Atkinson v The Director of Public Prosecutions

MR JUSTICE COLLINS: This is an appeal by way of case stated from the decision of the Justices for Gwynedd, seated at Llangefni, on 30th October 2009, whereby they convicted the appellant of an offence of failing to provide a specimen of breath without reasonable excuse, contrary to section 7(6) of the Road Traffic Act 1988 as amended.

The appellant was stopped by the police at 11.46 pm on 18th July. He had in his car with him his eight-year-old son. He provided a specimen of breath which proved positive and accordingly he was arrested. The reading was 65. He was taken to the main police station in Caernarfon. He behaved in a slightly strange fashion in the sense that he refused to allow his son to be looked after by a police officer but insisted on bringing him into the police station to accompany him. Obviously that was not entirely appropriate, and eventually he was persuaded to allow one of the police officers to go to a room in the police station in order to look after his son whilst the breath test procedure was carried out.

The procedure was commenced at 12.52, but the appellant had asked to go to the lavatory. He had been accompanied by a police officer, Police Constable Rogers, who waited outside the door but could see the defendant through a window in the door. He said that when the appellant had finished using the toilet he turned round to face the door with his head down and his hands in front of him, and when the officer opened the door the appellant gave what he described as an exaggerated groan, fell to his knees in a controlled fall and then lay with his head on his hands. He was moaning and stating that he had banged his head. The officer's observation did not support the contention that the appellant had banged his head; indeed, the officer was positive that he had not. He was helped to his feet, still moaning and saying he had hit his head, taken back to the custody desk and the procedure was then commenced, as I say, at 12.52 according to the record on the form. He then again fell to the floor, in what was described both by PC Rogers and by Sergeant Roberts, who was carrying out the breath test procedure, as a controlled manner, complaining that he had banged his head again, but both officers took the view that this was a pretence and there were no physical marks of any injury. He refused to get to his feet. He lay on the floor and remained on the floor whilst the statutory questions were asked and the statutory warning was given. He made no reply. As I say, the officers took the view that he was deliberately feigning a disability, that he clearly understood what was going on and he was attempting to delay the carrying out of any further breath test, or indeed blood test or urine test if that proved to be necessary. They took the view that he had no reasonable excuse for his failure to provide the breath test.

That was not the end of the matter because when the case was heard before the Magistrates Court there was evidence produced from a psychiatrist called on behalf of the appellant. This was said to be supported by the custody nurse who was called to the police station at 2 am because there was then concern about the appellant's condition.

The reason why he was, as it were, clinging to his son appeared to be because some ten years before (indeed I think there was evidence that it was the exact ten year anniversary of the occurrence) his then 13-year-old son had been shot with an air rifle by a ten year old. It appears to have been an accident, but his son had been killed as a result. This, perhaps unsurprisingly, had a terrible effect upon the appellant, who was at that time a police officer, and he felt that the police had failed to deal properly with that incident. In particular, they had failed to ensure that the weapon was confiscated at the material time. He suffered thereafter from depression, he needed and was receiving over the succeeding years treatment for depression, and he was, it was noted (the police officers saw this when they looked at his file), regarded as a suicide risk, so he was undoubtedly a somewhat vulnerable individual.

The reason why the custody nurse was called was because he continued to appear to suffer from some medical problems. Indeed, when he was seen by the custody nurse, as I say at about 2 am, the custody nurse's evidence before the Justices was that he was satisfied that the appellant knew where he was and why he was there. He complained of having fallen and banged his head and of feeling ill, and when his blood pressure and pulse were checked both were found to be considerably elevated. Although the case stated does not set this out in the summary of the evidence that was given, I was told that the blood pressure was recorded as 204/145 and the pulse at 175. Those were clearly exceedingly high readings and, not surprisingly, the nurse was concerned and decided that an ambulance should be called to enable a paramedic to carry out an ECG. That was done, and certainly at some time before 2.57, when we know that the appellant was charged, the paramedics arrived and the ECG was carried out. At that stage his pulse had dropped to something about 115 and the blood pressure had also reduced to 148/106; again, high readings, but not nearly as high as they had been when the nurse took them earlier, but high enough to mean that the paramedics took the view that he ought to be taken to hospital. Apparently he got into the ambulance but then decided that he would not go to the hospital. Again, it seems possible from the material before me that he was concerned, or saying he was concerned, about the possibility of being separated from his son at that time.

Importantly, the custody nurse in cross-examination confirmed that a panic attack could not be ruled out and said that if it was determined that the appellant had suffered a panic attack, he, the custody nurse, would have no reason to doubt that finding.

The appellant gave evidence. Suffice it to say that his account of what happened at the roadside and how he had behaved at the police station when he said he had banged his head was in conflict with the evidence of the police and the Justices decided that they did not believe his account. As Miss Gianota recognises, they were entitled to reach that conclusion on the evidence before them. Accordingly, they were entitled to be satisfied that the attempt to say that he had suffered a head injury and that that had caused him to suffer medically so that he was not in a fit state to appreciate what was going on when the breath test procedure was being carried out was untrue. That was plain. However, the defence called a Dr Alamin, a consultant psychiatrist, to give evidence. He had of course, inevitably, when he saw the appellant relied on the account that the appellant had given, which was not, as I have said, entirely truthful, but also he had had access to the appellant's medical records, and of course to the evidence of the nurse and the readings both of the nurse and of the paramedics of his blood pressure and pulse. He had also remained in court whilst his evidence was heard. He said that the readings that were disclosed, particularly by the nurse, were consistent with having been caused by a head injury or a heart attack or a panic attack. Heart attack could be ruled out because the ECG showed no evidence of that. Head injury, we know, could be ruled out because that had been feigned, and that left the possibility of a panic attack. Dr Alamin said that a panic attack could have altered perceptions which would affect a person's understanding of what was happening. I should have added that Sergeant Roberts also gave evidence that the appellant was sweating slightly, and sweating again was said to be something which one might expect, coupled with the high blood pressure and high pulse rate, if there was a panic attack at the time. Dr Alamin's opinion was based, he said, only in part on what he had been told by the appellant, but also on the medical records and the observations of the custody nurse, but the medical history was the most important source, and I have already indicated what that had shown. His opinion was that the appellant, whilst lying the floor, would not have understood what was said to him. On that evidence it was contended that the appellant had a reasonable excuse for his failure to provide a blood specimen.

The Justices' conclusions were as follows:

They asked two questions:

As I indicated to Miss Gianota at the outset, it seems to me that the first question was not properly drafted. The Justices did not disregard the evidence of Dr Alamin; they simply did not accept the conclusion reached by Dr Alamin that he, as a result of a panic attack, was not in a position to understand the procedure that was going on. In fact, that question, in my view, was not only inappropriate but unnecessary, and I do not propose in the circumstances to answer it. The key question is whether a reasonable bench, properly directing itself, could have found that the case was proved.

There is an evidential burden upon a defendant who seeks to say that there was a reasonable excuse for failing to provide a specimen to produce some material which would be capable of constituting reasonable excuse. There is no question but that that evidential burden was properly met and the material produced in the form of Dr Alamin's evidence, coupled with the observation of the custody nurse in cross-examination and the physical condition of the appellant, his pulse rate and his blood pressure, were all capable of showing that he had sustained a panic attack. There is no dispute that a panic attack can, but will not necessarily, mean that a person suffering one is unable to appreciate what he is being told or what he is being asked to do.

In my view, the timing is of considerable importance. The time at which the relevant pulse and blood pressure readings were taken was shortly after or at about 2 am. That was after the procedure had been carried out. There was clear evidence, which the Justices were entitled to accept, that the appellant had pretended he had suffered a head injury and thus was in a state of dizziness and inability to do other than lie on the floor and not appreciate what was going on. Both the police officers, admittedly not having medical knowledge but having experience as police officers, particularly the custody sergeant who undoubtedly would have dealt with other cases involving the breath test procedure and with various individuals who had been arrested and brought into the police station, was of the view that the appellant was, when the procedure was being carried out, clearly pretending not to understand. There was an issue as to whether he, after the procedure had been gone through, got up of his own accord from the floor or had to be taken to a side room and then got up. That issue is not dealt with by the Justices and accordingly I draw no conclusions from it.

That it could not reasonably be proved that he was not suffering from a panic attack at the time that he was seen by the custody nurse is, I think, clear, but that is not the crucial time. The crucial time is when the procedure was being gone through, and that was somewhat earlier, and we know that the pulse rate and the blood pressure dropped considerably in the period of well under an hour between when he was seen by the custody nurse and when the ECG was administered by the paramedics. We, of course, do not know what his pulse rate and blood pressure was at the time the procedure was being carried out.

While the Justices' conclusion that he had feigned the panic attack and as such could not avail himself of this defence is putting it, in my view, incorrectly, the reality is that their conclusion that he was feigning a condition which disabled him from understanding what was going on at the time the procedure was being carried out is a conclusion that they were reasonably entitled to reach, and it seems to me that that is what in reality they are saying. The contrary conclusion would only be correct if Dr Alamin was right in concluding that whilst he was lying on the floor and the procedure was being carried out he was suffering from a panic attack and thus unable to follow what was going on. On the findings of the Justices disbelieving the appellant's account, they were, as I say, in my view, reasonably entitled to conclude that this was all at that time a sham and he did indeed understand what was going on.

In those circumstances, the question should, in my view, be answered in the affirmative. The bench could reasonably have found, as they did, that the appellant did not have a reasonable excuse for failing to provide a specimen. In those circumstances this appeal will be dismissed.

MR CURTIS: My Lord, I am afraid I am unable to provide any summary of costs, but I do ask that you do consider your discretion and order that costs follow the event.

MR JUSTICE COLLINS: Are you legally aided?

MISS GIANOTA: No, he is in fact paying privately.

MR JUSTICE COLLINS: Can you resist a claim for an application of costs?

MISS GIANOTA: Only to this extent, my Lord. I understand he has business difficulties, I think that is very much clear from the papers.

MR JUSTICE COLLINS: That may be, but I do not think you can resist an order in principle, can you?

MISS GIANOTA: Possibly not. However -- and I make no criticism of my learned friend -- it is slightly unusual for there not at least to be some figure that the prosecution put forward at this stage in order for consideration.

MR JUSTICE COLLINS: Yes, they do not have to. The usual order is, if not agreed, to be subject to detailed assessment. I mean, if you want a summary assessment you could, I suppose, get the thing put in writing, but I am not really very keen to do that. The usual order, as I say, would be, if not agreed, detailed assessment. That is right, Mr Curtis, is it not?

MR CURTIS: My Lord, yes.

MISS GIANOTA: I am not in a position obviously in respect of costs because I do not know the appellant's situation at this stage.

MR JUSTICE COLLINS: That would not entitle you to resist an order.

MISS GIANOTA: I cannot resist an order, my Lord.

MR JUSTICE COLLINS: It would mean that you would no doubt negotiate with the CPS about the possibility of enforcement or some sort of order of instalments, but that is not a matter, I think, for me.

MISS GIANOTA: Very well.

MR JUSTICE COLLINS: This appeal will be dismissed. Costs to be paid by the appellant to the respondent and to be the subject of detailed assessment if not agreed.