Director of Public Prosecutions v Karamouzis

A roadside breath test may be either a Road Traffic Act 1988 section 6 preliminary test or, under the later legislation, a section 7 evidential test on an approved device. The prosecution need not prove negatively that the device was not authorised for section 7 purposes where the evidence, properly understood, establishes that the test was preliminary. The nature of the test is determined from the evidence and the surrounding circumstances. A test described as unreliable for evidential roadside use, followed by arrest and removal to a police station, may only reasonably be treated as a section 6 test. Where the magistrates’ findings permit only that conclusion, an acquittal should be set aside and the case remitted with a direction to convict.

The respondent was stopped while driving erratically. A roadside breath test produced a reading substantially above the prescribed limit. She was arrested and taken to a police station, where she failed to provide the specimens required for the station breath-test procedure.

The magistrates acquitted her, accepting that the prosecution had not proved that the roadside test was not a section 7 test on an approved device. The prosecution brought a case stated appeal. The central issue was whether the prosecution had to call evidence excluding the section 7 roadside procedure before the respondent could lawfully be arrested and required to provide a further specimen at the police station.

1. Appeal allowed. The question in the case stated was read fairly as asking whether the prosecution had to prove that the roadside machine was not authorised for the evidential section 7 procedure. The answer was no.

2. The legislation created two distinct roadside procedures. A positive section 6 preliminary test could lead to arrest and removal to the police station for a section 7 procedure. A section 7 roadside test had to be carried out on an approved device and, absent a statutory reason for doubt about its reliability or practicability, made a further station test unnecessary.

3. On the facts stated, the only possible conclusion was that the roadside test was a section 6 preliminary test. The officer had said that the digital reading was not accurate as a roadside test, although it gave a reliable indication for that purpose. The subsequent arrest and removal to the station were also inconsistent with the roadside test having been the completed evidential procedure contemplated by section 7.

4. The magistrates should therefore have convicted the respondent on the charge of failing, without reasonable excuse, to provide the required station breath specimen. The case was remitted to the Vale of Glamorgan Justices with a direction to convict and thereafter sentence as appropriate. Legal aid taxation was ordered; no costs order was made against the respondent.

• Vale of Glamorgan Justices: The respondent was acquitted of failing, without reasonable excuse, to provide a required breath specimen.
• High Court (Administrative Court): The appeal by case stated was allowed. The case was remitted to the Justices with a direction to convict and sentence as appropriate.