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
		29th June 2006

Thursday, 29th June 2006

1. MR JUSTICE LANGSTAFF: This is an appeal by way of case stated from a decision of the Haverfordwest Magistrates' Courts in respect of convictions of the claimant for assaulting a police officer in the course of his duty and for driving with excess alcohol.
2. The facts can be broadly stated. At around 1.45 on the morning of 27th December 2004 the appellant was driving a motor vehicle on the A40 road at Letterston. She was stopped by police officers. Her breath was thought to smell of alcohol so the police officers administered a breath test. It was positive. She was arrested. In her car were dogs. She asked to return to her vehicle to attend to those dogs. Having done so, however, she refused to enter the police vehicle. There was a struggle. She was restrained in handcuffs and a further struggle ensued, during which Police Constable Morgans was kicked and his teeth chipped. She was placed on the grass verge. There was a further struggle. PC Phillips, the other police officer concerned, was kicked in the chest. She then fell motionless, claiming that she was about to have a heart attack. She was conveyed to Haverfordwest hospital where she was admitted for tests.
3. Just before four o'clock in the morning, Police Constable Phillips obtained the consent of her doctor for blood samples to be taken from her although she was unconscious. They were taken by the police surgeon. It was one sample which was separated into two parts which were placed in sealed plastic bags; one marked as being for the appellant, the other marked for analysis. At the time, she was still unconscious. At 20 past 5 in the morning, PC Phillips came back to see the appellant. She was then conscious. He told her that a blood sample had been taken. He gave her the glass vessel labelled by the police surgeon. She did not herself ask for her part of the blood specimen. It was provided to her without a request on her behalf. Significantly, for the purpose of this appeal, she was not afforded a choice as to which part of the specimen taken she wanted. She gave her consent to the testing of the sample, so the Magistrates found. In due course, the sample was found to contain no less than 109 milligrams of alcohol per 100 millilitres of blood, therefore being significantly in excess of the legal limit.
4. At the trial, she sought to challenge the admissibility of the blood analysis on the basis that she had not consented to the taking of the blood, having been unconscious at the time. A point also arose as to whether or not she should have been given a choice of one of the two parts of the one sample which had been taken. The Justices rejected that submission.
5. In the case which they stated, the Justices recorded, at paragraph 7, that they considered that the prosecution case had been proved on all charges beyond a reasonable doubt. They went on to assert that the proper procedures had been carried out in respect of a person who was unconscious for the purpose of obtaining a substantive blood sample for analysis as to the alcohol contained in the appellant's blood, and at paragraph 7(g) of the case that:

"The appellant was duly informed that blood samples had been taken from her for the purposes of analysing whether the alcohol contained in her blood exceeded the prescribed limit and whether, depending on the results, she had committed the offence of driving a motor vehicle while the proportion of alcohol in her blood exceeded the prescribed limit."

6. The questions posed for the opinion of this court were these:

"1. Was there any evidence on which a reasonably minded bench of justices, properly directing themselves, could have held that the correct procedure for obtaining a blood specimen had been followed?

2. Having particular regard to the circumstances that the appellant made no request for a part of the sample of blood to be provided to her, does Section 15(5A) of the Road Traffic Offenders Act 1988 (as enacted by Section 57 of the Police Reform Act 2002) require that the a defendant [sic] in the appellant's circumstances, if given a sample, be given a choice of the part of the sample that should be given to her?

3. Did the bench apply the correct standard of proof in relation to all the charges?"

7. Before us, Mr Ley, for the appellant, has advanced his submissions in two parts, the first addressing the first two questions. He asserts that it was a necessary requirement for the admissibility of the results of the analysis of the blood specimen provided that the appellant should have been asked if she wished to exercise a choice as to which of the two parts of the one sample she wished to have, and given an effective choice as to which sample it would be. This submission is based upon the case of Nicholson v Watts [1973] RTR 208. It was a decision of the Divisional Court consisting of the Chief Justice, Lord Widgery, Eveleigh and May JJ. In the course of giving judgment, the Chief Justice said at page 211G:

"... section 2(4) of the Road Traffic Act 1962 does not condescend to detail in regard to the quality of the sample. It requires that the initial sample taken from the suspect should be divided and that he should be given his choice of the part which has been obtained. That is a procedure which must always be meticulously followed because it is of the utmost importance for the protection of defendants."

8. Mr Ley submits that that represents the law. It requires a meticulous attention to the procedure under the Act. It interprets section 2(4) of the Road Traffic Act 1962 as requiring that a person to whom that Act applied should be given a choice of one or other parts of a sample. He points out that section 2(4) of the Road Traffic Act 1962 is in terms which, though not identical, do not differ in any material respect from the terms of the Road Traffic Offenders Act 1988 section 15(5A). Accordingly, he argues that that latter section requires to be interpreted in the same way as Lord Widgery's comments in Nicholson v Watts would suggest.
9. We reject those submissions. We do so by having regard, first, to the words of the statute. The words of the 1962 Road Traffic Act relevant to the decision in Nicholson v Watts were these:

"Where, at the time a specimen of blood ... was provided by the accused, he asked to be provided with such a specimen, evidence of the proportion of alcohol ... found in the specimen is not admissible on behalf of the prosecution unless -

(a) the specimen ... is one of two parts into which the specimen provided by the accused was divided at the time it was provided, and

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

10. That section does not, on the face of it, require a choice of specimen. Section 15(5A) of the Road Traffic Offenders Act 1988, which applied to this appellant, provides so far as material:

"... evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the prosecution unless:

(a) the specimen in which the alcohol or drug was found is one of two parts into which the specimen taken from the accused was divided at the time it was taken; and

(b) any request to be supplied with the other part, which was made by the accused at the time when he gave his permission for a laboratory test of the specimen, was complied with."

11. It must immediately be noted that both the 1962 and the 1988 Acts envisaged a request being made by the accused as a pre-condition for him being supplied with a sample, or, for that matter, a choice of sample. The case of Nicholson v Watts itself, being a decision of this court, is not technically binding upon us. In any event, the case concerned whether or not a sample which had been provided to the accused in that case was properly capable of analysis so as to represent a sample within the meaning of the Act. The sample provided to the accused had, despite being kept correctly, clotted in part, though it still proved, as far as the other part was concerned, capable of analysis. The decision of the court therefore related to whether or not a sample which had clotted in part was a true sample. The observations to which Mr Ley drew our attention could not, on any view, be said to be part of the ratio of the case. In any event, it is not clear from what Lord Widgery CJ said at G, that he intended the meticulous respect for the procedure to extend to every element that he had identified in that paragraph, including the giving of a choice of part, for in a passage which immediately follows he concluded that the authorities had been conveniently summarised in his own previous judgment in the case of Kierman v Willcock [1972] RTR 270, in which he had noted that the underlying intention of section 2(4) was that not only should the police have a specimen to analyse, but that the defendant should have an identical specimen also, going on to observe (materially for present purposes) that if a defendant was supplied with a specimen or part chosen at random from those available at the time, then on the face of it, the duty imposed by section 2(4) had been satisfied. That falls far short of requiring a choice of sample, and indeed, the recognition there of the purpose behind the section is of no assistance to Mr Ley's arguments.
12. Accordingly, it seems to us that it is not permissible before us to argue that here there was an error of law by reliance upon a part of the judgment in Nicholson v Watts which was not ratio and which was unnecessary for the decision, in respect of interpreting the words of a present statute which do not require any choice. Indeed, it is difficult to see quite what providing a choice to an accused would add to protection against the mischief at which this part of the Act is directed. It is not immediately apparent why a sample which is divided into two, if that is what has happened, should be one in respect of which the accused should have a choice as to which part he or she has for personal analysis, or whatever use he may wish to make of it.
13. Accordingly, we see no force whatsoever in this point. We should merely add for completeness that the procedure to be adopted for a person who is, by reason of unconsciousness, unable to provide consent for the taking of a sample, is laid down by section 7A of the Road Traffic Act 1978. That too makes no reference to there being any choice of sample.
14. The third question as to the standard of proof arose because the Magistrates expressed themselves in open court in the terms of a note which we have in handwritten form. At the start of the hearing before us, Mr Ley applied for this handwritten note to be made part of the case. There being no objection to this course, we allowed it. Each of the paragraphs of the handwritten note begins with the two words, "We believe." Thus, the Magistrates believed that PC Morgans was kicked, they believed that PC Phillips sustained a blow, they believed that the proper testing procedures had been followed, and so on. There is no part of the evidence which the Magistrates believed was capable of assisting the appellant. It was all an acceptance of the prosecution case.
15. Mr Ley argues that the words "We believe" are words which are appropriate and appropriate only to an approach to the standard of proof which is that of proof on the balance of probabilities. It falls short, he submits, of finding a case proved beyond a reasonable doubt.
16. We reject his argument in this respect, too. First, in the case itself, as we have already cited, the Magistrates give as their opinion that the prosecution case had been proved on all charges beyond reasonable doubt. Mr Ley argues, by reliance upon the case of R v Cripps [1984] 1 QB 686, particularly a passage at 697, that it is not open to a Magistrates' Court to correct a mistake which it may have made by, as it were, an application of the slip rule. Once it has given its reasons, it is functus. However, we do not think that that is what the Magistrates here were doing. We read their reasons as part of the case, as delivered in open court, together with the case which they have stated. It forms a whole and, in our view, the Magistrates were saying, and were entitled to say, that the case had been proved on all charges beyond a reasonable doubt. In any event, had we not been of this view, we would have been of the view that the expression "We believe", adopted in the handwritten reasons, indicates an acceptance that the Magistrates were sure. "We believe" is a form of speech, as indeed has been pointed out in the skeleton argument of Mr James for the respondent. It may be defined as "a conviction in the truth of anything". It may be defined as, amongst other things, being "firmly convinced". Depending upon the context, it may have different shades of meaning. But we note that there is here a very close analogy to words used regularly day by day when a Crown Court judge addresses a jury and tells them that they may accept part of the evidence which they hear, or reject it. Belief in evidence is, it seems to us, exactly the same as acceptance. In any event, the Magistrates indicated here a belief in each and every part of the Crown's case. They did not indicate any acceptance of the appellant's case. It followed that, given those matters in which they express their belief, there was no conceivable logical basis upon which they could be anything other than satisfied beyond a reasonable doubt that the case against the appellant had been proved.
17. It follows that for all these three reasons there is no force in the third point. The questions, therefore, must be answered:

1. Yes.

2. No.

3. Yes.

For those reasons this appeal is dismissed.

18. LORD JUSTICE MAY: Yes. Thank you.