Longstaff v DPP

Under section 7(6) of the Road Traffic Act 1988, the question whether failure to provide a breath specimen was without reasonable excuse is for the magistrates to determine on all the evidence. A constable may discontinue the procedure for obtaining a blood specimen after obtaining medical advice that the defendant could provide a breath specimen. The earlier commencement of that procedure does not invalidate the breath requirement or prevent prosecution. Nor does failure to retain the mouthpiece make a fair trial impossible where forensic examination would not assist the issues and the defendant identifies no defect in it.

The claimant appealed by way of case stated against his conviction by Durham Justices for failing, without reasonable excuse, to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988.

After three unsuccessful attempts to provide breath, the police began the procedure for obtaining a blood specimen. A police surgeon then advised that there was no medical reason preventing the claimant from providing breath, and the officer discontinued the blood procedure. The claimant argued that this was unlawful, that the lost mouthpiece deprived him of a fair trial, and that the proceedings should be stayed as an abuse of process.

1. Appeal dismissed. The Divisional Court upheld the conviction and answered the stated questions against the claimant.
2. Commencing the procedure for a blood specimen showed that the officer had reasonable cause to believe that, for medical reasons, a breath specimen could not or should not be required under section 7(3)(a). It did not follow that the blood specimen had to be obtained. Section 7(4A) removed the requirement to provide blood in specified circumstances; it did not prevent the officer from changing his mind about maintaining that requirement.
3. The statutory provisions governing a blood requirement and the offence under section 7(6) were separate. The officer could rely on the later medical opinion and discontinue Form B. The fact that the blood procedure had been started did not invalidate the earlier breath requirement or bar prosecution for failure to provide breath.
4. The issue under section 7(6) was whether the claimant had a reasonable excuse. That remained a question for the Justices on all the evidence. An offer to provide blood did not itself establish a defence to failure to provide breath.
5. The procedure did not create a legitimate expectation that no complaint would be made about the earlier failure. In any event, the doctor's opinion supported allowing the prosecution to proceed. The Justices had therefore made no error of law and no unfairness arose.
6. Although the mouthpiece may sometimes require forensic examination, it was unnecessary in this case. The Justices accepted the custody officer's evidence, there was no suggestion that the mouthpiece was defective, and examination would not have assisted the assessment of that evidence. The loss of the mouthpiece consequently did not deprive the claimant of a fair trial or amount to an abuse of process.

• Durham Justices, Bishop Auckland Magistrates' Court: convicted the claimant of failing to provide a specimen of breath.
• High Court (Administrative Court): dismissed the appeal by way of case stated and answered the stated questions against the claimant.