Road traffic law

Arrest

The provision of a negative breath test by a driver, in response to a request to provide a roadside breath test, does not preclude the exercise of police powers of arrest under section 4 of the Road Traffic Act 1988 on the grounds of reasonable cause to suspect the commission of an offence under that section (DPP v Robertson [2002] The Times, 13 March, where the police suspected that the driver had not provided enough breath for the roadside test).

Breath test

A police officer can only require the provision, at a police station, of a specimen of blood or urine - rather than a specimen of breath - for analysis if he has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required - section 7(3)(a) of the Road Traffic Act 1988.

Nothing in section 7(3)(a) requires the police officer to seek medical advice before requiring the provision of a specimen of breath.

And the possession, by the motorist, of a tablet of an unspecified nature and an admission that the motorist took sleeping tablets did not amount to a reasonable cause to believe in the existence of a medical reason within section 7(3)(a) (Steadman v DPP [2002] The Times, 3 May, distinguishing Wade v DPP [1996] RTR 177).

Breath-testing device

The fact that a breath-testing device had been manufactured by a company other than the manufacturer specified in the formal approval of that device does not constitute a ground for impugning the approval of the particular device when it was in all other respects identical to the approved device (Brown v Gallagher [2002] The Times, 3 June).

In the same case, the High Court of Justiciary in Scotland also ruled that although the device would have been incapable of measuring mouth alcohol - had it been present - this defect did not demonstrate that the device was not functioning at the material time.

Illegal immigrants

The sanctions imposed under the Immigration and Asylum Act 1999 and the regulations made under the Act on the driver, the owner or the hirer of a goods vehicle for the presence of clandestine entrants on board the vehicle were held by Mr Justice Sullivan to be incompatible with the European Human Rights Convention, as they did not allow the protection accorded by article 6(3) of the convention.

Further-more, although the penalty of 2,000 imposed for each clandestine entrant was not disproportionate, the power to detain the vehicle was held to infringe the right to peaceful enjoyment of one's possessions - article 1 of the first protocol to the convention.

And the penalty regime was held to restrict the free movement of goods within the European Community (article 28 EC) (International Transport Roth GmbH v Secretary of State for the Home Department [2001] The Times, 11 December).

On appeal, the Court of Appeal by a majority affirmed that the penalty which might be imposed under the 1999 Act was criminal in nature and that the imposition of a substantial fixed penalty without any possibility of mitigation was disproportionate.

Accordingly it infringed article 6 of the convention.

However, the Court of Appeal did not regard the legislation as incompatible with community law ([2002] The Times, 26 February).

Road signs

If a highway authority fails to take appropriate measures at an 'accident blackspot' to warn subsequent users of the road of danger, it might be in breach of a common-law duty parallel to and co-existent with its statutory duty to promote road safety under section 39 of the Road Traffic Act 1988 (Gorringe v Calderdale MBC [2002] The Times, 16 May, per Lord Justice May and Lord Justice Stuart-Smith).

But in that case the liability of the highway authority was not established.

By Paul Niekirk, barrister