The Director of Public Prosecutions, R (on the application of) v Preston

Thursday, 20th March 2003

1. MR JUSTICE MITCHELL: This is a prosecutor's appeal by way of case stated against the dismissal on August 12th 2002 by Justices sitting at Macclesfield of a charge laid by the appellant against the respondent, Derek Preston, that on 30th July 2000, he drove a motor vehicle on a road, having consumed excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. The charge was dismissed because, in the exercise of their discretion under section 78 of the Police and Criminal Evidence Act Act 1984the Justices excluded the evidence of the blood alcohol analysis.

2. On behalf of the appellant, it is said that in that respect the approach of the Justices was Wednesbury unreasonable and that the case should be remitted to the Magistrates with an appropriate direction.

3. Two questions are posed in paragraph 7 of the case. The first is this:

"Did the breaches of PACE which we find have occurred entitle us to exclude the evidence of analysis of the respondent's blood specimen under section 78 of PACE?"

4. Pausing there, the references to breaches in the question reflect the Justices' conclusion that there had been breaches of paragraphs 1.4, 9.2 and 9.6 of Code C, which were substantial and significant, and as a result of which no police surgeon was called to the police station and no appropriate adult was called to the police station. Coupled with that finding was a further finding expressed in paragraph 6 of the case as follows:

"We also found that the demeanour of the respondent at the police station coupled with his numerous health problems led us to believe he did not comprehend the drink drive procedure and as a consequence to admit the evidence of everything which took place after the Custody Sergeant was made aware of the respondent's health problems would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

5. The appellant also challenges the finding that the respondent did not comprehend the drink drive procedure and that, too, is challenged on the ground that that finding was Wednesbury unreasonable.

6. Question 2 is in these terms:

"In view of our finding that the custody sergeant had followed the breath test procedure correctly were we right to exclude the evidence of analysis under section 78 PACE, or should we have found this evidence admissible and thereby have convicted the respondent?"

7. A word next about the facts. In paragraph 2 of the case, the Justices set out the facts as found. To say the least, that appears to be a somewhat incomplete recital, and following the listing of those facts in paragraphs (a) to (h) in paragraph 2, there is this heading " The following is a short statement of the evidence", and it is to that short statement of the evidence that I turn first.

8. It reveals that on 30th July 2000 at 4.30 in the morning, a police officer in a marked police vehicle at the Shell petrol station, Hawthorne Lane, Wilmslow, observed the respondent's Saab motor vehicle drive slowly onto the station forecourt. The driver looked towards the police vehicle and then continued through the petrol station back onto the road again. The officer followed the Saab at a speed of 15 to 20 miles an hour over a distance of about a mile. The vehicle was meandering from side to side. The officer switched on his illuminated police signs in an attempt to stop the Saab, but on it went. The officer overtook the Saab in an attempt to stop the vehicle, but then the Saab overtook the police car and in doing so collided with a hedge row, and indeed the police vehicle. Eventually, the Saab stopped. The officer approached the respondent and notified him that he required a roadside breath test. The respondent told the officer he was a chronic asthmatic and would be unable to provide a specimen of breath. He was arrested and cautioned. He told the officer he was a chronic asthmatic and suffered from severe depression and requested that a doctor be called. He was then taken to Wilmslow police station following his arrest for failing to provide a specimen of breath at the road side.

9. At the station, he met Custody Sergeant Cantello. When the respondent arrived at the police station, it was obvious to the Sergeant that he was asthmatic and the Sergeant was informed of that by the respondent. The Sergeant followed the breath test procedure using the proforma form MG DD/A. The Sergeant was aware that the respondent was a chronic asthmatic, who used a nebuliser and would not be able to provide a specimen of breath. He therefore requested a specimen of blood, which was taken a little later by doctor Caprio. The respondent was eventually bailed to a later date, upon which he was formally charged.

10. During the course of his evidence, the Sergeant said that he was aware from the respondent's demeanour that he had breathing difficulties. The Sergeant accepted that he endorsed the custody record that the respondent suffered from chronic asthma and bronchitis and was taking medication for this complaint and he had diabetes and used a nebuliser. He could not recall if he asked what medication was taken for the diabetes and when it was next required. He could not recall either whether or not the respondent informed him that he was a manic depressive. That was not recorded on the custody record.

11. The Sergeant could not say whether Dr Caprio was contacted to attend or whether he was already at the police station. He was unable to give that information because of an omission on the custody record. He confirmed the timetable; that is to say that the respondent arrived at the police station at 5.08 in the morning; the breath test procedure commenced at 5.20; it was concluded at 5.24; and the procedure for taking blood commenced at 5.25.

12. The Sergeant confirmed that he did not ask the doctor to examine the respondent, even though he knew he had diabetes. He stated that he was not aware that the respondent did not have his glasses with him, and therefore could not read the form when he signed it. He did not consider whether an appropriate adult should be contacted or whether the doctor should examine the respondent.

13. There was further evidence. There was the agreed evidence of Dr Caprio, the Police Surgeon. That was merely to the effect that at 5.28 that morning, he took a sample of blood from the respondent with his consent. There was the agreed evidence that the respondent's blood specimen when analysed was found to contain not less than 119 milligrammes of alcohol in 100 millilitres of blood. The respondent gave evidence and it was to this effect: that he suffers from serious sleep disturbances due to manic depression and usually goes for a drive and finds that he can then sleep. At the time of the incident, he was suffering an asthma attack and on the way home he stopped on the petrol station forecourt briefly to identify the colour of his two inhalers in better light. He did drive slowly down the road, as he was using his inhalers and could not concentrate on driving any faster. He suffered a panic attack before he stopped his vehicle. He needed to get home to use his nebuliser.

14. He confirmed he was unable to take the roadside breath test and told the police officer the reason at the scene. He said that on arrival at the police station, he gave the Custody Sergeant a full history of his illnesses. The Sergeant accepted that he could not provide a specimen of breath and requested a blood specimen and Mr Preston, the respondent, confirmed that he did not have a precise recollection of the police procedure due to the lapse of time.

15. He was given a form stating his rights when he returned to the police station for charging. He said that he told the Sergeant he could not see, as he did not have his reading glasses, and was told where to sign.

16. The respondent said he had no recollection of the Sergeant reading from a proforma. He said that, seeing the respondent's demeanour on his arrival at the police station, the Sergeant immediately formed the opinion that he would not be able to provide a specimen of breath and he requested a specimen of blood and the respondent then said that the Sergeant asked someone in the police station to phone the doctor. The doctor arrived. He was taken to the doctor's room. Blood was taken straightaway. He was not examined. He had no consultation, even though he was still suffering from an asthma attack. He accepted he had drunk four pints of beer at dinner time and a further four pints of beer the previous evening.

17. The evidence of the respondent's General Practitioner went in under section 9 of the Criminal Justice Act 1967. It is summarised in the case to this effect, that the respondent had been treated by him for a long time for chronic obstructive airways disease and asthma and that the respondent had diabetes, and the doctor expressed the view that in his opinion the respondent would have been unable to provide a continuous breath sample for a roadside test.

18. The evidence of Dr Hore, a Consultant Psychiatrist, was the subject of an admission under section 10 of the same Act. It was to the limited effect that he had treated the respondent since 1986, both as an outpatient and an inpatient, for manic depressive illness.

19. The case, unsurprisingly, if that was the extent of that doctor's evidence, is entirely silent as to the effect of such illness on an individual suffering from it, but from, at any rate, the respondent's own evidence, and as recorded in the case, it is clear that there was nothing to suggest that, whatever the effect of that illness may have been, it certainly did not make him incapable of understanding the nature and quality of anything he did that night, or indeed that prevented him from understanding anything that was said to him that night. He was obviously, the drink apart, perfectly capable of driving a motor vehicle.

20. So much for the material, at any rate to the extent that it is recorded in the case. Appended to the case are the two relevant proformas. MGDD/A is the proforma for the breath test procedure, which the Justices expressly found was conducted correctly. The respondent did not agree to provide two specimens of breath and gave the reasons for his refusal. That reason is recorded in the Sergeant's handwriting on the proforma and it is to this effect:

"I have chronic asthma/bronchitis for which I use a nebuliser. I would not be able to provide a sample".

21. Proforma MG DD/B is used for the blood specimen procedure. At paragraph B4, the respondent was asked:

"Are there any medical reasons why a specimen of blood cannot or should not be taken by a doctor?"

22. He replied "no". That answer is recorded on the proforma.

23. That question, again in accordance with the proforma, had been prefaced with the words:

"As there is reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, I require you to provide me with a specimen of blood or urine which in the case of blood will be taken by a doctor".

24. It is necessary now to consider the three paragraphs of Code C, the Code of Practice for the detention, treatment and questioning of persons by police officers. Code C, paragraph 1.4 is in these terms:

"If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or handicapped, or mentally incapable of understanding the significance of questions put to him or his replies, then that person shall be treated as a mentally disordered or mentally handicapped person for the purposes of this code".

25. At the end of the paragraph, there is a reference to note 1G. That reads:

"The generic term 'mental disorder' is used throughout this code. 'Mental disorder' is defined in section 1(2) of the Mental Health Act 1983 as 'mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. It should be noted that 'mental disorder' is different from 'mental handicap' although the two are dealt with similarly throughout this code. Where the custody officer has any doubt as to the mental state or capacity of a person detained an appropriate adult should be called".

26. Upon what evidence did the Justices reach the conclusion that there had been a significant and substantial breach of paragraph 1.4? That they made such a finding is clear because under the list of findings at paragraph (h) is this:

"The Custody Sergeant breached the Codes of Practice C1.4, C9.2 and C9.6. These breaches were significant and substantial breaches".

27. It appears in paragraph 3 of the case that Sergeant Cantello accepted that he may well have been told the respondent suffered from manic depression. It is not clear from the case whether he also conceded a breach of paragraph C1.4, in that he did not arrange for the attendance of an appropriate adult. There is, however, not a shred of evidence identified in the case stated to suggest either that the respondent was actually suffering at the time from the effects of manic depression or that, if he was, he thereby fell into one or other of the two categories in paragraph 1.4 or that Sergeant Cantello had any suspicion that he did.

28. By way of complementing the finding that there was a substantial and significant breach of C1.4, the Justices state in paragraph 6 of the case that:

"The demeanour of the respondent at the police station coupled with his numerous health problems lead us to believe that he did not comprehend the drink and drive procedure".

29. It had been submitted on his behalf (see paragraph 3 of the case) that if the court found the procedure reflected in the two proformas had been carried out correctly, the court still had to be sure it was satisfied that the respondent comprehended the procedure. Nowhere in the case is there a reference to any evidence which was capable of founding the conclusion that the respondent did not comprehend, or may not have comprehended, the drink drive procedure.

30. The details of his evidence, as recorded in the case, fall far short of that. For example, he confirmed he did not have a precise recollection of the police procedure, due to the lapse of time. It is true that there is a reference -- indeed, there is more than one -- to him signing the charge form without his glasses, which he had left at home, but that appears to have been on a different occasion and is scarcely relevant to the point.

31. In truth, the question of whether he comprehended the drink drive procedure does not seem to have been an issue raised by Mr Preston's evidence, although clearly it was raised in the submission to which I have referred.

32. Mr Ley, who has responded to this appeal energetically, as always, reminds me that the word "procedure" is all embracing and includes in particular the compulsory warning of prosecution which a driver must be given, and Mr Preston plainly was given, both in the breath and in the blood procedures.

33. It is readily accepted by the appellant that had the warning not impinged on Mr Preston's mind, or if it may not have done, then he should have been acquitted. (See Simpson V Spalding [1987] RTR 227 and the Chief Constable of Avon and Somerset v Singh [1988] RTR 107.)

34. In my judgment, there was no evidence before the Magistrates to justify the conclusion that Code C1.4 was breached. Even if I am wrong about that and the attendance of an appropriate adult should have been arranged, that breach of itself is not material. In the case of Evans (Administrative Court number CO/291O/2002), a decision of Maurice Kay J on December 13th 2002, a 16 year old was charged with driving with excess alcohol and there was an undoubted breach of Code C3.9 in that, because of his age, an appropriate adult should have attended, and no appropriate adult was called for by the police.

35. The Justices in that case acceded to an invitation to exclude the evidence based on the evidence of a breath test at the police station and they did so on the basis of section 78 of the Police and Criminal Evidence Act 1984. Having reviewed the authorities, including the case of DPP v Ward [1999] RTR 11, which is also relied upon by the appellant in this case, Maurice Kay J reached the following conclusion:

"In my judgment, there is a constant theme running through the authorities to which I have been referred. It is that in relation to section 7 and section 8, time is of the essence. The reasons for that are obvious. As is well known, alcohol in the body breaks up over a period of time and the further a procedure is in time from the moment of apprehension, the less reliable, and indeed the more favourable to the suspect, it becomes. It is not on the authorities necessary to delay section 7 or section 8 proceedings in order to allow the detainee time to read the codes or to obtain brief telephone advice or to await the arrival of a solicitor. In my judgment, it would be contrary to the theme established by those authorities to require the attendance of an appropriate adult prior to proceeding to the section 8 stage in putting the detainee to his election. I have considered whether the specific circumstances of a juvenile require that matters be delayed, either generally or in relation to the circumstances of this case. In my judgment, they do not. I take the view that whilst the Magistrates were correct to identify a breach of C3.9, they were wrong to exclude the evidence obtained pursuant to section 7 procedure because of that breach. In my judgment, that was simply not open to them under section 78 of the 1984 Act or otherwise. Whilst they were being asked to exercise a statutory discretion, it was one which in the circumstances of this case, and having regard to the issues arising, was not reasonably exercisable in favour of the respondent".

36. Accordingly, the order in that case was the quashing of the decision of the Magistrates and the case was remitted for rehearing.

37. In my judgment, if I may respectfully say so, that is the correct approach. But it does not entirely dispose of the point because of the finding referred to in paragraph 6 of the case. I repeat:

"We also found that the demeanour of the respondent at the police station [I emphasise those words] coupled with his numerous health problems led us to believe he did not comprehend the drink drive procedure".

38. As I have already said, in my judgment, there is not a word of evidence identified in the case to justify that finding. Certainly, there is nothing to that effect recorded in the summary of Mr Preston's evidence, nor in the specific findings of fact recorded at the start of paragraph 2.

39. It is not an incidental point. It is a crucial point and had there been evidence to that effect, it would have been recorded in the summary.

40. Mr Ley, however, has another string to his bow in this context. He rightly says that this court should hesitate long and hard before rejecting a primary finding of fact. He is right. He properly reminds me that the Justices saw and heard Mr Preston in the witness box and he invites my attention to the case of DPP v Falzarano [2001] RTR 217.

41. The facts in that case were these:

"The defendant motorist was lawfully arrested, taken to a police station and asked to provide specimens of breath for analysis. She failed to blow properly into the machine and the machine aborted without a specimen being provided. She did not give any excuse for her failure to provide a specimen. She was charged with failing to provide a specimen, contrary to section 7(6) of the 1988 Act. The defendant, who prior to her arrest had not been taking the medication prescribed to alleviate panic attacks to which she had a predisposition, said in evidence that she had tried to cooperate and provide the specimen but had been unable to do so as she was in a state of panic, upset and short of breath. Her general practitioner gave evidence that if the defendant failed to take her medication, she would be more prone to panic attacks, but that such an attack would not prevent her from understanding what was being said to her, nor would there be anything physical or mental to prevent her providing a specimen. The Justices concluded, from the demeanour of the defendant whilst giving evidence [I emphasise those words] at her trial, her shortness of breath when stressed and her failure to take medication, that the defendant had suffered a panic attack which had prevented her from providing a specimen and that she had a reasonable excuse for failing to do so".

42. This resulted in the prosecutor appealing to this court and during the course of his short judgment, Pill LJ said this:

"Dr Bowering [that is the respondent's general practitioner] gave evidence that the defendant suffered from panic attacks and gave evidence of the consequences of such attacks. However, in cross-examination he expressed the opinion that during a panic attack there would be nothing physical or mental to prevent the defendant providing the breath specimens.

The justices stated that they considered that answer of the doctor along with the advice they received from their clerk. Dr Bowering was expressing an opinion as to the effects of a medical condition. The justices were entitled to evaluate that particular answer in the context of the particular case and the particular defendant. They were entitled to take into account, when considering the consequences of the medical condition, her evidence and their own impression based on observing her in the stressful situation in the witness box".

43. Accordingly, the prosecutor's appeal was dismissed.

44. Although it is true that the Justices in this case before me saw and heard Mr Preston in the witness box, they make no mention whatsoever in the case of any feature of his demeanour or his evidence in the witness box which contributed to their conclusion as to his understanding, when in the police station, of the 'drink-drive procedure'. Nor did they rely on any medical evidence. As I have already said, that was read in the case of Dr Whatley, the General Practitioner, and admitted in the case of Dr Hore, the Psychiatrist. Nothing recorded in the case as to their evidence throws any light upon the topic of 'comprehension'.

45. The Justices' conclusion in that regard was in my judgment not warranted by any aspect of the evidence they had heard. Thus, this primary finding of fact, or what appears to be a primary finding of fact, cannot be said to have been based on any evidence and must be regarded as a mistaken extension of the perceived breach of C1.4. There remain the other two paragraphs of Code C: first, C9.2, the material part of which is as follows:

"The custody officer must immediately call the police surgeon (or, in urgent cases, -- for example, where a person does not show signs of sensibility or awareness, -- must send the person to hospital or call the nearest available medical practitioner) if a person brought to a police station or already detained there:

(a) appears to be suffering from physical illness or a mental disorder".

46. Sub-paragraphs (b), (c), (d) and (e) are immaterial, but perhaps I should mention (e), because that reads:

"otherwise appears to need medical attention".

47. The paragraph continues:

"This applies even if the person makes no request for medical attention and whether or not he has already had medical attention elsewhere".

48. The paragraph continues, but the remaining part of it is not relied upon.

49. It is clear that Mr Preston was a person who had diabetes, asthma and was manic depressive. There was no evidence before the Justices that he was suffering from any symptoms at the material time, save for his breathing difficulties, which were clearly symptomatic of his asthma. The material time, it should be remembered, was short. It began with his arrival at the police station at 5.08 in the morning and ended very shortly after the taking of the blood sample at 5.28 that same morning. There was, accordingly, a breach of paragraph 9.2 if a doctor was not called to the police station.

50. However, either, as seems likely, having regard to the timetable revealed in the case, a doctor was already at the police station, or one was called there because, as I have just said, at 5.28 Dr Caprio took the blood specimen. I have already referred to that part of the record of Mr Preston's evidence which reads:

"He [that is Mr Preston] stated that the sergeant asked someone to phone the doctor".

51. What is not made clear is at what stage and for what reason the doctor was called. Certainly, the Justices did find as a fact that Dr Caprio was not asked to, and did not, examine the respondent.

52. In my judgment, however, even assuming a breach of paragraph 9.2, that breach can hardly be characterised as substantial and significant. After all, the doctor saw Mr Preston. Mr Preston could speak and he could have told the doctor that he required medical attention if in truth he did. There was no evidence before the Magistrates that he did.

53. Finally, paragraph 9.6 is in these terms:

"If a detained person has in his possession or claims to need medication relating to a heart condition, diabetes, epilepsy or a condition of comparable potential seriousness then, even though paragraph 9.2 may not apply, the advice of the police surgeon must be obtained".

54. In my judgment, there is no evidence in the case stated to warrant the finding that there had been, or may have been, a substantial and significant breach of this paragraph. Indeed, in my view, there is no evidence to suggest that there may have been even a breach, let alone a serious one.

55. Although I have a good deal of sympathy for the approach taken by the Justices, who were obviously of the view that Sergeant Cantello had in some respects been cavalier in the discharge of his responsibilities in relation to some of the paperwork, and in certain respects in his attitude to this distinctly unwell suspect, I have unhesitatingly come to the conclusion that their decision to exclude the evidence which proved that Mr Preston had been driving with an excess quantity of alcohol in his blood, was unreasonable.

56. It was unreasonable in the particular sense of that word identified by Lord Green in the Wednesbury case [1948] 1 King's Bench 223 at pages 233 to 234. It was unreasonable in that sense because there was in truth no evidence before them to justify the conclusion that there was, or may have been, any material, let alone substantial and significant breach of code C, nor was there any evidence to justify the conclusion that Mr Preston did not comprehend, or may not have comprehended, what the Justices termed "the drink drive procedure".

57. I do not propose to remit the case with a direction to convict. The fairer course is to direct, and I do direct, that the case be remitted to the Justices for rehearing by a different Bench. It follows that my answer to the first question is: there was on the evidence no material breach of paragraph C1.4, C9.2 or C9.6 and, accordingly, there was no evidential basis upon which to exercise the section 78 discretion to exclude.

58. My answer to the second question is that on the evidence, the evidence of the analysis was admissible.

59. Accordingly, this appeal succeeds.

60. MR JORY: My Lord, there is an application in respect of costs.

61. MR JUSTICE MITCHELL: Yes. How are we going to deal with that? You really are pursuing it, are you?

62. MR JORY: Yes.

63. MR JUSTICE MITCHELL: Right.

64. MS CALDER: My Lord, I was going to ask for costs out of central funds, which my Lord does have the power under the Prosecution of Offenders Act to grant in situations as this one.

65. The fact of the matter is this case, if it had been remitted for a rehearing --

66. MR JUSTICE MITCHELL: That was the conclusion we all reached yesterday, that if I was going to remit it, it would be for rehearing.

67. MS CALDER: Yes. The respondent could be successful there, and if he is successful there, it would be most unfair if he should be left with the burden of the costs here because the (inaudible). So in my submission --

68. MR JUSTICE MITCHELL: What do you want me to do? Reserve them until the conclusion of the case?

69. MS CALDER: I do not think one would be able to do that. I was going to ask for our costs out of central funds, which as I say --

70. MR JUSTICE MITCHELL: You want your costs from whom?

71. MR JORY: My Lord, I do not think it really matters where our costs come from. The application is simply that they are paid by another party.

72. MR JUSTICE MITCHELL: What I am going to do is I am not giving you costs.

73. I am going to make an order for costs against Mr Preston, the respondent, but that order is not to be enforced without the leave of this court.

74. MS CALDER: He is not legally aided, my Lord.

75. MR JUSTICE MITCHELL: That cannot affect the order I have just made.

76. MS CALDER: I suppose you could still make such an order.

77. MR JUSTICE MITCHELL: Yes. It is not to be enforced against him without the leave of this court and I would be astonished if anyone even contemplated trying to enforce those costs against him until the conclusion of the Magistrates' hearing, and I had better add that that hearing should be as soon as possible. It must be expedited and room must be found for it.

78. MS CALDER: My Lord, I did not quite hear you. Did you say before a different Bench?

79. MR JUSTICE MITCHELL: Yes, a different Bench.