Plackett v Director of Public Prosecutions

Where an officer elects to continue a breath-testing procedure after an initial refusal and agrees to allow the suspect to provide specimens, the suspect must receive a proper opportunity to complete the ordinary procedure. That ordinarily requires operation of the approved device through a full cycle, rather than allowing only the time remaining from a cycle started during the suspect’s absence.

Starting the device while the suspect is obtaining immediately available legal advice is not necessarily fatal to a conviction. The result depends on the officer’s subsequent conduct and the facts found. A conviction may still be justified where the suspect deliberately frustrates the procedure, but no such finding was made here.

The claimant appealed by way of case stated against his conviction by the Totnes Justices for failing to provide a specimen of breath for analysis, contrary to section 7(6) of the Road Traffic Act 1988.

After initially refusing the test, the claimant consulted the duty solicitor. During his absence, the police officer started the approved breath-testing device. On the claimant’s return, the officer allowed him to attempt to provide the required specimens during the approximately one minute remaining in the device’s cycle. The claimant failed to provide an analysable specimen, and was not given a further full cycle.

The central issues were whether the officer’s starting the device in the claimant’s absence prevented conviction, and whether the claimant had been given a proper opportunity to provide specimens.

1. Appeal allowed. The conviction was quashed.
2. The officer might have been entitled, after the claimant’s refusal and departure to obtain legal advice, to treat the offence as complete and to provide no further opportunity. The public interest also requires that obtaining breath specimens should not be delayed significantly for legal advice. However, immediately available advice may be taken for a short period, as explained in Kennedy v Crown Prosecution Service [2002] EWHC 2297.
3. The officer chose to continue the procedure. By starting the approved device and allowing the claimant to attempt the test on his return, he agreed by his conduct to give that opportunity. The claimant’s conduct could not be treated as a sham on the facts found. The court therefore had to assess whether the opportunity actually provided was a proper one.
4. A proper opportunity required the normal procedure using a full cycle of the approved device. Allowing only the approximately one minute remaining from a cycle begun while the claimant was absent did not satisfy the expectation created by the officer. The fact that the device had been started in the claimant’s absence was not itself necessarily a bar to conviction, but the conviction could not stand in the circumstances of this case.
5. The court distinguished the factual context discussed in Smyth v DPP [1996] RTR 59, where an immediate change of mind was contrasted with a later volunteered specimen after a substantial interval. If the claimant had deliberately frustrated the procedure, or if the chronology and facts had differed, a conviction might have been justified.

• Totnes Justices: convicted the claimant of failing to provide a specimen of breath under section 7(6) of the Road Traffic Act 1988.
• High Court (Administrative Court): allowed the appeal by case stated and quashed the conviction.