Atkinson v The Director of Public Prosecutions

For an offence of failing to provide a specimen, a defendant bears an evidential burden of producing material capable of constituting a reasonable excuse. The issue is whether the excuse existed when the specimen procedure was being carried out. Medical evidence may be capable of raising that issue, but the magistrates must assess it with all the evidence, including the defendant’s conduct and the timing of any later medical observations. A panic attack does not necessarily prevent a person from understanding what is being asked. Where the magistrates reject the defendant’s account and reasonably conclude that the claimed disabling condition was feigned at the material time, the conviction may stand.

The appellant was convicted by the Justices for Gwynedd, sitting at Llangefni, of failing without reasonable excuse to provide a specimen of breath, contrary to section 7(6) of the Road Traffic Act 1988. He had initially provided a positive roadside breath specimen, but later refused to provide a specimen at the police station while claiming to have suffered a head injury and a panic attack.

The magistrates rejected his account but considered evidence from a consultant psychiatrist, a custody nurse and paramedics concerning his condition and elevated pulse and blood pressure. On a case stated, the central issues were whether the magistrates had wrongly disregarded the psychiatric evidence and whether a properly directed bench could reasonably find that the prosecution had proved the absence of a reasonable excuse.

1. Appeal dismissed. The first question posed by the Justices was inappropriate and unnecessary. They had not disregarded the psychiatrist’s evidence; they had considered it but rejected the conclusion that the appellant’s condition prevented him from understanding the procedure.
2. A defendant relying on reasonable excuse bears an evidential burden. The defendant must produce material capable of constituting a reasonable excuse. That burden was satisfied by the psychiatric evidence, the custody nurse’s evidence and the physical observations concerning the appellant’s pulse and blood pressure.
3. The question was whether the appellant was unable to appreciate what he was being told or asked to do when the specimen procedure was conducted. A panic attack can, but does not necessarily, cause that inability. Medical observations made after the procedure were relevant but did not determine the appellant’s condition at the crucial earlier time.
4. The Justices were entitled to accept the police evidence that the claimed head injury was feigned and to reject the appellant’s account. Although their statement that a feigned panic attack could not support the defence expressed the point inaccurately, their underlying conclusion was that the appellant was feigning a condition which disabled him from understanding the procedure. That conclusion was reasonably open to them on the evidence.
5. The case stated question concerning reasonable excuse was therefore answered in the affirmative. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment if not agreed.

• Justices for Gwynedd, sitting at Llangefni: convicted the appellant on 30 October 2009 of failing without reasonable excuse to provide a specimen of breath and imposed a fine and disqualification.
• High Court (Administrative Court): on appeal by way of case stated, dismissed the appeal and ordered the appellant to pay the respondent’s costs.