Sunday, 8 November 2015

Case report: failing to provide

Man blowing into a breath testing device
Police officers must give breath test instructions clearly so that suspect
understand what they are required to do when they provide a specimen

When a person is suspected of drink driving the police are empowered to require the suspect to provide a specimen of breath and refusing to do so is a criminal offence.  Effectively, the law forces the suspect to give evidence that can be used against him or her in a subsequent trial – ordinarily, the police cannot force a suspect to give evidence against themselves.  For this reason, the law is quite strict with police officers and requires them to follow the set procedure fully.  Deviation from the procedure can provide a defence both to drink driving and failing to provide offences.

The case we will talk about today is just such an example of a police officer failed to comply with the breath test procedure and ended up being made to look a fool at court.

Our case began in September 2014 when our client was arrested on suspicion of drink driving and driving with no insurance.  At the police station he agreed to provide a specimen of breath but ultimately failed to do so.  The client was unable to explain why he could not provide but said he did everything he was asked to do but did not really understand the procedure.  The client in this case speaks conversational English well enough to do his job as a builder but anything else is beyond his ability – or at least it was in 2014 when he was new to the UK.

Our first thought was that if our client did everything required but could not comply then perhaps there was a medical problem.  Unfortunately, at the first hearing in the case the prosecution did not bother to serve all their evidence – this happens regularly.  The case was adjourned for a trial.

At the first hearing, we served a copy of the insurance certificate on the prosecutor proving that our client was insured.  We subsequently served a further two copies by post and in person at a subsequent hearing.  Remarkably, at the trial the prosecution had managed to lose all three copies!

Shortly after the first hearing, we obtained the prosecutor’s evidence, which included CCTV of the procedure; it was immediately obvious that our client had failed to provide a specimen of breath because the police officer had not told him what to do.  The video showed a police officer who was difficult, unhelpful and impatient.  The police officer had arranged a telephone interpreter but had breached several points of his police force’s policy on the use of interpreters.  In addition, the interpreter had been cut off less than half way through the procedure so our client had no instructions he could understand about how to complete the breath test procedure.

The big problem for us was getting the prosecution to pay attention to their own case and review it properly.  Something that they refused to do for 14 months after the first appearance.

This morning, we attended for the trial.  We found a prosecutor who had not yet managed to watch the CCTV or speak to her police officer.  We encouraged the prosecutor to watch the CCTV – indeed our advocate sat with the prosecutor and took her through the footage.  Afterwards, the prosecutor spoke to the police officer (she described him as “awful”, which is a pretty damning indictment of a police officer’s attitude).  After hearing representation from our advocate at court it was obvious that the prosecution could never prove their case and they offered no evidence, the result being that our client was found not guilty of failing to provide.

The prosecutor also became the first member of the Crown Prosecution Service to take the time to examine the insurance certificate and was forced to admit that he was not guilty of driving with no insurance either.

Our client was acquitted of both charges against him and a Defence Costs Order was made in his favour allowing him to recover his legal costs.

If you are facing court for an allegation of drink driving or failing to provide a specimen, then do not hesitate to contact London’snumber 1 drink driving specialist solicitor: the London Drink Driving Solicitor on 020 8242 4440.

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