Wright v Director of Public Prosecutions

Where a driver elects under Road Traffic Act 1988, section 8(2) to provide blood, the prosecution need not prove that the breath-analysis device remained of an approved type or was working accurately. The blood specimen is lawfully obtained whether the breath device was unavailable, unreliable or unapproved. The device’s approval is therefore irrelevant to the admissibility of the blood analysis. A warning under section 7(7) matters where the suspect fails to provide a required specimen, but not where he voluntarily provides the blood specimen. The court also confirmed that the absence of compulsory self-incrimination distinguishes the case from authorities concerning strict statutory preconditions.

The claimant was convicted of driving with excess alcohol after providing a blood specimen following two breath analyses at a police station. The lower courts found that the lower breath reading entitled him to elect blood under section 8(2) of the Road Traffic Act 1988. He sought to adduce evidence that modifications to the EC/IR intoximeter meant it was no longer an approved device. The Crown Court held that issue irrelevant and dismissed his appeal. The Administrative Court considered whether that ruling was correct.

1. Appeal dismissed. The Crown Court was correct to refuse evidence directed to showing that the breath device was no longer of an approved type.
2. The statutory scheme makes device approval immaterial once the driver has provided blood under section 8(2) after a breath reading of no more than 50 microgrammes. Evidence of the lawfully obtained blood specimen was admissible under section 15(2) of the Road Traffic Offenders Act 1988.
3. If the device was unapproved or unreliable, the blood specimen could instead have been required under section 7(3)(b) or (bb). The absence of a section 7(7) warning would matter only if the driver failed to provide the specimen and was prosecuted for that failure.
4. The claimant’s concession that the breath requirement was lawful supplied an independent reason for rejecting the argument. A lawful requirement under section 7(1)(a) could not coexist with an alleged exception based on use of an unapproved device.
5. Following Prince v The Director of Public Prosecutions [1996] CLR 343 and Branagan v The Director of Public Prosecutions [2000] RTR 235, the prosecution was not required to prove that the device was working accurately or remained approved before relying on the voluntarily provided blood specimen. The strict precondition reasoning in Murray v Director of Public Prosecutions [1993] RTR 209 did not apply because there was no compulsory self-incrimination.
6. The court also noted, but did not need to resolve, analogous reasoning concerning reasonable belief in Thompson v Thynne [1996] RTR 293. Costs were ordered against the claimant, with £600 paid on account, subject to detailed assessment and the court’s directions concerning defence costs.

• Milton Keynes Magistrates’ Court: convicted the claimant of driving with excess alcohol.
• Aylesbury Crown Court: dismissed the appeal on 1 December 2003 and upheld the conviction.
• High Court (Administrative Court): dismissed the appeal and confirmed that the evidence concerning the device’s approval was irrelevant.