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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Director of Public Prosecutions v. Jackson; Stanley v. Director of Public Prosecutions [1998] UKHL 31; [1999] 1 AC 406; [1998] 3 All ER 769; [1998] 3 WLR 514 (29th July, 1998)
URL: http://www.bailii.org/uk/cases/UKHL/1998/31.html
Cite as: [1998] UKHL 31, [1998] 3 WLR 514, [1999] 1 AC 406, [1998] 3 All ER 769, [1999] AC 406

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Director of Public Prosecutions v. Jackson; Stanley v. Director of Public Prosecutions [1998] UKHL 31; [1999] 1 AC 406; [1998] 3 All ER 769; [1998] 3 WLR 514 (29th July, 1998)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Griffiths Lord Lloyd of Berwick Lord Steyn Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

DIRECTOR OF PUBLIC PROSECUTIONS
(APPELLANT)

v.

JACKSON
(RESPONDENT)

STANLEY (A.P.)
(APPELLANT)

v.

DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE
QUEENS BENCH DIVISION)
(CONJOINED APPEALS)

ON 29 JULY 1998

LORD SLYNN OF HADLEY

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hutton. For the reasons which he has given I too would answer the questions certified in the way he proposes, allow the appeal in Jackson and dismiss the appeal in Stanley.

LORD GRIFFITHS

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hutton. I agree with it, and for the reasons which he has given I too would make the orders he proposes.

LORD LLOYD OF BERWICK

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hutton. I agree with it, and for the reasons which he has given I too would make the orders her proposes.

LORD STEYN

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hutton. I agree with it, and for the reasons which he has given I too would make the orders he proposes.

LORD HUTTON

My Lords,

The two appeals before your Lordships relate to the procedures to be followed by the police pursuant to section 7(3) or section 8(2) of the Road Traffic Act 1988 where a specimen of blood or urine is to be provided by a driver suspected of driving under the influence of drink or drugs. It is clearly desirable that as far as possible the law governing this procedure should be simple and free from complexity but regrettably questions arising under these sections have given rise to many appeals to the Divisional Court.

Before turning to the facts of the two cases it will be convenient to set out the relevant sections of the Act which provide:

a

b

(2) A requirement under this section to provide specimens of breath can only be made at a police station.

(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless--

a

b

a

c

this Act

but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

(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. . . .

(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.

(7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.

11. (4) A person provides a specimen of blood if and only if he consents to its being taken by a medical practitioner and it is so taken."

The case of Jackson

At 11.50 p.m. on the night of 17 August 1995 police officers in Widnes, in Cheshire, saw the defendant, Stephen Jackson, driving a motor car on a public road in an erratic manner. They stopped him and one of the officers saw that his eyes were red and glazed and noticed that his speech was slurred. The officer arrested the defendant on suspicion of having driven whilst unfit to do so through drink or drugs and brought him to the police station, where the facts of his arrest were outlined to the police sergeant in the station. In the police station the defendant was examined by a doctor who then informed the sergeant that the defendant's symptoms could be consistent with him having taken drugs.

The case stated to the Divisional Court described what transpired after the doctor had told the sergeant that the defendant's symptoms could be consistent with him having taken drugs:

"Sergeant Dickson then requested the Appellant to provide a sample of blood or urine and warned him that failure to provide a sample may make him liable for prosecution, the Appellant replied 'No.' Sergeant Dickson warned him again about failure to provide and asked if he had any representations whether the sample should be blood or urine, the Appellant replied 'No, I'm not giving a sample.' The sergeant then said to the Appellant if he were to give a specimen was there any reason why a specimen could not be taken and told him that his only right to object to giving blood and giving urine instead would be for a medical reason to be determined by the doctor, the Appellant replied 'I don't like needles but I'm not giving anything anyway.'

Sergeant Dickson then informed the Appellant that he had failed to provide the specimens without reasonable excuse and would be charged. At 3.24 a.m. P.C. Davis charged the Appellant."

The defendant appeared before the Justices sitting at Widnes charged with failing without reasonable excuse to provide a specimen of blood contrary to section 7(6) of the Act and Schedule 2 of the Road Traffic Offenders Act 1988 and, as recorded in the case stated, it was submitted on his behalf:

a

b

The justices convicted the defendant and the case stated recorded the reasons for their decision as follows:

Director of Public Prosecutions v. Warren

On the appeal of the defendant to the Divisional Court (constituted by Lord Bingham of Cornhill C.J. and Buxton J.) two arguments were advanced on his behalf. One argument was based on a passage in the judgment of Mustill L.J. in Johnson v. West Yorkshire Metropolitan Police [1986] R.T.R. 167-175.

It was submitted that once the defendant had told the sergeant "I don't like needles" he had raised a potential medical reason for not providing a specimen of blood and that the sergeant should either have referred his objection to a doctor or have asked further questions in order to ascertain whether the matter should be referred to a doctor, and that having failed to do so the defendant should not have been convicted because there had not been compliance with the full procedure required by section 7.

The Divisional Court rejected this submission on two grounds. The first ground was that the statement "I don't like needles" was not a sufficient statement, whether actually or potentially, of a valid medical objection to place the police officer under the obligation to refer the matter to a doctor or to ask further questions to ascertain whether the matter should be so referred. The second ground was that on the facts of the case the defendant had made it entirely clear, before the sergeant asked him if there was any reason why a specimen of blood should not be taken, that he was not going to give a specimen of either blood or urine, and he reiterated this attitude when he expressed his dislike of needles.

The second argument advanced on behalf of the defendant to the Divisional Court relied on the judgment of Lord Bridge of Harwich in this House in Director of Public Prosecutions v. Warren [1993] A.C. 319. It will be necessary to consider Lord Bridge's speech in greater detail later in this judgment, but at this stage it is sufficient to cite two passages from the speech upon which the defendants relied. Lord Bridge set out the words addressed by the police officer in that case to the defendant, at p. 324:

"The approved evidential breath testing device cannot be used on this occasion because the calibration check has proved unsatisfactory. Accordingly, I require you to provide an alternative specimen, which will be submitted for laboratory analysis. The specimen may be of blood or urine but it is for me to decide which. If you provide a specimen you will be offered part of it in a suitable container. If you fail to provide a specimen you may be liable to prosecution. Are there any reasons why a specimen of blood cannot or should not be taken by a doctor?"

And Lord Bridge stated, at p. 332

section 7

Lord Bridge made it clear in his speech, at p. 328B, that the reference in the formula to "any reasons" included a non-medical reason as well as a medical reason. The submission made on behalf of the defendant Jackson was that the requirement laid down by Lord Bridge had not been complied with because, although the sergeant had asked the defendant was there any reason why a specimen could not be taken, he immediately negated this question by telling him that his only right to object to giving blood would be for a medical reason to be determined by the doctor: in other words the sergeant did not ask the defendant if there were any reasons other than medical reasons why a specimen of blood could not be taken.

This submission was accepted by the Divisional Court with reluctance and only because the court felt itself bound by the authority of Warren's case to do so. The appeal was therefore allowed and in delivering the judgment of the court Buxton J. stated:

Warren

Warren's

Director of Public Prosecutions v. Donnelly

Further considerations

We have reached our conclusion in this case with the greatest concern, not least because of what appears to be the widespread and, absent authority, perfectly reasonable use of the formula used in this case. We hope that the issue in this case, and the wider questions involved in the breathalyser law, will be the subject of early reconsideration by the House of Lords. To that end we are minded to certify a question for their Lordships House and to grant leave."

The question certified by the Divisional Court as the point of law of general public importance is as follows:

Director of Public Prosecutions v. Warren

section 7

Road Traffic Act 1988

sections 7

7

8

The case of Stanley

About midnight on 8 May 1996 police officers in Denham, in Buckinghamshire, stopped the defendant in a motor car which he was driving. The defendant was arrested and brought to Amersham Police Station. At the police station he agreed to provide two specimens of breath for analysis by an intoximeter machine. The specimen with a lower proportion of alcohol contained 47 microgrammes of alcohol in 100 millilitres of breath, and therefore the defendant was entitled to the option given by section 8(2) of the Road Traffic Act 1988 to claim that the specimen should be replaced by a specimen of blood or urine as may be required under section 7(4) of the Act.

The police officer who was dealing with the defendant had with him his own pro-forma booklet which set out the questions which he was required by his police force to ask. Accordingly he asked the following question of the defendant:

"As the breath specimen with the lower proportion of alcohol exceeds the statutory limit, but contains no more than 50 microgrammes of alcohol in 100 millilitres of breath you may claim that it should be replaced by a specimen for a laboratory test. Such a specimen can be of blood or urine. If you wish, part of the specimen will be provided to you for independent analysis. The decision as to which type of specimen is to be provided is that of the police. If you elect to supply such a specimen, it will normally be of blood which will be taken by a medical practitioner. I should tell you that your only right to object to giving blood and to give urine instead will be for medical reasons to be determined by a medical practitioner. The result of the laboratory test will replace the result of the specimen of breath already provided by you. Do you wish to replace the breath specimen with a specimen of blood or urine?"

The defendant replied: "No, I don't want no needle."

The case stated then said:

"Police Sergeant Wharton thought that that reply constituted a refusal. In cross examination the police sergeant accepted that he did not ask why the appellant refused and neither did the appellant say why he had refused. The police sergeant accepted that both through forgetfulness and because he believed that the appellant had refused, he did not ask the 'medical reasons' question."

After the question which was put to the defendant by the police officer set out above the pro-forma booklet set out as a further question "Are there any medical reasons why a sample of blood cannot or should not be taken by a doctor?"

The defendant appeared before the Wycombe & Beaconsfield Magistrates' Court charged with driving a motor vehicle on a road after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to section 5(1)(a) of the Act and Schedule 2 of the Road Traffic Offenders Act 1988. After a hearing the defendant was convicted. The defendant appealed to the Crown Court at Aylesbury which heard and dismissed the appeal.

In the case stated by the Crown Court the following reasons were given for the dismissal of the appeal:

"(g) Having heard all the evidence we found that it was a refusal. In giving the judgment of the court I stated that we so found.

(h) . . . We found that there was no medical issue in the Appellant's case and no usurpation by the police sergeant of the medical practitioner's function. I said so in giving judgment.

To the question posed: 'Could the reply have amounted to a medical reason?' we were satisfied to the extent that we were sure that the answer was 'No.'

Anderton v. Lythgoe

Edge v. Director of Public Prosecutions

(j) We asked ourselves whether the law required a police officer in the face of a refusal to continue and ask a raft of irrelevant questions. We were of the opinion that it did not . . .

(l) Finally under this head we asked ourselves whether the law required a police officer to ask anyway. We were satisfied that there was no such legal requirement."

The argument advanced on behalf of the defendant Stanley to the Divisional Court (constituted by Brook L.J. and Blofeld J.) was the same as the first argument advanced to the Divisional Court on behalf of the defendant Jackson in reliance on the judgment of Mustill L.J. in Johnson's case [1986] R.T.R. 167, namely that the defendant Stanley's reply to the police officer "No, I don't want no needle" indicated that there may have been a medical issue which required the police officer to ask the follow-up question "Are there any medical reasons why a sample of blood cannot or should not be taken by a doctor?" so that the procedure required by section 8(2) and section 7(4) had not been properly carried out with the consequence that the prosecution had not been entitled to rely on the result of the breath test as the defendant had been denied the full benefit of the choice given to him by section 8(2). The Divisional Court rejected this submission and Blofeld J. stated:

"Looking at this case we can perfectly well see that that answer was capable, depending no doubt on the background and depending on its intonation possibly, of raising a medical question. But in my view it was open to the court that heard that evidence to come to the firm conclusion, as this court did come, that it did not amount to a medical reason. Consequently, for my part, I would reject the submission that the decision by the learned Crown Court judge and his colleagues was Wednesbury unreasonable."

There was a second point raised before the Divisional Court. It was described as follows by Blofeld J.:

Fraser v. The Director of Public Prosecutions

In the lengthy question which the police officer put to the defendant he did say: "I should tell you that your only right to object to giving blood and to give urine instead will be for medical reasons to be determined by a medical practitioner." Therefore when Blofeld J. said that prior to the decision in Fraser v. Director of Public Prosecutions [1997] R.T.R. 373 an argument could have been mounted "that it was required for the police officer . . . to make clear to him that he could refuse to give a sample of blood for medical reasons," I think this argument would have been that the police officer must by an express question ask the driver whether there are any medical reasons for refusing to give a specimen of blood, and I think this is confirmed by the wording of the point of law certified by the Divisional Court which was as follows:

s.8

Road Traffic Act 1988

The judgment in Warren's case

Before giving further consideration to the judgments of the Divisional Court in Jackson and Stanley it will be convenient to turn to the speech of Lord Bridge in Warren's case [1993] A.C. 319, with which the other members of the House agreed, because much of the argument addressed to your Lordships in the present appeals related to the effect of that speech. The issue which came before the House on that appeal was whether, when a driver was requested under section 7(3) of the Act to provide a specimen of blood or urine, the police officer was required to ask him whether he had a preference for giving blood or urine.

The House held that the Act imposed no such requirement and this was the ratio of the decision. But in his speech in order to give guidance as to the appropriate procedures to be followed by a police officer in a section 7(3) case and a section 8(2) case Lord Bridge stated certain requirements as to what a police officer should tell or ask the driver. Those requirements are set out in the following passages of the speech. He stated, at pp. 327-328:

And he stated, at p. 332:

As Lord Bingham of Cornhill C.J. observed in Fraser v. Director of Public Prosecutions [1997] R.T.R. 373, 380F it had been hoped that the judgment in Warren's case would settle the law on the vexed topic of the procedures to be followed by the police, but unfortunately this has not been achieved and there has been a continuing stream of cases coming before the Divisional Court. In these circumstances I understand your Lordships to be agreed that this House should give further thought to the judgment in Warren's case to consider whether additional guidance could be given to assist the courts which have to apply section 7(3) and section 8(2).

The principal difficulty which has arisen following the judgment in Warren's case is that different approaches have been taken in two lines of cases to the question whether the requirements stated by Lord Bridge are mandatory, so that a failure to observe a requirement must lead to an acquittal, or whether a breach of a requirement is not necessarily a bar to a conviction.

The approach in one line of cases is exemplified by the statement of Leggatt L.J. in Reg. v. Cheshire Justices, Ex parte Cunningham [1995] R.T.R. 287, 291 when referring to the decision in Warren's case he said:

Edge v. Director of Public Prosecutions

Meade v. Director of Public Prosecutions

Ogburn v. Director of Public Prosecutions

The approach in the other line of cases is exemplified by the statement of Waller J. in Hayes v. Director of Public Prosecutions [1994] R.T.R. 163, 172:

"It is important to appreciate that what Lord Bridge was saying in the passages quoted above was not by reference to the sort of facts that one has in the present case. Furthermore, they are not the words of a statute to be analysed as such."

The same approach was taken by Curtis J. in Baldwin v. Director of Public Prosecutions [1996] R.T.R. 238, 246:

Director of Public Prosecutions v. Warren

section 8

Turner v. Director of Public Prosecutions

(Note-1994)

However, on the facts of this case, in my judgment, this particular defendant did make an informed decision and was given all the necessary explanations and information that he would need to make a proper and informed decision."

In considering the issue raised by these two lines of cases it is necessary to have regard to the respective functions of the police officer and the doctor set out in the sections. Section 7(4) provides that if a specimen other than a specimen of breath may be required under that section it is for the police officer to decide whether the specimen will be blood or urine. But section 11(4) provides that the specimen of blood is to be taken by a doctor. In addition the right of the police officer to choose whether the specimen will be of blood or urine is subject to the qualification that if a medical reason is raised why a specimen of blood cannot or should not be taken, the issue is to be decided by a doctor and not by the police officer. In Johnson v. West Yorkshire Metropolitan Police [1986] R.T.R. 167 Mustill L.J., stated at p. 175 (I have substituted the numbers of the similar sections in the Act of 1988 for the numbers of the sections in the Road Traffic Act 1972, as modified by section 25 of, and Schedule 8 to, the Transport Act 1981, which Mustill L.J. was considering):

"The taking of a sample is a much more serious infringement of the subject's ordinary liberties than causing him to blow into a machine, and medical questions of real significance and difficulty may arise. Accordingly section [7(4)] introduced the medical practitioner as the arbiter. It makes no reference to the police officer. The implication is to my mind clear that in deciding the medical issue the constable has no role to play.

This does not however lead to an interpretation at the opposite extreme, which would require the officer to act as no more than a messenger, obliged to turn out the medical practitioner whenever the suspect contrived to utter a form of words suggesting a claim for medical immunity. The police officer cannot have the power to rule upon a medical issue, but he must have the power to form a view on whether such an issue has been raised at all, for otherwise the medical practitioner would be troubled by excuses which have nothing to do with the expertise which is the reason for his being given a part to play under section [7(4)]."

Moreover an offence under section 7(6) for failure to provide a specimen of blood or urine or an offence under section 5(1), proved by a specimen of breath where the driver has not claimed under section 8(2) to replace it with a specimen of blood or urine, is an unusual offence in that in the police station prior to the charge being made the driver has a choice to make. Where a driver is charged under section 7(6) for failing to provide a specimen of blood, he will have been faced with the choice whether he will give a specimen of blood or risk a prosecution, and this choice arises in the context that if he has a medical reason for not giving a specimen of blood the validity of the reason is to be decided by a doctor and not by the police officer. Mustill L.J. referred to this choice in Johnson's case at p. 174:

"Equally, where the question of an alternative specimen arises under section [7(3)] rather than [8(2)], one would need to find specific language to produce the result that the constable, by means of a final ruling on a medical objection, could put the suspect to the choice of allowing a specimen of blood or risking prosecution under section [7(6)] without access to a practitioner."

And under section 8(2) the driver is faced with the choice whether he will claim that the specimen of breath should be replaced by such specimen as may be required under section 7(4).

It is because the driver has these choices, and because a doctor has a role to play both in taking a specimen of blood and in deciding the validity of a reason advanced by the driver as to why a specimen of blood cannot or should not be taken, that Lord Bridge in Warren's case [1993] A.C. 319, immediately before stating what the driver should be told, said, at p. 327:

section 8

It has been observed in a number of subsequent cases that the requirements stated by Lord Bridge in respect of section 7(3) and (4) and section 8(2) are not contained in the express words of the Act; the only express requirement set out in the sections is the requirement in section 7(7) that a police officer must warn a driver that a failure to provide a specimen may render him liable to prosecution. In Joiner v. Director of Public Prosecutions [1997] R.T.R. 387 Holland J. described the submission advanced on behalf of the defendant as follows ,at p. 390:

"Mr. Ley draws our attention to that last exchange between the police officer and the defendant. He submits that that exchange was defective because it did not include words from the officer to the defendant: 'You can only object to giving blood on medical grounds.'

Road Traffic Act 1988

Director of Public Prosecutions v. Warren

And he stated, at p. 393:

Baldwin v. Director of Public Prosecutions

For that reason I would dismiss this appeal, not only on the first ground, but on the second ground."

I think it is clear that it was considerations of fairness to the driver, to which he referred in the words at p. 327D set out above, which led Lord Bridge to hold that the requirements which he stated were implicit in the Act. It is also apparent that Lord Bridge considered that in the application in practice of the provisions contained in sections 7 and 8 both the legitimate interests of drivers and the efficient working of the procedures by the police would be assisted by the statement of specific requirements to be observed by the police.

However subsequent cases have shown that in this area of the law there are a number of disadvantages if formulae stated by an appellate court for use by the police, which are based on the need for fairness to the driver but which are not required by the express words of the Act, are regarded as mandatory requirements. One disadvantage is that the facts of individual cases and the exchanges between a driver and a police officer in the police station within the confines of the procedures laid down by sections 7 and 8 of the Act of 1988 can vary considerably, so that one prescribed form of words may not be appropriate in every case. Another disadvantage is that in some cases there is no unfairness and no resultant injustice if a driver is convicted notwithstanding that one of the Warren requirements has not been observed. Robinson (Dena) v. Director of Public Prosecutions (Note) [1997] R.T.R. 403 was such a case; there the breath specimen was in excess of the prescribed limit but did not exceed 50 microgrammes of alcohol in 100 millilitres of breath and the defendant declined to exercise the option given by section 8(2) and was convicted by the justices, and the conviction was upheld by the crown court. On appeal by case stated the defendant contended that the full Warren formula had not been put to her because she had not been told that a specimen of blood would be taken by a doctor and that any medical reason she raised for not giving a specimen of blood would be determined by a doctor. However the case stated said:

"The defendant said in evidence that she had appreciated it was inherent in what Sergeant Tinsley had said to her that a doctor would be called to take any specimen of blood. She further stated that she knew of no medical reason why she should not give a specimen of blood."

and it was agreed that this should be treated as a finding of fact.

Therefore it was clear that the defendant had not been prejudiced and the appeal was dismissed, Pill L.J. stating, at pp. 408-409:

section 8

Warren

In Robinson's case the Divisional Court followed the approach taken by Kennedy L.J. in Director of Public Prosecutions v. Charles (Note) [1996] R.T.R. 247 in a number of appeals heard together in section 8(2) cases. In giving judgment Kennedy L.J. stated, at p. 270:

Warren

Ruxton v. Director of Public Prosecutions

Note--1994

In fact she under-quantified the excess.

Although it is important to comply with the statutory provisions, as interpreted by this court and the House of Lords, it is also important to have regard to the overall intention of Parliament when this statute was enacted. The relevant provisions were intended to enable a driver to provide a replacement specimen in a situation in which, as Lord Bridge has pointed out, the driver faces conviction on the basis of a specimen already provided. The provisions were not intended to provide a series of hazards for police officers which if not skilfully negotiated with complete precision would enable drivers to escape conviction entirely."

In my opinion the approach taken by the Divisional Court in Robinson v. Director of Public Prosecutions [1997] R.T.R. 403 and Director of Public Prosecutions v. Charles [1996] R.T.R. 247 was correct and demonstrates that unmeritorious acquittals would take place if the Warren requirements were regarded as mandatory so that any breach of them would result in the dismissal of the charge even if the breach had caused no unfairness or prejudice to the defendant. However I would respectfully differ from the view expressed by Kennedy L.J. in Charles at p. 270B as to the onus of proof and I refer to this point in a later part of this judgment.

It was submitted on behalf of the defendant Jackson that if the Warren [1993] A.C. 319 requirements were regarded as being guides to ensure fairness rather than as being mandatory there would be uncertainty as to the law and the administration of this branch of it would be brought into disrepute. It was submitted that this result would follow because the same facts in one part of England would lead to an acquittal, while exactly the same facts would cause a conviction in another part of the country. I do not accept that submission because the many decisions in the Divisional Court show how different are the precise facts which come before the justices. Moreover it is a frequent occurrence in a criminal trial that the justices or the judge have to give a ruling on fairness in the particular circumstances of the case, and this does not cause uncertainty or bring the law into disrepute.

Therefore I am of opinion that the guidance given in Warren's case should be regarded as having the following effect. The requirements stated by Lord Bridge, with three exceptions, are not to be treated as mandatory but as indicating the matters of which a driver should be aware so that, whether in a section 7(3) case or a section 8(2) case, he may know the role of a doctor in the taking of a specimen of blood and in determining any medical objections which he may raise to the giving of such a specimen. The requirements, constituting the three exceptions, which should be regarded as mandatory so that non-compliance should lead to an acquittal are:

section 7

section 8

As well as complying with these three mandatory requirements police officers, in order to seek to ensure that a driver will be aware of the role of the doctor, should continue to use the formula in a section 7(3) case and the formula in a section 8(2) case set out by Lord Bridge [1993] A.C. 319, 327-328 or words to the same effect (subject to two points to which I refer later). But what is necessary is that the driver should be aware (whether or not he is told by the police officer) of the role of the doctor so that he does not suffer prejudice. Therefore if the driver appreciates that a specimen of blood will be taken by a doctor and not by a police officer, the charge should not be dismissed by the justices because the police officer failed to tell the driver that the specimen would be taken by a doctor.

Accordingly in relation to the Warren requirements there will be two issues for the justices to decide. The first issue is whether the matters set out in the Warren formula appropriate to a section 7(3) case or a section 8(2) case (with the respective changes to which I refer later) have been brought to the attention of the driver by the police officer. The second issue, if the answer to the first issue is "No," is whether in relation to the non-mandatory requirements �K��Kthe police officer's failure to give the full formula deprived the driver of the opportunity to exercise the option, or caused him to exercise it in a way which he would not have done had everything been said. If the answer to the second issue is "Yes" then the driver should be acquitted, but if the answer is "No" the failure by the police officer to use the full formula should not be a reason for an acquittal.

As the second issue is directed to the question whether the driver has suffered prejudice, I consider that it would only be in exceptional cases that the justices would acquit on that ground without having heard evidence from the driver himself raising the issue that he had suffered prejudice. Both issues are issues of fact, and therefore if the justices, having heard the evidence of the driver to raise the second issue, are left with a reasonable doubt as to whether or not he was prejudiced, they should acquit.

As I have indicated there are two respects in which I would word the requirements stated by Lord Bridge in a different way.

(1) I consider that there is nothing in the wording of the relevant subsections and there are no considerations of fairness which require a police officer to ask the driver if there are any non-medical reasons why a specimen of blood cannot or should not be taken. If there is some non-medical reason which would support a reasonable excuse under section 7(6) this is a matter for the justices to decide. Therefore I am of opinion that in Lord Bridge's speech [1993] A.C. 319, 328 in relation to a section 7(3) case the words "ask the driver if there are any reasons why a specimen cannot or should not be taken from him by a doctor" should read "ask the driver if there are any medical reasons why a specimen cannot or should not be taken from him by a doctor." Therefore my opinion on this point accords with the sixth observation made by the Divisional Court in Jackson's case:

section 7

(2) I also consider that in a section 8(2) case, in addition to telling the driver that a specimen of blood "will be taken by a doctor unless the doctor considers that there are medical reasons for not taking blood", the police officer should ask the driver if there are any medical reasons why a specimen cannot or should not be taken from him by a doctor. I observe that the pro forma instructions of some police forces do set out this question in a section 8(2) case.

The judgements of the Divisional Court in both Jackson and Stanley referred to the decisions in Fraser v. Director of Public Prosecutions [1997] 373 and Director of Public Prosecutions v. Donnelly [1998] R.T.R. 188. In those two cases the Divisional Court considered that the argument on behalf of the respective defendants that the full Warren formula had not been followed by the police was unmeritorious and held that the failure should not lead to an acquittal. The Divisional Court came to these decisions by ruling that the matters set out in the Warren formula relating to the role of the doctor need not be stated to the driver at the outset but can be stated at a later stage in the procedure. I consider, with respect, that this approach is erroneous and that the driver should be told of the role of the doctor at the outset before he has to make the decision to give blood. If the driver is not told at the outset of the role of the doctor it will be for the justices to decide whether that omission prejudiced the driver and deprived him of the opportunity to make an informed decision.

The decisions of the Divisional Court in the cases of Jackson and Stanley

I now return to the decisions of the Divisional Court in the two cases to consider whether those decisions were correct. In Jackson I consider that the Divisional Court was right to reject the defendant's argument that the statement to the police sergeant "I don't like needles" raised a potential medical reason for not providing a specimen of blood. It was a question of fact whether the statement raised a potential medical reason, and the Divisional Court was entitled to find on the facts of the case that the police officer was not under an obligation to investigate further.

As regards the other main argument of the defendant which succeeded before the Divisional Court, I am in agreement, as I have stated, with the view expressed by the Divisional Court, and to which it would have given effect if it had not considered itself bound by the Warren decision, that there is no need for a police officer to ask whether there are non-medical reasons for a blood specimen not being given. Moreover the defendant made it entirely clear to the police officer that he was not going to give a specimen of blood or urine, and therefore the defendant suffered no prejudice. Accordingly I consider that the appeal of the Director of Public Prosecutions should succeed and I would set aside the order of the Divisional Court, but the appellant does not seek an order that the case be remitted to the justices. I have sought to answer the certified question in the body of this judgment.

In Stanley's case in respect of the first argument advanced on behalf of the defendant I consider that the Divisional Court was right to hold that it was a question of fact whether the statement "No, I don't want no needle" raised a medical issue which required further enquiry from the police officer, and that it was open to the Crown Court to conclude on the evidence that it did not amount to a medical reason.

The second issue raised before the Divisional Court was that specified in the question certified by it. The question is stated in general terms and is not confined to the specific facts of the case, and I have sought to answer the general question in the body of this judgment. Applying the judgment to the second point raised on behalf of the defendant and having regard to the specific facts of the case, I consider that the Divisional Court was correct in rejecting that point and in upholding the conviction. I am of this opinion because the defendant was told by the police officer that a blood specimen would be taken by a doctor and the police officer also said to him "I should tell you that your only right to object to giving blood and to give urine instead will be for medical reasons to be determined by a medical practitioner." I consider therefore that the omission to ask expressly the question whether there were any medical reasons for his refusal to supply a specimen of blood did not cause any injustice to the defendant because that question was implicit in the statement that he had a right to object for medical reasons to be determined by a medical practitioner and did not raise a reasonable possibility that the defendant had been deprived of the opportunity to exercise the option under section 8(2) or caused him to exercise it in a way that he would not have done had that question been asked. Therefore I would dismiss the appeal of the defendant Stanley.