England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CARDIFF
JUDGE MORTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/07/2008

Lord Justice Scott Baker :

Reasons for decision.

1. On 9 June 2008 we dismissed Julian Bryan's appeal against conviction and sentence. We reserved our reasons which we now give.
2. On 30 March 2007 the appellant Bryan, who is now aged 36, was convicted in the Crown Court at Cardiff before Judge Morton of (i) causing death by careless driving when over the prescribed drink drive limit and (ii) doing an act tending or intended to pervert the course of justice. He was sentenced to 7 years imprisonment and 18 months to run concurrently, disqualified from driving for 7 years and ordered to take an extended retest. A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967 on a count of intimidating a witness. No separate penalty was imposed in respect of two other road traffic offences.
3. His applications for leave to appeal against conviction and sentence were referred by a different division of the Full Court on 12 February 2008.

Facts

4. On 21 November 2005 at about 1.15am a Ford Fiesta was travelling west along the M4 approaching junction 36, the Sarn Interchange, when it left the carriageway and collided with a safety fence. It overturned and hit a tree. There were three people in the car, the appellant, Sherifa Abdul and Louis Sultana. Louis Sultana, who was sitting alone in the rear, was killed instantly. The Crown's case was that the appellant was the driver of the car. The defence case was that he could not remember whether he was driving or not and he put the prosecution to proof. The issues for the jury were whether he was driving the car at the time and whether the blood sample was properly obtained. On the perverting offence the issue was whether he told Ms Abdul to tell the police that he was not the driver.
5. Keith Cole was the first person to arrive at the scene. He saw the overturned car and went to assist. A young girl (Ms Abdul) appeared. He was not sure where she had come from but realised it must have been from inside the car. She was hysterical and kept saying: "he's dead, he's dead". He could smell alcohol on her breath. He also saw a young man (the appellant) who looked dazed. With the girl he tried to pull the third occupant (the deceased) from the car. The appellant told him that five people had been in the car. The man and girl were arguing.
6. When the emergency services arrived, both the appellant and Ms Abdul were hysterical and shouting and told the officers that the driver and another passenger had fled the scene. A search began with a helicopter and dogs. Ms Abdul and the appellant were taken to hospital. P.C. Clift was one of the officers who dealt with them at the hospital. He was informed by a senior officer that the appellant and Ms Abdul were both under suspicion of being the driver of the car. His evidence was that he obtained approval from the hospital doctor that blood specimens could be given and specimens were taken from both Ms Abdul and the appellant with their consent.
7. At 5.45am, when she was about to leave the hospital, Ms Abdul asked to speak to P.C. Clift again, saying she had not told the truth earlier, that the appellant had been driving and there were only three of them in the car. The appellant had told her not to tell anyone this. The appellant's blood alcohol level was between 170 and 235mg per 100ml. This is between twice and three times the legal limit.
8. Dr Patel, a police surgeon for 19 years, was the doctor who took the blood samples from the appellant and Ms Abdul. He was called as a prosecution witness. Apart from a vague recollection of the appellant being a little aggressive, he had no independent recollection of carrying out the blood test procedure, although it was his invariable practice to follow the procedure set out in the relevant form.
9. Ms Abdul was the girlfriend of the deceased. Her evidence was that they had spent the day and evening together. At the end of the evening the appellant asked her to drive as she was not drunk. The deceased intervened, saying she was not to drive. They then set off with the appellant driving and herself and the deceased in the rear. At one point they gave a lift to three youths and the appellant began showing off by doing handbrake turns. The youths then got out and Ms Abdul got into the front passenger seat. She could not see clearly outside because it was misty, but shortly into the journey the car suddenly went up an incline and overturned. When she saw the deceased was motionless she began screaming. The appellant grabbed her and told her she was to say there were others in the car and he had not been driving.
10. The deceased's brother, John Sultana, was in the appellant's company over the course of that day and evening. His evidence was as follows. The appellant drank a variety of alcoholic drinks, including Budweiser and Vodka during that time. The deceased had drunk some alcohol too but he could not say how much. When the group was ready to leave the Railway public house Ms Abdul offered to drive and either sat in the driver's seat or stood next to it. The appellant, however, insisted that he would drive. John Sultana saw the car heading for the motorway with the appellant in the driver's seat, the deceased in the passenger seat and Ms Abdul in the rear. There were three other males in the car which went up the road towards the motorway and that was the last he saw of it.
11. John Sultana set off with friends in another car and telephoned the deceased several times, but he was only able to speak to him on the first call. He was concerned about the situation and the way in which the Ford Fiesta was being driven. The appellant's driving was, he said, atrocious and on at least two occasions in the past the appellant had taken the wrong exit from the roundabout. The appellant's brother told John Sultana he had taken the wrong turning that night.
12. In cross-examination John Sultana accepted that in his statement he said he saw Ms Abdul take the Fiesta keys from the appellant saying she would drive, and when the car left the car park at the public house he did not see who was driving.
13. When interviewed on 6 February 2006 the appellant told the police that he had drunk one vodka and two pints. He could remember very little of the evening's events and could not say whether or not he had been driving. In evidence he said he had only intermittent memory of what had occurred that evening. He had no idea how much alcohol he had drunk and could remember less about events by the time of the trial that he could at the time of his interview.
14. The defence called Dr Bansul, the hospital doctor responsible for dealing with the appellant. He could not remember the appellant as a patient but had a vague recollection that he was anxious and agitated. He had never been asked on any occasion if a patient was fit to give blood. He carried out the standard procedure which lasted 30 to 45 minutes.
15. The appellant's girlfriend and mother both gave evidence that the appellant agreed to give blood and that no warning was given about the consequences of not doing so.

Grounds of appeal.

16. The main focus of the appeal against conviction, and the one ground on which we have given leave, was ground five the substance of which is that the judge misdirected the jury in telling them that the prosecution did not have to prove as a matter of law that the medical practitioner in immediate charge of the appellant had been notified of the proposed statutory requirement to give blood and had been asked for his consent. The passage complained of in the judge's summing up is as follows:

"The prosecution do not as a matter of law have to prove Dr Bansul's consent was obtained. The law requires the consent of the doctor who took the sample. That is Dr Patel. However, getting the hospital doctor's consent is universal good practice and form C allows for this to be done. Getting Dr Bansul's consent is, however, not a red herring. The point the defence can make is this. If P.C. Clift did not follow the form C and obtain Dr Bansul's consent, then it makes it more likely that P.C. Clift did not follow form C and read out the warning that must be given to the defendant. The warning that has to be given by law is that set out at C22 on form C."

17. To put the point in context it is necessary to say a little about the background and how the case progressed. There was an earlier trial before Judge Vosper that was aborted. At the commencement of that trial, before the prosecution opened the case, there was a discussion with the judge about Dr Bansul attending court as a witness, he having recently signed a witness statement. The reason that the defence wanted Dr Bansul was because there was a conflict between his evidence and that of P.C. Clift as to whether Dr Bansul, as the treating doctor, had been notified of the proposal to take a specimen of blood from the appellant and had not objected. P. C. Clift said he had asked Dr Bansul; Dr Bansul said he had no recollection of ever having been asked such a question on this or any occasion. This was important to the defence because, if P.C. Clift did not ask Dr Bansul whether he objected, it made it more likely that he never gave the appellant the appropriate warning under section 7 of the Road Traffic Act 1988 about the consequences of failing to give a blood sample and that therefore the blood/alcohol evidence was not properly obtained and could not be relied on.
18. It is important to have in mind that both in the aborted trial before Judge Vosper and in the subsequent trial before Judge Morton the defence were concerned with the consequences of a possible breach of section 7 of the Road Traffic Act 1988 in the light of Murray v DPP [1993] RTR 209 rather than with any direct consequences of a breach of section 9 of that Act which was only referred to obliquely. The defence concern was with the absence of a warning under 7(7).
19. It was not argued on a voir dire that the evidence of the blood sample should not, as a matter of law, go before the jury because it had been improperly obtained, but the defence case before the jury was that it had not been properly obtained and that the prosecution could not therefore prove the appellant was over the limit. This was the way it was left by the judge:

"Lastly the prosecution must prove the Defendant's blood alcohol level was over 80mg in 100ml of blood. Provided they prove it was over 80 the prosecution do not have to prove the figure of 170 set out in the indictment. However they must do that by way of blood sample that was properly obtained."

20. Dr Bansul did not give evidence in the aborted trial before Judge Vosper but he did give evidence in the trial before Judge Morton. No point was taken before Judge Morton that the evidence of the blood sample was inadmissible because there had been a breach of section 9 of the Road Traffic Act 1988. Section 9, so far as material, provides:

"(1A) while a person is at a hospital as a patient, no specimen of blood shall be taken from him under section 7A of this Act and he shall not be required to give his permission for a laboratory test of a specimen taken under that section unless the medical practitioner in immediate charge of his case –

(a) has been notified of the proposal to take the specimen or to make the requirement; and

(b) has not objected on the ground specified in sub-section (2).

(2) the ground on which the medical practitioner may object is-

………..

(b) in a case falling within subsection (1A), that the taking of the specimen, the requirement or the warning required by section 7A(5) of this Act would be so prejudicial."

21. When P.C. Clift gave evidence he said he asked the doctor in charge of both the appellant and Ms Abdul whether blood could be taken from them and the reply was in the affirmative. The request was made in the Accident and Emergency department, although he could not remember precisely where. Once he had got the authority from the treating doctor he got the consent of the appellant (and Ms Abdul) and then contacted the police surgeon Dr Patel through the police control room. In cross-examination he said that there was no point in contacting the duty police surgeon to come to the hospital unless he already had clearance from the doctor in charge to take blood and the appellant agreed. This was standard practice.
22. As we have said, no submission was made to the judge that the evidence of the sample was inadmissible because Dr Bansul had not been asked if he had any objection. The whole focus of the defence case was that the appellant had not been warned about the consequences of the failure to give blood under section 7(7) of the Act.
23. When Dr Bansul gave evidence he said he was unable to remember whether he had occasion to speak to a police officer when he was treating the appellant. He could not remember any case in which he had been approached by a police officer and asked if the patient was fit to give blood. He was then asked:

Q: "At any time have you ever had to deal with such a case?"

A: "No – no police officer has ever asked me whether he wants to, because normally we do take blood and this was, whenever the police require blood they could have asked me but I don't remember anything of that."

Pressed on this particular case and whether he might have been approached and forgotten he said:

"It's been a long time and unless there is documentary evidence I can't remember any of that sort of incident."

24. So, it seems to us, the thrust of his evidence was more that he had no recollection than that he was saying categorically that P.C. Clift had not asked him.
25. As Mr Leathley admitted, he was making an out and out attack on P.C. Clift and the section 9 issue was but a small part of it.
26. The defence had Dr Bansul's statement in their possession from the start of the aborted trial. They had the opportunity to take the point that because section 9 had not been complied with the blood sample was inadmissible. They did not do so, but whether it would have got them anywhere if they had seems to us extremely doubtful.
27. The issue whether P.C. Clift had notified Dr Bansul of the intention to take a blood sample was being run by the defence as part of the out and out attack on the officer's evidence. That is why the judge said to the jury that if P.C. Clift did not follow the form C and obtain Dr Bansul's consent, that would make it more likely that P.C. Clift did not follow form C and read out the warning that must be given to the defendant.
28. The judge's observation to the jury that the prosecution do not as a matter of law have to prove Dr Bansul's consent, that the consent required is that of the doctor who took the sample and that obtaining the hospital doctor's consent was good practice only, was erroneous in two respects. In the first place the requirement is mandatory and not mere good practice. Secondly, what is required is not the treating doctor's consent but that he should have been notified of the proposal to take blood and not have objected.
29. It is implicit in the jury's verdict that they accepted the evidence of P.C. Clift; they were satisfied he complied with the requirement of section 7(7). In these circumstances we are satisfied that the judge's errors were immaterial and accordingly there is nothing in the main ground of appeal advanced by Mr Leathley.
30. None of the other grounds in our view warrants leave to appeal and we can dispose of them shortly. The first of those grounds is that the evidence that the appellant was the driver came from but one source, Ms Abdul. We do not accept this. Blood matching that of the appellant was found on the driver's air bag. Bloodstaining was found on the front passenger visor, and close to the position where the visor would have been was a hair (of such a length that it had probably come from a female) imbedded in some blood. John Sultana saw the appellant driving the car away from the Railway public house towards the motorway. The appellant told the police in interview he was not saying he was not driving; his case was he could not remember and he was putting the Crown to proof. In fact at the aborted first trial he made an admission that he was the driver and this was before the jury in the second trial. In truth there was an overwhelming case that he was the driver of the vehicle. It was, anyhow, a matter for the jury.
31. The second ground is that the judge displayed bias in favour of the Crown in dealing with the evidence of John Sultana, who claimed to have seen the appellant driving the vehicle that night. John Sultana was a witness whom the jury obviously had to treat with some caution as he is the brother of the deceased. He said the appellant was taking cocaine in the toilet at the Railway public house. There was evidence that this was not so and defence counsel, rather than seeking to discharge the jury decided the better course was to bring this out. We can understand why he did so.
32. The last time John Sultana saw the car was just after it left the Railway public house. Sultana slipped into his evidence hearsay that the appellant had taken the wrong turning onto the motorway before the crash; he got onto the westbound carriageway when he was intending to go east.
33. In summing up the judge directed the jury to ignore Sultana's evidence about the appellant taking drugs, being habitually a bad driver and taking the wrong turning; it was irrelevant.
34. The third ground is that the judge prevented cross-examination of P.C. Johnson about the identity of the supervising officer who had ordered the blood test kit. We have read the material part of the transcript. The judge had to keep control of the trial. His patience was at times sorely tested by Mr Leathley. The relevant passage concludes with Mr Leathley saying the judge had persuaded him he was wasting his time.
35. The final ground is that the judge weighted his summing up in favour of the Crown. This complaint is not justified. There is nothing in our view in these grounds either individually or collectively.

Sentence

36. The judge imposed a sentence of 7 years imprisonment for driving without due care and attention when over the prescribed limit and a sentence of 18 months imprisonment concurrent for perverting the course of justice. The judge had in mind the authorities, as we have. This was a case that fell into the higher culpability bracket as there described. There were aggravating features. Not only was the appellant at least twice the drink drive limit, he also had a bad driving record including previous convictions for driving whilst disqualified and, on the night of the accident he was driving without insurance and without a licence. Perverting the course of justice by telling the police that the driver and another passenger had fled the scene was rightly treated by the judge as an aggravating feature. It is argued on behalf of the appellant that he was very badly affected emotionally by the accident because he had been very close to the deceased. However, the judge specifically referred to this and it was the only mitigation. The sentence was not manifestly excessive.
37. For these reasons the appellant's appeals against conviction and sentence, insofar as leave to appeal was given, were dismissed.