Law Report: Breath tests inadmissible for lack of procedure: Murray v Director of Public Prosecutions. Queen's Bench Divisional Court (Lord Justice Watkins and Mr Justice Laws), 4 February 1993

Evidence of breathalyser tests and specimens were inadmissible if the statutory procedures in the Road Traffic Act 1988 had not been carried out even though no prejudice had been caused to the driver by the breach of procedure. However, justices should be alert to see that a submission that the proper procedure was not followed did not succeed where the justices could call further evidence to show that the procedure was followed or they should consider carefully whether it was safe to infer that the usual procedure had been followed.

The Divisional Court quashed the defendant's conviction of driving with excess alcohol. The defendant was arrested and required by Sergeant Rustmen to provide two specimens of breath and did so. He was then asked by WPC Hook to provide under section 7(4) of the Road Traffic Act 1988 a specimen of blood or urine. He declined. WPC Hook said that she completed the 'Standard Procedure' form but was unable to recall the exact words used. She was not cross-examined on this point. The defendant did not give evidence.

The Basildon justices accepted the defence submission that there was no evidence that Sergeant Rustmen warned the defendant in accordance with section 7(7) that a failure to provide the breath specimen made him liable to prosecution, but decided that as no prejudice had been caused to the defendant the specimens of breath provided were not rendered inadmissible. The justices therefore admitted in evidence the results of the breath tests and convicted the defendant on the basis of the higher reading.

The defendant appealed on the ground that the tests should not have been admitted.

Nigel Ley (Hatten Jewers & Mepham, Basildon) for the defendant; Peter Fenn (CPS) for the prosecution.

LORD JUSTICE WATKINS, giving the judgment of the court, said that the effect of the decision in Howard v Hallett (1984) RTR 353 was that the results of breath, blood or urine test were only admissible on a prosecution for driving with excess alcohol if the procedural requirements of what were now sections 7 and 8 of the 1988 Act had been fully complied with.

The court was unable to hold as a matter of principle that where no prejudice to a defendant was occasioned by a failure to warn because he had in any event given the specimen required of him the decision in Howard had no application and the results of the consequent test could be admitted despite the breach of procedure.

Once it was accepted that the admission in evidence of the results of tests was, on the proper construction of section 15(2), dependent on the statutory procedures having been carried out, it was impossible to carve out an exception to cater for the cases where the breach of procedure caused no prejudice unless section 15(2) was to mean one thing in some instances and something else in others. Section 15(2) was not capable of such a differential application.

That meant that unmeritorious defendants might sometimes be acquitted. But it should be remembered that the legislation, contrary to the general traditions of the criminal law but for good and pressing social reasons, compelled a suspected person to provide evidence against himself.

It was, therefore, not surprising that a strict and compulsory code was laid down as a set of preconditions which must be fulfilled before any specimen produced by the defendant, which might condemn him at the hearing of the charge against him, could be adduced in evidence: no matter that there might be some instances where breach of the code occasioned no discernible prejudice.

There was no alternative but to conclude that the breath tests were not admissible because the justices found that the section 7(7) warning had not been given.

However, the court expressed disquiet about the justices' essential finding. The standard procedure form completed by WPC Hook contained express provision for the procedure in accordance with the legislation to be followed at a police station when specimens of breath, blood or urine were sought. The procedure included the giving of the warning in issue here and for the signature of the officer or officers responsible for carrying out the procedure.

There was no cross-examination and therefore no suggestion either to WPC Hood or Sergeant Rustmen that the warning had not been given.

The justices accepted the defence submission that there was no evidence of the giving of the usual warning which, in the circumstances, was very remiss. It was open to the justices to accept from what WPC Hook said that the standard procedure had been followed. If they were in doubt as to the step by step contents of any part of that they should have asked the police officers to explain or remind them of the procedure and, if necessary, to produce the standard procedure form.

The justices shold have dealt with the submission robustly, for such a response to it was in the circumstances clearly called for. However, the Divisional Court had to accept the justices' finding with reluctance.

To ensure that what went on in the magistrates' court was not repeated in future, prosecutors should ensure that the relevant standard procedure form was produced in breathalyser cases and justices should be alert to see that a submission of the kind made here did not succeed where it was permissible as it was here for them to allow, if necessary, further evidence to be called. Otherwise they should consider carefully whether a safe inference could be drawn that the usual procedure had been followed. That course was clearly open to the justices on the facts found in this case.