England and Wales Court of Appeal (Criminal Division) Decisions

MICHAEL JOSEPH BUTLER v. DIRECTOR OF PUBLIC PROSECUTIONS [2000] EWCA Crim 76 (20th December, 2000)

Case No: CO/2529/2000

IN THE SUPREME COURT OF JUDICATURE

DIVISIONAL COURT

ON APPEAL FROM JUSTICES FOR THE N.E. LONDON

COMMISSION AREA (PETTY AREA OF HAVERING

Royal Courts of Justice

Strand, London WC2A 2LL

Wednesday 20^th December 2000

LORD JUSTICE MAY:

1. This is an appeal by Case Stated from a decision of justices sitting at the Magistrates' Court in Romford on 30^th March 2000. It raises yet further questions as to the procedure which is necessary to comply with the provisions of the Road Traffic Act 1988 relating to the provision of specimens of breath, blood or urine in the course of an investigation into whether a person has committed a driving offence concerned with alcohol or drugs.

2. On 30^th March 2000, the justices heard an information alleging that the appellant had, on 14^th November 1999, at Main Road, Romford, driven a motor vehicle on a road after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit, contrary to section 5(1)(A) of the 1988 Act and Schedule 2 to the Road Traffic Offenders' Act 1988.

3. The facts found by the justices were, in summary, as follows. On 14^th November 1999, the appellant was driving a motor car on a road and, after a positive roadside test, he was arrested and taken to Romford police station. The Custody Sergeant received him into custody at 10.07 p.m. and opened a custody record. The appellant was asked whether he was suffering from any medical condition. He replied: "immune system breakdown". This was entered into the custody record and Dr Pruss, the Police Forensic Medical Examiner, was called to the police station. He arrived and saw the appellant at 10.17 p.m. After seeing the doctor, the appellant was returned to the custody area, where the Custody Sergeant started the procedure requiring him to give a breath sample. It was conceded on behalf of the appellant that this procedure was correctly followed. However, during the procedure and before the appellant had provided any breath sample, at 10.20 p.m. he complained of chest pains and was immediately taken to see Dr Pruss. After the appellant had seen Dr Pruss, the Custody Sergeant started the breath sample procedure again. He explained the procedure in full to the appellant, requiring him to provide two specimens of breath for analysis by means of an approved device. The appellant agreed to do so. He was taken to the appropriate room, where he started to complain that he wished to see Dr Pruss again. The Sergeant pointed out that he had already seen Dr Pruss twice and that Dr Pruss had on each occasion found him fit to carry out the procedure. The Sergeant told him to blow on the machine, but the appellant got up and tried to leave the room. At that stage, Dr Pruss appeared at the door of the room and the appellant grabbed hold of his wrist and then fell to the floor. As a result of this, he was taken by ambulance to Oldchurch Hospital. The breath procedure had not been completed at the police station.

4. Police Sergeant Claire Cornish later went to Oldchurch Hospital and started the procedure for requiring a specimen from the appellant. Dr Damion Thomas was the medical practitioner in immediate charge of the appellant at the hospital. He was present when Sergeant Cornish, in the presence of the appellant, sought his views as to whether a specimen of blood or urine could be taken. Dr Thomas had no objection to a specimen of blood or urine being taken. He was not told that at the police station the appellant had stated that he had a medical condition "immune system breakdown" nor was he told of any current medication which the appellant was taking. There was no direct evidence to establish whether Sergeant Cornish knew that the appellant had said at the police station that he suffered from "immune system breakdown". But her written statement, admitted under section 9 of the Criminal Justice Act 1967, inferentially indicated that she had or was aware of his custody record on which, as I have said, this information was recorded. It was not established that she did not know and I proceed on the basis that she did. The justices found that, if Dr Thomas had been aware that the appellant had said he suffered from "immune system breakdown" or of his current medication, it would not have influenced his decision to authorise the taking of a blood or urine sample. In these circumstances, the appellant consented to providing a blood specimen. Its analysis showed that it contained alcohol in excess of the prescribed limit. The justices heard submissions on the matters which are the subject of this appeal which they decided in favour of the prosecution. They accordingly convicted the appellant. They imposed a fine, ordered him to pay some costs, ordered his licence to be endorsed and made an order disqualifying him from holding or obtaining a driving licence.

5. The appellant's grounds of appeal essentially are that two errors of procedure invalidated the taking of the blood specimen. The first error contended for is that Sergeant Cornish should have informed Dr Thomas that the appellant had said at the police station that he was suffering from "immune system breakdown", this was a potential medical reason why a blood specimen should not be authorised. The second error contended for is that Sergeant Cornish should not have asked for Dr Thomas' consent in the appellant's hearing.

6. Section 7 of the Road Traffic Act 1988 provides:

(1) In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and of section 9 of this Act, require him -

(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or

(b) to provide a specimen of blood or urine for a laboratory test.

(2) A requirement under this section to provide specimens of breath can only be made at a police station.

(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; ...

(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section, the question whether it is to be a specimen of blood or a specimen of urine should be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.

(5) ...

(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.

(7) A constable must, on requiring a person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."

7. Section 9 of the 1988 Act provides:

"(1) While a person is at a hospital as a patient he shall not be required to provide a specimen of breath for a breath test or to provide a specimen for a laboratory test unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement; and -

(a) if the requirement is then made, it shall be for the provision of a specimen at the hospital, but

(b) if the medical practitioner objects on the grounds specified in sub-section (2) below, the requirement shall not be made.

(2) The ground on which the medical practitioner may object is that the requirement of the provision of a specimen or, in the case of a specimen of blood or urine, the warning required under section 7(7) of this Act, would be prejudicial to the proper care and treatment of the patient."

8. It is clear that sections 7 and 9 of the 1988 Act provide for specimens for analysis to be taken at a police station or at a hospital. There are differences of required procedure depending on where the specimen is required. Section 7(3) clearly shows, in my view, that, apart from section 7(2) which only applies to breath specimens required to be taken at a police station, section 7 applies to specimens required to be taken at a hospital, as well as to those required to be taken at a police station. Section 9 imposes additional requirements for specimens required to be taken at a hospital. I imagine that the underlying facts of the present appeal are comparatively unusual, in that the appellant was first taken to a police station where a requirement for specimens of breath was made, before he was later taken to a hospital where there was a requirement for a specimen of blood. More often, perhaps, those who are at a hospital will have been taken there directly after an accident in which they were injured.

9. There is a number of points of contrast between the requirements of section 7(4) and those of section 9. Section 7(4) applies where a specimen of blood or urine, but not breath, is to be required and the question is whether the specimen should be of blood or urine. It is for the constable to make that decision, but there are circumstances in which the constable has to consult a medical practitioner. If the medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken, the specimen has to be a urine specimen and the constable is obliged so to decide. The medical practitioner is brought in for the specific limited purpose required by section 7(4). Except to that limited extent, the person under investigation is not a patient in the general care of the medical practitioner. Under section 9, however, the medical practitioner is in immediate charge of a patient in hospital. The practitioner's involvement in the taking of a specimen is therefore incidental to his general care of the patient. The medical practitioner has to be notified of the proposal to require the patient to provide a specimen. The section enables the medical practitioner to object, in which event the requirement is not to be made. The ground of objection is that what is proposed would be prejudicial to the proper care and treatment of the patient. Section 9 does not distinguish between a proposal to require the patient to provide a specimen of blood or of urine. They are lumped together. The statutory grounds of objection are that the requirement or the provision of a specimen (including, in this instance, a specimen of breath) would be prejudicial to the proper care and treatment of the patient. In addition, for a proposed specimen of blood or urine, but not of breath, it is a ground of objection if the medical practitioner considers that the warning that a failure to provide a specimen may render the patient liable to prosecution would itself be prejudicial to the proper care and treatment of the patient. Decided cases have indicated that this might arise if, for instance, the warning of possible prosecution might risk precipitating a heart attack.

10. There is no dispute between the parties to the present appeal as to the relevant procedure required by section 7(4) as interpreted in decided cases, where there is a requirement for the person under investigation to provide a specimen of blood or urine at a police station and the question is whether it should be blood or urine. If the constable is considering requiring a specimen of blood, he should ask the driver if there are any reasons why a specimen cannot or should not be taken from him by a doctor (see DPP v. Warren [1993] AC 319 at 328B). If the constable is aware of a potential medical reason why a specimen of blood cannot or should not be taken, the constable has to consult a medical practitioner, informing the medical practitioner of the potential medical reason. If the constable does not do this and a specimen of blood is subsequently taken, the procedure is invalidated (see Wade v. DPP [1996] RTR 177; DPP v. Jackson [1999] 1 AC 406; and Johnson v. Chief Constable of West Yorkshire [1986] RTR 167). In the present case, the appellant was not required to give a specimen of blood at the police station. He was required to give a specimen of breath, although the procedure for doing this was incomplete. He had, however, given to the Custody Sergeant what is accepted to have been a potential medical reason, recorded in the custody record, which might have led a medical practitioner to conclude that a specimen of blood could not or should not be given. Accordingly, if there had been a proposal in the present case to require a specimen of blood or urine at the police station, it would have been necessary for the constable to inform the medical practitioner there that the appellant had said that he was suffering from "immune system breakdown" before deciding whether the specimen should be of blood or urine. The appellant's submission in this appeal is that the same applied when the appellant was required to provide a specimen of blood at the hospital. The fact that Sergeant Cornish did not give this information to Dr Thomas invalidated the subsequent taking of the specimen of blood.

11. Miss Bignall, on behalf of the respondent, essentially submits that the procedure which I have described under section 7(4) and the authorities from which it is derived apply to the requirement of specimens of blood at a police station, and that section 9 of the 1988 Act makes specific statutory provision for the procedure to be followed at hospital. It requires the medical practitioner in immediate charge of the patient to be notified of the proposal to request a specimen of blood or urine. The medical practitioner, who is in general charge of the patient, is able to object on grounds that the procedure, including the warning of possible prosecution, would be prejudicial to the proper care and treatment of the patient. A medical practitioner in these circumstances may be supposed to be able and obliged to make all necessary enquiries to elicit information relevant both to the general care of the patient and to the advisability of the specific proposal to require a specimen for analysis. The information available to the medical practitioner will thus include, but probably not be limited to, anything which a constable might elicit by following the procedure required at the police station. There is accordingly no sense in obliging a police officer at a hospital to tell the medical practitioner of any potential medical reason which has come to the attention of the police. The justices accepted the substance of this submission and convicted the appellant on the strength of it.

12. Miss Bignall relies for her submission principally on the judgment of Buxton J (as he then was) in R. v. Burton upon Trent Justices, ex parte Woolley [1995] RTR 139. In that case, the Queen's Bench Divisional Court held that where a requirement to provide a specimen was being made of a driver at a hospital, there was no obligation to inform him why a specimen of breath could not be taken or for him to be asked specifically whether there was any reason based on medical grounds why a specimen of blood should not be taken. It was sufficient for the driver to be asked simply whether there was any reason why the specimen of blood should not be taken from him. That question, taken with the requirements of section 9 of the 1988 Act, amply fulfilled the objective that the motorist must have the opportunity to raise any objection he might have to giving blood, either on medical grounds or for any other reason which might afford a reasonable excuse under section 7(6) of the Act. Buxton J said on page 149:

"In these cases, therefore, the purpose of the "medical" inquiry is to bring about the involvement of a doctor where a medical opinion is or may be required under section 7(4). But in the hospital case such a purpose is otiose. By definition, and by the specific terms of section 9 of the Act of 1988, before the requirement can be made at all it has to be positively approved by a doctor; and, moreover, not merely by any doctor, but by the practitioner in immediate charge of the driver's case. In these circumstances, when that doctor has to give separate approval, it seems strange indeed that a (in medical terms) non-professional police officer should be required to ask the patient again whether he, the patient, claims medical exemption, and then (presumably) adjudicate on whether that claim should be referred back to the doctor. I have not overlooked Mr Cooper's point that there might be some medical issue that the driver had not mentioned to his doctor, as not being relevant to the treatment that he was receiving in the hospital, that might nevertheless be relevant to the different question of whether he should give a specimen of blood. But one can surely assume, and Parliament may be taken to have assumed that the practitioner, before performing his function under section 9 will have satisfied himself by inquiry of his patient (who may be expected to be at least as forthcoming on these issues to his doctor as to a police officer) that he can properly give consent."

13. I see the force of Miss Bignall's submission on this short point, but, in my view, Mr Ley's submission on behalf of the appellant is to be preferred. The passage from Buxton J's judgment in Woolley deals with circumstance which are different from, although related to, those which arise in this appeal. It would be otiose if the legislation required the police officer to make in hospital a general medical inquiry when the medical practitioner in immediate charge of the patient may be expected to make that and other inquiries. It would not, I think, be otiose, if the legislation requires a police officer, who knows that the patient has, in the context of a proposal to take a specimen, articulated a potential medical reason for not taking a specimen of blood, to tell the medical practitioner in the hospital of the potential medical reason. There is, in my view, a difference between making an unnecessary general inquiry and passing on potentially relevant specific knowledge which you actually have. That is not otiose, even though in many cases (but not this one) the doctor's own inquiry might elicit the same information. This conclusion also accords with the structure of and relationship between sections 7 and 9. As I have indicated section 7(4) does apply (as well as section 9) to cases where there is a proposal to require a specimen of blood or urine at a hospital. The authorities show that, before a constable decides whether the specimen should be of blood or urine, he has to consult a medical practitioner, if he is aware of a potential medical reason affecting that decision. He necessarily has to inform the medical practitioner of the potential medical reason. The question under section 9 - whether a specimen should be required - is not the same as that under section 7(4) - whether the specimen should be of blood or urine.

14. In my judgment, therefore, the procedure required by the legislation was not followed in this case. The same authorities indicate that a specimen so obtained is not admissible in evidence. The conviction based on it must be quashed and the appeal allowed.

15. Accordingly it is not strictly necessary to consider the second point - whether the procedure was invalidated because Sergeant Cornish asked for Dr Thomas' consent in the appellant's hearing. I shortly record my view that on this issue we should follow the decision of the Divisional Court in Oxford v. Lowton [1978] RTR 237, as did the justices in the present case. In Oxford v. Lowton the Divisional Court considered section 8(2) of the Road Traffic Act 1972, which has since been amended to reverse the House of Lords decision in Foulkes v. Baker [1975] 1 WLR 1551. The decision was that section 8(2) of the 1972 Act did not require the notification to the doctor by the constable of his proposal to require a specimen to be made in the patient's absence. Wien J gave the leading judgment. He found no justification at all for reading the section as requiring the notification to take place in the patient's absence. Lord Widgery C.J. agreed. Neither judgment refers explicitly to R v. Walters [1972] Crim.LR 381, a decision of Bridge J which reached the opposite conclusion. But the case stated explicitly referred to that and other cases, which the Divisional Court must have taken into account.

16. In my judgment, therefore, the essential answers to the questions asked by the justices and raised in this appeal are:

(a) that, contrary to the justices decision, in the unusual circumstances of this case, Sergeant Cornish was required to inform Dr Thomas that the appellant had said that he suffered from "immune system breakdown"; and

(b) that the justices correctly decided that there was no requirement to be derived from the 1988 Act that Sergeant Cornish had to notify Dr Thomas of her intention to require a specimen the failure to provide which would render the appellant liable to prosecution in the appellant's absence.

17. For these reasons I would allow the appeal and order the conviction to be quashed.

MR JUSTICE JACKSON:

I Agree.

LORD JUSTICE MAY: For the reasons given in the written judgments which have been handed down, the questions asked by the justices in this case are answered as in paragraph 16. The appeal is allowed and the conviction is quashed.

Mr Ley, that is subject to, I think, a couple of tiny errors. There is one in paragraph 9, please, where in the second line section 7(4) "applies", rather than "applied".

MR LEY: I am much obliged to your Lordship.

LORD JUSTICE MAY: I think you have a point about paragraph 15, do you?

MR LEY: Yes, my Lord. Whereas section 9(2) occurs, it should be section 8(2), my Lord.

LORD JUSTICE MAY: Yes, I have not been able to check that. I suppose we do not have that in Court, do we?

MR LEY: No, my Lord, we have not. But they will presumably have the statutes in Court.

LORD JUSTICE MAY: It is the 1972 Act?

MR LEY: The Road Traffic Act, my Lord.

LORD JUSTICE MAY: Do you by any chance have 1972? No.

MR LEY: It will not be in Halsbury.

LORD JUSTICE MAY: It will not be in Halsbury. Do not worry, we will check this.

MR LEY: What happened, my Lord, was that it was originally section 8(2).

LORD JUSTICE MAY: Right.

MR LEY: Then the Transport Act in 1981 amended it --

LORD JUSTICE MAY: Right.

MR LEY: -- wholly. Then section 8(2) became section 9(2) in the amendments, but only after the Transport Act of 1981 came into force.

LORD JUSTICE MAY: Right, so both references in paragraph 15 should be section 8(2)?

MR LEY: Yes, my Lord.

LORD JUSTICE MAY: Thank you very much. We will make that change.

MR LEY: I do not know whether your Lordship wishes to add on "now section 9(2) of the Road Traffic Act 1988", should other people read the judgment, my Lord.

LORD JUSTICE MAY: I do not think it is necessary. I think people will find that out. Thank you very much.

MR LEY: My Lord, I would ask for costs out of central funds here and below.

LORD JUSTICE MAY: I think that must follow, thank you very much. Here we are, we have it, wonderful. That confirms what you have said, thank you very much.