Director of Public Prosecutions v Swan

Director of Public Prosecutions v Swan

Failure to provide a specimen of breath can be established by conduct and does not require express refusal or physical production of the device; imposition of unreasonable conditions or delaying tactics constitutes failure without reasonable excuse.

Source-derived case information.

Parties
Claimant: Director of Public Prosecutions; Defendant: Philip Swan
Jurisdiction
England and Wales
Judgment Date
21 October 2004
Procedural Posture
Criminal Appeal by Way of Case Stated / Judgment on Appeal
Outcome
Appeal allowed in part; matter remitted to Magistrates' Court for further determination on reasonable excuse for police station offence; direction to convict on roadside offence.
Legal Topics
Failure to Provide Breath Specimen, Reasonable Excuse, Interpretation of Refusal, Procedure for Breath Test
Criminal Law Road Traffic Law Failure to Provide Breath Specimen Reasonable Excuse Interpretation of Refusal Procedure for Breath Test

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Director of Public Prosecutions

Claimant

Philip Swan

Defendant

Procedural Posture

Criminal Appeal by Way of Case Stated / Judgment on Appeal

Legal Issues

  1. 1 Whether physical production of breath test device is required for a lawful roadside breath requirement
  2. 2 Whether rude and aggressive behaviour and delaying tactics amount to failure to provide specimen without reasonable excuse
  3. 3 Whether express refusal is required for offence at police station

Ratio Decidendi

Failure to provide a specimen of breath can be established by conduct and does not require express refusal or physical production of the device; imposition of unreasonable conditions or delaying tactics constitutes failure without reasonable excuse.

Court Disposition

Appeal allowed in part; matter remitted to Magistrates' Court for further determination on reasonable excuse for police station offence; direction to convict on roadside offence.

Orders

  • Conviction directed on section 6 offence (roadside failure)
  • Section 7 offence (police station) remitted to Magistrates' Court to determine reasonable excuse