Lord Templeman

My Lords,

I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with the reasons given for having allowed the appeal.

Lord Roskill

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons which he gives I too would allow the appeal.

Lord Bridge of Harwich

My Lords,

The code which first made it a criminal offence to drive a motor vehicle with an amount of alcohol in the body exceeding a fixed statutory limit (introduced by the Road Safety Act 1967 and re-enacted in the consolidating Road Traffic Act 1972) was found in course of judicial construction to have been drafted in a way which afforded to many drunken drivers a variety of wholly unmeritorious avenues of escape from conviction. This led in due course to the enactment of a new code which was substituted for the relevant sections of the Act of 1972 by the Transport Act 1981 and is now found, without material alteration, in the Road Traffic Act 1988. As well as seeking to eliminate the old technicalities, in which it has, I think, been largely successful, the new code made one radical alteration in the nature of the evidence which could be relied on to prove the offence. Following the preliminary roadside "breathalyser" test, the old code provided that the specimen to be taken for analysis from the driver at a police station should be of blood or urine, in effect at the driver's option. The new code, while retaining the preliminary breathalyser test, provides that the normal method to be adopted at a police station in order to determine the amount of alcohol in the driver's body is by the provision by him of two specimens of breath for analysis by means of the approved device known as the intoximeter. It is only in the specific circumstances defined by the statute (when it is either impossible or inappropriate to obtain or to rely on breath specimens) that it is either necessary or permissible to require the driver to provide a specimen of blood or urine. But when such circumstances do arise, questions with respect to the appropriate procedure to be followed in requiring drivers to provide specimens of blood or urine have given rise some difficulties in the Courts and it is to the resolution of those questions that this appeal is directed.

Before turning to the facts it will be convenient to set out the relevant sections of the Act of 1988 which provide as follows:

7.(1) In the course of an investigation into whether a person has committed an offence under s. 4 or 5 of this Act a constable may, subject to the following provisions of this section and s. 9 of this Act require him -

(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or

(b) to provide a specimen of blood or urine for a laboratory test.

(2) A requirement under this section to provide specimens of breath can only be made at a police station.

(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless -

(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or

(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (l)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or

(c) the suspected offence is one under s. 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;

but may then be made notwithstanding that the person required to provide the specimen has already pro