Director of Public Prosecutions v Swan

For an offence of failing to provide a breath specimen, an express refusal is unnecessary. The court must assess the person’s conduct as a whole. A proper requirement need not involve physically producing the breath-testing device; it is sufficient to tell the driver that a specimen is required and provide an opportunity to comply.

Conditions imposed before compliance may amount to a failure, even if they are not properly described as outrageous. Delay and deliberate non-cooperation may establish failure. A condition which cannot constitute a reasonable excuse will generally not prevent the failure from being established.

The Director of Public Prosecutions appealed by way of case stated after justices acquitted Philip Swan of failing to provide a roadside breath specimen and failing to provide a specimen for analysis at a police station.

The justices found that no breath-testing device had been produced at the roadside. At the police station, Mr Swan behaved abusively, sought confirmation and photographs of alleged wrist injuries before providing a specimen, and the machine timed out. The central issues were whether the requirements were properly made, whether his conduct amounted to failure without reasonable excuse, and the effect of Mackey [1977] RTR 146.

1. Roadside requirement. The physical production of the breath-testing device was unnecessary. A spoken requirement that the driver provide a specimen was sufficient to create a proper requirement and an opportunity to comply.
2. The statutory word “fails” includes refusing. Failure may be established by conduct showing unwillingness to provide the specimen or by imposing unacceptable conditions upon compliance. Express words of refusal are unnecessary.
3. The respondent’s rude, aggressive and delaying conduct at the roadside amounted to failure. The justices’ contrary conclusion was perverse on the facts stated.
4. Police-station requirement. The justices had to consider the respondent’s conduct as a whole. They placed excessive emphasis on whether the condition concerning photographs of his wrists was “outrageous”. Mackey [1977] RTR 146 did not establish an outrageousness threshold. It merely recognised that whether conduct amounted to failure was ordinarily a question of fact, subject to a direction where only one conclusion was reasonably available.
5. The respondent’s abusive and obstructive conduct, his insistence on a guarantee concerning photographs, and the resulting timeout demonstrated failure. The proposed condition could not amount to a reasonable excuse. The court also observed that a matter incapable of constituting reasonable excuse would generally not justify treating the conduct as no failure.
6. The roadside charge was remitted with a direction that there should be a conviction. The police-station charge was remitted to the justices because an unresolved issue remained concerning alleged medical unfitness and reasonable excuse. The Magistrates’ Court was left to decide whether the same or a different bench should deal with the matter.

• High Court (Administrative Court): appeal by way of case stated allowed in relation to the roadside offence and remitted with a direction to convict; the police-station offence remitted for determination of the unresolved reasonable-excuse issue.
• Justices of the County of Sussex sitting at Chichester: acquitted the respondent of both offences.