Director of Public Prosecutions v Grundy

For a defence of reasonable excuse to arise under Road Traffic Act 1988, section 7(6), there must be evidence that the defendant was physically or mentally incapable of providing the specimen, or that providing it would create a substantial health risk. A claim based on distress normally requires medical or other expert evidence, although such evidence is not an absolute requirement in every case. The essential question is whether a causative link exists between the alleged condition and the failure to provide the specimen. Mere evidence of distress, without evidence capable of establishing that link, is insufficient to raise the defence and does not require the prosecution to disprove it.

The Director of Public Prosecutions appealed by way of case stated against the acquittal of Ellen Wyn Grundy by Wrexham Magistrates’ Court. She had failed to provide sufficient breath specimens at the police station and relied on a reasonable excuse, namely that distress had made her physically incapable of providing a specimen. The magistrates accepted that she had been distressed but had no medical evidence concerning the effect of that distress on her ability to provide the specimen.

The central question was whether the magistrates were wrong to acquit her on findings made without medical evidence about the distress and its effect on her capability.

1. Appeal allowed. The magistrates’ question was answered in the affirmative. The case was remitted to a different bench of justices for rehearing.
2. Under section 7(6) of the Road Traffic Act 1988, once a reasonable excuse is sufficiently raised, the prosecution must disprove it. The relevant principles derive from R v Lennard and were correctly identified in Director of Public Prosecutions v Brodzky.
3. The magistrates had to consider three matters: whether there was evidence of physical or mental incapacity to provide the specimen; whether medical or other expert evidence was normally required to support the claim; and whether there was a causative link between the alleged condition and the failure to provide the specimen.
4. Medical evidence is not invariably essential. Nevertheless, in a case relying on distress, it will ordinarily be required to explain how the observed distress could have caused the inability to provide the specimen. The question is not whether the defendant appeared distressed, but whether the evidence established the necessary causal connection.
5. The magistrates’ findings established distress but contained no evidence capable of establishing that distress caused the failure to provide a specimen. The reasonable-excuse defence had therefore not been sufficiently raised, and the prosecution was not required to call evidence to negate it.
6. The rehearing was directed to be before a different bench. There was no order for costs, save for the appropriate taxation of the respondent’s costs.

• High Court (Administrative Court): Director of Public Prosecutions v Grundy, [2006] EWHC 1157 (Admin). Appeal by way of case stated allowed against the respondent’s acquittal by Wrexham Magistrates’ Court; the matter was remitted for rehearing.