QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE JACK
|THE QUEEN ON THE APPLICATION OF ROBERTSON||(CLAIMANT)|
|SOUTH WESTERN MAGISTRATES' COURT||(DEFENDANT)|
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The DEFENDANT did not appear and was not represented
MISS A POWER (instructed by CPS Kingston Branch) appeared on behalf of the INTERESTED PARTY
Wednesday, 15th January 2002
Crown Copyright ©
"I am of the opinion that the application is frivolous and so refuse to state a case on the basis that the Application requesting me to state a case discloses no point of law."
"(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction ... may question the proceeding on the ground that it is wrong in law ... by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law ... involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31st December 1879 is final ...
(5) If the justices are of opinion that an application under this section is frivolous, they may refuse to state a case, and, if the applicant so requires, shall give him a certificate stating that the application has been refused ...
(6) Where justices refuse to state a case, the High Court may, on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case."
"I think it very unfortunate that the expression 'frivolous' ever entered the lexicon of procedural jargon. To the man or woman in the street 'frivolous' is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come. It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge. Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre. But there are cases in which justices can properly form an opinion that an application is frivolous. Where they do, it will be very helpful to indicate, however briefly, why they form that opinion. A blunt and unexplained refusal as in this case may well leave an applicant entirely uncertain to why the justices regard an application futile, misconceived, hopeless or academic. Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs."
"... at about 12.30am in the early hours of Sunday 5 August 2001 police officers attended Armory Way, Wandsworth where an incident had occurred. They found a Porsche motor vehicle that had collided with a roadside crash barrier. A person in the back seat of the vehicle identified himself as Mr Robertson and confirmed that he had been driving the vehicle at the time of the incident. Mr Robertson was asked to take a roadside breath test which proved positive, he was arrested and taken to Wandsworth police station.
At the police station he came before Sergeant Parry who was the custody officer. Sergeant Parry stated that Mr Robertson smelt of intoxicating liquor, his eyes were glazed and his speech was slurred which description was not challenged in cross-examination. The breathalyser procedure was carried out and Mr Robertson was offered the opportunity to have a sample of blood taken to replace the breath sample with the lower proportion of alcohol in accordance with the provisions of section 8(2) Road Traffic Act 1988 as the second sample of breath showed a reading of 50...
Mr Robertson was subsequently seen by the FME and it transpired that he had a fear of needles. On the advice of the FME Mr Robertson was asked to provide two samples of urine within an hour of seeing the FME. There appears to have been some initial confusion on the part of the custody officer about the procedure to adopt with urine samples but Mr Robertson urinated in the toilet after that initial delay but was not able to urinate again and provide the second statutory specimen of urine within the hour specified by the Act."
(2) The urine sample procedure
"7(1) In the course of an investigation into whether a person has committed an offence under section 3A, 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 ...
(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 the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous 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...
8(2) If the specimen with the lower proportion of alcohol contains no more than 50 micrograms 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."
"In relation to the provision of the specimen of urine, PC Keepin and Sergeant Parry were unable to recall the exact sequence of events on the night in question. Sergeant Parry said that having administered the breathalyser procedure he offered the statutory option to Mr Robertson. He said that his first choice was blood. The FME attended the police station and advised the custody officer that a sample of urine should be taken rather than blood. Once a urine sample was offered Mr Robertson then wished to revert to blood, the FME was asked again if he would take a sample of blood but he refused. Sergeant Parry said that Mr Robertson kept changing his mind. The Sergeant said that at the time of the incident he had been trained in the use of the machine for about a year. He accepted there may have been a delay before the defendant was asked to first urinate after he was requested to provide a sample of urine having exercised his statutory option.
In his evidence Mr Robertson said that he provided his first sample of urine to be discarded after about half an hour and because of the delay in him being requested to provide that first sample he was not able to provide the second useable sample within the half-hour remaining. He was not able to put a precise time on the events and the sequence of events with regard to the provision of urine was not recorded by the custody officer. Mr Robertson said that when the procedure was going on he felt very unwell. He accepted that he was 'very shaken and very stressed' by the events of that evening and he was suffering from a minor injury to one of his hands sustained in the collision. Mr Robertson says that he confirmed to the custody officer that he was able to provide a further specimen of urine 15 minutes after the hour was up but was told that the time period for providing that specimen had expired.
Partly because the prosecution witnesses did not recall the timetable relating to the provision of specimens of urine and partly because of Mr Robertson's shocked and stressed state at the time potentially affecting the reliability of his evidence, I was unable to precisely determine whether the delay between the request from the custody officer for a sample of urine and the defendant first urinating was a few minutes or the half hour claimed by Mr Robertson. I am assisted by the reference in the twentieth edition of Wilkinson to the case of Winstanley (1993 RTR 222) in which it was held on different facts that if the exercise of the option to provide a specimen of breath or urine is rendered ineffective by subsequent events the prosecution is entitled to rely on the breath specimens previously provided. Despite an initial delay between the request for urine and the first opportunity to urinate I concluded on all the evidence before me that the procedure adopted by the custody sergeant was carried out in accordance with the provisions of Section 7 and 8 of the Act. If I am incorrect and the procedure was not carried out in accordance with those provisions, I concluded that the prosecution could rely on the two breath specimens obtained during the breathalyser procedure."
"... a specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine."
Mr Ley submits that the claimant was entitled to an hour from "the requirement for" the provision of a specimen of urine. He submits that on the facts found the relevant requirement only ran from the time that the defendant was permitted by the custody sergeant to provide the first of the two samples referred to in section 7(5).
(3) The device