Director of Public Prosecutions v Darwen

A person provides a specimen of breath for analysis only where the specimen is sufficient to enable the analysis and is provided in a way that enables its objective to be satisfactorily achieved. The requirements are cumulative. Partial or incomplete readings produced by an Intoxilyser do not become admissible merely because they show alcohol above the prescribed limit. The ordinary meaning of “breath” is not confined to deep lung air, but that does not remove the statutory requirement that the specimen be sufficient for a satisfactory analysis. A magistrates’ court errs in law if it treats the production of some readings as sufficient without applying the requirements of section 11(3) of the Road Traffic Act 1988.

The Director of Public Prosecutions brought an appeal by case stated from the decision of the Fylde Coast Justices on 5 July 2006. The justices dismissed an information alleging that Mark Darwen had committed an offence under section 6 of the Road Traffic Act 1988 by failing to provide a specimen of breath.

At the police station, Mr Darwen made repeated attempts to blow into a Lion Intoxilyser 6000 but repeatedly removed the mouthpiece. The machine recorded incomplete specimens and insufficient air, although it produced alcohol readings. The central issue was whether those readings nevertheless constituted specimens sufficient to satisfy sections 7(1)(a) and 11(3) of the Act.

1. The appeal by case stated was allowed. The justices were not correct in law to dismiss the information. The matter was remitted with a direction to convict, subject to any properly raised issue of reasonable excuse.
2. Section 11(3) of the Road Traffic Act 1988 imposes two cumulative requirements. The specimen must be sufficient to enable the analysis to be carried out, and it must be provided in a way that enables the objective of the analysis to be satisfactorily achieved. The use of “and”, rather than “or”, is significant.
3. The findings established that Mr Darwen repeatedly removed the mouthpiece despite instructions to continue blowing. The Intoxilyser itself recorded that the specimens were insufficient. He therefore had not provided a specimen in accordance with section 11(3).
4. The production of partial readings exceeding the prescribed limit did not provide admissible or reliable evidence. The approach in Willicott was applied, and the reasoning in DPP v Heywood was followed in treating reliability and satisfactory completion as essential to the statutory scheme.
5. The ordinary meaning of “breath”, as recognised in Zafar v Director of Public Prosecutions, was not confined to deep lung air. That finding did not assist the respondent because the decisive question was whether the breath supplied was sufficient for the statutory purposes. The justices’ finding that the machine required deep lung air was therefore irrelevant.
6. The justices had made an error of law by reaching their conclusion without properly analysing section 11(3). The restriction on appellate interference with findings of fact identified in Cousins v Brutes did not prevent correction of that legal error. Costs were summarily assessed at £900.

• High Court (Administrative Court): allowed the appeal by case stated from the decision of the Fylde Coast Justices dated 5 July 2006, and remitted the matter with a direction to convict.