Clause 11 - Power to require specimens of breath at roadside or at hospital etc.

Road Safety Bill – in a Public Bill Committee at 11:00 am on 25th January 2005.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 11:00 am, 25th January 2005

I beg to move amendment No. 53, in clause 11, page 14, line 7, at end insert—

'(4A) Leave out subsection (1)(a) and insert—

''(1) to provide two specimens of breath for analysis by means of a device approved by the Secretary of State and operated by a trained operative in accordance with the manufacturer's instructions.''.'.

Photo of Mr Kevin Hughes Mr Kevin Hughes Labour, Doncaster North

With this it will be convenient to discuss the following amendments:

No. 54, in clause 11, page 14, line 20, at end insert—

''(2AA) For the purposes of this section a breath test shall not be relevant if it is administered within 20 minutes of alcohol having been consumed or would have been so administered but for a failure to co-operate with it.''.

No. 56, in clause 11, page 15, line 3, at end insert—

'(6A) In section 8 of the Act (choice of specimens of breath), leave out subsection (2) and insert— 

''(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath the person who provided it shall be asked by a constable if he wishes it to be replaced by such specimen as may be required under section 7(4) of this Act and if he then provides such a specimen neither specimen of breath shall be used.''.'.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The amendments stand in my name and those of my right hon. Friend the Member for East Yorkshire and my hon. Friend the Member for Spelthorne (Mr. Wilshire). [Interruption.] My name is on the previous page of the amendment paper. I think that there is a problem with the printers not separating out amendments and keeping them intact on one page. However, that is by the by, and I accept responsibility for the drafting of the amendments.

We are talking about the incredibly serious offence of driving with excess alcohol in one's system or while unfit through drink or drugs. It is absolutely essential that we bring to justice as many of those who are guilty of such an offence as possible. That is why we keep reminding the Government that the best method of enforcement is having more police officers involved in traffic duties. The other side of the coin is that because this is a serious offence, the penalties are serious and can involve loss of livelihood. It is vital that the procedures are seen to be fair, that they are easy to understand and that they cannot be used vaguely or oppressively.

The amendments emanate largely from correspondence that I have received from a member of the public who says that he has been working in citizens advice bureaux for many years and has seen evidence, from people who have come to him for help, of an increasing laxity in the behaviour of police in breath-testing procedures. It is difficult for someone who feels that the full procedures have not been gone through, but has never encountered such a procedure before, to know whether the police have complied with the requirements. Some requirements are by custom and practice but are not set out in legislation. For example, the 20-minute test in amendment No. 54 is a requirement laid down by the manufacturers of the equipment, but there is case law showing that if the police do not comply with that 20-minute requirement, it does not vitiate the whole procedure.

The clause simplifies the procedure so that almost all of it can be carried out at the roadside. I have no concern about that, but because it would be a continuous procedure at the roadside, it could be confusing for those who are asked to comply with it because they are suspected of driving under the influence of drink or drugs. That is why I tabled amendment No. 53, which would make it clear that the device used at the roadside had to be used in accordance with the manufacturer's instructions, by somebody who was trained and in accordance with the requirements of the law.

There are currently a limited number of such devices at police stations, and the person operating them is usually fully trained and familiar with the equipment and the manufacturer's instructions. The calibration of the machines is vital to ensuring that justice results   from the tests carried out on them. I understand from the briefing that no such machines have received the Secretary of State's approval for mobile use, but when they have they will be transported by road, set up and used, powered by batteries and other temporary equipment. It is therefore vital that they are used in accordance with the manufacturer's instructions and by somebody trained in their use. With amendment No. 53, I want to ensure that the Government recognise that going for a more convenient option of including both stages of the test at the roadside should not result in any diminution of the requirement that the equipment is rigorously used and tested in advance.

Amendment No. 54 deals with the 20-minute requirement. It is not currently enshrined in law, and, as I said, there is case law to suggest that a failure to allow a 20-minute gap between the last drink and the administration of the breath test does not vitiate the whole procedure. One can understand the thinking behind that. The initial breath test will be followed by another test carried out at the police station, and there will be a time lapse between the two. It is most unlikely that the evidential test carried out at the police station would be less than 20 minutes after the arrest of the person at the roadside. One can understand why the courts have taken a slightly relaxed view about the 20-minute test, and said that if it is not complied with the truth will emerge because when the person suspected of driving under the influence of drink or drugs gets to the police station, they will be subject to another test in the proper circumstances.

My concern is that with the compressed procedure provided for in this clause, the 20-minute issue becomes that much more significant. If the initial test is carried out almost immediately after someone has emerged from the pub, having recently had a drink, it is possible that the second test—the evidential test—will be carried out very soon after the last drink has been taken. If that happens at the moment, it is not regarded as vitiating the procedure, although if the person has consumed alcohol shortly before taking the test, its accuracy will obviously be in doubt. The amendment would include the requirement in the Bill. I have always been in favour of as much clarity as possible, and I am interested to hear the Minister's response to my suggestion.

Amendment No. 56 deals with the choice of breath specimens and is again designed to ensure that there is no possibility of confusion. At present, if the second, evidential breath test shows that the person is within the margins of the unlawful limit—between 35 and 50 micrograms of alcohol in 100 ml of breath—the person can request a urine or blood test to double check the accuracy of the result, the decision as to which being taken by the police officer.

At present the request must be made by the person being accused. The amendment would ensure that where an evidential breath test showed that there was no more than 50 micrograms of alcohol in 100 ml of breath, the onus would be on the constable—I say to my right hon. Friend the Member for East Yorkshire that I use the phrase advisedly—to ask the person   concerned whether he wanted it to be replaced by a blood or urine specimen, as would be required under section 7(4) of the Road Traffic Act 1988.

Another complaint that has been made to me is that it is often not made clear to an accused person that he has the option of asking for a blood or urine sample in those circumstances. As it is hard to prove after the event whether it has been made clear, and as it is much better to be safe than sorry, why should it not be incumbent on the police officer present when the evidential breath test is taken to say to the individual concerned, ''In light of the readings, you can choose whether to have a blood or urine sample''?

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock. The Committee consisted of the following Members: