Smith v DPP

Section 15(2) of the Road Traffic Offenders Act 1988 does not require the prosecution to adduce the numerical result of a roadside breath test. The evidential specimens for proving an offence under section 5 of the Road Traffic Act 1988 are the specimens required at the police station under section 7. The roadside test assists the constable in deciding whether arrest and further testing are appropriate. Later technological advances permitting a numerical roadside reading do not alter that statutory scheme. Nevertheless, where the equipment readily produces a numerical reading, disclosure to the defence is good practice and may be required under section 3 of the Criminal Procedure and Investigations Act 1996.

The appellant was convicted at Stratford-upon-Avon Magistrates’ Court of driving with excess alcohol in his breath, contrary to section 5(1)(a) of the Road Traffic Act 1988. A roadside breath test was positive. At the police station, two breath specimens were obtained, the lower reading being above the prescribed limit.

On appeal by way of case stated, the appellant argued that the prosecution had been required to adduce, or at least disclose, the numerical result of the roadside test. He relied principally on section 15(2) of the Road Traffic Offenders Act 1988 and Badkin v DPP [1988] RTR 401. A further question concerned a witness summons for disclosure of instrument settings.

1. The appeal was dismissed. The first question was not answered because the proposed summons concerned whether the particular police-station device had functioned properly, whereas the stated challenge concerned approval of the modified device. The issue was therefore irrelevant to the matters raised at trial.
2. Section 15(2) of the Road Traffic Offenders Act 1988 requires evidence of the relevant proportion of alcohol to be taken into account. Read with sections 6 and 7 of the Road Traffic Act 1988, it does not require the prosecution to produce the numerical result of a roadside breath test. The specimens establishing the section 5 offence are the two specimens obtained at the police station under section 7.
3. The roadside procedure has a different purpose. It assists the constable in deciding whether arrest and the section 7 procedure should follow. The later statutory descriptions of the procedure as a preliminary test and preliminary breath test confirm that purpose. The specimen provides an indication that the prescribed limit is likely to be exceeded and has no greater evidential status.
4. The development of equipment capable of producing a numerical roadside reading did not alter the statutory scheme. Badkin v DPP [1988] RTR 401 and Parrish v DPP [2000] RTR 143 did not establish a general requirement to adduce the roadside reading. The case must be decided on the evidence adduced, including any relevant expert evidence.
5. It was nevertheless good practice to disclose the numerical roadside reading where the equipment readily permitted this. Such disclosure might be required by section 3 of the Criminal Procedure and Investigations Act 1996, since the reading could assist a challenge to the accuracy of the section 7 specimens.

• High Court (Administrative Court): appeal by way of case stated from the decision of Stratford-upon-Avon Magistrates’ Court; appeal dismissed.