QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SIMON DAVID BYRNE||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR N ROWLAND (instructed by CPS Basingstoke, RG21 4AD) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(a) Although on the face of Mr Trotter's statement that there was no evidence that he was an unauthorised analyst, given the evidence of his qualifications and employment, I was satisfied that he was authorised.
"(b) The form MGDD(B) contained the same reference code for the sample taken as that analysed by Mr Trotter and accordingly I was satisfied that this sample was the blood of the appellant.
"(c) The conversation with the custody sergeant was recorded on the custody suite video and there was a conversation between the sergeant and the appellant regarding issues such as the cost of the procedure and whether the appellant should or should not send his own sample away for analysis. I found as a fact that the appellant was given written instructions with his sample and he was not discouraged at all from sending his sample away for analysis.
"(d) The certificate of consent provided by Dr Wells was accepted under section 9 of the Criminal Justice Act 1967 and accordingly I found that the sample was taken with the appellant's consent.
"(e) In relation to the submission that the appellant's rights had been denied when the police refused to delay the procedure to allow him to speak to a solicitor . . . "
Then he makes various findings which again I do not need to refer to, and again he recorded that he found the appellant guilty of the offence charged. He was fined £400, ordered to pay costs, and disqualified from driving for 20 months with a 5-month reduction upon successful completion of the drink driving rehabilitation programme -- and doubtless his licence was endorsed.
"That subsection is permissive but provides for one method by which the proportion of alcohol in a specimen of breath may be proved. It does not however, either expressly or by implication, prevent any other admissible evidence from being relied on."
"I found as a fact that the appellant was given written instructions with his sample and he was not discouraged at all from sending his sample away for analysis."
In those circumstances, based on that finding of fact, no question of the unfairness of the prosecution or of the trial arose. The appellant's right to send his sample away for analysis was a real right and he was not discouraged from exercising that right from what the custody sergeant said. I would, therefore, distinguish this case from those to which I was referred by Ms Calder. The question raised by the case stated is inapt for a question such as the present which turns on findings of fact. The district judge was, on the information contained in the case stated, entitled to find as a fact that the appellant had not been dissuaded from exercising his right. That being so, the comments made by the custody sergeant did not lead to any unfairness. I would emphasise, however, that it is inadvisable in the extreme for police officers to give advice of the kind that was given in this case to accused persons even if what is said is true; that is to say, other persons have not exercised the right, the cost is high and the prospects of any helpful information being illicited by the independent analysis, remote. Those are matters for legal advice for which an accused person should refer to his solicitor. On the basis of the findings of fact contained in the case stated, the conversation with the custody sergeant gives rise to no ground to set aside this conviction.
"Where a statement contained in a document is admissible as evidence in criminal proceedings, it may be proved . . .
(b) (whether or not that document is still in existence) by the production of a copy of that document, or of the material part of it, authenticated in such manner as the court may approve . . . "