QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS||(CLAIMANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS R CALDER appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 20th March 2003
"Did the breaches of PACE which we find have occurred entitle us to exclude the evidence of analysis of the respondent's blood specimen under section 78 of PACE?"
"We also found that the demeanour of the respondent at the police station coupled with his numerous health problems led us to believe he did not comprehend the drink drive procedure and as a consequence to admit the evidence of everything which took place after the Custody Sergeant was made aware of the respondent's health problems would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
"In view of our finding that the custody sergeant had followed the breath test procedure correctly were we right to exclude the evidence of analysis under section 78 PACE, or should we have found this evidence admissible and thereby have convicted the respondent?"
"I have chronic asthma/bronchitis for which I use a nebuliser. I would not be able to provide a sample".
"Are there any medical reasons why a specimen of blood cannot or should not be taken by a doctor?"
"As there is reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, I require you to provide me with a specimen of blood or urine which in the case of blood will be taken by a doctor".
"If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or handicapped, or mentally incapable of understanding the significance of questions put to him or his replies, then that person shall be treated as a mentally disordered or mentally handicapped person for the purposes of this code".
"The generic term 'mental disorder' is used throughout this code. 'Mental disorder' is defined in section 1(2) of the Mental Health Act 1983 as 'mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. It should be noted that 'mental disorder' is different from 'mental handicap' although the two are dealt with similarly throughout this code. Where the custody officer has any doubt as to the mental state or capacity of a person detained an appropriate adult should be called".
"The Custody Sergeant breached the Codes of Practice C1.4, C9.2 and C9.6. These breaches were significant and substantial breaches".
"The demeanour of the respondent at the police station coupled with his numerous health problems lead us to believe that he did not comprehend the drink and drive procedure".
"In my judgment, there is a constant theme running through the authorities to which I have been referred. It is that in relation to section 7 and section 8, time is of the essence. The reasons for that are obvious. As is well known, alcohol in the body breaks up over a period of time and the further a procedure is in time from the moment of apprehension, the less reliable, and indeed the more favourable to the suspect, it becomes. It is not on the authorities necessary to delay section 7 or section 8 proceedings in order to allow the detainee time to read the codes or to obtain brief telephone advice or to await the arrival of a solicitor. In my judgment, it would be contrary to the theme established by those authorities to require the attendance of an appropriate adult prior to proceeding to the section 8 stage in putting the detainee to his election. I have considered whether the specific circumstances of a juvenile require that matters be delayed, either generally or in relation to the circumstances of this case. In my judgment, they do not. I take the view that whilst the Magistrates were correct to identify a breach of C3.9, they were wrong to exclude the evidence obtained pursuant to section 7 procedure because of that breach. In my judgment, that was simply not open to them under section 78 of the 1984 Act or otherwise. Whilst they were being asked to exercise a statutory discretion, it was one which in the circumstances of this case, and having regard to the issues arising, was not reasonably exercisable in favour of the respondent".
"We also found that the demeanour of the respondent at the police station [I emphasise those words] coupled with his numerous health problems led us to believe he did not comprehend the drink drive procedure".
"The defendant motorist was lawfully arrested, taken to a police station and asked to provide specimens of breath for analysis. She failed to blow properly into the machine and the machine aborted without a specimen being provided. She did not give any excuse for her failure to provide a specimen. She was charged with failing to provide a specimen, contrary to section 7(6) of the 1988 Act. The defendant, who prior to her arrest had not been taking the medication prescribed to alleviate panic attacks to which she had a predisposition, said in evidence that she had tried to cooperate and provide the specimen but had been unable to do so as she was in a state of panic, upset and short of breath. Her general practitioner gave evidence that if the defendant failed to take her medication, she would be more prone to panic attacks, but that such an attack would not prevent her from understanding what was being said to her, nor would there be anything physical or mental to prevent her providing a specimen. The Justices concluded, from the demeanour of the defendant whilst giving evidence [I emphasise those words] at her trial, her shortness of breath when stressed and her failure to take medication, that the defendant had suffered a panic attack which had prevented her from providing a specimen and that she had a reasonable excuse for failing to do so".
"Dr Bowering [that is the respondent's general practitioner] gave evidence that the defendant suffered from panic attacks and gave evidence of the consequences of such attacks. However, in cross-examination he expressed the opinion that during a panic attack there would be nothing physical or mental to prevent the defendant providing the breath specimens.
The justices stated that they considered that answer of the doctor along with the advice they received from their clerk. Dr Bowering was expressing an opinion as to the effects of a medical condition. The justices were entitled to evaluate that particular answer in the context of the particular case and the particular defendant. They were entitled to take into account, when considering the consequences of the medical condition, her evidence and their own impression based on observing her in the stressful situation in the witness box".
"The custody officer must immediately call the police surgeon (or, in urgent cases, -- for example, where a person does not show signs of sensibility or awareness, -- must send the person to hospital or call the nearest available medical practitioner) if a person brought to a police station or already detained there:
(a) appears to be suffering from physical illness or a mental disorder".
"otherwise appears to need medical attention".
"This applies even if the person makes no request for medical attention and whether or not he has already had medical attention elsewhere".
"He [that is Mr Preston] stated that the sergeant asked someone to phone the doctor".
"If a detained person has in his possession or claims to need medication relating to a heart condition, diabetes, epilepsy or a condition of comparable potential seriousness then, even though paragraph 9.2 may not apply, the advice of the police surgeon must be obtained".