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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> DPP v Orchard [2000] EWHC Admin 402 (17 October 2000)
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Cite as: [2000] EWHC Admin 402
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DPP v. Joe Orchard [2000] EWHC Admin 402 (17th October, 2000)
Case No: CO/2706/2000
IN
THE SUPREME COURT OF JUDICATURE |
Royal
Courts of Justice |
B
e f o r e : |
Director of Public Prosecutions |
Appellant | |
- v - |
||
Joe Orchard |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Alan M Large (instructed by the CPS, Taunton Branch) appeared for the Appellant
The Respondent was not represented
Pill LJ:
1. This is a prosecutor's appeal by way of case stated against a decision of Justices for the County of Somerset sitting at Bridgwater on 31 May 2000. The Justices upheld a submission of no case to answer made on behalf of Mr Joe Orchard who had been charged "that he on Monday the 30th day of August 1999 at Thurloxton in the County of Somerset drove a motor vehicle, namely a Vauxhall Astramax Van, index number J 305 PFJ on a road, namely the A38, after consuming so much alcohol that the proportion of it in his breath, namely 40 microgrammes of alcohol in 100 millilitres of breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 ("the 1988 Act") and Schedule 2 of the Road Traffic Offenders Act 1988.
2. The Justices found that at 10 pm on 30 August 1999 police officers stopped the respondent, who was driving a motor van on the A38 near Thurloxton, on the ground that a rear offside lamp of the vehicle was not illuminated. One of the officers then formed the opinion that the respondent had been drinking intoxicating liquor and requested him to provide a specimen of breath for a breath test. The resulting test was positive and the respondent was arrested, cautioned and taken to Bridgwater Police Station so that he could provide specimens of breath for analysis. At the police station a police officer conducted the station breath test procedure and contemporaneously recorded events using forms MG DD/A and MG DD/B.
3. Two breath specimens were given by the respondent using the Lion Intoxilyzer 6000 UK. The lower of the two reading recorded 40 microgrammes of alcohol in 100 millilitres of breath. The respondent was given the statutory option under section 8(2) of the 1988 Act to replace the specimens taken on the Lion Intoxilyzers with a sample of blood or urine. The police officer read verbatim paragraph B5 from the form MG DD/B which is intended to cover the statutory option. It provides:
"As the specimen with the lower proportion of alcohol is in excess of the prescribed limit, but contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, you may claim that it should be replaced by a specimen for a laboratory test. If you elect to provide such a specimen it will be of blood or urine which, in the case of blood, will be taken by a doctor. It is for me to decide which it will be unless a doctor is of the opinion that for medical reasons a specimen of blood cannot or should not be taken, in which case it will be of urine. If I decide the specimen shall be of blood, your only right to object and to give urine instead will be for medical reasons. You will be supplied with part of the specimen if you so require. The other part will be sent to a forensic laboratory for analysis. The result of the analysis of the laboratory specimen will replace the result of the breath test. Do you wish to provide a specimen for a laboratory test?"
4. The Justices found that an explanation was given in simple terms by the police officer to explain the option under paragraph B5 and the respondent replied "What is the quickest way out of custody?" The officer then asked the respondent: "What do you want to do?" The respondent remained silent and the officer took that silence to mean that the respondent was declining the option. On the form, the police officer recorded the respondent's reply as "No" as in my view he was entitled to do. Having done so, he followed the procedure on the form which provided that the next question should be asked only if the answer to the previous one was "Yes". The officer did not ask the question: "Are there any reasons why a specimen of blood cannot or should not be taken by a doctor?" As noted in the case, the police officer did not consider that the respondent had not understood the explained option. The officer completed the procedure in accordance with the form and the respondent was charged and released from custody.
5. In support of the submission of no case to answer, reliance was placed on the speech of Lord Hutton in DPP v Jackson; Stanley v DPP [1999] 1 AC 406, with which the other members of the House agreed. The stated case then records in summary form the appellant's submissions which are substantially those made on appeal. It is recorded that the Clerk of the Court brought to the Justices' attention the paragraph at page 426F of the report in Jackson and Stanley, to which I will refer.
6. The stated case continues:
"The Clerk made no other reference to any other part of the judgment of Lord Hutton.
The Clerk gave his advice in open court and no further submission was made by the respondent or the appellant and the Clerk's observations were left unchallenged."
If that is intended as a criticism of the advocates in the case, I regard it as harsh. Appropriate submissions had been made by the parties. The Justices were then given legal advice by their Clerk, who appears to have been of the view, and not merely on a provisional basis, that the single paragraph concluded the case. The Justices are unlikely to have treated favourably an attempt to make further submissions after the Clerk had given that advice.
7. The Justices state their opinion as follows:
a) Because of the unchallenged reference by the Clerk to only part of the judgment in the case of DPP -v- Jackson and Stanley -v- DPP, that the Police Officer had not followed the correct procedure and that form MGDD/B was defective because it did not require the Officer to ask the driver if there were any medical reasons when a specimen could not be taken by a doctor before a driver was asked to give his reply to the option he had under section 8(2). We considered that such a deficiency meant that a driver could not properly exercise the option he was given and no reasonable tribunal might convict with such a defect.
We upheld the submission on behalf of the respondent and the defendant was acquitted.
b) We did not, therefore, consider whether the repondent had been confused by the station procedure. No finding was made in relation to the defendant's IQ and we did not require him to give evidence. Had we done so we would have considered whether the respondent had suffered prejudice by reference to a) the respondent's own evidence and b) the remarks attributed to him by PC Broome during the station procedure.
8. The questions posed for the opinion of this Court are:
(i) Were we right in our decision that in a case involving a suspect's right to a replacement specimen for analysis by virtue of S8(2) Road Traffic Act 1988, that the failure to ask the suspect directly whether there was any medical reason whether a specimen could not or should not have been taken by a doctor before enquiring whether he wished to provide an alternative specimen for a laboratory test represented a failure to properly inform the suspect of the nature of his statutory option?
(ii) If we were right in our answer to question (i) above, were we also right to dismiss this case without having heard evidence from the defendant to the effect that he had been prejudiced in the exercise of his statutory option by the procedure followed by the prosecution which was in accordance with form MG DD/B?
9. Section 8(2) of the 1988 Act provides, insofar as is material:
"If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under Section 7(4) of this Act ..."
Section 7(4) provides:
"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 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 ..."
10. The point of law certified by the Divisional Court in Stanley is in effect the same as that now under consideration and the answer given by the House of Lords is binding upon this Court. Lord Hutton referred, at page 416 to page 418, to the requirements in this context as stated by Lord Bridge in DPP v Warren [1993] AC 319 at 327:
"... it is clear that under section 8(2) the driver, in order that he may decide whether or not to claim that the breath specimen be replaced, should be fully informed of the nature of the option open to him and what will be involved if he exercises it. He should be told that the specimen of breath which he has given containing the lower proportion of alcohol exceeds the statutory limit but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath; that in these circumstances he is entitled to claim to have this specimen replaced by a specimen of blood or urine if he wishes; but that, if he does so, it will be for the constable to decide whether the replacement is to be of blood or urine and that if the constable requires a specimen of blood it will be taken by a doctor unless the doctor considers that there are medical reasons for not taking blood, when urine may be given instead."
11. Having considered the issues further, Lord Bridge restated his views in summary form at page 332:
"In a case where the driver's option is to be explained to him under section 8(2), the driver should be told that if he exercises the right to have a replacement specimen taken under section 7(4), it will be for the constable to decide whether that specimen is to be of blood or urine and, if the constable intends to require a specimen of blood to be taken by a medical practitioner, the driver should be told that his only right to object to giving blood and to give urine instead will be for medical reasons to be determined by the medical practitioner. In neither case is there any need to invite the driver to express his preference for giving blood or urine."
12. Those requirements are met by the wording of paragraph B5 of form MG DD/B.
13. In Jackson and Stanley at page 425D, Lord Hutton stated:
"But what is necessary is that the driver should be aware (whether or not he is told by the police officer) of the role of the doctor so that he does not suffer prejudice. Therefore, if the driver appreciates that a specimen of blood will be taken by a doctor and not by a police officer, the charge should not be dismissed by the justices because the police officer failed to tell the driver that the specimen would be taken by a doctor."
That requirement would also appear to be met by paragraph B5.
14. Lord Hutton repeated, at page 426H, the requirement "that the driver should be told of the role of the doctor at the outset before he has to make the decision to give blood. If the driver is not told at the outset of the role of the doctor it will be for the justices to decide whether that omission prejudiced the driver and deprived him of the opportunity to make an informed decision". Information was given in paragraph B5 about the "role of the doctor".
15. However, in Jackson and Stanley, at page 426A, Lord Hutton stated that "there are two respects in which I would word the requirements stated by Lord Bridge in a different way". The first is not material for present purposes. At 426 F, Lord Hutton added:
"(2) I also consider that in a section 8(2) case, in addition to telling the driver that a specimen of blood `will be taken by a doctor unless the doctor considers that there are medical reasons for not taking blood,' the police officer should ask the driver if there any medical reasons why a specimen cannot or should not be taken from him by a doctor. I observe that the pro-forma instructions of some police forces do set out this question in a section 8(2) case."
Upon the hearing of this appeal, we were told that form MG DD/B is in use throughout the country.
16. Lord Hutton dealt specifically with the point certified by the Divisional Court in Stanley. That point of law is set out at page 417G:
"When a motorist who is entitled to make a claim under section 8(2) of the Road Traffic Act 1988 declines to do so, is it incumbent upon a police officer to ensure that the motorist has understood his rights by asking whether there are any medical reasons for refusal to supply an alternative specimen?"
Lord Hutton stated at page 427F:
"The question is stated in general terms and is not confined to the specific facts of the case, and I have sought to answer the general question in the body of this judgment. Applying the judgment to the second point raised on behalf of the defendant and having regard to the specific facts of the case, I consider that the Divisional Court was correct in rejecting that point and in upholding the conviction. I am of this opinion because the defendant was told by the police officer that a blood specimen would be taken by a doctor and the police officer also said to him `I should tell you that your only right to object to giving blood and to giving urine instead will be for medical reasons to be determined by a medical practitioner.' I consider therefore that the omission to ask expressly the question whether there were any medical reasons for his refusal to supply a specimen of blood did not cause any injustice to the defendant because that question was implicit in the statement that he had a right to object for medical reasons to be determined by a medical practitioner and did not raise a reasonable possibility that the defendant had been deprived of the opportunity to exercise the option under section 8(2) or cause him to exercise it in a way that he would not have done had that question been asked. Therefore I would dismiss the appeal of the defendant Stanley".
17. In Stanley, the answer given to a question in the paragraph B5 form was "No, I don't want no needle". The Crown Court in that case concluded on the evidence that the statement did not amount to a medical reason and it was held in the House of Lords that it was open to the Crown Court to do so (page 427E). In my view it is not therefore possible to distinguish Stanley on the basis that a medical reason was raised by the defendant's comment in that case but not by the comment in the present case.
18. For the appellant, Mr Large submits that Lord Hutton's concern that the driver should be aware of the "role of the doctor" is met is by the wording of Paragraph B5. Any specimen of blood is to be taken by a doctor and a doctor may express the opinion that for medical reasons a specimen of blood cannot or should not be taken. The right to object to a specimen of blood for medical reasons is mentioned. It is submitted that a requirement to ask whether there are any reasons why a specimen cannot or should not be taken by a doctor before the driver has stated that he wants to provide a specimen for a laboratory test is to put a gloss on the statute.
19. It is further submitted by Mr Large that it illogical and confusing to ask the further question before receiving an answer to the question whether the driver wishes to provide a specimen for laboratory tests. The question does not arise until a wish to provide a specimen is expressed. If a driver does not wish to provide a specimen, it can only confuse him to be asked whether there are any reasons why a specimen of blood cannot or should not be taken by a doctor. If the second question is asked as a part of the first, the reasons would have to be recorded and consideration given to them when it is irrelevant to do so if the driver does not wish to provide a specimen in any event.
20. The further submission is made that if, as Lord Hutton concludes at page 427H, the second question is implicit in the statement that the driver had a right to object for medical reasons to be determined by a medical practitioner, it must follow that the role of doctor has sufficiently been brought to the attention of the driver in paragraph 5B. The second question is not necessary to create an awareness of the role of a doctor.
21. I do, with respect, find considerable force in those submissions, though I add that, the respondent not appearing on the hearing of the appeal, we have not had the benefit of submissions to a contrary effect. However, this Court is in my view bound by the House of Lords decision that the question should be asked at the outset. That requirement is formally stated by Lord Hutton in his speech which he concluded by stating that he had sought to answer the general question in the body of the judgment (page 427F).
22. That finding of this Court is however of little practical importance in the event. Lord Hutton held that there was in the circumstances a second issue to be considered, that is whether the driver has suffered prejudice where the necessary requirements have not been brought to the attention of the driver. The second issue is "whether in relation to the non-mandatory requirements the police officer's failure to give the full formula deprives the driver of the opportunity to exercise the option, or cause him to exercise it in a way he would not have done had everything been said. If the answer to the second question is `Yes' then the driver should be acquitted. If the answer is `No' the failure by the police officer to use the full formula should not be a reason for an acquittal" (page 425G). Lord Hutton added that, upon the question whether the driver had suffered prejudice, "it would only be in exceptional cases that the justices would acquit on that ground without having heard evidence from the driver himself raising the issue that he had suffered prejudice" (page 425H). That is re-stated near the end of Lord Hutton's speech. Even if, contrary to the submission that it follows from the conclusion that the second question is implicit in the first that the second question need not be asked, Lord Hutton added that on the facts of Stanley, the failure to ask the question "did not raise a reasonable possibility that the defendant had been deprived of the opportunity to exercise the option under section 8(2) or cause him to exercise it in a way he would have done had that question been asked" (page 425H).
23. In my judgment, the second question posed in this case can be answered in the negative. There is nothing in this case to suggest that the driver was prejudiced by the omission expressly to ask the second question. The justices should have rejected the submission of no case to answer. The case should have proceeded and the defendant given the opportunity to argue that in this particular case he was prejudiced. Upon the reasoning of Lord Hutton as a whole, including his finding that the second question was implicit in the first, I have to say that I find it difficult to see how prejudice could be established in circumstances such as these but I do not of course rule out the possibility.
24. It has been made clear on behalf of the appellant that remission is not sought in this case. The appellant has sought to clarify the position and in particular whether the procedure set out in the form MG DD/B is appropriate. It does not comply with the requirements laid down in Jackson and Stanley. However, having regard to the reasoning in that case, circumstances in which the position in which the second question is placed on the form will affect the outcome of the case are likely to arise only rarely.
Bell J:
25. I agree.
LORD JUSTICE PILL: While the draft judgment is being handed down, I expect you would say that on the basis of it, the appeal should be allowed, strictly for questions you wanted answered.
MR LARGE: As regards the questions, my Lord, yes.
LORD JUSTICE PILL: That has been done, but the appeal is allowed, is it not, in that the second question is in your favour?
MR LARGE: In my favour, yes.
LORD JUSTICE PILL: For the reasons given in the draft judgment handed down, this appeal is allowed. Are there any applications?
MR LARGE: My Lord, no. Thank you.
LORD JUSTICE PILL: So there will be no order as to costs.
MR LARGE: No, my Lord.
LORD JUSTICE PILL: So be it. Mr Large, we are grateful for the assistance you gave the court.
MR LARGE: Thank you very much.
© 2000 Crown Copyright