Further written evidence from the Department
for Transport (DDD 41a)
Thank you for your letter of 19 October asking
a series of supplementary questions for your Committee's inquiry
into Sir Peter North's report on drink and drug driving.
TYPE-APPROVAL
Some of your questions relate to the requirements
for type-approval of equipment used by the police for enforcing
road traffic law. As you will know, this is a matter for the Home
Office. They have provided the attached note which deals with
the technicalities of type-approval, and the some of the legal
issues which explain why we may not be in the same place as some
other Continental countries.
It may assist the Committee if I add to this
note an explanation of how we are trying to make the process of
catching drug-drivers work more effectively. The challenge the
police face under the system we have now in securing a conviction
for driving unfit through drugs is to prove that -
i) the offender was driving;
ii) the offender was impaired so as to be unfit
to drive; and
iii) the impairment was caused by drugs.
The police may arrest where there is evidence
of i) and ii), and the officer has reasonable grounds (not necessarily
a test result) to suspect iii). In the case of drink-driving,
the breath test has supplied a simple fail safe answer for iii);
and the prescribed limit offence has removed ii) altogether, because
no evidence of impairment is required. So the drink-driving procedure
has been simplified—with very beneficial effect.
But all three tests remain for drug-driving.
We know there is a problem with getting the evidence that the
impairment is caused by drugs. Invasive samples are required,
and getting these depends on uncertain procedures involving forensic
medical examiners. The devices we are committed to providing to
the police will solve this problem—because drivers who fail
preliminary tests will be required to give the blood samples required.
As the Home Office note explains, we envisage devices that can
be used in a police station or at the roadside.
It is important that the devices are not open
to challenge—we cannot afford to lose cases because offenders
argue that blood was improperly taken. That is why it is a priority
to issue a type-approval specification and get the devices into
use by the police.
The Committee may find—as Sir Peter North
did—that this is not the only problem we have to overcome.
It is not necessarily straightforward to collect and prove the
required evidence of impairment. Your question about other countries
suggests that the Committee may have identified differences in
their offences and judicial processes. I am sure we would consider
carefully any recommendations you make on these issues.
RESEARCH
You have asked why the Government did not participate
in the EU DRUID or OECD research projects, and to what extent
the decisions may have been due to human rights concerns. You
also asked to what extent we intend to become more closely involved
with current or future international research programmes on drug-driving.
You will appreciate that the decisions about
which you ask were taken under the previous Administration. I
understand that the choice not to participate fully from the outset
in the DRUID project arose from a combination of competing priorities
for limited research resources and the likely limitations of any
UK sample due to difficulties we would face in replicating methodologies
used by other member countries. We were clear, however, that we
would have full access to the results of both projects, and would
therefore be able to learn from other countries.
The department has had a long-standing programme
of research into road safety which has included research on drinking
and driving and drugs and driving. This has involved both national
studies and contributions to international studies. These contributions
have required the use of funds, and staff resource, and access
to available data from this country. In the case of DRUID and
the OECD study, I understand that resource considerations determined
the contribution the Department was able to make. However, in
both cases, we responded fully to requests for information about
available UK data.
In addition, experience of involvement in a
previous EU study (IMMORTAL) identified that other countries had
been able collect samples from fatally and non-fatally injured
drivers. However, it was not possible to get ethical approval
to collect unbiased samples for non-fatally injured drivers in
the UK. The UK case sample therefore consisted only of fatally
injured drivers from post mortem records. This limited the conclusions
that could be drawn from the UK samples. Given this experience,
it was felt that the results from other countries would provide
better evidence on the risks of drug driving than we could collect
ourselves.
The Department was one of 12 countries that
contributed to the assessment by the DRUID team of drink drive
rehabilitation courses. This was based on work by TRL Ltd commissioned
by the Department to co-ordinate a survey of a sample of drink
drive rehabilitation course providers and attendees. This data
was submitted to the DRUID team in 2008 and used for analysis
reported in Validation of Existing driver rehabilitation measures
(2009) at—
http://www.druid-project.eu/cln_007/nn_107534/Druid/EN/deliverales-list/downloads/Deliverable__5__2__4,templateId=raw,property=publicationFile.pdf/Deliverable_5_2_4.pdf
We were not able to participate in the OECD
expert working group on drugs and driving for want of staff resources
and competing priorities, but the report from this project included
our contribution to national surveys of data and evidence on drugs
and driving, which enabled the report to include a cross country
comparison of this issue. The Department has also provided feedback
to early drafts of the report. I understand that the report of
this expert group, "Drugs in Traffic", is scheduled
to be published by the OECD shortly.
The Department continues to keep a watching
brief on the outcome of the DRUID project and will consider future
international collaborations on a case by case basis, subject
to Departmental resources and priorities.
November 2010
NOTE BY
HOME OFFICE
TYPE-APPROVAL
PROCESS FOR
DRUG-TESTING
DEVICES
"Why does type-approval for drug-testing
devices in the UK need to be more stringent than in other countries?"
1. The Home Office is developing type approval
arrangements for drug testing devices for use by the police in
relation to drug driving. Initially, it is intended that such
devices will be installed at police stations. We have issued a
draft specification for comment by the manufacturers, which we
are now considering. In parallel, we are exploring the requirement
for a drug testing device at the roadside, and the type approval
specification which would be needed. It will only be possible
to judge how stringent the Home Office requirements are in practice
when the type-approval specification has been finalised, and devices
have been submitted and assessed.
2. We have a legal requirement in primary
legislation that any drug screening device for use in suspected
drug driving cases must be specifically type approved by the Secretary
of State (the Home Secretary). This is the same requirement as
has long applied to screening and evidential breath test instruments,
speed and red light cameras, and other devices.
3. Type-approval has been developed as a
rigorous process for police equipment to overcome the scope our
Courts allow offenders to challenge process. Road traffic law
against drink-driving, speeding, and some other offences, has
been beset by successful challenges on the basis that something
was wrong—or unproven—about the equipment the police
used to detect the offence. These challenges are not confined
to equipment used for evidential purposes: questions about screening
equipment have also derailed cases.
4. The answer—first adopted for breath
testing equipment—is to provide in law that, if a device
the police has used is of a type that has been approved, and has
been used properly, its use and results cannot be challenged.
This concept has then been built into subsequent legislation to
avoid the risks of successful challenges against speed and other
camera equipment. The fact that type approvals for various equipment
has been subjected to rigour tests sets the standard of stringency
for any further equipment—such as drug screening devices.
Otherwise, there is a risk of compromise of the principle of type-approval.
5. The purpose of this type approval system
is to ensure that the courts can have confidence in the results
the devices produce and in actions based on those results, because
the devices have been proved to be reliable, consistent, accurate
and precise. Without type approval, it is likely that scientific
evidence on the device's performance would have to be given separately
in every case, with consequent heavy demands on the police, police
suppliers and the criminal justice system.
6. If the Courts are to accept this degree
of constraint, and the type-approval is not itself to be open
to legal challenge by way of judicial review, specifications have
to be stringent. Equipment must be reliable, consistent, accurate,
and precise; working to standards that have been endorsed on an
objective basis by relevant experts. This includes operational
and laboratory tests. For example, a device which produces a high
rate of false negatives (so that drivers who have taken drugs
are not caught by the device) has the virtue that it catches some
offenders; but they can be expected to win challenges in our Courts
on the grounds that other, equally impaired, drivers are getting
off because the testing device is not consistent or reliable.
Besides, if a large number of drug users are known to be avoiding
getting caught then an approach could lose credibility. Conversely
a high number of false positives (where the kit find drivers as
having a drug present, which is then not confirmed by the evidential
blood test) this could lead to legal challenges over false arrests.
If a high standard is not set, the type-approval itself could
also be subject to judicial review.
7. Type approving devices without requiring
them to meet the strict requirements proposed would be liable
to judicial review as being irrational and distorting the market
by unfairly favouring manufacturers whose existing devices could
not meet the requirements over those whose future devices might.
It could also lead to repeated court challenges, eg on the grounds
that there was no justification for the police action in requiring
a blood specimen and that other equally impaired drivers were
not being prosecuted because of a negative reading. Challenges
against drug screeners would also be likely to bring the entire
type approval procedure into disrepute and lead to challenges
against other type approved devices, with a very significant effect
on other police enforcement operations. Repeated challenges
in the courts would have very considerable resource implications
for the police and court system. Most cases are heard in the magistrates'
courts, so a decision in one case is not binding in any other:
so that winning one case would set no precedent that could be
relied on against further challenges to the police.
8. Police operational requirements are different
in other countries and significantly not all countries have a
type-approval system like ours; nor do they have the same judicial
system and the opportunities our legal process offers to defendants.
Other countries do not offer the same opportunities for judicial
review or for challenges to prosecutions based not on disproving
the accusation but demonstrating that there were insufficient
grounds for the prosecution, or that prosecution was unjustified
because arbitrary. In this country, challenges have regularly
been made against both screening and evidential breath test devices
but have consistently been unsuccessful because of the rigid type
approval regime that applies here.
How does the Government respond to the view that
the types of preliminary roadside drug screening devices used
in other countries are sufficient for UK roadside screening—because
they are screening devices and not evidential?
9. It is significant that our current law
requires proof of impairment from any drug, not proof of the presence
of a drug. A drug may be present but not causing impairment
because of the time since it was taken, or the subject's level
of tolerance, or other conditions. Some countries where
drug screening devices are used have an absolute offence of driving
with a specified drug in the body- whether there is any evidence
that it is impairing the driver or not. A screener therefore has
only to detect that drug, even at levels which might not be impairing.
10. As previously explained, it may not
be helpful to cite foreign comparisons where there is a different
judicial context—and even a different offence. In
this country, devices must be properly type approved, and the
police need to be able to demonstrate that they are acting legally
in requiring someone to take a test using it.
November 2010
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