QUEEN'S BENCH DIVISION
B e f o r e :
(The Lord Woolf of Barnes)
MR JUSTICE MACKAY
B E T W E E N:
|DIRECTOR OF PUBLIC PROSECUTIONS|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
MR ORLANDO GIBBONS (instructed by CPS Harrow) appeared on behalf of THE RESPONDENT
Crown Copyright ©
Monday 24 November 2003
THE LORD CHIEF JUSTICE:
"(1) In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act a constable may, subject to the following provisions of this section and 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; and it cannot be made at a police station unless --
(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 shall be decided by the constable making the requirement, but if a medical practitioner is of opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(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 any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."
Section 8 provides:
"(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.
(2) 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."
"A driver may be required to provide a specimen in accordance with s7(4) in two distinct circumstances. First, it may be necessary because it is impossible or inappropriate to rely on specimens of breath for one of the reasons specified in s7(3). In this case it will be obligatory for the driver to provide the specimen which the constable decided to require, either blood or urine subject only to this, that, if the constable requires blood but a medical practitioner is of opinion that for medical reasons a specimen of blood cannot or should not be taken, the obligation on the driver will then be to provide a specimen of urine instead. Failure to comply with the obligation (which, in the case of blood, arises if the driver withholds consent to the specimen being taken by a medical practitioner: (see s11(4)) constitutes an offence, subject always to the defence that the driver had a 'reasonable excuse' for the failure. There is no need here to consider what is capable of amounting to a reasonable excuse, but it suffices to say that the defence is clearly of very limited scope.
The second case in which a requirement may be made to provide a specimen in accordance with s7(4) is where the driver, having provided two specimens of breath one of which contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, claims the right under s8(2) to have that specimen replaced by a specimen of blood or urine provided in accordance with s7(4). If the driver claims this right and then fails to provide the specimen duly required under s7(4), the sanction for that failure will be the use in evidence against him of the breath specimen which, ex hypothesi, proves an excess of alcohol above the statutory limit and accordingly in such case there will be no need, though it may be theoretically possible, to prosecute for a failure to provide a specimen without reasonable excuse under s7(6).
It has been said more than once in the decided cases that s7(4) cannot receive different constructions according to whether resort to the subsection arises for one of the reasons under s7(3) or because the driver exercises his right to claim to have his breath specimen replaced under s8(2). This is clearly right. But it does not follow that there may not be a difference in the procedures which are appropriate on the one hand in requiring the driver to provide a specimen of blood or urine under s7(4) where it is obligatory for him to do so because one of the circumstances specified in s7(3) has arisen and on the other hand in informing the driver of his right under s8(2) to claim that the specimen of breath which he has given containing the lower proportion of alcohol should be replaced by a specimen of blood or urine under s7(4).
Taking the second case first, it is clear that under s8(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 specimen 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. I can see no ground whatever, on the face of the statute why in a s8(2) case the driver should be invited to state whether he prefers to give blood or urine or to state any reasons for his preference. Indeed, to invite him to do so, it seems to me, can only be misleading in suggesting that the driver is entitled to some say in the matter. The statute gives him no such say. The driver is faced with the prospect of conviction on the basis of the breath specimen which he has given containing the lower proportion of alcohol. His only chance of escape from that prospect is by opting to give and then in fact giving a replacement specimen of whichever kind the constable requires of him, subject only to his right to object to giving blood on medical grounds, and, if they are accepted by the doctor, then to give urine instead. Again, so far as the language of the statute is concerned, I can see no reason in principle why the constable in the course of explaining to the driver his rights under s8(2) should not tell him, if it be the case, that he, the constable, will require the replacement specimen to be of blood.
In the case where the reason for requiring a specimen of blood or urine arises under s7(3), there is no question of the driver having any option to exercise. Hence, whatever necessity there may be to explain the position to him, the reasons why it is necessary to give such an explanation cannot be the same as those which arise under s8(2). Again, on the face of the statute, I cannot see any reason why in this case the constable should do more than tell the driver the reason under s7(3) why breath specimens cannot be taken or used, tell him that in these circumstances he is required to give a specimen of blood or urine but that it is for the constable to decide which, warn him that a failure to provide the specimen required may render him liable to prosecution and then, if the constable decides to require blood, ask the driver if there are any reasons why a specimen cannot or should not be taken from him by a doctor. This will certainly give the driver the opportunity to raise any objection he may have to giving blood, either on medical grounds or indeed for any other reason which might afford a 'reasonable excuse' under s7(6). Here again, provided the driver has such an opportunity, I can see nothing in the language of the statute which would justify a procedural requirement that the driver be invited to express his own preference for giving blood or urine, either before a constable indicates which specimen he will require or at all."
"Relates to a religious movement of Jamaican origin with political beliefs. It is fair to say that Rastafarians have a distinctive code of behaviour and dress, including wearing dreadlocks and smoking cannabis, and that they reject Western medicine and they follow a diet that excludes pork, shellfish and milk."
On the basis of the material which was before her, the Recorder then came to the conclusion that Rastafarianism was not a religion.
"(a) The appellant had consumed alcohol in excess of the limit and this he admits."
The Recorder was there indicating that the appellant admitted the contents of the breath specimens. The case sets out that the lower reading was 40 microgrammes in 100 millilitres of breath. The Case continues:
"(c) [The appellant] was advised by Police Sergeant Malik that he would have to go through the statutory option and this was en route from the room in which the breath procedure was carried out. At that stage the appellant said, 'I can't give blood because of my religion'. However, this was prior to the formal procedure, which was carried out a short while later.
(d) Police Sergeant Malik said at 00.36.07, before the formal procedure was carried out, 'If you don't give blood, I will have no option but to charge you.'"
Mr Gibbons, on behalf of the respondent on this appeal, said that that was stated by Sergeant Malik because he was of the view that he had no option but to request a specimen of blood if there was no medical reason for not doing so. The case continued:
"(e) Police Sergeant Malik then went through the formal procedure, by way of Form MGDDB, and read out section B5, which was the statutory option to the appellant."
We have that document before us. In my view B5 correctly reflects the language of the statute. It refers to the discretion of the officer and then deals with the position if the officer decides on a specimen of blood. However, it does not help with what should happen if there is information provided to the officer, even though he has not requested it, as to a reason why a specimen of blood should not be selected by the officer. The case continues:
".... To the question, 'Do you wish to provide a specimen for Laboratory Alcohol Analysis?' the appellant replied, 'No'. This is the option provided by statute for a motorist whose breath reading is between 40 and 50 microgrammes to be afforded the opportunity to provide an alternative sample for analysis. The alternative sample can be blood or urine; that, of course is not the choice of the motorist, but that of the police officer. The appellant refused to take up the offer of this option, saying, 'I can't give blood because of my religion.'"
This last finding of fact is a combination of the actual facts found by the Recorder and statements made as to the relevance of those facts by the Recorder.
".... He stated that during the discussion he had informed the appellant that he (PS Malik) would ask for blood. He stated that Mr Joseph refused the option on the grounds of religion and that he felt that not to be a medical reason, and so informed the appellant that if he did not give blood he would be charged."
The Recorder noted that the sergeant made a mistake in filling in the forms and that he was unclear as to who had the statutory option.
"7. We were of the opinion that the appellant refused to provide another specimen: at that stage the officer had not selected blood as the second specimen to be provided. In so doing the officer was left with no choice but to charge the appellant with driving with excess alcohol, as in the absence of a blood or urine analysis the breath analysis becomes the one to be relied upon. Even having made that clear to the appellant, it seems the appellant then stated he would be prepared to provide a urine sample. However, by this time, the options having been given and refused, the officer was right to proceed and charge the appellant.
8. Section 7(4) of the Road Traffic Act 1988 enables a constable to require a specimen of blood or urine. As I said earlier, the choice is that of the constable and not of the motorist. In the case of DPP v Warren in 1992 it was held that when making a decision under section 7(4) of the 1988 Act as to whether specimens should be of blood or urine, the police officer did not have to invite the driver to express his own preference before making the decision. Section 8 goes on to say that the only right to object can be for medical reasons, which are to be determined by a doctor.
9. As religion is not a medical reason we find that the appellant has no defence to sections 7 and 8 of the Road Traffic Act 1988, and we uphold the conviction.
10. If our finding that Rastafarianism is not a religion is incorrect, based on our findings of fact as already stated, and considering sections 7 and 8 of the Road Traffic Act 1988, because a valid objection to giving blood can only be made if there is a medical reason and because religion is not a medical reason, we would still uphold the conviction....."
"(a) Could any reasonable tribunal, properly directed, faced with the evidence adduced, arrive at the findings of fact proposed above in this case?"
The answer to that question is "No".
"(b) Is Rastafarianism a religion?"
That is a question I would not be prepared to answer on this appeal.
"(c) Was the court correct in stating that even if Rastafarianism were a religion, it would not affect the interpretation and application of the relevant provisions of the Road Traffic Act 1998?"
I would answer that question "Yes".