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Documents: Images: Recipient(s): "sWIFT V. BARRETT" Friday, September 27, 2013 01:51 Central UK-RPTS-ALL [1970] R.T.R. 119 391 1 0 alyssachrizelle@yahoo.com

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[1970] R.T.R. 119 Page 1 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 (Cite as: [1970] R.T.R. 119) The defendant, who had driven a motor vehicle which was involved in a collision with another, became engaged in a heated argument with the other motorist outside a police station and was requested by a constable to enter it. The defendant complied, and was required by the constable to provide a specimen of breath for a breath test, which proved positive. The constable informed the defendant that he was being arrested under section 2(4) of the Road Safety Act 1967 , and thereupon took him to another police station and required him to provide a specimen of breath for a further breath test, which also proved positive. The constable then required the defendant to provide a specimen for a laboratory test, and he agreed to provide a specimen of blood. When a medical practitioner arrived at the station to take the specimen, the defendant said that he wished to supply a specimen of urine, but on the medical practitioner saying that it was too late for a change of mind, the defendant permitted a specimen of blood to be taken. It contained a proportion of alcohol exceeding the prescribed limit, and an information was preferred against him for driving contrary to section 1(1) of the Act of 1967. The magistrate, on a submission of no case to answer, rejected contentions that there was insufficient evidence to prove the nature of the device used for the breath tests, that the constable had no power to arrest the defendant for the purpose of section 2(4) because he was then under arrest, and that the evidence relating to the blood specimen was inadmissible because he had not consented within section 7(2) to the specimen being taken. The defendant was convicted. On appeal, and on the further contention that section 2(7) required that the defendant, after being arrested, should be given an opportunity to provide a further specimen of breath for a breath test at the police station where he was arrested: Held, dismissing the appeal, that there was no substance in any of the contentions.

*119 Rooney v Haughton Queen's Bench Division CJ Lord Parker, Ashworth, and Talbot 23 January 1970 ArrestConstable arresting for purposes of Act of 1967Whether possible if defendant already under arrest Road Safety Act 1967 ss 2(4) (7), 7(2) . Breath testSpecimen of breathOpportunity to provideOpportunity thereWhether at station to which defendant brought after arrest Arrest after breath test at stationWhether further opportunity necessary there Road Safety Act 1967 s 2(4) (7) . Laboratory testSpecimenProvision Defendant agreeing to provide bloodWhether change of mind to provision of urine possible Consents Road Safety Act 1967 s 7(2) . Section 2 of the Road Safety Act 1967 provides: (4)If it appears to a constable in consequence of a breath test carried out by him on any person that the device indicates that the proportion of alc ohol in that person's blood exceeds the prescribed limit, the constable may arrest that person (7) A person arrested under this section shall, while at a police station, be given an opportunity to provide a specimen of breath for a breath test there Section 7(2) provides: A person shall be treated as providing a spec imen of blood if, but only if, he consents to the specimen being taken

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[1970] R.T.R. 119 Page 2 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 (Cite as: [1970] R.T.R. 119) The magistrate heard the information on 27 May 1969 and found the following facts. At about 2.30 am on 1 January 1969 the defendant drove a taxi on Prescot Road, Liverpool. He was involved while driving that taxi in a collision with another motorist, Baker, at traffic lights at Queens Drive, Liverpool. The defendant did not stop after the accident but drove to Old Swan police station in order to report the accident, and there got out of the taxi. Baker drove to Old Swan police station in order to report the accident and there got out of the car in which he had travelled. The defendant and Baker arrived at the police station at about the same time. A heated argument took place outside the police station between the defendant Baker and a friend of Baker, one McDonnell. Police constable Williamson was on duty at the police station and heard the disturbance in the vestibule of the police station; he went to Baker and the defendant and asked them to come inside the station. He stated that had they run away he would have stopped them doing so. Baker stated that he considered that he was compelled to go inside the station. The constable did not tell them he was arresting them. He did not charge them inside the station with any arrestable offence. He did not at any time state in terms the offence for which he had arrested them. Inside the station the constable immediately enquired of both Baker and the defendant the reason for the argument; the defendant admitted that he had been driving a motor vehicle involved in the accident. The constable asked the defendant to blow into a bag for the purpose of giving a breath test. The bag was described by the constable as set out hereafter. The constable was entitled to require a breath test (if at all) only by virture of the powers conferred on constables by virtue of section 2(2) of the Act of 1967. The device used by the defendant showed positive. The constable then told the defendant that he was arresting him under the Road Safety Act 1967 and took him to Eaton Road Bridewell, Liverpool. The constable then asked the defendant to take a further breath test. The defendant blew into a bag for that purpose. The device used for a breath test on each occasion by the constable was one approved by the Home Office. The constable told the

Per curiam Police officers should be prepared to be questioned about the nature of the device used (p 123A).Section 2(7) of the Road Safety Act 1967 caters for an intermediate *120 police station to which a person is brought after arrest and before being taken on to a police station for provision of a specimen for a laboratory test (p 124D). Quaere (1) Whether a constable has power to arrest, for the purposes of section 2(4) of the Act of 1967, a person who is under arrest (p 123F). (2) Whether a person who has agreed to provide a specimen of blood for a laboratory test can change his mind and provide a specimen of urine rather than blood (p 123IJ). Case referred to in the judgment: Scott v Baker [1969] 1 QB 659; [1968] 3 WLR 796: [1968] 2 All ER 993. DC . Additional cases cited in argument: Butler v Easton [1970] RTR 109. DC Leachinsky v Christie [1946] KB 124, 133, CA . Swift v Barrett (1940) 163 LT 154, DC Case stated by Liverpool stipendiary magistrate (Leslie M Pugh) On 10 March 1969 an information was preferred by the prosecutor, James Haughton, a police officer, against the defendant, Terence Rooney, that he at Liverpool on 1 January 1969 being a person driving a certain motor vehicle, namely, a motor car (hackney carriage) on a certain road called Prescot Road had consumed alcohol in such a quantity that the proportion thereof in his blood as ascertained from a laboratory test for which he subsequently provided a specimen under section 3 of the Road Safety Act 1967 exceeded 80 milligrammes in 100 millilitres of blood when he provided a specimen.

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[1970] R.T.R. 119 Page 3 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 (Cite as: [1970] R.T.R. 119) defendant that he required him to provide a specimen of blood or urine for a laboratory test and asked if he was willing to provide a specimen of blood. The defendant agreed and the constable for that purpose requested a doctor to attend. When the doctor arrived he asked the defendant to provide a sample of blood. The defendant at first agreed but then said he wished to *121 supply a sample of urine. The doctor informed him that ho had already agreed to supply a sample of blood and that it was at that time too late for the defendant to change his mind. The doctor then again asked for a sample of blood and the defendant permitted the doctor to take a specimen of blood. The specimen contained more than 80 milligrammes of alcohol in 100 millilitres of blood. The following is a short statement of the evidence relating to the question whether the device referred to was a device of a type approved for the purpose of a breath test by the Secretary of State. The constable said that he had used a device similar to an Alcotest; that it was an Alcotest similar to Home Office regulations; and that the device was one approved by the Home Office, and that it was supplied for the purpose of the Liverpool and Bootle police force. In cross-examination, when asked to describe the device, he stated that the device was a breathalyser with a rubber mouthpiece; a glass tube open at both ends containing crystals in the middle, and a polythene bag at the end. He added that if the crystals went green and if they were green over a mark, the device showed positive, that is, the person blowing into the bag had consumed alcohol over the prescribed limit. The constable did not refer to any words printed on the container and did not refer to the figure 80 as mentioned in the Breath Test Device (Approval) (No 1) Order 1968 . It was contended for the defendant that: (i) there was no evidence that the device was a type approved by the Secretary of State in that the constable: (a) did not prove that the device used by him on each occasion was one to which the Breath Test Device (Approval) (No 1) Order 1968 applied; (b) did not produce the order to prove that the device used by him was described therein: (c) did not prove that the device was supplied in a container marked with the name Alcotest (R) 80 or at all; (d) did not prove that the indicator tube was marked Alcotest or at all; (e) did not prove that the device was supplied to any police force other than the Liverpool and Bootle constabulary; (ii) the constable had no power to arrest the defendant under section 2(4) of the Act of 1967 since the defendant had been previously arrested and detained at a police station; (iii) the evidence relating to the taking and analysis of the specimen of blood was inadmissible since the defendant did not consent to the specimen being taken for the purpose of section 7(2) of the Act of 1967. and was incorrectly informed by the doctor that he could not change his mind; (iv) it was not competent for the prosecutor to re-open his case (after the defendant had elected to call no evidence and had made his submission that there was no case to answer) for the purpose of putting in a copy of the Breath Test Device (Approval) (No 1) Order 1968 or for the purpose of the constable saying that the device he used was a device approved in those regulations. It was contended by the prosecutor that: (i) there was evidence that the device was of a type approved by the Secretary of State; (ii) the constable had not arrested the defendant prior to arresting him under the Act of 1967; (iii) the defendant having agreed to the request of the constable to provide a specimen of blood, and the doctor having been sent for and the defendant having at first told the doctor that he would provide a specimen of blood, he could not thereafter change his mind; in any event, when told by the doctor that it was now too late to change his mind, he agreed to provide a specimen of blood. The magistrate was of the opinion that: (i) the evidence was sufficient to raise a prima facie case that the device used by the constable for the purpose of a breath test was one approved by the Breath Test Device (Approval) (No 1) Order 1968 ; (ii) the constable had power to arrest the defendant under section 2(4) of the Act of 1967; he had that power

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[1970] R.T.R. 119 Page 4 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 (Cite as: [1970] R.T.R. 119) whether or not he had in fact arrested the defendant and Baker for a breach of the peace; and though the magistrate expressed considerable doubt whether there had been such an arrest, he was prepared to assume for the purpose of reaching a decision on the prosecution, that the constable had arrested the defendant; (iii) a constable could arrest a person for a further offence despite the fact that such person was already under arrest; in particular a constable could arrest a person under his powers under section 2(4) of the Act of 1967 and for the purposes of the Act of 1967 notwithstanding any other arrest of that person for an alleged offence; (iv) the doctor was entitled to rely on the *122 choice made by the defendant to provide a sample of blood and to tell the defendant (when he said that he wanted to provide urine rather than blood) that he had previously agreed to supply a sample of blood and that it was then too late for him to change his mind. [The magistrate convicted the defendant.] The defendant appealed. The questions for the opinion of the court were: (i) whether there was evidence sufficient to prove that the device used by the constable was of a type approved in accordance with section 7(1) of the Act of 1967; (ii) whether the constable had power to arrest the defendant under section 2(4) of the Act of 1967; and (iii) whether the evidence relating to the taking and analysis of the specimen of blood was admissible. Representation Peter Smith for the defendant Miss Heather Steel for the prosecutor The case was argued on 22 and 23 January 1970. Miss Steel was not called on to argue. JUDGMENT LORD PARKER CJ Ashworth J will give the first judgment. ASHWORTH J This is an appeal by way of case stated from a decision of the stipendiary magistrate for the City of Liverpool, before whom the defendant came charged that he was driving a vehicle on a road having consumed alcohol in such quantity that he, to put it shortly, had exceeded the prescribed limit of alcohol in his blood. It is a somewhat unusual case, and the facts giving rise to the charge were as follows. At 2.30 am on New Year's day of last year, the defendant was driving a taxi, and was involved in a collision with a motorist named Baker. The defendant did not stop after the accident, but what he did was to drive to Old Swan police station in order to report the accident. At the same time the man Baker drove to that same station in order to report the accident, and unhappily for all concerned the arrival of both was simultaneous and they met outside the police station. Perhaps not surprisingly, there ensued what is described as a heated argument. A police constable on duty at Old Swan police station heard this argument, heard, as the case finds, a disturbance in the vestibule, and went out to Baker and the defendant and asked them to come into the police station, which they did. Inside the station, the constable asked the reason for the argument, and no doubt because of what he saw or smelt, the officer asked the defendant to take a breath test, and the breath test gave a positive result. The constable then told the defendant that he was arresting him under the Road Safety Act 1967 and took him off to Eaton Road Bridewell in the city where he had a further breath test which again proved positive. In the result, he was charged as already indicated, and duly convicted. Before the magistrate three distinct contentions were put forward, and it is convenient to deal with them separately. The first contention was that there was no evidence that the device used by the constable for the purpose of taking the breath test at Old Swan police station, was a type approved by the Secretary of State. The defendant through counsel recognises

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[1970] R.T.R. 119 Page 5 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 (Cite as: [1970] R.T.R. 119) that there is a specific finding of fact that the device was one approved by the Home Office, but it is urged that this finding is of no consequence, if there was no evidence on which it could be based. No doubt because this point was taken below, the case contains a short statement of the evidence relating to the question whether the device was of a type approved for the purpose of a breath test by the Secretary of State. The question now arises whether such evidence was enough. I do not propose to read it at all. It is fair to say that such evidence was not as complete or as positive as one normally finds in this type of *123 case, especially since the decision in Scott v Baker [1969] 1 QB 169 . In my view the present appeal should serve as a useful warning to police officers that they should be prepared to be questioned regarding the nature of the device used. But having considered the evidence given in chief, which included the statement that the device was one approved by the Home Office, and perhaps equally important, the evidence given in cross-examination, I have come to the conclusion for my part that there was enough evidence to support the findings. As might be expected, there was no contradictory evidence, and in my judgment the stipendiary was entitled to make the finding of fact to which I have already referred. The second contention was that the constable had no power to arrest the defendant under section 2(4) of the Act, since he had previously been arrested and detained at a police station. The stipendiary was prepared to deal with this contention on the assumption that there had been a previous arrest, although he expressed in terms considerable doubt whether in fact such previous arrest had taken place. I take the view that on the facts stated there was no such previous arrest. It is stated that: The constable did not tell them he was arresting them. He did not charge them inside the station with any arrestable offence. He did not at any time state in terms the offence for which he had arrested them. In my view the constable took the right and proper course of asking the three men who were involved in a heated argument outside the police station to come inside. They complied with the request, but it does not mean that they were arrested, and indeed it is difficult to see why the constable should have arrested then unless they refused to comply with his request. Accordingly, in my view, the basis of this contention is not made out, and it is therefore unnecessary to decide whether the constable would have had power to arrest the defendant for the purposes of section 2(4) of the Road Safety Act 1967 , if at the time he had already been arrested. The third contention was that the evidence relating to the taking and analysis of the specimen of blood was inadmissible, since the defendant did not consent to the specimen being taken for the purposes of section 7(2) of the Act. The relevant facts are set out in the case stated, and I read them. The constable told the defendant that he required him to provide a specimen of blood or urine for a laboratory test and asked if he was willing to provide a specimen of blood. The defendant agreed and the constable for that purpose requested a doctor to attend. When the doctor arrived he asked the defendant to provide a sample of blood. The defendant at first agreed but then said he wished to supply a sample of urine. The doctor Informed him that he had already agreed to supply a sample of blood and that it was at that time too late for the defendant to change his mind. The doctor then again asked for a sample of blood and the defendant permitted the doctor to take a specimen of blood. On these findings it seems to me that the question is whether the consent eventually given is to be regarded as no consent, on the ground that it was obtained improperly. Assuming, though not deciding, that it was open to the defendant to change his mind and provide a specimen of urine rather than blood, the facts found show that he did consent to give a specimen of blood. Prima facie, evidence of that consent is admissible unless the court in its discretion excludes it as having been obtained un-

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[1970] R.T.R. 119 Page 6 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 [1970] 1 W.L.R. 550 [1970] 1 All E.R. 1001 [1970] R.T.R. 119 (1970) 114 S.J. 93 (Cite as: [1970] R.T.R. 119) der pressure. The stipendiary did not express any view on this point, but I can see no good ground or any ground for excluding the evidence. At the hearing of the appeal a fourth contention was put forward, and as the court heard argument upon it it is desirable to deal with it. The contention is based upon the wording of section 2(7) of the Act, which provides: A person arrested under this section or under se ction 6(4) of the principal Act shall, while at a police station, be given an opportunity to provide a specimen of breath for a *124 breath test there. It is argued that although the defendant was given a breath test at Old Swan police station before his arrest, it was nonetheless necessary to give him an opportunity for a second breath test at that station after he had been arrested. I have no doubt at all that section 2(7) was designed to apply to a wholly different situation, such as a case where a person has been arrested under section 2(4) and been brought to a police station. In such a case the first breath test which leads to arrest has to be taken there or nearby the place where the person was driving or attempting to drive: see section 2(1) . Such a person is then taken to a police station after being arrested, and is there entitled to an opportunity of a further breath test which can no doubt be taken in more convenient circumstances than those which exist on a road. If, of course, that station is one at which arrangements can be made for a specimen of blood or urine to be taken, a second breath test is required under section 3 of the Act. In my view section 2(7) caters for what I might call an intermediate police station, to which a person is brought after arrest and before being taken on to a police station for the provision of a blood or urine specimen. Notionally one can add in subsection (7) after the words while at a police station the words to which he has been brought. Unless the la nguage of subsection (7) compels me to do so, I am not prepared to construe the subsection as requiring that a person, who has taken one breath test in a police station and has then and there been arrested because of the result shown by the test, should be entitled to insist on a second breath test at that same station. The taking of a second breath test in such circumstances would be a pointless exercise, because the second breath test could be taken within minutes of the first, and in my judgment the subsection does not require it. What the subsection does require is that an opportunity for a breath test should be given while the suspected person is at a police station, and in the present case that requirement was manifestly fulfilled. It was argued that the subsection covers the case of a man kept for an undue time at the police station where he has been arrested, in which case the second test might be negative. But that situation is covered by section 3 , which provides for a further breath test at the police station where a blood or urine specimen is provided. If an undue time has been spent at the first police station so that a second breath test at that station is likely to prove negative, there is all the more likelihood of a negative result if the second breath test is taken later at another police station before the blood or urine specimen is provided. Ingenious as no doubt some of these contentions are, in my judgement there is no substance in any of them, and I would dismiss this appeal. TALBOT J I agree that the appeal should be dismissed. LORD PARKER CJ I also agree.Appeal dismissed No application for costs Order for legal aid taxation END OF DOCUMENT

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Westlaw Delivery Summary Report for 1,IP POOL Date/Time of Request: Client Identifier: Database: Citation Text: Service: Lines: Documents: Images: Recipient(s): Friday, September 27, 2013 01:51 Central ATENEO DE MANILA UNI KEYCITE-HIST [1970] R.T.R. 119 KeyCite 5 1 0 alyssachrizelle@yahoo.com

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Date of Printing: Sep 27, 2013 KEYCITE Rooney v Haughton, 1970 WL 29969, [1970] 1 All E.R. 1001, [1970] R.T.R. 119, [1970] 1 W.L.R. 550, (1970) 114 S.J. 93 (QBD, Jan 23, 1970) (NO. 104077) Direct History and Negative Indirect Judicial Treatments from U.K. & E.U. cases are not included in KeyCite coverage. For History and Citing References from the U.K., run a search in the UK-CASELOC database. History Direct History

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1 Rooney v Haughton, 1970 WL 29969, [1970] 1 All E.R. 1001, [1970] R.T.R. 119, [1970] 1 W.L.R. 550, (1970) 114 S.J. 93 (QBD Jan 23, 1970) (NO. 104077)

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Westlaw Delivery Summary Report for 1,IP POOL Date/Time of Request: Database: Citation Text: Service: Lines: Documents: Images: Recipient(s): Friday, September 27, 2013 01:51 Central KEYCITE-REFS [1970] R.T.R. 119 KeyCite 0 1 0 alyssachrizelle@yahoo.com

The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates.

Date of Printing: Sep 27, 2013 KEYCITE Rooney v Haughton, 1970 WL 29969, [1970] 1 All E.R. 1001, [1970] R.T.R. 119, [1970] 1 W.L.R. 550, (1970) 114 S.J. 93 (QBD Jan 23, 1970) (NO. 104077) No references were found within the scope of KeyCite's citing case coverage. Direct History and Negative Indirect Judicial Treatments from U.K. & E.U. cases are not included in KeyCite coverage. For History and Citing References from the U.K., run a search in the UK-CASELOC database.

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