Breath Tests (Hansard, 1 February 1989)

§ Mr. Hurd

The current powers to stop vehicles and to require roadside breath tests are contained in the Road Traffic Act 1972. Under section 159 a police officer may stop any vehicle at any time; and under section 7 a breath test may be required:

(a) where there is reasonable cause to suspect that the driver has alcohol in his body; or
(b) where there is reasonable cause to suspect that the driver has committed a moving traffic offence; or
(c) where there is reasonable cause to believe that the driver has been involved in an accident.

These powers rely on the use in combination of two widely separated sections of the 1972 Act. The courts have held that it is lawful for these powers to be used together. However, there may be benefit in clarifying the position by bringing together the two powers in one section. This would secure express endorsement by Parliament of the use of the powers and would make them more readily understandable to the motoring public.

The police service had, until recently, maintained that current powers were sufficient for the effective enforcement of drinking and driving legislation. This view was accepted by successive Governments. However, the associations of chief police officers of England and Wales and of Scotland reviewed their policy during 1988 and have proposed that the legislation should be changed to allow police officers to require a breath test at any time without requiring any grounds for suspicion.

The associations argue that current powers place unnecessary constraints on breath testing; and that there 253W should be no necessity for a police officer to establish grounds for suspicion before requiring a breath test. They suggest that an unrestricted power would allow chief constables to deploy their resources more effectively in deterring and detecting offenders by targeting their enforcement effort on particular places, at times of day or on groups of drivers. It is implicit in this argument that the powers to test would be exercised in a targeted way, and that the use of any wider discretion than at present would not involve random testing.

The associations also argue that extended breath testing powers would be an appropriate response to changes in public opinion towards drinking and driving. They suggest that the public would now consider extended powers acceptable and desirable in the interests of deterring and detecting offenders and protecting themselves as potential victims of drunken drivers.

The Government consider that a decision on possible changes to police powers should not be taken without an opportunity for full public consultation. The three options under consideration, and the main relevant arguments can be summarised as follows:

(i)To make no change to existing police powers Existing powers provide the restriction that although the police can stop the motorist without cause they cannot test unless there is reasonable cause to suspect that the person has consumed alcohol or has been involved in an accident or committed a moving traffic offence. This is consistent with the principle in other areas of police intervention, such as the powers under the Police and Criminal Evidence Act 1984 to stop and search or arrest, that the powers rest on reasonable suspicion that an offence may have been committed.

(ii) To consolidate existing powers is would be achieved by bringing together in one section the two separate powers contained in section 7 and 159 of the 1972 Act to clarify current powers and to seek express parliamentary endorsement of their use in combination. It would allow better public understanding of the powers which enable the police to stop and test on the basis of clearly stated legislative provisions, while preserving the current safeguards. It would not, however, make any substantive change to current powers.

(iii) introduce unrestricted powers to require a breath test This would allow chief constables the complete discretion which they seek and would allow a police officer to stop and to require a breath test from any motorist at any time. This would in theory permit random testing, although it is likely that the powers would be exercised in a targeted way. It would provide an enhanced deterrent in the knowledge that any driver could be stopped and tested at any time. Much would depend on the sensible exercise of discretion by individual officers.

I welcome views on these three options. Anyone who wishes to comment may do so in writing to F5 division in my Department at 50 Queen Anne's Gate, London SW1H 9AT, by 30 April 1989.