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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McKeon v Director of Public Prosecutions [2007] EWHC 3216 (Admin) (19 December 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3216.html Cite as: [2007] EWHC 3216 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19th December 2007

1. MR JUSTICE JACK: This is an appeal by way of case stated from a decision of the Bedfordshire Justices sitting at Luton on 15th January 2007. They convicted the appellant, Gabriel McKeon, of an offence of failing to provide a specimen for analysis contrary to section 7(6) of the Road Traffic Act 1988. The appellant was also convicted of an offence of failing to stop after an accident. We are not concerned with that.
2. The offence contrary to section 7(6) is alleged to have been committed on 13th March 2006 when the appellant was driving his car and was involved in a collision. A roadside breath test was positive and the appellant was taken to Dunstable Police Station. He was there required by PC Hobbs to provide two specimens of breath pursuant to section 7(1) of the Act, using a Lion Intoxyliser 6000 machine, a device approved by the Secretary of State. On his first attempt he breathed into the machine three times for durations of 2.9, 0.6 and 1.1 seconds, the volumes of breath being 0.6, less than 0.1 and 0.2 of a litre respectively. The machine recorded them as incomplete specimens. The appellant was then asked to try again and the outcome was much the same. None of the specimens exceeded one second in length and the volume did not exceed 0.1 of a litre. The appellant was asked if there were any medical reasons why he could not provide a sample and answered no. The only reason he gave was "I have no more puff". PC Hobbs concluded that the appellant was not blowing properly, particularly because he stopped before being asked or it being indicated by the machine that he should stop. In short, and in my own words, he was deliberately not trying. He was then charged with the offence contrary to section 7(6). One of the prompts which had been given by the intoxyliser was that the mouthpiece should be retained for forensic examination, but PC Hobbs decided not to retain it because he had felt the appellant's breath go through it and he considered that it was working properly. Those were the facts relating to the offence itself which were found by the Magistrates and on the basis of those facts they convicted the appellant.
3. The case stated poses three questions which it is convenient to take in turn.
4. The first reads:

"Were we WEDNESBURY unreasonable to have refused to stay the case as an abuse of process when the mouthpiece used by the Appellant had not been retained by the prosecution?"

5. It had been submitted on behalf of the appellant that the officer's failure to retain the mouthpiece contrary to the intoxyliser's prompt brought about an abuse of process because as a result the appellant could not have it tested to see if it was defective and was the cause of his failure to provide further specimens.
6. They held that there was a duty on the police to retain the mouthpiece which had been broken. We will proceed on that basis. The Justices held, however, that the appellant had not shown on the balance of probabilities that its absence had caused prejudice to his right to a fair trial. This finding is stated in paragraph 6 of the case stated, but no reasoning is there provided. However, taking the case stated as a whole, it is apparent that the reason must have been that PC Hobbs had felt the appellant's breath go through the mouthpiece and had seen that the mouthpiece was working properly. That is to be combined with the fact that the appellant did not blow for any long periods but only for the very short periods recorded. This would not have been caused by the mouthpiece being faulty. Thirdly, the appellant had called medical evidence that he had a chest condition which could have caused him not to blow for longer. That is in reality inconsistent with a faulty mouthpiece being to blame. So it is readily understood that the Justices concluded that the appellant had not been disadvantaged by the loss of the mouthpiece. Their approach to the issue of abuse of process was correct as a matter of law and was the appropriate decision on the facts as they found them.
7. The second question posed in the case stated reads:

"Were we WEDNESBURY unreasonable on the evidence before us to have found that the appellant had failed to provide a specimen?"

8. Section 7(6) of the Act provides that a person is guilty of an offence "who, without reasonable excuse, fails to provide a specimen when required to do so."
9. In his argument before us today, Mr Nigel Ley on behalf of the appellant raised a single point in relation to this. In paragraph 6 of the case stated, where the Justices set out their findings, after having dealt with the abuse of process the Justices stated:

"We further considered that the specimens of breath provided by the appellant at the police station were of such an extraordinarily low volume as not to be explicable by his physical condition, despite the evidence of Dr Costello, and had been given in such a way that they did not comply with the requirements of section 11(3) of the Road Traffic Act 1988. We were of the opinion that the appellant had failed to make out a reasonable excuse for his failure to provide a breath specimen in accordance with the requirements of the Act, and accordingly convicted the appellant of the offence."

10. It is accepted on behalf of the prosecution that the burden under section 7(3) as to reasonable excuse is on the defendant to raise the issue on the evidence and once that is done it is for the prosecution to prove the absence of reasonable excuse to the criminal standard. Here the appellant had raised the issue by the medical evidence to which I have referred.
11. The point raised by Mr Ley is as to the sentence in the case stated: "We were of the opinion that the appellant had failed to make out a reasonable excuse for his failure to provide a breath specimen in accordance with the requirements of the Act, and accordingly convicted the appellant of the offence". That sentence clearly suggests that the Justices considered that there was a burden on the appellant to make out, that is to prove, a reasonable excuse for his failure. Mr Ian Wade, responding to the appeal, submitted to us that we should hold that by this sentence the Justices were saying no more than they had considered the evidence called by the defendant as to reasonable excuse and were not showing that they had misapplied the burden of proof and had merely expressed themselves unfortunately. That is possible but it would be an assumption on our part which I do not think that we should make. The words that the justices used are clear and we should not give them a meaning which is contrary to their obvious meaning. I conclude, therefore, that by reason of this the decision to convict the appellant should be quashed.
12. The third question posed by the Magistrates was this:

"Were the reasons given by the Justices for convicting the Appellant adequate, or did they contravene Article 6 of the European Convention on Human Rights?"

13. Mr Ley submitted that the reasons provided in the case stated were inadequate. I need say no more than that, while they were not as clear in all respects as they might have been, they were not so inadequate as to leave the appellant in doubt as to why the justices had found against him on the main points that he had raised. That was sufficient.
14. LORD JUSTICE DYSON: I agree.
15. MR LEY: My Lord, I would ask for a defendant's costs order, that his costs be paid out of central funds.
16. LORD JUSTICE DYSON: Yes. So be it. Mr Wade, do you have any application to make?
17. MR WADE: My Lord, I believe that I am entitled to ask the court to direct that the Justices should try the matter again.
18. LORD JUSTICE DYSON: You are entitled to ask. Is that what you are asking for?
19. MR WADE: Yes.
20. MR JUSTICE JACK: If you read the discussion which took place after the delivery of the judgment in the case of Pullum -- and I will just check that I am recollecting the reference. At the top of page 12, Lord Bingham stated:

"I am not sure if it rests with us. If we allowed an appeal in the Court of Appeal, Criminal Division, we have the power to authorise that there be no retrial. I am not sure whether it rests with us. I think it rests with the Crown."

Mr Gibbons agreed with that and then the Lord Chief Justice expressed his view and Mr Gibbons agreed to convey his remarks to those instructing him. So, on the basis of that, there is a distinction between our position and the Court of Appeal Criminal Division, but that is just on the discussions that took place after the delivery of the judgment. (pause)

21. MR WADE: My Lord, I have to -- perhaps I should not make such a confession -- I find that, dealing with jurisdiction, I am not as familiar with it as I would want to be. I think my understanding is that the Crown can seek to prosecute Mr McKeon again.
22. LORD JUSTICE DYSON: What, without our directing that there should be a retrial?
23. MR WADE: I think --
24. LORD JUSTICE DYSON: If you are right about that then you are right about that but I think -- (pause)
25. We are not going to make an order, Mr Wade. If the Crown can have a retrial as of right and decides it wants to do so, that is a matter for it but we are not going to make any order. We do not know whether we have jurisdiction to do it and, even if we did have jurisdiction, I think we are inclined to think that we would not exercise it.
26. MR WADE: I am grateful.
27. MR JUSTICE JACK: Mr Wade, can I just mention one matter before we close? Amongst the authorities that were cited to us on reasonable excuse and medical conditions and so on was the cases of DPP v Furby, DPP v Lonsdale and Martiner v DPP, which were not cases that the Magistrates had drawn to their attention and, if they had seen them and been told what they decided, it might have been helpful to them.
28. MR WADE: Yes, I understand and accept that.
29. MR JUSTICE JACK: So maybe that message could go back to them.
30. LORD JUSTICE DYSON: Thank you both very much.
31. MR LEY: In view of what your Lordship said, they were not cited to the Magistrates but if they had been I would have relied on a case called Beardmore v Wallace, where the House of Lords -- normally all of those cases are based on what Lawton LJ said in a case called Leonard. In the House of Lords case of Wallace v Beardmore the House of Lords said that Lawton LJ had been too severe and had gone further than they themselves would have done.
32. LORD JUSTICE DYSON: Right.
33. MR LEY: I just mention that. Maybe at the end of the day the court would still accept Lawton LJ but the House of Lords did cast doubt on his views.
34. LORD JUSTICE DYSON: Thank you very much.