England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		28th February 2003

1. MR JUSTICE PITCHFORD: This is an appeal by way of case stated from a conviction by justices for the County of Merseyside acting in the Petty Sessional area of North Sefton. I grant leave to bring this appeal out of time.
2. On 27th March 2002 the justices found the appellant guilty of an offence that on 14th November 2001 at Formby he drove a motor vehicle on a road after consuming so much alcohol that the proportion in his blood, 211 milligrammes per 100 millilitre of blood, exceeded the prescribed limit contrary to section 5(1) Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders Act 1988.
3. The facts material to this appeal as found by the justices were as follows. At 15 minutes past midnight on 14th November 2001 a Police Constable Wilson, together with another officer, was called to an incident in Formby. There he saw the appellant and a female companion and formed the opinion that the appellant was drunk. A quarter of an hour later Police Constable Wilson saw the appellant driving his motor vehicle into Liverpool Road in Formby. He caused the vehicle to stop, requested a specimen of breath and the appellant agreed to provide it.
4. The appellant in fact failed properly to provide a sample of breath and was arrested and taken to Southport police station. Constable Wilson intended to proceed under section 7 of the Road Traffic Act 1988 using an approved breath analyser. He commenced the procedure at 1.09 a.m. at the police station. He read out the relevant preliminary stages of a form known as MGDD/A relevant to the procedure followed with a view to obtaining an analysis of breath. However, before the appellant could be given the opportunity to supply a sample of breath, the device, a camic-datamaster, performed an automatic self-test and registered a response "system won't zero". Police Constable Wilson formed the view that the instrument was not operating correctly and noted on the form that he would be requiring a laboratory specimen.
5. As he was required Police Constable Wilson then moved to form MGDD/B, that is the form relevant to the procedure to be used when requiring a specimen of blood or urine. At the same time he requested that a Dr Goldberg attend the police station.
6. The justices found that Police Constable Wilson, reading from paragraph B4 of form B, informed the appellant that because a reliable breath testing device was not available, he required the appellant to provide a specimen of blood or urine. In the case of blood the sample would be taken by a doctor. He was told that it was for the officer to decide whether the request should be for blood or urine unless the doctor was of the opinion that a specimen of blood could not be taken for medical reasons. He was told that, if he required it, he would be supplied with part of the specimen. The other would be sent to the forensic laboratory for analysis. He would be liable to prosecution if he failed to provide a specimen. He was then asked whether there were any medical reasons why blood could not be taken by a doctor and the answer was no. Following the arrival of Dr Goldberg, and in Dr Goldberg's presence, at 1.43 a.m. the request was made for blood. The specimen was obtained by Dr Goldberg at two minutes past 2.00 a.m..
7. The point taken at the hearing before the justices was that the police officer, Constable Wilson, had failed to give the warnings required under section 7 of the Road Traffic Act 1988. The justices in fact reached the conclusion to which I have already referred. Specifically in their statement of case they record:

"We were satisfied beyond reasonable doubt on that evidence that a warning of the risk of prosecution was given, and that the appellant was advised that a blood sample was required because the breath testing device was not available. The appellant was told that he would be provided with a sample of blood if he so required."

8. The appellant on advice elected not to give evidence to the justices and he was convicted.
9. The justices were invited to state a case and the questions which they stated for consideration of the High Court were these:

"1. Could a reasonable bench of justices, properly directing themselves, have held on the evidence that the appellant had been given all the requisite information about providing a specimen of blood?

2. Could a reasonable bench of justices, properly directing themselves, have held on the evidence that the appellant had:

(i) Been made aware

(ii) Understood that he was entitled to be provided with part of his own blood sample if he so wished?"

Neither of those questions has been advanced by Mr Ley on the appellant's behalf in this appeal.

10. There is a short resolution to this appeal. The appellant is seeking to raise for the first time a matter of fact and law not raised before the justices, not stated in the case and without an application from the appellant to apply for amendment to the case. I was informed during argument that there was some correspondence between those instructing Mr Ley and the justices. It has not been produced. The appellant should not and cannot be permitted to conduct an appeal by way of case stated in this fashion. Nevertheless, I have proceeded to consider the merits of the argument which has been addressed to me by Mr Ley.
11. Mr Ley submits, relying upon two decisions of the Court of Appeal decided under the Road Traffic Act 1962, that the justices were required to consider whether the information given to the appellant that he was entitled to request his own sample was still operating on his mind at the time the sample was taken.
12. It is submitted that, notwithstanding the fact that the justices were never asked to consider such a question at the trial, they should have made a specific finding of fact about it. It is submitted that since the justices made no such finding the appeal must succeed. The submission I find is entirely misconceived.
13. Section 2(5) of the Road Traffic Act 1962 provided:

"A constable requesting any person to consent to the making of, or to provide a specimen of blood or urine for analysis, shall offer to supply him in a suitable container part of the specimen, or in the case of a specimen of blood, which it is not practicable to divide, another specimen which he may consent to have taken."

14. The Court of Appeal in R v Price [1964] 2 QB 76 Lord Parker, Chief Justice, presiding, decided that those words meant exactly what they said. A direction to a jury to the contrary effect was, therefore, wrong, and the appeal allowed.
15. In R v Mitten [1966] 1 QB 10, the Court of Appeal, Lord Parker, Chief Justice, again presiding, considered what was the effect of a breach of section 2(5). The Court found that the breach did not render the evidence of analysis of a urine sample inadmissible and therefore the defendant entitled to an acquittal. It was admissible subject to the exercise of the trial judge's discretion to exclude the evidence in the face of prejudice.
16. Widgery J, as he then was, delivering the judgment of the court, held that the evidence of analysis would rarely be admitted in the face of a breach of the section. However, Mr Mitten was in fact offered a sample of his urine when the specimen was taken and indeed took it away with him. Accordingly, he cannot have suffered any prejudice.
17. The Court went on to find a that breach of section 2(4) was a different matter. Subsection (4) provided:

"Where the accused, at the time a specimen of blood or urine was taken from or provided by him, asked to be supplied with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen shall not be admissible on behalf of the prosecution unless --

(a) the specimen is either one of two taken or provided on the same occasion or is part of a single specimen which was divided into two parts at the time it was taken or provided; and

(b) the other specimen or part was supplied to the accused."

That subsection accordingly provided that the evidence of analysis would not be admissible in evidence in the event of a failure to comply.

18. The modern equivalent of section 2(4) of the 1962 Act is section 15(5) of the Road Traffic Offenders Act 1988 which is in virtually identical terms. Section 2(5) of the 1962 Act has not been re-enacted in the 1988 legislation. It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. Mr Ley submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act.
19. In my judgment, that is a hopeless proposition. There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.
20. Here, however, no application was made to the justices to exclude the evidence of analysis on the basis of some prejudice suffered by the accused. The appellant elected not to give evidence in his own trial. No submission appears to have been made to the justices that they should acquit on the ground now being argued. They were, accordingly, never given the opportunity to deal with it. Had they been given the opportunity, they would have reached the inevitable conclusion that the defendant suffered no prejudice. He knew of his right to ask for the second specimen because the justices found that he was told of that right. In the absence of evidence from the defendant himself that he was prejudiced, the justices were bound to convict. In this regard see the speech of Lord Hutton in DPP v Jackson and Stanley v DPP [1999] AC 406 at 425 to 426.
21. I can find no grounds to support this appeal and it is dismissed.
22. MR MILLS: My Lord, with respect to the position of costs the respondents are in some difficult position in that clearly they can't obtain costs from central funds. The only other basis for costs would be either from the appellant himself, or if your Lordship were to consider any exercise of discretion under the wasted costs principle or that kind of issue. My Lord, I seek the guidance of the court as to whether there is any other provision by which those instructing me may be refunded their costs arising from this failed appeal.
23. MR JUSTICE PITCHFORD: No notice has been given of an intention to apply for a wasted costs order has there?
24. MR MILLS: No.
25. MR JUSTICE PITCHFORD: Mr Ley, what do you say about the possibility of an order for costs against your client?
26. MR LEY: They can have the usual football pools order, my Lord. I don't think I can resist that.
27. MR JUSTICE PITCHFORD: There will be an order for the payment of the respondent's costs by the appellant not to be enforced without the leave of the court.
28. MR MILLS: Most grateful, my Lord. And looking back over my skeleton, my Lord, I had forgotten myself paragraph 37 of my own skeleton, page 17, so I hope your Lordship will forgive me that.
29. MR JUSTICE PITCHFORD: What does that say?
30. MR MILLS: That refers to what effect the cases of Price and Mitten were dealing with which was section 2(4) which is in similar terms to 15(5). So I was wrong. I concede it had been amended only from 1981. So if I was wrong in that I apologise, my Lord.
31. MR JUSTICE PITCHFORD: Thank you very much.