Grant v Director of Public Prosecutions

A constable may require a breath specimen under Road Traffic Act 1988, section 6, where there is reasonable cause to suspect alcohol in the driver’s body or a moving traffic offence. A breath test is not invalid merely because less than 20 minutes has elapsed since drinking, provided the officer acts bona fide and has no reasonable cause to suspect recent consumption. A defendant cannot generally challenge the Secretary of State’s approval of an evidential device in the criminal proceedings, although the reliability of the particular reading remains challengeable. A sufficiently raised allegation that the device was fundamentally modified may require consideration, but the evidence must establish that issue.

The claimant was convicted of failing to provide a specimen of breath and driving with excess alcohol, contrary to sections 6(4) and 5(1)(a) of the Road Traffic Act 1988. His appeal to the Crown Court was dismissed, and the Crown Court stated a case for the opinion of the Divisional Court.

The claimant challenged the roadside requirement because the officer had not waited 20 minutes after his last drink. He also challenged the approval of the ECIR intoximeter, alleged that its approval should have been revoked, and argued that the particular device had been modified. The questions were whether there was evidence supporting the lawful requirement for a breath specimen and whether the Crown Court had correctly restricted evidence concerning approval and modification of the device.

1. Roadside breath requirement. The court answered the first question “Yes”. Section 6(1)(a) of the Road Traffic Act 1988 authorised the requirement because the findings established reasonable cause to suspect both alcohol in the claimant’s body and a moving traffic offence. Under DPP v Carey [1970] AC 1072, the relevant issue was whether the officer acted bona fide and had reasonable cause to suspect consumption within the preceding 20 minutes.
2. The Crown Court was entitled to find that the claimant’s statement that he had drunk within the previous five minutes was a clear lie. In the circumstances, the officer was not required to ask further questions or wait 15 minutes. The finding that there was no reasonable cause to suspect consumption within the preceding 20 minutes was open to the Crown Court and was not irrational.
3. Approval of the device. The court upheld the approach in DPP v Brown and DPP v Texeira (unreported, 16 November 2001), as reaffirmed in DPP v Memery (unreported, 4 July 2002). In the statutory context, a defendant could not challenge in the criminal proceedings whether the Secretary of State should have approved the device or withdrawn approval. The reliability of the reading in the particular case remained open to challenge by admissible evidence.
4. The court followed DPP v Memery in rejecting the submission based on Boddington v British Transport Police [1999] 2 AC 143. The court also considered itself bound, as a matter of principle, by the recent Divisional Court decision unless exceptional circumstances justified departure.
5. Modification. The court assumed that sufficiently fundamental alterations could mean that the device was no longer the approved device, and that, once properly raised, the prosecution bore the burden of proving approval beyond reasonable doubt. The Crown Court nevertheless considered the expert evidence and rejected it as speculative and based on second-hand information. That was a sufficient factual reason. The appeal was dismissed and the conviction upheld.

• High Court (Administrative Court): The Divisional Court considered the appeal by way of case stated from the Basildon Crown Court and dismissed the appeal, answering the first question affirmatively and upholding the conviction.
• Basildon Crown Court: The claimant’s appeal from the magistrates’ convictions was dismissed on 26 April 2002. The Crown Court stated a case on 17 May 2002.
• South East Essex Magistrates’ Court: The claimant was convicted on 31 October 2001.