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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Swan [2004] EWHC 2432 (Admin) (21 October 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2432.html Cite as: [2004] EWHC 2432 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2 |
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B e f o r e :
MR JUSTICE SILBER
____________________
DIRECTOR OF PUBLIC PROSECUTIONS | (CLAIMANT) | |
-v- | ||
PHILIP SWAN | (DEFENDANT) |
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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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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Crown Copyright ©
"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."
"(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."
"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."
"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."
"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."
"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.
"(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..."
"... 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."
"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."
"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]."
"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."