CO/4198/2005 
Neutral Citation Number: [2006] EWHC 1157 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 3rd May 2006
 
B E F O R E:

MR JUSTICE FORBES 

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DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

-v- 

ELLEN WYN GRUNDY
Respondent 
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MR SIMON ROGERS (instructed by Crown Prosecution Service) appeared on behalf of the Appellant
MR PHILIP TULLY (instructed by Messrs Abraham & Co Solicitors, Wrexham LL11 2NS) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE FORBES:  This is an appeal by way of case stated against the decision of the Wrexham Magistrates' Court on 22nd March 2005, whereby they acquitted the respondent of an offence of failing to provide a specimen of breath, contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
2.	The facts found by the magistrates, as set out in paragraph 2 of the case stated, were as follows:
"a) PC Downes and Pc Hughes stopped Mrs Ellen Grundy on the St Giles Link Roads on the evening of 12th September.  PC Downes noticed that her eyes were glazed and that her breath smelt of intoxicants and he requested that she provided a breath test.  The operation of the device was explained to her.  She was given three attempts to blow into the tube and failed to provide a sufficient example for the device to illuminate.  She was then arrested and conveyed to the Police Station.  PC Downes indicated that he could not recall her being distressed at the time.
 (b) Pc Hughes was the officer who conveyed her to the Police Station and he indicated that she had a tear in her eye during the journey to the Station.
 (c) Upon arrival at the Police Station she was introduced to the Custody Officer Sgt Davies and placed in a holding cell, causing distress.  Sgt Davies confirms that she was co-operative and was not showing signs of distress.  He was responsible for completing the MGDDA form and the intoxilyser procedure.  Pc Downes was also present during this process.
 (d) Sgt Davies explained the procedure to Mrs Grundy and upon given several attempts provide a sample she failed to provide a sufficient example for evidential purposes.  At this time we believe that her distressed state may have rendered her physically incapable of providing the specimen.
 (e) Mrs Grundy was formally charged with the offence of Failing to provide a sample and bailed to appear in Court on 12th September 2005."
3.	The defence raised by Mrs Grundy at the hearing before the magistrates was that she had a reasonable excuse for failing to provide the specimen in question.  The terms of section 7(6) of the Road Traffic Act 1988 provide for a defence of a reasonable excuse which, if raised by a defendant, must be negated by the prosecution.  As to whether inability to provide a specimen of breath can amount to a reasonable excuse within the meaning of section 7(6) of the Act, the leading authority is the case of R v Lennard [1973] RTR 252 and, in particular, the passage from the judgment of Lawton LJ at page 255 which is in the following terms:
"In our judgment no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health." 
4.	That test has frequently been the subject of consideration by courts.  However, a very helpful decision on the matter is the decision of this court differently constituted in the case of Director of Public Prosecutions v Brodzky [1997] RTR 425, and in particular the following passage from the judgment of Latham J (as he then was) commencing at page 431:
"The first point to make is that, although the first question has been put in the form of whether the justices were entitled to find that the defendant had a reasonable excuse for failing to provide the specimen of breath lawfully required, strictly, the burden is on the prosecution if the matter is raised by sufficient evidence to disprove the reasonable excuse which is put forward by the defendant.
The reasonable excuse which was put forward by the defendant was essentially that by reason of his physical or mental condition he was unable to provide the specimen.  That argument was based upon the well-known guidance given by Lawton LJ in R v Lennard [1973] RTR 252.  In his judgment in that case Lawton LJ said as follows at p. 255H:
 [Then the passage which I have already quoted is cited.]
There have been, as the case stated notes, a substantial number of authorities in which the question of reasonable excuse has been considered by the courts.
The position has been reached in which the tests that have to be applied by the justices have, in my view, been correctly identified by Curtis J in Director of Public Prosecutions v Crofton [1994] RTR 279.  He identified the three important matters that had to be considered at pp. 284 to 285A:
'... (i) the need for evidence of physical or mental incapacity to provide the specimen; (ii) that medical evidence would normally be required to support such a claim ... and lastly (iii) to the necessary causative link between the physical or mental conditions and the failure to provide the specimen.'
The justices in the present case needed, therefore, first, to look for evidence of physical or mental incapacity to provide the specimen.  The only such evidence was the evidence of the defendant in cross-examination, that he did not know why he could not provide a sample, save for the mental anguish which was caused to him due to the sergeant threatening him.  There was no medical evidence to support such a claim.  There is no doubt that medical evidence will not be necessary in every case.  That has been made plain in the judgment of Stocker LJ in Smith (Nicholas) v Director of Public Prosecutions (Note — 1989) [1992] RTR 413, 419B-C:
'It would seem to me that in the vast majority of cases at least it will be necessary to have some medical or other expert evidence to say that the observations made of nervousness are, in the context of the defendant concerned, at least a possible explanation for the failure to provide the breath specimen.  In the absence of such evidence it will be rare indeed, if indeed it could ever exist, that a condition of nervousness would be sufficient to explain a failure to be able to provide the breath test.'
In that passage Stocker LJ accepts that there may be cases where medical evidence will not be necessary, but points out that in the generality of cases it will be necessary.  Perhaps the most important reason for the need for such evidence is to enable the justices to answer the third question, which is: whether there is a proper causative link established between the physical or mental condition alleged and the failure to provide a specimen.
In my judgment, the material which was before the justices was wholly insufficient to justify the conclusion that they reached, that there was such a causative link.  The defendant was said to be, on his own admission, a relatively fit man with no current medical problems.  There was no doubt that he was perfectly able to understand all the instructions that he was given.  The state of anguish which is described is not described in terms which enables, or would enable, a bench of justices, properly directing their minds to that evidence, to conclude that there was a causal connection between the anguish and his failure to provide a specimen."
5.	As it seems to me, the facts of the case in Brodzky are very close to the facts in the present case.  According to paragraph 4 of the case stated, it was the defendant's contention that she had been physically incapable of providing a specimen of breath for analysis and that this had been because of her distressed state.  The case goes on to point out that the defendant did not rely on any claim that she had been suffering from any specific illness at the time she had been requested to provide a specimen.  It was simply her case that she was physically unable to provide a specimen due to her distressed state and that this could amount to a reasonable excuse.
6.	The justices went on to refer to a number of cases, including Lennard and Brodzky, and then concluded the case in the following terms:
"6.  We were of the opinion that the Crown Prosecution Service failed to negate beyond reasonable doubt the defence of reasonable excuse.  Our decision has been made on the following findings.
 (a) Over the issue of Mrs Grundy's distress, we find that she was distressed upon arrival at the Police Station.  Pc Hughes drove her in the car and she sat in the back.  He said that she had a tear on her eye, and we believe this.  He also stated that she was distressed in the holding cell.  He therefore saw her distressed on two occasions.
 (b) Mrs Grundy was adamant that she was placed in a cell at this time.  We find her to be a credible witness and believe her version of events.
 (c) We find that this would have caused her distress before the intoxilyser procedure.
 (d) We were referred to case law, and although normally medical evidence is required to find a defence of reasonable excuse, we had an element of doubt whether the Prosecution had negated the defence and therefore found the defendant not guilty."
7.	The question that is posed for the opinion of this court is as follows:
"Were we wrong to acquit the defendant on findings of fact made without reference to any medical evidence on the issue of distress and its effect upon Mrs Grundy's capability of providing a specimen of breath?"
8.	On behalf of the appellant, Mr Rogers submitted that on the facts as found, the magistrates were not entitled to find that the defence of reasonable excuse had been sufficiently or properly raised by the respondent so as to render it necessary for the prosecution to negative that defence.  He submitted that there was no evidence upon which the magistrates could properly conclude that there was a causative link between the condition of distress from which the respondent was suffering and her failure to provide a specimen.
9.	Mr Rogers acknowledged that medical evidence is not an absolute requirement in cases such as this, but submitted that it was clear from cases such as Brodzky that such evidence will invariably be required when addressing the issue of the causative link between the physical or mental condition in question and the failure to provide the specimen.  I agree with that submission, which is clearly fully in accordance with the judgment given by Latham J in Brodzky in the passage to which I have just referred.  In Mr Rogers' submission the magistrates have fallen into the same error that the magistrates fell into in Brodzky, namely that the material before them was wholly insufficient to justify the conclusion that there was any such causative link between the defendant's distressed state and her inability to provide a specimen.
10.	On behalf of the defendant, Mr Tully took the simple line that the whole matter was a question of fact for the magistrates and that they came to appropriate conclusions of fact that meant that a defence of reasonable excuse had been raised.  He submitted that the magistrates were fully entitled to conclude that the Crown had failed to negative that defence.  He stressed that medical evidence is not an absolute requirement.  This was a case where the magistrates had carefully considered the evidence given by the defendant and had come to the conclusion that the defendant had raised the defence of reasonable excuse and that the Crown had simply failed to negative it.
11.	Attractive though Mr Tully's submissions were, they have failed to persuade me in this particular case.  As it seems to me, it is perfectly clear from the case stated that the magistrates were simply not in a position to come to the conclusion that there was any evidence of a causative link between the distress from which they found the defendant to be suffering and her failure to provide a specimen.  Since the evidence lacked that essential ingredient, as it seems to me there was insufficient evidence of the defence of reasonable excuse to make it necessary for the Crown to call any evidence to negative it.  Stated shortly, the evidence in the case did not justify the conclusion that the defence of reasonable excuse had been raised and that in those circumstances it was not incumbent upon the Crown to call any evidence to disprove it.
12.	In my judgment, the answer to the question posed in the case is in the affirmative.  The magistrates were wrong to acquit the defendant on their findings of fact for the reasons I have already given.  However, I would not wish it to be thought that by answering the question in the affirmative, I am giving an answer which suggests that it is necessary in all such cases that medical evidence be called to prove the necessary causative link.  This is a case in which I have merely applied well-established principles as explained and set out in the case of Brodzky to which I have referred earlier.
13.	For all those reasons, therefore, this appeal is allowed and I will hear counsel further as to the appropriate form of order flowing from that.
14.	Yes Mr Rogers.
15.	MR ROGERS:  My Lord, in my submission, bearing in mind the appeal has been allowed, in my submission it should be remitted back to the magistrates' court with the direction that they should convict.
16.	MR JUSTICE FORBES:  Is there anything you want to say about that Mr Tully? 
17.	MR TULLY:  My Lord, on that specific point, in the absence of medical evidence called in that trial and with your Lordship's guidance, if I can put it that way, in relation to the possibility of calling medical evidence based on Mrs Grundy explaining how she felt at the time, it may well be the case, if this matter is heard again, that she is in a position to call such evidence.  Therefore, in my submission, it is a case that should be returned to the magistrates for a different Bench to retry the case.
18.	I do not think I can assist any further.
19.	MR JUSTICE FORBES:  How long ago was all this?
20.	MR TULLY:  The matter dates back some considerable time.  The offence date --
21.	MR JUSTICE FORBES:  The actual hearing was a year ago, was it not? 
22.	MR TULLY:  Yes, September 2004 was the original incident date.  The matter was tried at the magistrates in March 2005.
23.	MR JUSTICE FORBES:  If you are asking for the matter to be remitted for a rehearing, which will give you the opportunity to call medical evidence if any is available or any can be made available, I am not going to stand in the way of that.
24.	So the order that I make is that the appeal be allowed, the justices' question is answered in the affirmative, and I direct that the case is to be remitted for rehearing by a different bench of justices.
25.	What about costs?
26.	MR TULLY:  Again, I am in your Lordship's hands.
27.	MR JUSTICE FORBES:  What are you saying about costs Mr Rogers?
28.	MR ROGERS:  My Lord, in relation to costs, I am not in position to give a figure as to what the prosecution costs are.  However, bearing in mind that the appeal has been successful, in my submission costs should follow.
29.	MR JUSTICE FORBES:  You are legally aided, are you not?
30.	MR TULLY:  My Lord, yes.
31.	MR JUSTICE FORBES:  I will simply say no order for costs, save the appropriate taxation of the respondent's costs.
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