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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Camp [2017] EWHC 3119 (Admin) (15 December 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3119.html Cite as: [2017] EWHC 3119 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 December 2017

Lord Justice Lindblom:

Introduction

1. The central question in this appeal is whether, at least in the particular circumstances of the case, self-induced intoxication could properly amount to a "reasonable excuse" for failing to provide a specimen of breath for analysis, for the purposes of an alleged offence under section 7(6) of the Road Traffic Act 1988.
2. The appeal is by way of case stated. The appellant, the Director of Public Prosecutions ("the DPP"), appeals against the decision of District Judge Veits, sitting at Lincoln Magistrates' Court on 16 February 2017, to acquit the respondent, Michael Camp, of the single charge that he faced at his trial, which was an offence contrary to section 7(6) of the 1988 Act.
3. The facts are straightforward. On the evening of 7 November 2015, the respondent was driving his Vauxhall Astra on Oakley Drive in Spalding. He was, it seems, driving erratically. He was stopped by P.C. Sarah Draper. He showed obvious signs of drunkenness and had wet himself. He had to be helped out of his car, and was very unsteady on his feet. He provided a roadside specimen of breath, which was 120 microgrammes of alcohol in 100 millilitres of breath. Later, at the police station, P.C. Draper carried out the "MG DD/A" procedure. Her evidence at trial was that the respondent had tried to provide a sample of breath. She volunteered her belief that he was too drunk to do so. She told the court she had been satisfied that the respondent understood what was required of him. The respondent apparently mentioned that he suffered from asthma, but the officer did not consider this a sufficient "medical reason" to abort the procedure. Nor did she note on the relevant form – "Form MG DD/A" – that she thought the respondent was too drunk to be able physically to provide a breath sample. The reason she had stated for the "incomplete procedure" was "Subject unable to blow long enough to provide a sample". She told the court that the respondent had clearly been trying to blow, and had been given several opportunities to provide a sample of breath. In cross-examination she again said she thought he had been too drunk to complete the procedure, and again asserted that excessive drunkenness was not a "medical reason". Evidence was also given by P.S. Baines, who stated his view that the respondent had been under the influence of alcohol. He confirmed that no reason had been entered on the respondent's custody record for his failure to provide a specimen of breath. Any decision to require a specimen of blood or urine would have been his to make. Dr Williams gave expert medical evidence for the prosecution. Having viewed the video of the procedure undertaken at the policy station, he said that in his opinion there was no obvious sign of the respondent suffering from asthma, and that the respondent appeared to stop blowing. He observed that, before the respondent made his fourth attempt to blow, he had been told to take a deep breath as he had done before. The respondent did not give evidence. Nor was any other witness called for the defence. Counsel on either side made submissions. And in the light of those submissions the district judge gave judgment, concluding that he must acquit, because he found that the respondent "had a reasonable excuse, he was simply too drunk to provide".

The issues in the appeal

4. In the case stated by the magistrates' court, two questions are raised:

"(a) Whether the fact that the [respondent] was so intoxicated, such intoxication being self-induced, that he was physically unable to provide a breath specimen for analysis, can amount to a reasonable excuse for failing to provide a specimen of breath for analysis under section 7 of [the 1988 Act].

(b) Was I correct to find in the particular circumstances of this case and given the officer's clear evidence, that she should simply have aborted the procedure for breath, notwithstanding the discretion given in section 7(3)(a)?"

5. Those, therefore, are the two issues for us to decide.

The statutory provisions

6. Section 7 of the 1988 Act provides, so far as is relevant here:

"7. (1) 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, or

(b) to provide a specimen of blood or urine for a laboratory test.

…

(2) A constable may make a requirement under this section to provide specimens of breath only if –

(a) the requirement is made at a police station or hospital,

(b) … or

(c) the constable is in uniform.

…

(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless –

(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required …

…

but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine and, in the case of a specimen of blood, the question who is to be asked to take it shall be decided (subject to subsection 4A)) by the constable making the requirement.

(4A) Where a constable decides for the purposes of subsection (4) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if –

(a) the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or

(b) the registered health care professional who is asked to take it is of the opinion that there is no contrary opinion from a medical practitioner;

and, where by virtue of this subsection there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead.

(5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.

…

(6) 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.

(7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."

Section 11(2) provides that, in sections 3A to 10, "'fail' includes refuse".

The district judge's judgment

7. In his judgment the district judge said this:

"In order to convict I must be satisfied beyond reasonable doubt. The evidence is clear in that Mr Camp was very drunk and should not have been driving. He blew 120 at the roadside and had he been charged with driving whilst unfit he may have had no defence. He was so drunk that he had wet himself in the car. He is charged however with failing to provide a specimen without reasonable excuse. PC Draper went out of her way to explain the procedure and gave a lot of detail over and above the requirements of the MGDDA procedure. She gave the defendant more chances to provide a sample than he was entitled to. Only at the conclusion of the procedure does the defendant raise the issue of asthma and the officer formed the opinion, as she is entitled to do, that based on evidence there was no valid medical reason for failure to comply. There had been no [wheezing] or breathlessness and the defendant could take deep breaths. At one point he almost provide[d] a long enough breath for a sample. There is no evidence of asthma before me, I have not heard from the defendant and not heard any medical evidence. Were this the only issue I would be bound to convict the defendant, however PC Draper clearly stated in her evidence that she thought the failure to provide was due to the fact that the defendant was too drunk to physically provide the specimen. That is telling evidence in this case. Why did she then not put this on the MGDDA form or mention it to the custody sergeant? I have had the benefit of viewing the video of the procedure and Mr Camp was clearly a very drunken man who was struggling to comprehend what was happening. The obvious choice for the officer was to abort the procedure and revert to blood or urine due to his state of intoxication. Self-induced intoxication in itself cannot be a defence, but can it be a reasonable excuse for failing to provide a specimen. This is not a failure to comprehend but physical incapacity. [R. v Lennard … makes] it clear that a reasonable excuse "must arise out of a physical or mental inability to provide". If someone is so intoxicated that they are not really following the procedure wilfully refusing? My note of [P.C.] Draper's evidence is clear "I thought he was just too drunk to complete the procedure". Surely he would not have been interviewed in that state, and they should have aborted the procedure and arranged for a blood sample. With a roadside reading of 120, even with a delay for a healthcare professional, he would have been likely to have been over the limit. I must acquit as I find that he had a reasonable excuse, he was simply too drunk to provide."

The first issue – whether self-induced intoxication can amount to a "reasonable excuse" for the purposes of section 7(6)

8. The purpose of the procedure provided in section 7(1)(a) of the 1988 Act is to gather evidence in the course of an investigation into whether an offence has been committed under section 3A ("Causing death by careless driving when under influence of drink or drugs"), section 4 ("Driving, or being in charge, when under influence of drink or drugs") or section 5 ("Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit"). Section 7(1) confers on a constable a power, but not a duty, to obtain evidential specimens of "breath" (subsection (1)(a)), or "blood or urine" (subsection (1)(b)). In either case, he "may" require the relevant specimen. However, the constable may only require a specimen of blood or urine "at a police station" if he has "reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required" (subsection (3)(a)). A motorist who fails to provide a specimen commits an offence under section 7(6) if he does so "without reasonable excuse" for that failure. If a defence of "reasonable excuse" is raised, the burden lies on the prosecution to disprove it (see McKeon v DPP [2008] R.T.R. 14).
9. It is well established that a "reasonable excuse" for the purposes of section 7(6) may include non-medical reasons (see, for example, Smith v Hand [1986] R.T.R. 265, where the defendant was told that he could wait for his solicitor before providing a sample; and Chief Constable of Avon and Somerset Constabulary v Singh [1988] R.T.R. 107, where the defendant, because of his lack of understanding of the English language, did not understand what was said to him as to the requirement to provide a specimen). What constitutes a "reasonable excuse" will always be a question of fact to be decided by the court. In R. v Lennard [1973] 1 W.L.R. 483, Lawton L.J. observed (at p.486H to p.487C):

"…

A motorist, however, may not be able to take the breath test or provide a specimen because of his physical or mental condition. The statute made provision for refusals which were excusable. Thus in [R. v Kelly (H.F.) [1972] R.T.R. 447], this court expressed the opinion (albeit obiter) that a man with a permanent tracheotomy would have had a reasonable excuse for refusing to take the breath test: and in Scoble v Graham [1970] R.T.R. 358 the Divisional Court expressed the opinion that a man who was in pain and confused might have a reasonable excuse for failing to provide a specimen. A state of affairs which does not affect ability to take a breath test or supply a specimen does not seem, on the authorities, to amount to a reasonable excuse. Thus, a motorist who declined to give a specimen saying that he wanted to see his solicitor was adjudged by the Divisional Court not to have had a reasonable excuse; see Law v Stephens [1971] R.T.R. 358. The Court of Appeal gave judgment to the same effect in the case of an overseas visitor who wanted to speak to the diplomatic representative of his country before giving a specimen; see [R. v Seaman [1971] R.T.R. 456]. In our judgment no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health."

10. In DPP v Beech [1992] R.T.R. 239 the justices found that "the breath test procedure was explained to the defendant, but he was too drunk to understand the procedure". When asked to provide a specimen of breath, he refused to do so. Before the Divisional Court counsel for the prosecution contended that what the constable had said to the defendant was capable of giving him the necessary information to comply with the request made of him under section 7 of the 1988 Act, and that, as the justices had also found, it was the defendant's self-induced drunkenness that had rendered him incapable of understanding what was said. In a judgment with which Woolf L.J. agreed, Leonard J. said this (at pp.245-246):

"… There is, in my judgment, a clear distinction between the present case and the language cases. It would, in my view, defeat the object of the legislation, which is intended for the protection of the public, to hold that the fact that the defendant was too drunk to understand what was said to him could provide him with a reasonable excuse. It would also be an abuse of language so to describe it.

The conclusion I have come to is that the justices misdirected themselves on the law in holding that the fact that the defendant was so intoxicated, such intoxication being self-induced, that he was unable to understand the procedure under section 7(7) and the consequences of a refusal could amount to a reasonable excuse."

In the course of argument in that case it was conceded by counsel for the prosecution that if a defendant was unconscious the "test" in R. v Lennard would be satisfied. That point was not, however, decided by the court, and, on the facts here, it is not a point that we have to decide either.

11. Although expert medical evidence of the physical or mental incapacity in question is often required to sustain the defence and to demonstrate the connection between the incapacity and the failure to provide (see, for example, DPP v Grundy [2006] EWHC 1157 (Admin)), it is nevertheless open to the court, in principle, if the test in R. v Lennard is kept in mind, to find that circumstances said to have rendered the defendant physically incapable, do amount to a "reasonable excuse" even in the absence of relevant medical evidence. In DPP v Pearman [1992] R.T.R. 407 the justices had found that, in the particular circumstances, which included her having been told by the police that she was suspected of being a "hit and run driver", a defendant who was "shocked and/or drunk" was found by the justices to have been "physically unable to supply a breath specimen". The Divisional Court was unpersuaded that the justices had not been entitled to rely on the defendant's own evidence in finding as they did. Lloyd L.J., with whom Waterhouse J. agreed, said (at p.412):

"I would end by repeating the warning given by Watkins LJ in [DPP v Eddowes [1991] R.T.R. 35, at p.41B] that justices must take great care not to be gullible in these cases. The fact that a defendant is drunk or under stress is not of itself sufficient to provide him with a reasonable excuse. Nor is it sufficient that he was doing his best or trying his hardest, otherwise the purpose of the Act would be defeated. Here the facts go further than that. Although the finding that the defendant was 'shocked and/or drunk' is imprecise, other findings show that the state of shock was a substantial factor in the defendant's inability to provide a specimen. The justices heard the defendant give evidence in support of her defence. They were clearly impressed by the quality of that evidence. It would not, in those circumstances, be right for this court to interfere."

The court answered in the affirmative the question "whether evidence of inebriation combined with a distraught, deeply emotional state, which rendered the defendant physically incapable of providing a breath specimen, could ever amount to a reasonable excuse under section 7(6) of [the 1988 Act]".

12. Where the court has been concerned with the question of what may constitute "medical reasons" for the purposes of section 7(3)(a) of the 1988 Act, it has been held that where the defendant has done his best to provide a specimen, even in the absence of some other reason for not complying, his incapacity, including his incapacity through intoxication, can amount to a "medical reason" (see Davies v DPP [1989] R.T.R. 391, and Webb v DPP [1992] R.T.R. 299). The taking of medication has been held to be capable of amounting to a "medical reason" (see Wade v DPP [1996] R.T.R. 177). It has also been held that intoxication alone, including self-induced intoxication, is capable of constituting a "medical reason".
13. In Young v DPP [1992] R.T.R. 328, a case decided by the same constitution of the Divisional Court as had the previous day given judgment in DPP v Pearman, the court had to consider whether self-induced intoxication could constitute a "medical reason" for the purposes of section 7(3) – but not, however, whether self-induced intoxication could in principle, or on the facts, constitute a "reasonable excuse" for the purposes of section 7(6). It was argued on behalf of the defendant in that case, without apparent disapproval by the court, that a person who has become intoxicated voluntarily cannot rely as a "reasonable excuse" on his state of intoxication, and therefore that it would be inappropriate and contrary to the spirit of the 1988 Act for "medical reasons to embrace intoxication and thus to permit a constable to require a specimen of blood to be provided by the intoxicated person" (p.333). Waterhouse J., with whom Lloyd L.J. agreed, said (at p.334) that in Webb v DPP, a case in which a woman had been found to have been unable to provide specimens of breath, "the factors … were partly her intoxication, partly her distress and partly her build". The Divisional Court had concluded that "there was evidence which justified a finding by the justices that the officer in the case had had reasonable cause to believe that there were medical reasons why a specimen of breath could not be provided", and "looking at those matters collectively, they were capable of amounting to a medical reason within the meaning [of] section 7(3)(a)". Waterhouse J. went on to say this (at pp.334 and 335):

"[Counsel for the defendant] points out that the facts of that case are distinguishable from those in the present case because the officer who made the requirement in [Webb v DPP] was concerned with several factors of which intoxication was only one, whereas, in the present case, reliance is placed wholly upon the intoxicated state of the defendant. I recognise that that is a valid ground for distinguishing the particular facts in [Webb v DPP] but, for my part, I can see no reason why intoxication should not constitute a medical reason for the purposes of section 7(3) of the Act of 1988 because it is a medical condition recognised by doctors. I have not been persuaded that there is any practical or other reason why 'medical reasons' in this statutory provision should not be given its full ordinary meaning."

14. For the DPP, Mr Mark Weekes submitted, first, that R. v Lennard serves to establish that the absence of physical or mental capacity, or "a substantial risk to health", is only a necessary pre-requisite to a finding of "reasonable excuse" for the purposes of section 7(6), but not necessarily conclusive of such a finding. This, he submitted, was effectively confirmed in DPP v Pearman. Secondly, relying on the absence of any explicit view to the contrary on the part of the court in Young v DPP, he argued that intoxication is capable of being a "medical reason" for the purposes of section 7(1) and (3), but that it does not follow from this that it must necessarily be, or is ever, without more, capable of being, a "reasonable excuse" for the purposes of section 7(6). Thirdly, he submitted, as a matter of policy where the substance of the suggested "reasonable excuse" acknowledges guilt of another relevant offence under the 1988 Act, there are powerful reasons of public policy pointing to the conclusion that self-induced intoxication cannot be a reasonable excuse. Fourthly, in reliance on the Divisional Court in DPP v Beech, he submitted, that if the judge had found the respondent incapable of providing a specimen of breath because he did not understand what was being required of him, he would not in those circumstances have had a reasonable excuse. He relied in particular on what was said by Leonard J. in DPP v Beech (at p.246).
15. For the respondent, Mr Ashley Barnes submitted that the district judge's approach and conclusions were correct. The Court of Appeal's decision in R. v Lennard was, he submitted, the correct starting-point for determining the potential scope of a "reasonable excuse" for the purposes of section 7(6). There is, he argued, no reason of principle or policy to exclude self-induced intoxication from the ambit of "reasonable excuse", at least in circumstances in which such intoxication produces a physical incapacity to comply with the requirement to provide a specimen of breath – as opposed merely to a failure to understand the procedure, as in DPP v Beech. Where a person is incapable of providing a specimen of breath, Parliament has provided, in section 7(1)(b) and (3), the alternative of requiring a specimen of blood or urine, in accordance with the procedure specified. Although the object and purpose of the 1988 Act is concerned with the protection of the public, the particular purpose to be discerned in section 7 is to enable the level of alcohol within a person's system to be objectively ascertained, and not merely to serve the broader statutory purpose. The particular object of section 7(6) is to ensure that a required specimen will be secured, unless the person required to provide it truly has a "reasonable excuse" for not doing so. This provision, submitted Mr Barnes, effectively requires a person to provide incriminating evidence against himself. It is a well established principle, he said, that those genuinely unable to provide a required specimen of breath should not be prosecuted for the offence of failing to provide such a specimen, given that provision is made for a specimen of blood or urine to be taken in the event that a specimen of breath is not.
16. Mr Barnes also submitted that there is no logical or principled reason why "medical reasons" for the purposes of the alternative procedure provided under section 7(1)(b) and (3)(a) may not also constitute a "reasonable excuse" for the purposes of section 7(6). A "medical reason" may be, in substance, an objectively valid excuse for not providing a specimen of breath, where it demonstrably goes to a person's physical capacity to provide the specimen. This will necessarily be a matter of fact in every case where such a defence is raised. It is not inconsistent in principle with the decision of this court in DPP v Beech – where the court was concerned ultimately with the question of whether the defendant had been able to understand the procedure and the consequences of a failure to provide, under section 7(7). By contrast with the actions of the defendant in DPP v Beech, Mr Barnes submitted, there was nothing objectively unreasonable in the respondent's conduct once the request was made of him to provide a specimen of breath. He was simply physically incapable of doing so. This, therefore, was one of those cases in which a "reasonable excuse" for the purposes of the statutory defence in section 7(6), and, equally a "medical reason" for the purposes of section 7(3)(a), can be constituted by self-induced intoxication. The district judge's approach, in the light of the evidence before him, was correct in law, and this court should not interfere with it.
17. I cannot accept Mr Barnes' submissions. It seems to me that the argument presented to us by Mr Weekes is essentially correct.
18. In the first place, as is common ground – and must be so in the light of the authorities to which I have referred – the scope of a "reasonable excuse" for the purposes of section 7(6) will always be a question of fact for the court on the evidence before it. Subsection (6) does not prescribe the ambit of a "reasonable excuse", nor does it preclude any particular form of excuse, including an excuse based on the evidence as to the person's physical or mental capacity at the relevant time, which may include evidence as to his intoxication at the time when he was required to provide a specimen of breath. It is also important to keep in mind, however, that there is a real difference between a true explanation for a person's failure to provide a specimen of breath when required to do so and a "reasonable excuse" for that failure. An explanation may constitute an excuse, and that excuse may be a reasonable one. But that is not necessarily so. The fact that voluntary intoxication may sometimes, perhaps often, explain a person's inability to provide a specimen does not mean that that person will therefore have a "reasonable excuse" for not doing so.
19. Secondly however, it is important to distinguish between, on the one hand, the concept of "medical reasons" in section 7(3) and, on the other, the concept of a "reasonable excuse" in section 7(6). The two concepts are not the same, nor should they be confused. The judgment required of a constable under section 7(3)(a) as to whether there are "medical reasons" why a specimen of breath cannot be provided, or should not be required, is a different exercise from that involved in a court's exercise of judgment, on the evidence before it, as to whether the reason for the failure to provide a specimen of breath was such as to constitute, in the circumstances, a "reasonable excuse". As this court's decision in DPP v Beech illustrates quite vividly, albeit on facts not identical to those of the present case, where the court is concerned with the question of whether or not a defendant's excuse for not providing a specimen required of him is a "reasonable excuse", it must recognize the object and purpose of the 1988 Act, and must gauge whether, in view of that object and purpose, the excuse put forward can properly be regarded as reasonable. That is necessarily an objective exercise for the court, to be conducted, as was held in DPP v Beech, in the light of the evidence as to the defendant's level of intoxication, and, as will usually be so, the fact that his or her intoxication is self-induced. It might reasonably be thought unattractive, to say the least, that a defendant whose self-induced intoxication was so great as to prevent him from understanding the requirement to provide a specimen or, as in this case, to render him physically incapable of providing that specimen, could take advantage of a statutory defence not available to a defendant whose conduct had been objectively more "reasonable" in that his level of intoxication when he drove a motor vehicle on the highway was not such as to render him incapable of providing a specimen of breath. This would seem an unlikely concept for Parliament to have embraced in enacting the defence of "reasonable excuse" for a defendant's failure or refusal to provide the specimen required.
20. Thirdly, in my view, it is not an answer to that last proposition to point to the alternative procedure for the provision of a specimen of blood or urine in accordance with section 7(1)(a), (3), (4) and (5). That the police are given an alternative method of obtaining a relevant specimen, whether of blood or urine, does not of itself render reasonable a defendant's failure or refusal to provide a specimen of breath where such failure or refusal is based on, or sought to be justified by, his own self-induced intoxication. There is no logical connection between the two.
21. Fourthly, this analysis is, I believe, entirely congruent with that consistently applied in the cases concerning the concept of "reasonable excuse" for the purposes of section 7(6), to some of which I have referred. And it is not incompatible with the approach adopted in the cases where this court or the Court of Appeal has had to consider the concept of "medical reasons" for the purposes of section 7(3). In particular, in my view, it aligns perfectly well the decision of the Court of Appeal in Young v DPP. In that case the court was concerned with a different question, which was whether, for the purposes of section 7(3)(a), the defendant's intoxication was capable of amounting to a "medical reason" justifying a decision that a specimen of blood should be required instead of a specimen of breath. That is, both in substance and in consequence, a different decision from that with which we are concerned here. Crucially, there is nothing in Young v DPP to disturb the conclusion that, on the particular facts of a case, a "reasonable excuse" for the purposes of section 7(6) may not be available even if there are cogent "medical reasons" under section 7(3) to justify adopting the alternative procedure for requiring a specimen of blood under section 7(3).
22. It follows, in my view, that the district judge's approach in this case was wrong. As Mr Weekes submitted, this was not a case in which the person from whom a specimen was required was incapable of co-operating with the police, nor comatose or unconscious, nor where it might otherwise have been unreasonable for the officer to require a specimen of breath. On the evidence before the district judge, it is quite clear that the respondent understood what was being required of him, either when he had been stopped by the police or later at the police station. In making the findings he did, the district judge relied wholly on the evidence given by P.C. Draper. He heard none from the respondent himself. The fact – as the district judge found it be on the strength of P.C. Draper's evidence – that in her view the respondent was so drunk that he could not physically provide a specimen of breath, and the fact – as he found it to be having viewed the video of the procedure at the police station – that the respondent, because he was so drunk, was struggling to understand what was happening, did not preclude a finding that the respondent had no "reasonable excuse" for failing to provide a specimen of breath. Indeed, such evidence would generally go to support that finding, even if, as the district judge observed in his judgment, this was "not a failure to comprehend but physical incapacity", and, as he concluded, the respondent "was simply too drunk to provide". I should add here that it seems quite plain from the district judge's judgment that the possibility of the respondent suffering from asthma, and of this condition having played some part in his inability or unwillingness to provide a specimen of breath, played no part in his conclusion on the question of "reasonable excuse". And he is not to be criticized for that. He was entitled, and in my view clearly right, to place no weight on such evidence as he heard on that matter.
23. The district judge's error, as I see it, lay in the conclusion he reached having regard to the respondent's intoxication – that the respondent was, as he put it, "simply too drunk to provide". He appears to have directed himself, in the light of the Court of Appeal's decision in R. v Lennard, that because a "reasonable excuse" must arise from "a physical or mental inability to provide" the specimen required, it follows that "a physical or mental inability to provide" must necessarily be regarded as an excuse that is "reasonable". That is not so. To qualify as a "reasonable excuse", the proffered excuse must be, in the circumstances, inherently "reasonable". And, on the face of it at least, the evidence before the district judge, and in particular the evidence of the respondent's level of intoxication and the absence of any particular feature in the evidence that might have sustained a defence of "reasonable excuse", left it open to him to conclude that that defence was not available here – because in the circumstances the excuse was not a "reasonable" one.
24. I would therefore conclude in favour of the DPP on the first issue. At least in the circumstances of this case and on the evidence before the court, the district judge was entitled to conclude, if not also driven to conclude, that the respondent did not have a "reasonable excuse" for the purposes of section 7(6), and that an offence under that provision had been committed.

The second issue – whether the procedure for the taking of a specimen of breath should have been aborted in favour of the alternative procedure for a specimen of blood or urine

25. This issue can be taken more shortly.
26. In the course of argument we sought, with counsel's help, to clarify the meaning of question (b) in the case stated. It seemed to be agreed that the real sense of the question was not merely whether the officer should have "aborted the procedure for breath", but whether she should also have gone on to require a specimen of blood or urine under the procedure provided for in section 7(1)(b) and (3).
27. Mr Weekes' argument here was simple. He submitted that there is, in the circumstances of a case such as this, no statutory obligation to require a specimen of blood or urine, merely a power to do so. The fact that in this case the officer did not proceed to require a specimen of blood or urine is not in itself sufficient to provide the respondent with a defence of "reasonable excuse" to the sole offence with which he was in fact charged, an offence under section 7(6). That offence did not require the police to have initiated or completed the further procedure for obtaining a specimen of blood or urine (see, for example, DPP v Boden [1988] R.T.R. 188, Lorrimer v Russell [1996] S.L.T. 501, and R. v Chichester Justices, ex parte DPP [1994] R.T.R. 175).
28. Mr Barnes submitted that the district judge was right to conclude, as effectively he did, that a specimen of blood or urine should have been required. It was the action, or omission to act, of the police officers that had negated the object and purpose of the 1988 Act in this case. The officers should, in the circumstances, have abandoned the section 7(1)(a) procedure for requiring a specimen of breath and gone on, as they were empowered to do, to require a specimen of blood or urine. Although the language of section 7(1)(a) and 7(3) does not compel this course, in circumstances such as those of this case it would, Mr Barnes submitted, defeat the purpose of this provision to fail to require a specimen of blood or urine. Here, the officer formed the view that a specimen of breath could not be provided, but evidently did not appreciate that the cause of the respondent's failure to do so – intoxication – was a "medical reason". The next and necessary stage of the whole process, to require a specimen of blood or urine, was never embarked upon. It should have been. The district judge's approach here was therefore correct. He found as a matter of fact, as he was entitled to do, that the section 7(1)(a) procedure should have been "aborted", and the procedure under 7(1)(b) and (3)(a) put into effect.
29. Here again, I accept Mr Weekes' submissions. It seems to me that the issue posed for us by question (b), however one construes it, is irrelevant or at least unnecessary. The simple fact is that the respondent had been charged, and had only been charged, with an offence under section 7(6), and it was the court's task to try him for that offence alone. Whether he ought to have been charged, or might have been, with another offence, and whether the police would normally have been expected to have gone about securing the evidence they would have needed to do that, seems to me to be neither here nor there. As both counsel acknowledged, the relevant provisions in section 7 are permissive not mandatory. Section 7(6) creates a free-standing offence of failing, without "reasonable excuse", to provide a specimen when required to do so. Such an offence is made out irrespective of whether a further procedure contemplated in section 7 is ever embarked upon. Thus, a person may be convicted of an offence under section 7(6) in circumstances in which he has failed or refused to provide a specimen of breath and is found to have had no "reasonable excuse" for that failure or refusal, even if the further procedure for requiring a specimen of blood or urine has not been pursued.
30. In the circumstances of this case, once the respondent had failed to provide a specimen of breath, it was open to the officers to take the view that an offence under section 7(6) had been committed and that he should be charged with that offence. They were entitled to abandon the procedure for obtaining a specimen of breath when they did, and there was nothing in section 7, or elsewhere in the 1988 Act, to compel them to proceed to require a specimen of blood or urine. The notion that this was to leave the procedure provided for under section 7 incomplete is misconceived. The officers were not bound to continue with the alternative procedure provided for under section 7(1)(b) and (3). That they could have done this is not to say that they should. They were not under a duty to do so.

The answers to the questions in the case stated

31. It follows that my answers to the questions in the case stated are these.
32. As to the first question, the answer is, for the reasons I have given, "No, at least in the circumstances of this case".
33. And as to the second question, the answer is that the officers were entitled to abandon the procedure for obtaining a specimen of breath as and when they did, and that they were not then under a duty to require a specimen of blood or urine.

Conclusion

34. I would therefore allow this appeal. The parties agree that if the appeal is allowed the respondent's acquittal must be quashed and the case remitted to the magistrates' court with a direction to convict. I propose that we make an order in those terms.

Mr Justice Edis

35. I agree.