Rweikiza v Director of Public Prosecutions

For the purposes of Road Traffic Act 1988 section 11(3), a specimen of breath is not provided merely because a device obtains readings from exhaled breath. The specimen must be sufficient for the particular approved test or analysis and must be provided in a way that enables its objective to be satisfactorily achieved. Where an approved device requires a specified volume and a complete specimen, deliberate failure to comply with the operating instructions means that no statutory specimen has been provided. The fact that the readings accurately record the breath actually supplied does not alter that conclusion. The court will generally follow an earlier Divisional Court decision unless satisfied that it was plainly wrong.

The claimant appealed by case stated from the dismissal of his appeal by the Lincoln Crown Court against conviction for failing, without reasonable excuse, to provide two specimens of breath for analysis under section 7 of the Road Traffic Act 1988. He had supplied four incomplete samples to an Intoxilyser 6000. The device accurately recorded the alcohol in those samples, but none met its requirements for a complete specimen.

The central issues were whether the samples amounted to two specimens for statutory purposes, whether the Crown Court’s conclusion was Wednesbury unreasonable, and whether the meaning of breath considered in Zafar v Director of Public Prosecutions affected the meaning of specimen under section 11(3).

1. Appeal dismissed. The answers to the case-stated questions were: (i) yes; (ii) no; and (iii) no.
2. Section 11(3) required consideration of the particular breath test selected by the police. The Intoxilyser 6000 was an approved device, and its lawful use required a minimum volume of 1.2 litres and continued measurement until the reading reached a plateau and produced a complete specimen.
3. The statutory requirements were cumulative. A specimen had to be sufficient to enable the test or analysis to be carried out and had to be provided in a way that enabled the objective of the test or analysis to be satisfactorily achieved. The claimant deliberately failed to follow instructions designed to activate the machine and deliberately frustrated the test’s objective.
4. The accurate analysis of the smaller samples did not satisfy section 11(3). The objective was to produce a result based on a complete specimen in accordance with the device’s specification and instructions. The fact that the samples showed the amount of alcohol actually exhaled was therefore insufficient.
5. The court followed Director of Public Prosecutions v Darwin, holding that it was not plainly wrong. The broader meaning of breath accepted in Zafar v Director of Public Prosecutions did not determine whether a specimen was sufficient for the particular analysis. The reasoning in DPP v Haywood supported the same conclusion.
6. The application to remit the case stated so that a question about the totality of the fine and costs could be added was refused. The financial orders were not Wednesbury unreasonable or arguably so. Any genuine hardship had to be addressed in the Magistrates’ Court. The Administrative Court could not itself amend the case stated under section 28A of the Supreme Court 1981, and remittal would have caused further costs without a successful outcome.

• Lincoln Magistrates’ Court: convicted the claimant on 10 March 2006.
• Lincoln Crown Court: dismissed the appeal against conviction on 14 September 2006.
• High Court (Administrative Court): dismissed the appeal by case stated and refused the application to remit the case stated for amendment.