McKeon v Director of Public Prosecutions

For an offence under section 7(6) of the Road Traffic Act 1988, the defendant bears the burden of raising a reasonable excuse on the evidence. Once raised, the prosecution must prove the absence of reasonable excuse to the criminal standard. A conviction based on treating the defendant as responsible for proving the excuse is unsafe and must be quashed. An alleged failure to preserve physical evidence may amount to an abuse of process only where its absence causes prejudice to the fairness of the trial. Reasons need not be perfect, provided they adequately explain the principal findings and leave the defendant able to understand why the case was decided against him.

Gabriel McKeon appealed by way of case stated from his conviction by Bedfordshire Justices sitting at Luton on 15 January 2007. He had been convicted under section 7(6) of the Road Traffic Act 1988 for failing, without reasonable excuse, to provide a breath specimen. The appeal also concerned the refusal to stay the proceedings as an abuse of process after a mouthpiece had not been retained, and the adequacy of the Justices’ reasons under article 6 of the European Convention on Human Rights.

The central issues were whether the missing mouthpiece caused relevant prejudice, whether the correct burden of proof concerning reasonable excuse had been applied, and whether the reasons were legally adequate.

1. The refusal to stay for abuse of process was lawful. Although the police had a duty to retain the mouthpiece, its absence caused no relevant prejudice. The remaining evidence showed that it was functioning and that the appellant’s short attempts were not caused by a defect.
2. Under section 7(6) of the Road Traffic Act 1988, the defendant must raise a reasonable excuse on the evidence. Once raised, the prosecution must prove the absence of reasonable excuse to the criminal standard. The Justices’ statement that the appellant had failed to make out a reasonable excuse showed that they had apparently placed the burden of proof on him. The conviction was quashed.
3. The reasons were adequate for article 6 purposes. They were not perfectly clear, but sufficiently explained the principal findings and left the appellant able to understand why he had lost on the main issues.
4. No retrial order was made. The court was uncertain whether it had jurisdiction to direct one and, even if it had, was inclined not to exercise that power. The appellant’s costs were ordered to be paid out of central funds.

• Bedfordshire Justices, sitting at Luton — convicted the appellant on 15 January 2007 under section 7(6) of the Road Traffic Act 1988.
• High Court (Administrative Court) — allowed the appeal to the extent of quashing the conviction, while upholding the decisions on abuse of process and adequacy of reasons.