When we are instructed on a failing to provide case, one of the first things we consider is whether our client has a “reasonable excuse” why they could not provide a specimen of breath, blood, or urine for analysis. It is very important to consider whether a client has a “reasonable excuse” because having a reasonable excuse to failing to provide is a defence to the charge. Section 7(6) of the Road Traffic Act 1988 states:
(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.
When considering whether or not a client has a reasonable excuse, the court will often consider the case of Regina v Lennard [1973] R.T.R 252. Lennard is the leading case on what constitutes a reasonable excuse in law.
The court will typically state that for an excuse to be reasonable, it must be a physical or mental inability to provide a specimen of breath, blood, or urine. Some often relied upon reasonable excuses are panic attack, needle phobia, asthma, and language barrier (inability to understand requirement) among other things.
What is often overlooked by defence solicitors and the court is the second limb of Lennard, which states that an excuse is reasonable if it would entail a “substantial or significant risk to health”. In Lennard Lawton LJ stated:
“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.”
This is an important factor to take into account in relation to any reasonable excuse. It may be, that a defendant does not have a mental or physical inability to provide, but providing a specimen would entail a substantial risk to their health. As a firm we recently won a case on this exact point where we argued that it would have entailed a substantial risk to our client’s health to blow into a potentially compromised mouthpiece during the height of the Covid-19 pandemic. Following full legal argument, including expert evidence from a GP medical expert, our client was acquitted. The Court agreed that in the circumstances it would have been a substantial risk to the client’s health to provide a specimen of breath and that the officers should have moved on to request either blood or urine.
Geoffrey Miller Solicitors has an amazing success rate in defending failing to provide a specimen allegations (winning 23 out of 24 defended cases between 2021-2022. This means we achieved a NOT GUILTY outcome). If you face a failing to provide allegation we urge you to contact us, where a member of our legal team will be more than happy to advise you on your options.
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