Zafar v Director of Public Prosecutions

For the purposes of the drink-driving offence, Road Traffic Act 1988 s 5, “breath” bears its ordinary meaning: air exhaled from the body. It is not confined to deep-lung air and includes air containing mouth alcohol, unless the statutory language shows a contrary intention. The court must construe the legislation enacted by Parliament, rather than infer meaning from later executive arrangements or equipment approval. Parliamentary statements may be consulted only within the limited conditions identified in Pepper v Hart. A late attempt to amend a case stated may be refused where it is out of time, inadequately formulated, would cause further delay, and has insufficient prospects of success.

The appellant appealed by way of case stated against the Inner London Crown Court’s dismissal of his appeal from a conviction by Tower Bridge Magistrates Court for driving after consuming excess alcohol, contrary to s 5(1)(a) of the Road Traffic Act 1988.

The Crown Court accepted that the appellant suffered from reflux and that the Intoximeter could not always identify mouth alcohol. It nevertheless held that s 5 did not distinguish between deep-lung air and mouth alcohol. The central question was whether “breath” in s 5 and s 15(2) of the Road Traffic Offenders Act 1998 meant deep-lung air only or everything exhaled.

1. Meaning of “breath”. The appeal was dismissed on the statutory construction issue. The ordinary meaning of “breath”, supported by the dictionary definition of air exhaled from the body, was not limited to deep-lung air. Section 5 referred to “breath”, not “deep lung air”, and contained no contrary limitation. Mouth alcohol therefore fell within the statutory expression.
2. Legislative intention and equipment. Although the problem of mouth alcohol had been recognised, Parliament had chosen not to qualify the natural meaning of “breath”. The Home Secretary’s approval and operational use of Intoximeters did not establish Parliament’s intention, particularly as the approval apparently followed enactment of s 5. The court’s task was to construe the statute, not executive practice.
3. Parliamentary material. The conditions in Pepper v Hart were not met. The word “breath” was not ambiguous, the ministerial statement concerned a later amendment to s 7 rather than s 5, and the statement was not made by the promoter of s 5. The statement consequently could not assist construction.
4. Other authorities and amendment. The court obtained no assistance on the meaning of “breath” from DPP v Texeira or Memery v DPP, which concerned different issues. The late application to amend the case stated was refused because it was unformulated, would require remission and cause delay, and was well out of time; the applicable period was 21 days subject to a discretion to extend. The case-stated question was answered “no”.

High Court (Administrative Court): dismissed the appeal by way of case stated from the Inner London Crown Court and answered the stated question “no”.