England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		24th April 1997

MR JUSTICE POPPLEWELL: This is an appeal by way of case stated against a decision of the Justices for the County of Durham who on 22nd September 1996 convicted the appellant of an offence under Section 7(6) of the Road Traffic Act 1988, in that he failed to provide a specimen of urine for analysis on 22nd January 1994.

The Justices found the following facts.

"(a) The defendant John William Barnes was the driver of a Ford Fiesta motor vehicle registration number XFD 890X at Waltham Terrace, New Bromsgrove, on 22nd January 1994. (b) The Ford Fiesta had been in collision with a line of parked cars causing damage to the Ford Fiesta and three other vehicles. (c) Shortly after the accident an ambulance arrived at the scene. The person in the back of the ambulance was identified as the driver of the Ford Fiesta. That person was John William Barnes the defendant. The defendant was taken to Driburn Hospital and discharged himself around 1 a.m. the following morning. (d) The defendant was then arrested by Police Constable McConnell and taken to Durham City Policy Office. (e) The defendant gave his name at the Police Office as John William Hawkins born on 10.9.64. (g) Sgt. Lakenby (now Inspector Lakenby) was the custody sergeant and he authorised the detention of the defendant to ascertain if an offence under Section 4 or 5 of the Road Traffic Act 1988 had been committed. The sergeant commenced what is known as the traffic 5 procedure at 1.30 a.m.

(g) The Camic machine at the police office was not properly calibrated and the Sergeant had to request a specimen of blood or urine. The Sergeant decided to request a specimen of blood, the defendant having already informed the Sergeant that he had a phobia about needles and would not provide blood. (h) Having been so requested by the Sergeant the defendant replied "I am sorry I couldn't supply a specimen of blood for medical reasons." (i) The Sergeant then spoke to the Police Surgeon for advice and decided to request a specimen of urine from the defendant. The defendant agreed to supply a specimen of urine at 1.55 a.m. (j) At 2.10 a.m. the defendant after two visits to the lavatory refused to supply a specimen and said he wanted to go home. (k) The defendant failed without reasonable excuse to provide a specimen of urine, having been required to do so pursuant to Section 7 of the Road Traffic Act 1988."

The Justices having recited the evidence then said:-

"At the conclusion of the case for the prosecution a submission of no case to answer was made on behalf of the defendant. The submission was made on two limbs, firstly that there was insufficient evidence to lead to a finding that the man in the dock was the same man that had been arrested and taken to Durham City Police Office on 23rd January 1994. The second limb was that the custody sergeant had departed from the procedure outlined on the Traffic 5 form and the Road Traffic Act 1988 and therefore the procedure was fatally flawed. We rejected both of these submissions and found the defendant did have a case to answer. The defendant did not give evidence or call any evidence."

Put shortly the two grounds submitted to the magistrates and presented to this Court were firstly that the identification of the defendant in particular the dock identification was inadmissible and secondly that under Section 7 of the Road Traffic Act 1988 the Police Officer having requested a specimen of blood which was refused, it was not open to him then to request a specimen of urine.

We deal with the two points in the order in which they were argued.

1) Identification.

The incident to which this information gave rise, took place on 22nd January 1944. 7 Informations were laid against John William Hawkins on 11th May 1994. On 10th August 1994 the prosecution made application for a warrant of arrest for the defendant and a warrant was issued in his name. He was born on 10.9.64. On 25th March 1996 John William Barnes, date of birth 9.10.64 was brought before the Court on a production order. An application was made to amend the summons in the name of John William Barnes born 9.10.64.

On 29th April 1996 the prosecution applied to amend the information for failing to supply a specimen of blood to read "failing to supply specimen of urine contrary to Section 7(6) of the Road Traffic Act 1988". The application was opposed by the defence but granted. The hearing before the Justices was on 13th November 1996. The only evidence that the defendant John William Barnes was the driver of the vehicle concerned, and was the person who was required to provide a specimen, was that of Detective Constable Gibson. The Justices recorded this:- "Detective Constable Gibson attended the scene of the accident at 11.40 p.m. on 22nd January 1994. At the Police Office the man who had been arrested gave his name as Hawkins. The Officer was present when the man was interviewed. The Officer could not recall the man he saw in the back of the ambulance but he was certain that the man in the dock was the man he had interviewed that night. In cross examination the Officer stated he could remember this particular defendant as they did not get on very well in interview and that "you tend to remember the defendants who give you hassle". In re-examination the Officer stated that he could remember the appearance of the defendant, the only difference being the defendants hair was a little shorter today". The Justices said:- "We were of the opinion that in the light of all the evidence and the submissions made, that the man arrested and taken to the Police Station on 23rd January 1994 was the defendant before us. The name and date of birth given was similar. The christian names were identical but the surname was different and the first two figures of the date of birth were reversed. We accepted the evidence of DC 777 Gibson that he could remember the defendant because of his manner when interviewed."

The other evidence which was before the Court was that at the Police Station the man in the Police Station denied being the driver of the Ford Fiesta involved in the accident at Walton Terrace. There is no evidence that any identification parade was in fact ever held, nor is there any evidence that John William Barnes when charged, either made any admission as to his being the driver or alternatively expressed any challenge to the allegation that he was the same man as John William Hawkins.

It is Mr. Dorman-O'Gowans submission that it is not open for the prosecution in any circumstances to rely on a dock identification if there has not been an identification parade. That submission may be qualified if for instance the defendant elects not to go on an identification parade or otherwise prevents it happening. No such issue is said to arise in the instant case.

That submission derives support from paragraph 14-86 of Archbold which reads:-

"Crown Court - The practice of inviting a witness to identify a defendant for the first time, when the defendant is in the dock has long been regarded as undesirable and to be of avoided if possible, see R v Cartwright 10 CAR 219. Although a Trial Judge retains a discretion to permit a dock identification it is submitted that in practice it is not permissable even to consider the exercise of such discretion unless (a) a defendant has refused to comply with a formal request to attend an identification parade and (b) none of the other identification procedures have been carried out, as a result of the defendants default... It is now difficult to conceive of circumstances in which a trial judge would permit either a dock identification or evidence of a dock identification to be adduced. In R v Fergus 1992 CLR 363 a conviction was quashed despite a careful "Turnbull" warning and evidence of one previous encounter with the accused, where the victim was permitted to point out the accused for the first time in Court."

It was held in the case of Fergus that there was an important distinction to be made between cases where the complainant claimed to recognise the assailant as a person he already knew well and those where the complainant had never seen the assailant before... It was acknowledged that dock identification was unsatisfactory but the identification of a person through a name which was only known by hearsay was almost equivalent to a dock identification... Since the only previous time when R had seen Fergus was a casual incident when there was little occasion to remember him, and bearing in mind the difficult lighting and other circumstances when the attack occurred, the conviction was unsafe or unsatisfactory."

The commentary said:- "As the present case shows, however, there are other matters to be considered, the most important of which is proof; how is the identity of the accused to be established at trial in the absence of any out of Court identification? If the answer turns out to be by dock identification then it must be remembered that this procedure is potentially so unfair to the accused the Court at trial retains a discretion to prevent it. If the risk of this happening leaves the prosecutor up a gum tree it is apparent the Crown Prosecution Service may have a interest in ensuring that something has been done prior to trial to remove the need for a dock identification whether the police can see a use for one or not."

That was a case as is this where the code of practice was governed by D23 which reads:-

"Whenever a suspect disputes an identification, an identification parade shall be held, if the suspect consents... A parade may also be held if the Officer in Charge of the investigation considers that it would be useful and the suspect consents".

In the case of Fergus no such request was forthcoming as is the situation in the instant case.

The Crown contend firstly that the defendant by absconding in 1994 had effectively prevented an identification parade taking place. Next that there was no indication by the defence at any time after he was charged in the name of Barnes that identification was an issue. No identification parade was asked for pursuant to the code. The passage in Archbold may properly represent the law as it applies to the Crown Court but has singularly little application to the everyday activities of the Magistrates Court. Subsequent to the recent legislation enabling the Court to direct a jury that failure to disclose a defence will be the subject of comment, the problem which arises in this case may not be so pressing. Notice of alibi is not required in the Magistrates Court. If there had been a notice of alibi it would have been necessary for the defendant to indicate that he was not the driver of the vehicle at the time, even if he could not specifically remember his whereabouts.

There is no logic in making a distinction in regard to dock identifications between the Crown Court and the Magistrates Court. However it has to be recognised that everyday in a Magistrates Court those charged for instance with careless driving, who have made no statement to the police, are entitled to sit back and in the absence of identification to submit that it has not been proven that they were the driver. Such an example is to be found in Jones v Carter 1956 CRL 275 where an acquittal was directed in a careless driving case where the prosecutor had not proved that the defendant was driving although there had been no cross-examination by the defence as to identity and the case had been conducted on the basis that the defendant who did not testify was driving.

To deal with that it has been customary ever since I can remember for a police officer or other witnesses to be asked, "Do you see the driver in court," and for him to identify the defendant. Absent such an identification an acquittal may well follow. If in every case where the defendant does not distinctly admit driving there has to be an identification parade, the whole process of justice in a Magistrates Court would be severely impaired. There are of course other ways in which a driver of a car can be identified but what I have just described is the norm. And in Middleton v Roulet 1954 CLR 549 the Magistrates refused to allow the prosecution to re-open their case where they had failed to give evidence as to identity and the Divisional Court refused to interfere with this exercise and the Magistrates discretion. For my part I make no observation on the correctness of the passage which appears in Archbold but in this case I have to look at the facts as they appeared to the Magistrates and decide whether on the facts of this case it was plainly unfair to allow a dock identification. I do not so find.

Allied to the general point about dock identification it is submitted on behalf of the appellant, that given that it was now some 33 months since the police officer had the opportunity of seeing the appellant, the Justices in the exercise of the discretion should have rejected the evidence. That in my judgment was entirely a matter of weight for the Justices to consider and their decision cannot be impugned.

(2) Traf 5 procedure

I turn therefore to the second matter namely whether, once the police officer has requested a sample of blood, which was refused, and then changes his mind and asks for a specimen of urine whether that second request is lawful..

The statutory provision is Section 7 of the Road Traffic Act 1988. It reads in its material part as follows:-

"1. In the course of an investigation into whether a person has committed an offence under Section 5 of this Act a Constable may, (my emphasis) subject to the following provisions of this Section and Section 9 of this Act, require him... (b) to provide a specimen of blood or urine for laboratory tests (my emphasis). 4. If a specimen other than a specimen of breath may be required in pursuance of this action, the question whether it is to be a specimen of blood or a specimen of urine shall 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."

It is the appellants contention that having regard to the phraseology of Section 7 namely that the Constable may require an appellant to provide a specimen of blood or urine for laboratory tests, he is not entitled to ask for both, certainly not after he has made a request which has been refused. The proper procedure then is for the officer to charge a defendant with failing to provide a specimen of whatever is first asked for. He submits that the flow of Traf 5 is that the officer has to make a preliminary enquiry; that having made that preliminary enquiry and satisfied himself that it is appropriate that blood should be taken, he then can make a request for blood; but that having set out on that course he is not entitled to change his mind.

To that end he prayed in aid the decision of the Court of Appeal Criminal Division in R v Paduch at 57 CAR at page 676. That case was decided under the Road Safety Act 1967 but nothing in my judgment turns on that. The facts taken from the headnote read as follows:-

"At a Police Station after the second breathtest had proven positive the appellant was requested by the Police to provide a specimen of blood and agreed to do so. No Doctor could be found to take the sample and at the time when the request for the specimen of blood had neither been complied with nor refused the Police changed their minds and asked the appellant to provide two specimens of urine, which he did. One of those samples were analyzed and an analysis certificate was submitted in evidence on the trial of the appellant for driving with excessive blood alcohol proportion. He was convicted. It was held "there was nothing in Section 3 of the Road Safety Act 1967 which prevented the Police from changing their minds before there had been either compliance with or refusal of the original request on the part of the appellant, that the course taken by the police was the proper one and the analysts certificate was properly submitted in evidence. The appeal must therefore be dismissed."

It will be seen that the facts in that case differ from that in the instant case. In that case the Police changed their minds when the request for a specimen of blood had neither been complied with nor refused. Reliance is however placed on what Lord Justice Lawton said at page 679:-

"What do these words in sub-section 1 mean. They mean what they say. The Police may require a motorist to provide a specimen. If he fails to provide a specimen he brings himself within Section 3(3) and if he refuses to supply a specimen in certain circumstances sub-section 6 applies but in the judgment of this Court there is nothing in sub-section 1 which has the effect of saying that once a request has been made, the Police in no circumstances can make another request. If the motorist complies with the request by giving a specimen then it is clear on the authority of Hyams that he cannot be required to provide another one. If he refuses to comply with the request then the procedure under sub-section 6 may have to be applied. But that does not stop the Police in the judgment of this Court, from changing their minds if they want to do so before there has been either a compliance or a refusal."

That passage is relied on as showing that while a second request can be made it has to be made before there has been either a compliance or a refusal.

In my judgment Lord Justice Lawton was not applying his mind (and quite properly not applying his mind) to the facts of the instant case. His judgment has to be looked at in the light of the facts as found in Paduch. The prosecution submit that while it is not open to a Police Officer to seek to obtain a second sample where one had already been obtained it is open to a Police Officer where for whatever reason he has been unable to obtain a sample at the first request then to seek to obtain a sample by a second request and to rely on the failure to provide that second sample by way of evidence to support a conviction.

To that end our attention was drawn to two cases. Firstly Hall v Alan 1984 Scots Law Times 199 where the High Court of Scotland had to deal with a problem not dissimilar to the instant case. The facts taken from the headnote are as follows:-

"A motorist failed a breath test when stopped by the Police on 22nd September 1982. He was arrested and taken to the Police Station. He failed a second breath test and was required to give a specimen of blood or urine for laboratory test. He agreed to provide a blood specimen but the Doctor could not find a vein. The Police then asked the motorist for a urine sample. He provided one sample but was unable to provide another sample an hour later. He was then asked to provide a blood specimen. He agreed to do so and this was taken from his thumb. On analysis the blood contained an alcohol level in excess of the permitted limit. At his trial it was submitted that all the requirements made after the first requirement were unwarranted and the blood specimen ultimately obtained was inadmissible. He was convicted. It will be seen therefore that the relevant matter was that he was unable to provide a specimen of urine which amounted in fact to a refusal and was then asked to provide a sample of blood."

The Lord Justice Clerk Lord Wheatley at page 200 said this:-

"What is being sought under Section 9(1) of the Act is the provision by the person arrested of a specimen of blood or urine through a laboratory under the provisions of the Act. If that person agrees to provide a specimen of one kind but is unable to do so then he has not optempered the requirement (I understand that means "obeyed") and like the Sheriff I see no reason why under the terms of Section 9(1) the Constable was not then entitled to make a further requirement of a specimen in another form in order to obtain a specimen for a laboratory test. If that is so, I see no reason why the process should not be repeated if that further requirement does not produce a specimen. An entirely different situation would prevail if the person did supply a specimen as required but the Constable sought to impose a requirement for a further specimen because for some reason or another he was not satisfied with the first one. In that situation the person arrested would have optempered the requirement imposed on him and that would be the end of the matter so far as the requirements were concerned."

In the Director of Public Prosecutions v Garrett 1995 Road Traffic Report 302 the breath analysing device was inoperative and the Station Sergeant thereupon required the defendant to provide a specimen for analysis stating that the specimen might be of blood or urine. The defendant said he had no preference and the Sergeant requested a specimen of blood. The Police Surgeon attended but was first unable to find a vein, when he found a vein and inserted the needle the vein collapsed. The Sergeant then, stating the Medical Practitioner was of the opinion that for medical reasons a specimen of blood could not and should not be taken, required the defendant to provide a specimen of urine. The defendant provided the urine specimen and upon analysis the parts specimen obtained by the Police was found to contain urine alcohol in excess of the prescribed limit. The defence was that a procedural defect has occurred, the defendant not having been asked whether there was any reason why a blood sample could not be taken so that the request for a blood sample was unlawful and the prosecutor was unable to rely on the urine analysis. The Justices accepted the submission and dismissed the information.

It was held that on the proper construction of Section 7 the Sergeant was entitled to change his mind as to the type of specimen he required and that that right continued up to the time at which the required sample was actually taken, for the procedure was a continuing process and crystallised only when a sample was actually obtained. At page 308 Lord Justice Kennedy said:-

"The position as I understand it is this. That the Sergeant is entitled to change his mind as to the type of specimen to be required. That right on the part of the Sergeant continues up to the time at which the blood sample if a sample of blood is actually taken. The procedure is it seems to me, a continuing process and it crystallises only when a sample is actually obtained. That in my judgment must be a proper interpretation of Section 7 as a whole because what Section 7 requires is that the person who is at the Police Station whose conduct is being investigated shall provide a sample. He is required by Section 7(1) to provide it and if no blood is actually given he has not done that which Section 1 requires. Once blood is given of course the right of the Officer to change his mind about the nature of the sample given has come to an end because the suspect has complied with Section 7(1) and having given for example a specimen of blood there is no obligation on him to provide a specimen of urine".

Those two authorities seem to me to support the prosecution contention that an unproductive request for one specimen does not prevent a subsequent request for another specimen from being valid. One can envisage a situation which obtained in Paduch where the request is made for blood, and it then transpires that there is not available any doctor to take blood. It would be inconceivable in those circumstances that as a result of the request for blood being wholly unproductive, an Officer cannot then ask for a sample of urine. Although these cases on breathalyser involve great technicality it seems to me that such an absurd result should not obtain.

In the result I am satisfied that the sergeant was perfectly entitled to ask for a specimen of urine after refusal to provide blood and the evidence in relation to the issue was admissable.

The two questions for our opinion are:-

(a) Whether there was admissable evidence which would allow the said Magistrates to find to the criminal standard of proof that the appellant was the person who had failed to give a specimen of urine?

(b) Whether the procedure that took place in the Police Station in relation to the "Traffic 5" form was one which would allow the said Magistrates to convict the appellant of failure to provide a specimen of urine for analysis?

I would answer yes and yes and dismiss the appeal.

LORD JUSTICE McCOWAN: For the reasons given in the judgment, which has been handed down, the appeal is dismissed.

MR ROY-TOOLE: So be it, my Lord. The only remaining issue now so far as the Crown is concerned is one of costs. Clearly, the Respondent is prohibited from seeking costs out of central funds in this case and the only question is, should costs be awarded as against the Appellant? I understand he is legally aided. In the circumstances the Crown have not provided me with an assessment of costs. I understand that the only sum is that for counsel fees which has been assessed at £600. My Learned friend, Mr Cook appears for the Appellant who does not appear in person, and I will leave the issue of costs entirely in the hands of the Court.

LORD JUSTICE McCOWAN: Yes.

MR COOK: My Lord, it is quite correct that Mr Barnes has the benefit of legal aid in these proceedings.

LORD JUSTICE McCOWAN: You are asking for taxation?

MR COOK: My Lord, yes, I am grateful.

LORD JUSTICE McCOWAN: I do not understand any costs order has been asked against you.

MR COOK: It would seem not.

MR ROY-TOOLE: I simply raised the issue of costs----

LORD JUSTICE McCOWAN: Either you ask for them or you do not?

MR ROY-TOOLE: I do seek them as against the Appellant if the Court is minded.

MR JUSTICE POPPLEWELL: Is he in prison?

MR COCK: My Lord, I am not in a position to give you that information.

MR JUSTICE POPPLEWELL: He was at one stage?

MR ROY-TOOLE: Indeed so, my Lord, yes.

MR JUSTICE POPPLEWELL: What is his contribution?

MR COOK: My Lord, again, I am afraid I do not know the answer to that.

LORD JUSTICE McCOWAN: Really you are quite unable to help us then?

MR COOK: My Lord, only this far. Insofar as he has been sentenced to a term of imprisonment for these offences, in the ordinary course of events, a cost order would not have followed at first instance.

MR JUSTICE POPPLEWELL: What was the sentence in this case?

MR ROY-TOOLE: A financial penalty, my Lord. A £50 fine and a disqualification period of three years.

MR JUSTICE POPPLEWELL: He was in custody for something quite different; was he not?

MR ROY-TOOLE: Indeed, so. I understand that may well be an offence of dishonesty for which he received a not inconsiderable term in prison.

LORD JUSTICE McCOWAN: No order for costs except for legal aid taxation.

MR COOK: My Lord, I am grateful. My Lord, before we conclude, it may be of assistance to your Lordship to note that on page 15 of your Lordships' judgment, the first sentence at the top of that page, in the unrevised judgment, there does appear to be an error.

MR JUSTICE POPPLEWELL: The word "unproductive" should be "productive"?

MR COOK: That I think would remedy the fault, either that or----

MR JUSTICE POPPLEWELL: It was an unproductive request? It was unproductive; was it not?

MR ROY-TOOLE: Yes, my Lord, to give effect to the judgment and to the arguments, the draft is correct, "unproductive".

LORD JUSTICE McCOWAN: You still do not like it from your look?

MR JUSTICE POPPLEWELL: It did not produce a specimen.

MR COOK: No, my Lord, that I appreciate. I am just reading it again in light of that remark. My Lord, that is quite right, but should it not read:

"Those two authorities seem to me to support the prosecution contention that an unproductive request for one specimen does not prevent a subsequent request for another specimen to be valid."

LORD JUSTICE McCOWAN: The word you want altered is not "unproductive" at all, but the word "invalid"?

MR COOK: My Lord, yes.

LORD JUSTICE McCOWAN: That seems to have rather more substance to it.

MR JUSTICE POPPLEWELL: Yes.

LORD JUSTICE McCOWAN: Yes, thank you, it will be altered accordingly.