QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
MR JUSTICE CRANE
|THE QUEEN ON THE APPLICATION OF STEWARD||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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MR S A.B. PARISH (instructed by CPS Portsmouth Criminal Justice Unit, Winston Churchill Avenue, Portsmouth P01 2DG) appeared on behalf of the DEFENDANT
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"We found the following facts form the sworn evidence of PC Jackson:
A) He was the authorised intoximeter operator who undertook this procedure in respect of the appellant at the Police Station. The appellant provided two specimens of breath; the lower of the two readings was 41 microgrammes of alcohol in 100 millilitres of the breath.
B) The appellant then elected for the specimen to be replaced by a specimen of blood.
C) He [PC Jackson] arranged for Dr Bell, Police Surgeon, to attend.
D) He observed Dr Bell obtain the appellant's consent to blood being taken and then Dr Bell actually take two specimens of blood from the appellant.
E) One sample of blood was given to the defendant.
F) PC Jackson took the second sample from Dr Bell at 2158 hrs."
The remaining findings in relation to his evidence concern the transmission of the samples and is not material to this appeal.
"We ruled there was no case to answer on the basis we believed that Dr Trotter's certificate should have been served at least seven days before the hearing. The evidence of analysis of the blood was therefore inadmissible. Therefore an essential element of the offence was missing.
10. a) Upon the decision of No Case to Answer being announced, the prosecuting solicitor asked which certificate was referred to by the Bench; upon the Chairwoman's reply that it was the analyst's certificate, he stated (and it was agreed by the defence) that the statement of the analyst was not in dispute, and had been accepted under section 9 of the Criminal Justice Act 1967 and read to the Court. The issue was as to the absence of evidence from Dr Bell to prove that he was a medical practitioner and that the samples had been taken with the Appellant's consent.
B) We sought advice from the legal adviser as to whether we could now review our decision. The legal adviser advised us that we were able to review our decision.
C) as the basis of our decision of No Case to Answer was that we believed that a certificate by Dr Trotter had to be served at least seven days before the hearing, or otherwise the certificate by him ... was inadmissible ... we realised that we had erred in finding no case to answer on this basis.
D) The prosecution clarified that the certificate/statement by Dr Bell was not necessary because PC Jackson had observed the consent being given and was aware Dr Bell was a police surgeon."
Once their mistake had been explained to them and agreed by all, after further consideration the magistrates found that there was a case for the appellant to answer, despite the fact that the prosecution had not produced any statement or certificate from Dr Bell and he had not given evidence. The case stated then refers to the fact that PC Jackson had given evidence that the blood samples were taken by Dr Bell at the election of the defendant, and that PC Jackson had been present when the blood samples were taken. The case therefore proceeded.
"a) In this case, the prosecution relied on the evidence of PC Jackson that the two blood samples were taken by Dr Bell from the defendant, with his consent. We were satisfied on this evidence that the sample was taken from the appellant with his consent by a medical practitioner. PC Jackson had given evidence a police surgeon was arranged and this was Dr Bell. Therefore the evidence of the taking of the blood sample was admissible."
A little later:
"We were entitled to reverse our decision ... because we had not finished hearing the case and it became quite clear that we made our decision on the submission of no case to answer on the mistaken belief that it was Dr Trotter's certificate that was in issue...
"We found there was sufficient evidence to satisfy us beyond reasonable doubt that the defendant was guilty of the offence charged."
"It is perfectly clear that what the chairman of the bench announced amounted to a conviction ... it is perfectly clear that the justices intended and were understood to find that the case against the defendant had been proved and to have inflicted a fine of £3."
Counsel for the defendant had contended for a principle to the effect that if, before dispersing, a matter was drawn to the attention of the Bench which would make them change their minds, they were at liberty to do so and substitute an acquittal. The Lord Chief Justice said at page 821:
"There is clearly no statutory power to enable them to do so nor do I think that there is any inherent power. They are, in my judgment, functi officio from the moment when they have announced their decision, however inconvenient the result may be."
Gorman J agreed, as did Salmon J, who said at page 823:
"It is quite plain on authority that once a decision by justices is announced in open court that decision so announced amounts either to an acquittal or to a conviction, as the case may be. Once the justices have convicted or acquitted, they are functi officio and cannot alter their decision."
Mr Lofthouse additionally relies on S v Recorder of Manchester  AC 481, to which I shall make brief reference later.
"A specimen of blood shall be disregarded unless it was taken from the accused with his consent by a medical practitioner."
Mr Lofthouse submits that the legislation is a careful and complete code and requires that the issues of the taking of a blood specimen (a) by a medical practitioner and (b) with the consent of the accused, cannot be established without evidence from the medical practitioner either by oral evidence or by certificate.
"Subject to subsections (3) and (4) below, evidence that a specimen of blood was taken from the accused with his consent by a medical practitioner may be given by the production of a document purporting to certify that fact and to be signed by a medical practitioner."
The submission advanced by Mr Lofthouse is essentially that section 16(2) is mandatory and that there can be no evidence about consent or the qualifications of the medical practitioner, save from the medical practitioner himself usually through the certification there provided for. His submission is that the legislation is permissive as to whether the doctor's evidence is oral or by way of certification, but it is mandatory that it is the doctor who provides it. He contends that the provisions of the Act would be unnecessary if a police officer could give evidence, which the Act envisages coming from a medical practitioner. He further submits that the strictness of such a requirement makes good sense since it is consent at the time of the taking of the sample that is relevant and the medical practitioner is the best placed person to assess that.
"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 and, if he then provides such a specimen, neither specimen of breath shall be used."
I observe that that section is headed "Choice of Specimens of Breath".
"Whether the Justices were entitled to re-open the case after finding that there was no case for the defendant to answer."
I answer that in the affirmative. Question 2:
"Whether, in the absence of a certificate from a medical practitioner certifying that a sample of blood had been taken from the defendant with his consent or oral evidence from the medical practitioner, the Justices were entitled to rely upon other evidence to show that such a sample had been taken."
Again, I answer that in the affirmative. Question 3:
"Whether there was evidence upon which the Justices were entitled to convict the defendant."
Once again I answer that in the affirmative.