Edmond v Director of Public Prosecutions

Section 7(7) of the Road Traffic Act 1988 requires a warning when an officer requires a specimen. It does not apply where, after an unreliable breath test, the officer merely invites the motorist to provide further specimens and the motorist voluntarily agrees. The officer need not convert that invitation into a statutory requirement. A warning given in those circumstances is unnecessary and inappropriate, but does not invalidate the procedure. The court left open whether a fresh warning is required where the officer imposes a new requirement for further specimens. The safe course in that situation is to repeat the warning.

The claimant appealed by way of case stated from his conviction by South Devon Justices for driving after consuming excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. At the police station, the first two breath specimens produced materially different readings and were treated as unreliable. The officer then invited the claimant to provide two further breath specimens, which he did, but gave no further section 7(7) warning. The justices held that the procedure was valid. The issue before the Divisional Court was whether the officer was required to give a fresh warning when the claimant accepted the invitation to provide further specimens.

1. Appeal dismissed. The claimant’s further breath specimens were admissible and the conviction stood.
2. Section 7(7) of the Road Traffic Act 1988 requires a warning when a constable requires a person to provide a specimen. The purpose of the warning is to identify the risk of prosecution for failing to comply with a requirement.
3. After the first test proved unreliable, the officer invited the claimant to provide further breath specimens. The claimant agreed voluntarily. The officer imposed no further requirement and was not obliged to impose one. Section 7(7) therefore did not apply.
4. The claimant’s proposed approach would convert an agreed voluntary course into a compulsory requirement, exposing him to prosecution if he later failed to provide a specimen. That was inconsistent with the distinction between invitation and requirement recognised in Jubb v Director of Public Prosecutions [2002] EWHC 2317 Admin and Stewart v Director of Public Prosecutions [2003] EWHC 1323 Admin.
5. A further warning could properly be given, but it was unnecessary and inappropriate in a voluntary situation. The court left open whether a fresh warning would be required if the officer instead exercised a power to require further specimens. The safe and sensible course in that event would be to repeat the warning.
6. The disqualification was ordered to take effect immediately. The claimant was ordered to pay the defendant’s costs, subject to the usual legal-aid proviso, with detailed assessment for legal-aid purposes.

• High Court (Administrative Court): The appeal by way of case stated from the decision of South Devon Justices dated 24 January 2005 was dismissed. The conviction was upheld.