Back to top
News In Focus

Court changes drink-drive law in favour of English decision

24 December 2012

A single breath specimen is no longer capable in Scots law of proving the offence of driving with excess alcohol, following a decision of five judges on the criminal appeal court.

The 3-2 majority decision, in Barclay v Procurator Fiscal, Aberdeen, overruled the 1986 case of Reid v Tudhope, which ruled that the part of the breath test procedure requiring a second specimen could be waived by the driver being tested, and brings Scots law into line with the 1988 English House of Lords case of Cracknell v Willis, which held that the full procedure had to be complied with in order to provide sufficient evidence to prove the offence.

Mr Barclay had appealed against a conviction of driving with a breath alcohol count of 112, over three times the statutory limit. After losing control of his car on approaching a roundabout in Kintore, he was found to be unsteady and smelling of alcohol. When tested at the police station he provided one reading but then appeared to be sucking rather than blowing into the machine, and failed to provide a second specimen.

The majority judges, Lords Eassie, Bonomy and Menzies, considered that on a proper interpretation of the Road Traffic Act provisions, without regard to earlier case law, the procedure was mandatory, and if a suspect failed to provide two specimens without reasonable excuse, that constituted an offence in itself with the same penalties as for drink driving.

Turning to the case law, the reasoning in Cracknell was to be preferred to that in Reid. Although the decision in Reid had stood for a long time, there did not appear to have been many cases involving similar facts. The accused had also taken the point at the appropriate time, in making a submission of no case to answer, as the question was one of sufficiency of evidence and not admissibility.

Lords Carloway and Hardie, who dissented, said it was rtegrettable that the court in Cracknell had not referred to Reid. The objection had been taken too late, and the other evidence of the accused being under the influence of alcohol, taken with the first reading, was sufficient to prove the charge. There was no sound reason for changing the position in Scotland after such a long period.

Have your say