Update: road traffic

THE COMPARATIVELY SMALL number of cases of note since the previous update is possibly a reflection of the difficulties in obtaining funding for challenging convictions on appeal or that the Divisional Court has now closed most of the loopholes in road traffic legislation. Alternatively, lawyers may merely be biding their time pending implementation of the substantial provisions of the Road Safety Act 2006 which should provide further fertile ground for challenging the legislation applicable to motorists.

Drinking and driving '“ provision of breath

The question of how much breath a driver has to provide in order to satisfy the requirements of the legislation when giving a specimen at a police station was considered by the Administrative Court in Rweikiza v DPP [2008] EWHC 386 (Admin). At the police station the driver made four attempts to provide breath, on each occasion blowing between 0.2 and 0.7 litres of breath into the Intoxilyser 6000. This machine measures the amount of alcohol in breath provided that a minimum volume of 1.2 litres is supplied after which time it continues to measure the level of alcohol in breath until the reading reaches a plateau. At this point the machine has a complete specimen. The defendant argued that the supply of less than 1.2 litres of breath satisfied the requirement of s 11(3) RTA 1988 in that he had provided a specimen of breath as required by the police officer.

The Administrative Court said that the objective of the test was to establish reliably whether a sample of the defendant's breath was, or was not, positive when tested for alcohol. A sample given in such quantity or in such a way that it could not be established reliably whether or not the sample was positive was not a sufficient sample for the purposes of the Act. The defendant's appeal was dismissed and, even though on benefits, the court refused to set aside an order that he should pay the prosecution costs of hearing the matter in the magistrates' court and, on appeal, in the Crown Court.

In Smith v DPP (2007) 171 JP 321, the appellant provided two specimens of breath at a police station the lower reading of which was 62mg. At trial he submitted that, in addition to the figures adduced from his breath test at the police station, s 15(2) Road Traffic Offenders Act 1988 also required the prosecution to adduce in evidence the result in figures of the roadside breath test which had led to his arrest. At the roadside the appellant had provided a positive breath sample on an Alcolmeter SL400A device. The appellant was convicted and appealed.

The Divisional Court dismissed his appeal. The requirement to take into account evidence of the proportion of alcohol in a specimen of breath does not impose a requirement on the prosecution to adduce in evidence the roadside breath test figures. The specimen of breath which establishes whether or not a driver has committed an offence under s 5(1) of the Act is that which may be required of a driver at the police station under s 7 of the Act. The requirement under s 15 to 'take into account' a specimen of breath is, in relation to the roadside test, no more than a requirement to ensure that the procedure which led to the arrest and to the request to provide specimens had been correctly followed. The additional words now included in s 15(2) ('or taken from' and 'or taken') expand the range of specimens to be taken into account, but do not extend the purpose of the roadside test. Having dealt with the point, however, the court did opine that provision of the roadside breath test figures by the prosecution to the defence would be 'good practice'.

Drinking and driving '“ medical excuse

The defendant in Piggott v DPP [2008] Admin Ct 8 Feb 2008 failed to inform the custody officer at the time that he was requested to provide a breath specimen that he had a medical excuse for failing to provide such a specimen. At his subsequent trial the Justices rejected his defence of medical excuse primarily as it had not been raised at the appropriate time, relying on the decision in Teape v Godfrey [1986] RTR 213.

The Administrative Court ruled that the decision in Teape v Godfrey was no longer to be followed. A failure to raise a medical excuse at the time that a request for a sample was made might be a relevant factor depending on the facts of a case, but it was not, in itself, fatal.

Can a custody sergeant who has determined that a driver has a medical reason for not providing a breath specimen subsequently revisit that decision having received advice that no such medical reason exists? In Longstaff v DPP [2008] AC 31 January 2008 a driver was arrested after a road traffic accident and taken to a police station. When the custody sergeant at the police station requested that the defendant provide specimens of breath, the defendant told him that he would not be able to do so because of back pain. He was given an opportunity to provide breath but did not provide a satisfactory sample.

The custody sergeant had begun to complete the relevant breathalyser form as he went through the procedure. When the defendant failed to provide a satisfactory breath specimen the custody sergeant called a police surgeon and began to complete the relevant form for providing blood. When the police surgeon arrived he examined the defendant to determine whether there was a medical reason for the failure to provide breath. He concluded that there was no such reason. As a result the custody sergeant abandoned completion of the second form and charged the defendant with failing to provide a specimen of breath contrary to s 7(6) RTA 1988.

The defendant was subsequently convicted and appealed by way of case stated. Before the divisional court he argued that as the custody sergeant had begun to complete the blood test form, he was then duty bound to allow him to provide a sample of blood or urine for analysis.

The Divisional Court dismissed his appeal. Nothing in the legislation suggested that it was not possible to abandon the blood testing procedure and prosecute for failing to provide the specimen of breath after a driver failed to provide breath and the custody sergeant then requested a blood test. A police officer was entitled to exercise his discretion and did not need to seek medical opinion regarding whether there was a medical excuse for not giving blood. Neither did the section compel a doctor to take blood specimens.

The defendant had also argued that the proceedings against him should be stayed for an abuse of process on the grounds that the mouthpiece used in the breath testing procedure had been discarded and therefore the possibility of a problem with the mouthpiece could not be discounted by the court. The divisional court made short shrift of this argument. There may well be cases where it would be important for the mouthpiece to be available but in the circumstances of this case the working of the mouthpiece had not been in issue and there was no need for it to have been made available for inspection.

Speeding

Section 81 of the Road Traffic Regulation Act 1984 provides a general speed limit of 30 mph for vehicles driven on a restricted road. Section 82 defines a restricted road as one where, in England and Wales, there is provided on the road a system of street lighting furnished by means of lamps placed not more than 200 yards apart. On a prosecution for speeding under s 81, therefore, is there a requirement on the prosecution to prove, to the criminal standard, that the road in question was a 'restricted' road?

The divisional court in R (Martin) v Harrow Crown Court [2008] 172 JPN 18 answered this question in the affirmative. On appeal following his conviction in the magistrates' court, the appellant contended that the prosecution had failed to prove an essential element of the offence, namely that the offence took place on a 'restricted' road. The prosecution contended that there was no need to produce a plan of the road and that the court should rely on the evidence of the arresting officer who had stated:

• that he knew the road in question to be within a 30 mph zone;
• that the appellant had driven in excess of 30 mph; and
• that the street lamps on the road were 'likely' to be less than 200 yards apart, although he did not know that to be a fact.

The divisional court allowed the applicant drivers' application for judicial review. In order to avoid an adjournment in a case where measurements of the distance between street lamps was required for the purpose of determining whether or not a road was a restricted road, good practice required that the prosecution be notified in advance that the latter would be put to proof on the point at trial. The evidence of the police officer did not satisfy the requirement in s 82(1)(a) that the street lamps be less than 200 yards apart, and in the absence of further evidence, there was no proper basis for the finding that the road in question was a 'restricted' road.

The legislative provisions covering speeding on public roads were also considered in DPP v Wells [2008] 172 JPN 18. The two defendants were convicted of an offence contrary to s 89 RTRA 1984 of exceeding the maximum speed prescribed by a temporary restriction order issued under s 14 of the Act. In the Crown Court they contended that they should have been prosecuted under s 16 of the Act. Section 14 allows a Highway Authority to make a temporary order restricting speed on a road, by reason of works, danger or damage. A person who contravenes a restriction under s 14 commits an offence under s 16. The prosecution appealed against the decision of the Crown Court to allow the defendant's appeal.

The divisional court said that on a true construction of the Act, either there was no distinction between temporary speed 'restrictions' and speed 'limits' or the latter was a type of the former. The Crown Court had been wrong to find that there could be no prosecution under s 89 of the Act for exceeding a temporary speed limit imposed under s 14.

There was no authority that there were two different regimes for temporary speed restrictions and general speed limits. Moreover, if a 'restriction' was different to a 'limit' then the exemption from 'speed limits' for emergency vehicles in s 87 of the 1984 legislation would not apply to any roads in relation to which a 'restriction' was in force.

Motor vehicle

The Divisional Court in DPP v King [2008] Admin Ct 13 February held that a 'Mantis City Electric Scooter' was a motor vehicle for the purposes of the Road Traffic Acts 1988 and therefore the defendant should not have been acquitted by justices of driving a motor vehicle while disqualified.

After conducting a laser speed test it was established that the scooter had a maximum speed of 10 mph. The district judge found that the scooter had dimensions which were similar to a child's bicycle with crude and ineffective controls and no safe means of regulating speed. He acquitted the defendant on the basis that the vehicle was more akin to a toy and did not pass the threshold test for being a motor vehicle.

The Divisional Court said that the judge's task had not been to distinguish between toys and vehicles. A scooter might well be a toy, but that of itself would not prevent its use on a road. It was inescapable that a reasonable person might say that the scooter could be used on a road and was thus capable of fulfilling the definition required of a motor vehicle.