I may move on to that, in requesting that a photograph be guaranteed before there was any agreement to take the breath test.
35.	It must be remembered, and it is most important when one is considering the provisions of the Road Traffic Act in this respect, that delay is something which any person required to provide a specimen will want, generally, to achieve.  It is well known that alcohol breaks down in the body as time passes.  If a motorist has been drinking, he will often endeavour to delay the taking of the test for as long as he can.  I appreciate that the justices say that the respondent did not admit to employing delaying tactics, but the police officer was perfectly entitled, particularly as this was an ex-detective sergeant who must have known what it was all about, to conclude that he was indeed employing delaying tactics.  In my view it is difficult to see what other conclusion could properly have been reached, having regard to his conduct overall.
36.	There was absolutely no reason, and he must have known it, why he could not get the necessary photographic evidence if he dealt speedily with the necessary procedure and then got someone to take a photograph of his wrists.  If there were any injuries which were visible it would not have been difficult for him to give that evidence and it would hardly have been a matter which could have been disputed insofar as it was in any way material.  I should say in parenthesis that it was never suggested that the officers were not justified at the roadside in arresting him and in handcuffing him, having regard to his behaviour.
37.	It seems to me that when one looks at the matter as a whole, and the conduct at the police station, and the way the justices set the matter out in the case, they clearly place far too much weight on the word "outrageous".  It is, in my judgment, somewhat unfortunate that Mackey was ever reported.  It does not really establish any point of law.  It merely makes the point, as is perhaps obvious, that failure depends upon the facts of an individual case.  Here I have no doubt whatever that any finding other than that there was a failure was entirely perverse.
38.	I should add that if a matter could not be a reasonable excuse for failing to provide a specimen it is difficult, in my view, to see how it could be relied on as grounds for saying that there was no failure, because if conditions are laid down which cannot amount to a reasonable excuse they can hardly be said, generally speaking, to justify a failure.  
39.	I have no doubt at all that the conditions which were being imposed in relation to the photographing of the wrist could not conceivably amount to a reasonable excuse for a failure.
40.	So far as what results from my conclusions, in relation to this case, is concerned, we will hear counsel as to the detail.  Suffice it to say that we cannot send this back with a direction to convict on both offences, because there was an issue raised which has not been resolved by the justices and to which they refer in paragraph 6 of the case.  What is there said is: 
"Counsel for the respondent submitted further, that should the Justices conclude that there was a failure or refusal to provide a specimen that the respondent had a 'reasonable excuse' for doing so.  This being that medical evidence established the defendant was unfit to be interviewed three hours after the procedure for obtaining a specimen was carried out and would therefore not have been fit to deal with the specimen procedure." 
41.	That is a matter, as I say, which is not dealt with in the case and accordingly, surprising though it may seem that that was not raised in relation to the failure as well as to possible reasonable excuse, we would have to send the matter back to the justices to deal with that issue in relation to the section 7 offence.  So far as the section 6 offence is concerned, that is the failure to provide the specimen at the roadside, subject to what my Lord thinks, it seems to me that when we send the matter back we should direct that there be a conviction on that charge. 
42.	MR JUSTICE SILBER:  I agree.  I also underline the observations of my Lord that the decision in Mackey [1977] RTR 146 should not be understood as indicating that unless a threshold of outrageousness is achieved it will not be possible to show a failure to provide a specimen.  I agree with the orders suggested by my Lord. 
43.	MR HALL:  My Lord, on the question of the fresh bench, there is one particular reason why, in my submission, it should go back to a fresh bench and it is this: no impropriety about it at all, but the office of the witness did subsequently, I am told, discuss the matter with the clerk to the justices after the result.  It seems to me, in the light of that, it would be difficult to continue with the same bench.
44.	MR JUSTICE COLLINS:  Why?  A clerk is not the bench.
45.	MR HALL:  Well, that is how it seems.  I suppose if one can have a different clerk perhaps, but the clerk is integral in the justices -- 
46.	MR JUSTICE COLLINS:  The fact that it may have been discussed with the clerk is nothing to the point.  The clerk is not there to make any decision merely to advise the justices on the law, is he not? 
47.	MR HALL:  Yes, but he does not -- 
48.	MR JUSTICE COLLINS:  Unless it is the (inaudible) justices in old days, but... 
49.	MR HALL:  It is just better safe than sorry.
50.	MR JUSTICE COLLINS:  I cannot see, at the moment, why that should be a reason to have a fresh bench.  There may be other reasons, but the fact that the officer spoke to the clerk of the justices, speaking for myself, cannot, I would have thought, be a good reason for changing the bench. 
51.	MR JUSTICE SILBER:  I would be surprised if they had not actually spoken about it.
52.	MR HALL:  So long as that does not cause the respondent to make an argument at some later stage that they be discharged in some way then -- 
53.	MR JUSTICE COLLINS:  How could he?  The clerk would have discussed with the parties presumably -- he signed on behalf of the justices, and any observations, and I gather there were some, about the form of the case would have been dealt with by the clerk, I assume. 
54.	MR HALL:  The evidence appears to be closed, I suppose -- 
55.	MR JUSTICE COLLINS:  Sorry? 
56.	MR HALL:  The evidence is closed.
57.	MR JUSTICE COLLINS:  Yes, well, that is the point.  This is a long time ago now that this matter was dealt with, is it not?  When was it? 
58.	MR HALL:  The offence was August 2003.  Subject to that I do not have any observations.
59.	MR MURRAY:  My Lord, frankly the same bench should, in my submission, be -- 
60.	MR JUSTICE COLLINS:  Yes, I think we are both agreed that we see no reason to direct that it be a different bench, but I think we must leave it open to the Magistrates' Court, the justices, if they decide that it all happened a long time ago and their memories are not fresh it may be that they will decide that it is more convenient and better that it be dealt with by a separate bench.  If they do so decide I do not think anything we say should preclude them from doing so. 
61.	MR JUSTICE SILBER:  One of the magistrates might have reached retirement age.  For my part I think we just remit it to the Magistrates' Court without making any direction as to who should deal with it.
62.	MR JUSTICE COLLINS:  That is right.  We will leave it to the magistrates to decide what is the convenient course.
63.	MR MURRAY:  Very well, my Lord. 
64.	MR JUSTICE SILBER:  Thank you.
65.	MR JUSTICE COLLINS:  Thank you.