Kelsey v Director of Public Prosecutions

For Road Traffic Act 1988, section 7(3)(b) requires a subjective assessment. The constable must actually believe that no reliable breath-testing device is available and must hold that belief on reasonable grounds. The court assesses the constable’s belief at the time, rather than deciding objectively whether the device was in fact reliable.

A constable may reasonably rely on information supplied by another officer. The information need not identify the precise technical fault. The court may assess the reliability of that information by considering the source’s role, seniority and likely access to relevant information.

Steven Alan Kelsey was convicted at Buxton Magistrates’ Court of driving after consuming excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. After failing a roadside breath test, he was required at the police station to provide a urine specimen because the custody staff said that the intoxilyser was faulty.

The District Judge stated a case for the opinion of the High Court. The central question was whether the urine requirement was lawful under section 7(3)(b), including whether the constable had reasonably believed that no reliable device was available and whether he could rely on information supplied by custody staff.

1. Appeal dismissed. The requirement for a urine specimen was lawful. The conviction and sentence therefore stood.
2. Section 7(3)(b) of the Road Traffic Act 1988 retained the subjective interpretation established in Thompson v Thynne [1986] RTR 293 and followed in later authority. The issue was whether the constable genuinely believed that no reliable device was available and whether that belief was reasonably held at the time. It was not an objective inquiry into whether the device was in fact reliable.
3. The amendments made by the Criminal Procedure and Investigations Act 1996, including the insertion of subsections (3)(bb) and (3)(bc), did not alter section 7(3)(b). A clearer statutory indication would have been required to displace a settled and authoritative interpretation.
4. A reasonable belief may be based on information supplied by another person. Section 7(3)(b) does not require the constable to possess personal knowledge of the fault or to identify its precise cause. The court may nevertheless consider whether reliance on the source was reasonable, including the source’s seniority, role and probable access to information.
5. The District Judge’s finding that the constable reasonably relied on the custody sergeant necessarily implied that the constable had formed the required belief and had formed it on reasonable grounds. There was no evidential challenge to the constable’s actual belief or to the information on which he relied.
6. The court rejected the submission that the prosecution had to prove the actual fault in the intoxilyser. The question was whether the belief was actually held and reasonably held. On the facts, reliance on the custody sergeant’s information provided a proper basis for the District Judge’s conclusion.

An assessment of the funded representation certificate was granted. No order was made putting the sentence into abeyance.

• High Court (Administrative Court): On a case stated from Buxton Magistrates’ Court, the appeal was dismissed and the answer to the question whether the urine requirement was lawful was “yes”.