Keira Shaw, instructed by the Crown Prosecution Service, was successful in upholding a Defendant’s (Appellant’s) conviction under the Road Traffic Act for failing to provide a specimen of breath in a complex Crown Court appeal

The Defendant was convicted in February of this year at Barrow Magistrates’ Court of failing to provide a specimen of breath for analysis, contrary to s.7(6) of the Road Traffic Act 1988. The Defendant appealed his conviction to Preston Crown Court at which a full re-trial took place.

Following a report made to the police by a member of the public regarding a possible drink driver, the Defendant was arrested by the police and asked to provide a specimen of breath at the roadside, which he refused. As a result, the Defendant was transported to custody where officers intended to complete the “drink drive” procedure with the Defendant. This involves asking the Defendant to provide a specimen of breath for analysis. Part of that procedure involves warning a suspect that, if they fail to provide a specimen for analysis when asked to do so, they could be prosecuted for that failure (the “statutory warning” under section 7(7)).

Repeated requests were made of the Defendant in this case to engage in the intoxilyzer procedure. The Defendant refused throughout that procedure to provide a specimen of breath for analysis, which resulted in him being charged with this offence, leading to his subsequent conviction and appeal.

The Defence applied under s.78 of the Police and Criminal Act 1984 to exclude the drink drive procedure that officers had attempted to carry out at the station. The Defendant had suffered a brain injury a few years prior and, it was argued, should have been treated as a vulnerable person by police officers under PACE Code C. As such, they submitted police ought to have obtained the services of an appropriate adult for the procedure and that failing to do so would have such an adverse effect on the fairness of the proceedings that the Court ought not to allow the Prosecution to rely upon it.

After thorough research on the case law and legal requirements of the police in this area, and preparing detailed written submissions, Keira submitted that there had been no breach of Code C in this case and that the admission of the drink drive procedure would not render the proceedings unfair. The Court was satisfied that the Defendant was not a ‘vulnerable person’ as defined by Code C of PACE and that he did not require an appropriate adult, dismissing the Defendant’s application to exclude the procedure.

As a result, the prosecution was able to rely on its evidence of the procedure, enabling the Court to go on to consider whether the Defendant had a reasonable excuse for failing to provide such a specimen. Having heard the evidence in a contested re-trial, the Court was satisfied that the Defendant did not have a reasonable excuse and consequently upheld his conviction.

Defendants have an automatic right to appeal to the Crown Court within 21 days of their conviction in the Magistrates’ Court. Detailed advice at an early stage is needed to ensure Appellants are given the best opportunity of successfully overturning their conviction.

Keira has substantial experience of the criminal justice system which she brings with her to the Bar, acting for clients in Magistrates’ Court and Crown Court proceedings. To instruct Keira, please contact the clerking team.