Neutral Citation No. [2012] NICA 10	Ref:     	MOR8488	
			
Judgment: approved by the Court for handing down	Delivered:	04/05/12	
(subject to editorial corrections)			

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
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APPEAL BY WAY OF CASE STATED FROM A DECISION 
OF A RESIDENT MAGISTRATE
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CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND
Complainant/Appellant;
-and-
TREVOR LAWRENCE UPRICHARD
Defendant/Respondent.
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Before: Morgan LCJ and Girvan LJ
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MORGAN LCJ (delivering the judgment of the court)

[1] 	This is an appeal by the Chief Constable by way of case stated from a decision of District Judge Copeland who on 19 June 2011 dismissed on a direction application a charge that the appellant failed to provide a specimen of breath without reasonable excuse contrary to Art 18(7) of the Road Traffic (NI) Order 1995 (the 1995 Order). The relevant provisions of the 1995 Order are contained in Article 18:

“18.—(1) In the course of an investigation into whether a person has committed an offence under Article 14, 15 or 16 a constable may, subject to the following provisions of this Article and Article 20, require him—

(a)	to provide 2 specimens of breath for analysis by means of a device of a type approved by the Head of the Department, or
(b) 	to provide a specimen of blood or urine for a laboratory test.
…..
(4) 	A requirement under paragraph (1)(b) 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 a specimen of breath cannot be provided or should not be required, or
….

but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide 2 specimens of breath.

…
(7) 	A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this Article is guilty of an offence.

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

This court held in Chief Constable v Curran, Chief Constable v Gallagher [2005] NICA 3 that it was essential to prove the giving of the warning in order to secure a conviction under Article 18(7) of the 1995 Order. 

Background

[2]	The facts as found by the learned District Judge were as follows:

“1. On Friday 10th December 2010 Constable Stuart Forsythe was on road traffic duties and in uniform in the Banbridge area accompanied by other police officers. At 1:10 am on the said date whilst observing traffic in the vicinity of Linenhall Street and Commercial Road, Banbridge the officer observed a grey Ford Focus car VRN VLZ 5078 exit the Commercial Road car park and turn left into Commercial Road. This vehicle was observed to cut a corner whilst turning right in front of the police vehicle. The police car followed the subject vehicle along the Ballygowan Road via Linenhall Street and the subject vehicle was seen to cross over the central reservation on the Ballygowan Road as it rounded a right hand bend on a hill whereafter it was seen to turn into Hawthorne Hill and with the use of strobe blue lights the said vehicle was stopped by PSNI as it came to a halt outside No 23 Hawthorne Hill. This was a well-lit residential area. 
2. 	Constable Forsythe exited the police vehicle by which time the driver (later identified as the Defendant) had got out of his vehicle. The Defendant was unsteady on his feet and on speaking to the Constable the officer noted the smell of intoxicating liquor, that the defendant had a rosy complexion and that his eyes were glazed. Constable Forsythe formed the suspicion that the Defendant had consumed intoxicating liquor, informed him as such and the Defendant unequivocally agreed to submit to a preliminary breath test which was carried out successfully and which test the Defendant failed. The Defendant was arrested on the basis that the result of the Preliminary Breath Test indicated that the proportion of alcohol in his body exceeded the prescribed limit. The Defendant was agreeable & was co-operative throughout the preliminary breath test procedure and his arrest. 
3.	The Defendant was taken to Banbridge Police Custody Suite and introduced to Custody Sergeant Beckett who accepted the charge, authorised the Defendant’s custody and the taking of evidential breath samples. Constable Forsythe (an appropriately authorised officer) took control of the test on the LION INTOXTLYZER 6000UK Evidential Breath testing instrument. 
4. 	A total of 6 attempts were made to acquire a sample of breath from the Defendant: all were unsuccessful. The Defendant was asked by Constable Forsythe whether he had any medical grounds as to why he could not provide a sample of breath and he replied ‘no’. On each occasion that a sample was sought the procedure was unsuccessful. On the first three attempts the Defendant was seen to spit and introduce spittle to the mouthpiece and the process was abandoned the mouthpiece being removed and exchanged between each attempt. On the remaining three attempts there was inadequate breath flow recorded within the time allowed and the process was again abandoned on what was the 6th attempt. Also in the course of the remaining three attempts the mouthpiece was replaced twice. A total of five different mouthpieces were used in the course of the procedure. 
5. 	There was no mention or record of exhibit bags which held the abovementioned mouthpieces nor was there any subsequent history of their examination (if any) given. 
6. 	Constable Forsythe was agreeable to affording the Defendant multiple opportunities to provide a sample and proffered a 21 chance of sequenced tests when not required to do so. The officer was in doubt that the Defendant was capable of giving of his best after the first sequence of three attempts which he accepted were then disregarded by him. 
7. 	Constable Forsythe indicated that normally the procedure permitted up to five attempts within a three minute cycle. However, on the second permitted opportunity, (the first three attempts having been disregarded by the Constable), the defendant ran out of time on the third attempt (the sixth attempt overall). Constable Forsythe was unable to indicate the times of the second chance attempts and was therefore unable to indicate how much time had expired before the defendant had run out of time. 
8.	There was no evidence that the Defendant had been warned in accordance with Article 18(8) of the said 1995 Order that a failure to provide (a breath sample) may render the defendant liable to prosecution — the SF6 drink/drugs station procedure pro forma document not having been adduced in evidence and only referred to by the witness, Constable Forsythe, to refresh his memory of breath sample timings. 
9.	There was no evidence that the Defendant had been warned in accordance with Article 18(8) of the said 1995 Order that a failure to provide (a breath sample) may render him liable to prosecution the SF6 drink/drugs station procedure pro forma document not having been adduced in evidence. 
10.	The Defendant, having not provided a specimen of breath for analysis was not then required to provide a specimen of blood or urine for a laboratory test under Article 18 of the said 1995 Order.” 

[3] 	At the close of the prosecution case the respondent applied for a direction on the basis that he had not been warned that a failure to provide a breath sample may render him liable to prosecution. The prosecutor then applied to the judge to re-open the prosecution case in order to recall the relevant witness to address this proof which had been overlooked. Prior to the hearing the respondent had been served with a document, SF6, entitled “Drink/Drugs Station Procedure” within which it was stated that the police witness had given the relevant warning and then asked for the respondent’s agreement to the provision of two specimens of breath. The respondent had answered “yes”. The case stated records that the application to re-open the prosecution case was refused but no explanation or reasons were given for that decision.

[4] 	The learned District Judge acceded to the direction application. In light of that decision the learned District Judge stated three questions for the opinion of this court.

“1. 	Was I correct in law in refusing the Prosecution application to re-open the case after its closure and to recall the relevant officer to give oral evidence of the required warning that the Defendant would be liable to prosecution if he failed to provide a specimen of breath in the circumstances and as required by Article 18 of the Road Traffic (NI) Order 1995.

2. 	Was I correct in law in finding in the light of the evidence that the prosecution case should in any event be dismissed on an application for a direction of no case to answer as the police having noted that three sample attempts had failed nonetheless offered three further opportunities to the defendant so acknowledging to the Court that they (the police) were in doubt that the defendant was capable of giving of his best in his attempt to provide samples?

3. 	Was I correct in law, in having found as a fact that Constable Forsythe had a doubt about the defendant’s capability of giving of his best in the provision of samples, to conclude that the Constable should have had reasonable cause to believe that a specimen of breath could not have been provided or should not have been required and gone on in accordance with Article 18(4)(a) of the said 1995 Order to afford the defendant the opportunity to provide a sample of blood or urine in accordance with Article 18(4) of the said 1995 Order?”

The decision not to re-open the prosecution case

[5] 	The respondent accepts that there is discretion to re-open the prosecution case once it has been closed but submits that the discretion should be sparingly exercised and only permits the introduction of formal, technical or uncontentious evidence. In support of this submission the respondent relied upon R v Gainsborough Justices (1984) 78 Cr App R 9. That was a case in which the applicant was charged with breaches of community service orders. The probation officer chose to lead evidence of only one breach but it turned out that the applicant had a valid excuse for non-attendance because of a hospital appointment. The applicant applied for a direction but the Justices allowed the probation officer to re-open his case and adduce evidence of further breaches as a result of which the applicant was convicted. The applicant applied to the Divisional Court which quashed the conviction on the basis that the Justices did not have power in the circumstances to allow the prosecution to re-open its case. Although the court stated that the power to re-open was confined to technical matters not seriously in dispute such a conclusion was not necessary to the determination of the case. This was not a case of oversight. The prosecution elected to confine itself to one breach. The evidence which it wished to introduce was direct evidence of the commission of the substantive offence. The report makes clear that the ratio of the case is that the prosecution should not be allowed to mend a deficiency going to the merits of the prosecution case in such circumstances.

[6] 	In R v Francis (1990) 91 Cr App R 271 a witness to a robbery participated in an identification parade and picked out the person standing at position 20. At the close of the prosecution case the appellant applied for a direction as there was no evidence called to establish that he was the person standing at that position. The prosecution did not understand the appellant’s position at the parade to be in dispute and applied to call further evidence of that fact. They were permitted to do so and the appellant was convicted. On appeal it was argued that the prosecution could only re-open their case in only two circumstances, first where something has arisen ex improviso and secondly where the matter is a mere formality as distinct from a central issue in the case. The court rejected that submission and held that the discretion was wider but should only be exercised outside those exceptions on the rarest of occasions. The appeal was dismissed.

[7] 	The relevant case law was examined extensively in Jolly v DPP (QBD Divisional Court 31 March 2000). That was a drink driving case in which the prosecution relied upon a read-out from a computerised machine. At the end of the case the appellant applied to have the case dismissed on the basis that there was no evidence that the machine was working correctly as required by Section 69 of PACE. The Magistrate allowed the prosecution to recall the forensic scientist and convicted the appellant. The Divisional Court accepted that the discretion should be sparingly exercised but doubted whether it assisted to speak in terms of exceptional circumstances. The court should look carefully at the interests of justice overall and in particular at the risk of any prejudice whatsoever to the defendant. The appeal was dismissed.

[8]	Jolly has been consistently followed in Divisional Court decisions since then. In Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin) the court stated that the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight. If a defendant stood by watching a point develop without any hint of a challenge which might alert the prosecution to their failure to comply strictly with the formal proofs he could hardly complain if as a result the discretion was exercised to secure justice rather than allow an unmeritorious acquittal (see Lesson v DPP [2000] RTR 385).

[9]	For the respondent it was argued that he had lost a tactical advantage as a result of the fact that if recalled the police officer would now realise the importance of his evidence on the issue of whether the warning was given and it would, therefore, be more difficult to cross-examine him effectively in the respondent’s interest.  In support of this argument the respondent relied on R v Tate [1977] RTR 17 where it was said that even the possibility of prejudice to the defendant would prevent the exercise of the discretion in favour of the prosecution. Such a submission was rejected in Khatibi v DPP [2004] EWHC 83 (Admin). The respondent had the opportunity to explore these matters in cross-examination at the hearing but for tactical reasons chose not to do so. The issue was whether the police officer had completed the SF6 pro forma and any disadvantage in questioning on this issue was as a result of the decisions made as to how best to defend the charge. The defence should have been alert to the possibility that the prosecution case could be re-opened (see Lesson v DPP).

[10]	Although the learned District Judge has asserted his conclusion on the application to re-open the prosecution case in the case stated he has given no reasons for his decision. The exercise of this discretion requires the judge to identify the factors in play and his weighing of them. There is nothing in the case stated to indicate that he has done so. On that basis alone we must conclude that the application was not determined in accordance with law. In any event we consider that the relevant factors in this case pointed overwhelmingly towards the exercise of the discretion in favour of re-opening the prosecution case. The evidence at issue was procedural rather than substantive. The witness was immediately available to give it. The respondent had been served with the SF6 document containing the averment that the warning had been given. The respondent’s representatives had not alerted the prosecution to the fact that this warning was in issue. It was not sufficient for these purposes to advise the court and prosecution that all issues were in play. Neither do we give any weight to the suggestion by the learned District Judge that he told the prosecution to carefully go through the procedures. It was not his function to direct prosecution proofs. We do not accept that the respondent would have suffered any prejudice as a result of the admission of the further evidence which he could have challenged if he wished.

The remaining questions

[11]	The respondent did not make any submissions to support an affirmative answer to either of the two remaining questions.  In relation to the second question the offence charged is committed if the offender, having been warned, fails to provide two specimens of breath without reasonable excuse. The facts found included an admission by the respondent that there was no medical reason why he could not supply a sample of breath. The first three attempts by him to do so were abandoned because the respondent was seen to spit and introduce spittle to the mouthpiece. The fact that the officer allowed the respondent a further three opportunities to provide a specimen could not on any view have permitted an inference that the officer doubted that the respondent was capable of giving his best in attempting to provide these samples. In any event the issue for the court was whether there was a reasonable excuse for the failure to provide the specimens and the learned District Judge made no finding on that tissue. In light of the evidence that there was no medical reason for the failure to provide the two breath specimens there was in any event no basis for concluding that there was a reasonable excuse.

[12]	The third question concentrates on Article 18(4) which sets out the trigger conditions for the requirement by an officer of the provision of a specimen of blood or urine. Those were not material in this case. The learned District Judge appears to have been distracted from the need to concentrate on the relevant issues which included whether there was a failure to provide two specimens of breath and if so whether there was a reasonable excuse for that failure. The answer to this question is, therefore, irrelevant.

[13]	For the reasons given we answer the questions (1) No, (2) No and (3) Not relevant. We remit the case to be heard afresh by a different District Judge.