Kelsey v Director of Public Prosecutions

MR JUSTICE OUSELEY: On 7th December 2005 the appellant was convicted of an offence contrary to section 5(1)(a) of the Road Traffic Act 1988 of driving after having consumed excess alcohol, as demonstrated by a urine sample. He was sentenced to a period of disqualification and to a period of two months' imprisonment. He appeals by way of case stated against the conviction before District Judge Friel at Buxton Magistrates' Court.

The District Judge in the case stated found that the appellant was the driver on the day in question when it collided with a lamp post. A police officer attended the scene at 13.09 hours and required the appellant to provide a roadside breath test, which he failed. He was then arrested and taken to Buxton Police Station. A urine sample was taken, which was found to contain 287 milligrams of alcohol in 200 millilitres of urine, more than somewhat above the prescribed limit of 107 milligrams.

Crucial to the appeal is this finding of fact by the District Judge:

A number of contentions were put forward on behalf of the appellant to the District Judge as to why there was no evidence that that request for a urine specimen was lawful. Those have been repeated before me, albeit more elegantly, if I may say so, than apparently formulated below, and hence with something of a different shape.

Very broadly speaking at this stage, the contention was that there was no admissible basis upon which the police constable could have formed a reasonable belief that the intoxilyser was faulty.

It is necessary briefly at this stage to set out the relevant provision of section 7(3) of the Road Traffic Act 1988:

The question posed for the opinion of the High Court simply is this:

There is no dispute at all but that if the requirement for a urine sample was unlawful, then the appeal must be allowed and the conviction quashed. On the other hand, if the requirement was lawful then the appeal must be dismissed.

It is convenient to take the grounds in reverse order from the way in which they were argued.

Mr Vaughan, for the appellant, contended that the provisions of section 7(3)(b), in the light of amendments which have been made to it by the Criminal Procedure and Investigations Act 1996, should now be construed as meaning that the question of whether a reliable intoximeter device was available had to be answered by reference to objective fact; that is to say, the prosecution had to demonstrate that the machine at the police station was not reliable or not available. Mr Vaughan contended that the amendments to the Act had had the effect of changing the way in which section 7(3)(b) should be interpreted from the way in which it previously had been interpreted.

There are three authorities which bear upon the interpretation of section 7(3)(b). First, Thompson v Thynne [1986] RTR 293. That case concerned an appeal by case stated, where a sample of blood had been required under the provisions of the predecessor 1972 Road Traffic Act, which, so far as section 7(3)(b) of the 1988 Act is concerned, was in the same terms or not materially different ones.

In Thompson v Thynne the police sergeant required a blood specimen because he formed the view that the intoximeter device was not reliable. This was because of a wide discrepancy between two readings which he had obtained and because he had been told, by an unspecified expert, that if there was a ten per cent difference in the readings given by the machine, it should be considered unreliable. When the case came before the Crown Court, the machine was held in fact to have been reliable at the relevant time. The Divisional Court concluded that a subjective rather than objective approach was required to the phrase "a reliable device ... is not available ..."

Webster J at page 297L, with whose judgment Woolf LJ agreed, said that the statutory scheme necessarily involved making a series of decisions by a constable. The scheme necessarily involved a partially subjective element. A series of judgments had to be made at the time of the administering of the series of tests, which required a constable to ask himself and come to a conclusion on the question of whether a reliable machine was available. It would not be right for his conclusion to be upset if it turned out later to be wrong; so long as at the time he had reached his conclusion made it he genuinely believed it to be true on reasonable grounds, that sufficed.

That approach to section 8 in the 1972 Act represented something of a departure from the dicta of Lloyd LJ in the case of Dye v Manns [1987] RTR 90, a case decided two months before Thompson v Thynne, but not cited in it. The dicta suggested that an objective factual finding as to reliability had to be made by the court.

The approach in Thompson v Thynne was supported and adopted in Haghigat-Khou v Chambers [1988] RTR 95, in which both those two earlier decisions were cited. The test in Thompson v Thynne was plainly adopted by the Divisional Court.

In Director of Public Prosecutions v Dixon [1993] RTR 22 Thompson v Thynne was again adopted, supporting a subjective approach.

It is therefore clear, but for the potential impact of the amendments made by the Criminal Procedure and Investigations Act 1996, that section 8(3) of the 1972 Act and section 7(3)(b) of the 1988 Act require to be interpreted in that subjective way. The debate before the District Judge which suggested that there was any basis for an alternative approach was in my judgment misconceived.

The basis of Mr Vaughan's submission that a different approach is now called for comes from the amending provisions which have introduced subsection (3)(bb) and (bc) into the 1988 Act. These make provision for circumstances which do not arise in this case, but enable specimens of blood or urine to be taken where, in each case, the constable "has reasonable cause to believe" that a state of affairs exists satisfying a pre-condition.

Mr Vaughan says, rightly, that no amendment was made to subsection (3)(b) to introduce the subjective provision which had been seen in the cases to which I have referred. Mr Vaughan submits that there are two possible interpretative reactions to those amendments. Either the law has been changed and the statute has to be reinterpreted looking at the section as a whole, with the explicit subjective provisions reinforced, highlighting the contrast which was the foundation of the argument in Thompson v Thynne between subjective and objective provisions or, alternatively, Parliament was content that the law was sufficiently well established and did not see any need by statute to confirm that.

I have no doubt but that the interpretation of section 7(3)(b), as consistently maintained in the decisions to which I have referred and which never have been doubted since, remains the way in which section 7(3)(b) should be interpreted. I do not consider that Parliament would have left it to the side wind of amendments dealing with other problems, to alter the way in which section 7(3)(b) had been interpreted for so long; it would have made express provision to do so. Rather, it saw no need to make an amendment, content with the way in which that provision consistently and authoritatively had been interpreted. It would take a very much clearer indication than the insertion of those two new subsections to cause a change to the interpretation thus given to section 7(3)(b).

The second ground with which I am concerned is this. Mr Vaughan submits that, taking the statutory test in the way in which it is set out in Thompson v Thynne, it is nonetheless necessary for the District Judge to find as a fact that the constable requiring the urine sample actually held the belief, and had a reasonable basis for it, before that no reliable intoxilyser was available. Mr Vaughan contends that there is no finding to that effect at all. There is instead a finding that it was reasonable for the officer to rely upon what he was told. It might be, submits Mr Vaughan, that the officer never put his mind to whether he believed what he was told. He may effectively have formed no belief at all about that matter.

By way of some support for that contention, Mr Vaughan cited the decision in Dixon, to which I have already made reference. I do not find that decision of great assistance in this case. The real problem in that case was that the justices found that the sergeant who required the blood sample had decided that the intoximeter device was unreliable. The evidence before them fell short of enabling such a conclusion to be formed. The most that he could have believed was that it "might not be reliable". That, found Watkins LJ, did not support a conclusion that he believed that it was unreliable.

Whatever may be the justification for that particular approach to that particular case stated — and that that is the approach can be seen from comparing the second question stated for the opinion of the court and the answer given to it at the end — it does not assist here, where the question is whether a finding as to reasonable reliance can constitute a finding as to belief.

In order to understand why that submission has but hollow appeal, it is necessary to understand the evidence before the District Judge. The prosecution evidence took the form of a section 9 statement from the officer who required the urine sample. The section 9 statement produced a pro forma form of some length, which dealt with the circumstances in which the urine sample came to be required. The report states, section (b), that no reliable breath-testing device was available for use and that the police constable making the statement was advised by the custody sergeant that the intoxilyser was faulty and would not function. The section 9 statement said that the contents were true to the best of the maker's knowledge and belief.

The evidence was given by way of section 9 statement because there was no challenge to it. There was no challenge as to what had happened at the police station, and that the police constable had required a urine sample because he said no reliable breath-testing device was available for use for the reason given, nor was it disputed but that is what the police constable actually believed. Actual belief was not at issue, nor was the fact that his belief was based on what the custody staff told him. The issue was whether to base the belief on that was lawful, and in that sense, reasonable. It was not suggested that there was some deceit or mistake on the part of the officer which required to be investigated through cross-examination or further evidence.

The issue that was placed before the District Judge and has been pursued before me was the first ground, to which I shall come. But briefly it was that it was not lawful for the police constable to give evidence about what he had been told and, alternatively, that it was not open to the District Judge to find that there was a reasonable basis for a belief without some indication as to what was the actual fault with the machine.

When one understands that that was the real issue before the District Judge, the language of the judge's findings can be seen to be dealing with that real issue. It is implicit in the finding of reasonable reliance that the police constable had actually formed the belief and had formed it reasonably on the basis of what he was told; thus it was reasonable for him to rely on it.

Accordingly, the suggestion that there is no finding of fact as to reasonable belief is a misunderstanding of the true scope of the significance of the finding in relation to reasonable reliance in the light of the evidence and submissions before the District Judge.

I now turn to the main ground of appeal. As I have indicated, the basis upon which the District Judge concluded that the requirement for the urine sample was lawful was that the police constable had been told that the intoxilyser was faulty and thus no reliable machine was available. He had been told this by the custody sergeant. There was no evidence as to the nature of the fault or as to whether any questions had been asked by the police constable of the custody sergeant as to what that fault was. Still less was there any suggestion that the police constable had undertaken any investigation of the machine himself.

Mr Vaughan makes two submissions under this head. First, he submits that the forming of a reasonable belief can only be done by someone who has some personal knowledge of what the fault is thought by him to be. As an alternative, Mr Vaughan says that even if the officer can rely upon what he is told by another, what he is told by that other person has to include what the nature of the fault is believed to be. He accepts, of course, that it is not germane, in the light of the authorities, for it to be established that the understanding as to the fault is in fact correct.

As to the first way in which Mr Vaughan puts his case, I do not accept it as a matter of principle. A reasonable belief can be formed as a result of information provided by another. I regard that as self-evident. It is also evident that giving evidence as to the basis for one's belief does not involve giving inadmissible hearsay evidence.

In the light of the statutory test, I can see neither principle nor statutory provision which precludes reliance, in forming a reasonable belief, upon what an officer is told. Indeed, it seems to me that Mr Vaughan's submission is very close, in reality, to requiring an objective proof of the fault. I notice that in Thompson v Thynne, for example, the police officer was aware of the discrepancy in the readings, but it was only what he was told which gave that discrepancy the significance of indicating a faulty machine. That would often be the case with a machine as technical, or at least as subject to as much technical scrutiny, as an intoxilyser. Something may appear to be at fault. Whether it is a fault that goes to reliability may be a matter that requires the instruction of someone else or the advice of a more senior officer. Again, it is not difficult to see in the context of a police station that someone might raise a question about the performance of the machine and there might be a number of views proffered before a belief was formed, wholly or partly in reliance on what was said, that at least for the time being that machine was unreliable.

As to the second way in which Mr Vaughan puts this main point, namely that a specific cause had to be assigned, I do not accept that either. There is no statutory provision which would require it expressly. It is not a necessary implication either, even with a criminal statute, that a particular cause has to be assigned in order for the belief to be reasonable. The fact that in some cases an express fault was apparently identified no requirement that one be identified. The question is: was the belief actually held? If so, was it reasonably held? There may be circumstances in which, if a specific cause is not assigned, a court may conclude that the belief, if held, was not reasonably held. But there is nothing as a matter of principle, which is the basis upon which this case has been argued, to show that some such cause must actually be adduced, whether the fault referred to is truly the fault or not.

The court in deciding whether the belief is reasonably held is also entitled to consider the position of the person who provides the information, which is the basis of the constable's belief, and to consider whether it was reasonable for the officer to rely upon what was said in reaching that belief. That may involve consideration of the seniority and probable sources of information available to the police constable. There is nothing unreasonable here in the police constable relying on what the custody sergeant said. The District Judge would know full well what was the role of a custody sergeant. No issue was raised as to whether there was something particular about the position of this custody sergeant, his knowledge, or this officer's relationship to that custody sergeant which might cast doubt on it. No one sought to challenge the basis of the finding as relayed by the police constable as to what he had been told.

In all of those circumstances, there can be no basis for saying that the District Judge did not have a proper basis on which to reach his conclusion that the requirement for taking the urine sample was lawful. In truth, it really only arose as an argument of law in relation to quite common facts. As an argument of law in relation to such common facts I reject it.

Accordingly, the answer to the question posed in the case for the opinion of the court — namely "was the requirement for a urine sample lawful?" — must be "yes". This appeal is accordingly dismissed.

I am grateful to Mr Vaughan for the quality of his submissions.

MR VAUGHAN: My Lord, I am very grateful for the judgment you have given. I think only two matters arise. One of them I suspect you are unable to deal with. The first of them is obviously this is a funded matter and can I ask for the appropriate assessment of the certificate which has been granted. The second matter concerns --

MR JUSTICE OUSELEY: Yes, I will grant you the assessment.

MR VAUGHAN: Thank you. The second matter I suspect is not a matter for this court, but I simply raise it. As you know, this man has now a sentence to serve under his original sentence. I believe the only way he can deal with that is for him to appeal to the Crown Court as to whether it is appropriate for that to be imposed upon him. So I think the sentence must now become extant.

MR JUSTICE OUSELEY: He is now obliged to serve that sentence, unless -- I am making no order that any obligation to serve it be put in abeyance. He must now serve that sentence so far as I am concerned, although I do not think it is for me to make any further order either in the respect.

Miss Munro, if you disagree....

MISS MUNRO: No, I do not, my Lord. He must serve the sentence.

MR JUSTICE OUSELEY: No doubt, he will be taken into custody, unless he takes any other steps lawfully open to him. There is no question of imposition of bail conditions or a requirement for surrender?

MR VAUGHAN: No.

MR JUSTICE OUSELEY: Very well. Thank you very much for your arguments.

MR VAUGHAN: My Lord, I am grateful.

MR JUSTICE OUSELEY: I did not mean to suggest, Miss Munro, that there was something deficient in your arguments. Mr Vaughan has had to bear the burden of the day rather more than you have.

MISS MUNRO: He has, my Lord, yes.