Since the advent of the drink driving legislation many hundreds of cases have been considered; in 1992 four particularly important cases have been reported.
In Corcoran v DPP (1992), The Times, 8 July 1992, the defendant had been charged under s.7(6) of the Road Traffic Act 1988. S.7(6) created two offences of refusing to provide a specimen of breath for analysis (i) when the defendant was alleged to have been driving a vehicle and, (ii) when the defendant was alleged to have been in charge of a vehicle.
The two offences carried different penalties and, therefore the court said a charge under s.7(6) which did not distinguish the circumstances in which the request was made had been bad for duplicity.
It seems that the defendant had been charged, "With failing without reasonable cause to provide a specimen of breath for analysis in the course of an investigation under section 4 or 5 of the Road Traffic Act 1988", since amended by the 1991 Act. It is understood this was the Home Office recommended wording, not necessarily followed by all police forces. Some police forces use only one section in the wording of the charge.
Prosecuting authorities waited to see whether courts would allow a technical point of drafting to enable defendants who had committed substantive offences to escape liability: that wait is now over; the next case decided that Corcoran was decided per incuriam, that is, through want of care.
the case in question, Shaw v DPP, and others (1992) The Times, 23 November, concerned a number of appeals by way of case stated to the Queen's Bench Divisional Court. The charge wordings were similar to Corcoran, that is the informations charged a single omission or course of conduct, namely, failure to provide a specimen when requested to do so.
Lord Justice Watkins giving judgment said, "common sense would suggest that provided there was a bona fide investigation into the existence of an offence under s.4 or 5 of the Road Traffic Act then the request was in s.7.
Part of the investigation might be to discover whether the person asked for the specimen was driving or attempting to drive or in charge of a vehicle while unfit or with more than the prescribed limit of alcohol in his blood, breath or urine.
At the time the specimen was required, however, the investigating officer might well have no or not sufficient evidence as to those matters.... until the investigation was complete
At that stage the officer might well not know if they were investigating an offence vis a vis the person of whom the the request was being made under s.4 or s.5, and within each of those sections precisely which of the three possible offences, or variations of them.
Having regard to the provisions of s.7(6), provided the requirement for the specimen was properly made, there was unquestionably a single course of conduct which constituted the offence, namely the failing to provide the specimen without reasonable excuse.
On that analysis no one of the informations or charges could possible be bad for duplicity."
The Divisional Court cited two cases; Commissioner of Police of the Metropolis Curran [1976] 1 WLR 87; and, Roberts v Griffiths [1978] RTR 362, which they said the court in Corcoran had failed to consider.
In dismissing the appeals and applications by the various defendants the Divisional Court said, they were driven to differ from the decision in Corcoran which was erroneous. They pointed out that it would be just that the prosecution at some early stage inform a defendant of relevant circumstances sought to be relied upon since it was a matter that went to procedural fairness and was easy to resolve by a suitable procedure.
The question in De Freitas v DPP (1992) The Times, 8 July, was does the fear of AIDS increase with time? It may seem so since in DPP v Fountain (1987) The Times, 10 October (QBD), Mr Justice Mann said that upon being asked to give a blood sample the defendant had replied: "In view of the danger of AIDS I would rather not give blood". His lordship said that the defendant's belief was not capable of amounting to a reasonable excuse. The matter was remitted to the justices with a direction to convict.
However in De Freitas, the defendant had been stopped while driving his motor vehicle and required to provide a specimen of breath. He did so by cupping his hand over the mouth-piece of the breath testing device but without actually putting his mouth on the mouthpiece.
The test was positive and the defendant was arrested and taken to the police station where he was required to provide two further specimens of breath. He was prepared to provide the specimens as earlier but that was unacceptable to the officer.
The Crown Court found that the defendant had long had an obsession with his health ad a particular fear of becoming infected with the AIDS virus. The court found that he genuinely had a phobia that led to him to refuse to place his lips on the mouthpiece, notwithstanding that the mouthpiece was sterile.
The Judge in the Court of Appeal; said he reluctantly came to the conclusion, that the trial Judge, having accepted the medical evidence as to the defendant's phobia could not go on later to express the view that the phobia was an obstinate and absurd belief.
It is a relief to see that the Court of Appeal went on to say that it could not be often that anyone could succeed in persuading a court that he had a reasonable excuse for not providing specimens of breath by claiming a phobia.
Mr Fountain in 1987 should have been more forceful, had his view been an obsession he might have succeeded. Let us hope that common sense prevails and this case does not set a dangerous precedent.
In Warren: DPP v Warren (1992) The Times, 6 November, a police officer required a driver to provide a specimen of blood or urine pursuant to s.7(3)(b) of the Road Traffic Act 1988 because of the unavailability of the Intoximeter breath testing device, the officer making the decision under s.7(4) of the Act as to whether the specimen should be of blood or urine did not have to invite the driver to express his own preference before making that decision.
The House of Lords, in overruling previous authorities, allowed this appeal.
S.7 of the Road Traffic Act 1988 provides:
"(3) A requirement... to provide a specimen of blood or urine...cannot be made at a police station unless - ...(b) at the time the requirement is made [an Intoximeter] is not available at the police station or it is...not practicable to use such a device..."
"(4) If the provision of a specimen other than a specimen of breath may be required...the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot be taken the specimen shall be of urine."
The facts of the case were simple and undisputed, however the defendant pleaded not guilty before the Stipendiary Magistrate at Bow Street.
A road-side breath test proved positive. Warren was arrested and taken to Vine Street police station where he duly provided two specimens of breath for the intoximeter. The calibration of the machine was not correct which gave rise to a s.7(3)(b) situation, and permitted the officer to require a specimen of blood or urine pursuant to s.7(4).
Using the Metropolitan police pro forma instructions, the officer said, "The approved evidential breath testing device cannot be used...I require you to provide an alternative specimen...The specimen may be of blood or urine but it is for me to decide which...Are there any reasons why a specimen of blood cannot or should not be taken by a doctor?" Warren replied "No" and was then asked to provide a specimen of blood which on analysis proved to exceed the statutory limit.
At the magistrates' court the defence submitted that the requirement had not been validly made in accordance with s.7(4). The Magistrate upheld the submission and his decision was affirmed by the Queen's Bench Divisional Court. This decision was inevitable, since as the authorities stood the Magistrates' and Divisional Court had no option, they were bound by previous decisions.
In DPP v Byrne [1991] RTR 119; (1990) The Times, 10 October, Bingham LJ, said, "...it is for the police officer to make the decision whether the sample provided shall be of blood or of urine, but the police officer must convey to the defendant that the sample to be required May be of either blood or of urine and must give the defendant an opportunity to consider which sample he would prefer to give if the choice were his and any reasons for that preference....He must not address the defendant in terms which suggest that the sample must be of one kind rather than the other unless and until the two possibilities have been explained to the defendant and a fair opportunity given to him to say, if he wishes, which he would prefer and why."
Thus Byrne effectively decided the case, and it was this unwarranted judicial gloss upon the statutory language that was challenged. On the face of it there was nothing in the Act which justified a procedural requirement in either a s.7(3) or 8(2) case that the driver should be invited to express his own preference for giving blood or urine, subject only to the right to object to giving blood on medical grounds.
All the earlier decisions were based on a misreading of a few words taken from Anderton v Lythgoe [1985] RTR 395, those words simply could not stand with the statutory language.
Lord Bridge said, "that having examined the decided cases, his Lordship had found nothing which caused him to depart from his view as to the appropriate procedure to be followed under s.7(3) and s.8(2) considered simply on the basis of statutory language.
In summary, in the case where the necessity to require a specimen of blood or of urine under s.7(4) arose for one of the reasons specified in s.7(3), what was required was no more and no less than the formula used in the instant case or words to the like effect.
In a case where the driver's option was to be explained to him under s.8(2), the driver should be told that if he exercised the right to have the replacement specimen taken under s.7(4), it would be for the officer to decide whether that specimen was to be of blood or urine.
If the officer intended to require a specimen of blood to be taken by a medical practitioner, the driver should be told his only right to object to giving blood and to give urine instead would be for medical reasons to be determined by the medical practitioner. In neither case was there any need to invite the driver to express his preference for giving blood or urine."