Director of Public Prosecutions v Jackson & Stanley v Director of Public Prosecutions

(1998) The Times, 30 July House of Lords

THE FACTS

These two appeals related to the procedures to be followed by the police in relation to sections 7(3) or 8(2) of the 1988 Act where a specimen of blood or urine was to be provided by a driver suspected of driving under the influence of drink or drugs.

It was desirable that as far as possible the law governing that procedure should be simple and free from complexity but regrettably questions arising under those sections had given rise to many appeals to the Divisional Court.

Jackson was driving on a public road in an erratic manner and, on being stopped, it was noticed that his eyes were red and glazed and his speech slurred.

He was arrested on suspicion of driving while unfit through drink or drugs and taken to the police station where he was examined by a doctor. A police sergeant requested Jackson to provide a sample of blood or urine and warned him that failure to do so might make him liable to prosecution.

Jackson refused and the sergeant asked him if there was any reason why a specimen should not be taken and told him that his only right to object would be for a medical reason to be determined by a doctor. Jackson replied: "I don't like needles. I'm not giving anything anyway."

The Divisional Court allowed his appeal against his conviction for failing to provide a blood sample on the ground that there had been a failure at the police station to comply with the requirements laid down by Lord Bridge in DPP v Warren [1993] AC 319, 328; in that the police sergeant erred in telling Jackson that his only right to object to giving blood would be for a medical reason to be determined by a doctor.

In Stanley's case, police officers stopped him while he was driving, arrested him and took him to the police station where he provided two specimens of breath for analysis by Intoximeter machine.

The specimen with the lower proportion of alcohol contained less than 50 microgrammes of alcohol per 100 millilitres of breath so that Stanley was entitled to the option given by section 8(2) of the 1988 Act to claim that the specimen should be replaced by a specimen of blood or urine.

The officer informed him of that entitlement and told him that if he elected to supply such a specimen it would normally be of blood which would be taken by a doctor.

He also told Stanley that his only right to object to giving blood and to give urine instead would be for a medical reason to be determined by a doctor. Stanley replied that he did not want a needle.

THE LAW

The Court said that much of the argument in the present appeal related to the effect of the speech of Lord Bridge in Warren where the issue was whether, when a driver was requested under section 7(3) of the 1988 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 ratio of that decision was that the Act imposed no such requirement.

But in order to give guidance as to the appropriate procedures to be followed by the police in a section 7(3) case and a section 8(2) case, Lord Bridge stated certain requirements as to what the officer should tell or ask the driver.

It had been hoped that that would settled the law on the vexed topic of the procedures to be followed by the police, but unfortunately that had not been achieved.

The principal difficulty which arose was that different approaches had been taken in two lines of cases to the question whether the requirements stated by Lord Bridge were mandatory so that the failure to observe a requirement must lead to an acquittal, or whether a breach of a requirement was not necessarily a bar to a conviction.

In considering the issues raised by those two lines of cases it was necessary to have regard to the respective functions of the police officer and the doctor under the 1988 Act.

THE RESPECTIVE FUNCTIONS OF THE POLICE OFFICER &

DOCTOR.

Section 7(4) provided that if a specimen other than specimen of breath was required it was for the police officer to decide whether that specimen would be blood or urine. But section 11(4) provided that the specimen of blood was to be taken by a doctor.

In addition, the police officer's right to choose whether the specimen would be blood or urine was subject to the qualification that if a medical reason was raised why a specimen of blood could not or should not be taken, the issue was to be decided by a doctor and not a police officer.

An offence of failure without reasonable to provide a blood or urine specimen when required to do so or an offence of driving while over the prescribed limit proved by a breath specimen where the driver had not claimed under section 8(2) to replace it with a blood or urine specimen, was an unusual offence in that the driver had a choice to make in the police station prior to being charged.

It was because the driver had those choices and because a doctor had a role to play both in the taking of blood and in deciding the validity of a reason advanced by the driver as to why blood should not be taken that Lord Bridge said in Warren (at p327D) that the driver "should be fully informed of the nature of the option open to him and what will be involved if he exercises it".

However, in this area of the law there were a number of disadvantages if formulae stated by an appellate court for use by the police, which were based on the need for fairness to the driver but which were not required by the express words of the Act, were regarded as mandatory requirements.

One disadvantage was that the facts of individual cases and the exchanges between a driver and a police officer in the police station and within the confines of the procedures laid down by the Act could vary considerably, so that one prescribed form of words might not be appropriate in every case.

Another disadvantage was that there was no unfairness and no resultant injustice if a driver was convicted notwithstanding that one of the Warren requirements had not been observed.

It was submitted on behalf of Jackson that if the Warren guidelines were regarded as being guides to fairness rather than as mandatory, there would be uncertainty as to the law and the administration of that branch of it would be brought into disrepute because exactly the same facts would lead to an acquittal in one part of England and to a conviction in another.

The court did not accept that submission because the many decisions in the Divisional Court showed how different were the precise facts which came before the justices.

Moreover, justices and judges in a criminal trial frequently had to give a ruling on fairness in the particular circumstances of the case and that did not cause uncertainty or bring the law into disrepute.

The court said that the requirements stated by Lord Bridge in Warren were, with three exceptions, 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 could know the role of the doctor in the taking of a specimen and in determining any medical objections which he might raise to the giving of such a specimen.

The three exceptions which should be regarded as mandatory were: (i) in a section 7(3) case the warning as to the risk of prosecution required by section 7(7); (ii) in a section 7(3) case the statement of the reason under that subsection why breath could not be used; and (iii) in a section 8(2) case the statement that the specimen of breath which the driver had given containing the lower proportion of alcohol did not exceed 50 microgrammes in 100 millilitres of breath.

As well as complying with those three mandatory requirements police officers, in order to seek to ensure that a driver would 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 as set out by Lord Bridge in Warren (at p327 to 328) or words to the same effect.

What was necessary was that the driver should be aware, whether or not he was told by the police officer, of the doctor's role so that he did not suffer prejudice.

Therefore, if the driver appreciated that a blood specimen would be taken by a doctor and not by a police officer, the charge should not be dismissed by the justices because the police officer had failed to tell the driver that the specimen would be taken by a doctor.

The first issue for the justices to decide would be whether the matters set out in the Warren formula had been brought to the driver's attention by the police officer.

If the answer was "No", the second issue was whether, in relation to the non-mandatory requirements, the 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 was "Yes" the driver should be acquitted. But if the answer to the second issue was "No" the police officer's failure to use the full formula should not be a reason for an acquittal.

It would only be exceptional cases that the justices would acquit on the ground that the driver suffered prejudice, without having heard evidence from the driver himself raising the issue that he had suffered prejudice.

Both issues were questions of fact and therefore, if the justices, having heard the driver's evidence, were not satisfied beyond a reasonable doubt that he was not prejudiced, they should acquit.

There was nothing in the wording of the relevant sections and no considerations of fairness which required a police officer to ask a driver if there were any non-medical reasons why a specimen of blood should not be taken.

If there was some non-medical reason which would support a reasonable cause for failure to provide a specimen when requested to do so, that was a matter for the justices to decide.

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 officer should ask the driver if there were any medical reasons why a specimen could not or should not be taken by a doctor.

The driver should be told of the doctor's role at the outset before he had to make the decision to give blood.

It was a question of fact whether the driver's statement that he did not liking needles raised a potential medical reason for not providing a blood specimen and the court was entitled to find on the facts that the officer was not obliged to investigate further.

Mr Jackson had made it entirely clear that he was not going to give a specimen of blood or urine and therefore he suffered no prejudice.

In Stanley's case it was a question of fact whether the statement raised a medical issue which required further inquiry from the officer and it was open to the court to conclude from the evidence that it did not amount to a medical reason.

The Decision

When a motorist who was arrested and taken to the police station on suspicion of driving while unfit through drink or drugs had to decide whether to allow a specimen of blood to be taken for analysis, he had to be made aware that the specimen would be taken by a doctor and not by a police officer and that the doctor would decide whether there were medical reasons for not taking blood.

The police officer was not required to ask a driver if there were non-medical reasons why blood should not be taken. It was entirely a question of fact from all the circumstances of a case whether a fear of needles amounted to medical reason for failure to give blood.

The House of Lords so held in two conjoined appeals.

Their Lordships allowed the appeal of the DPP from a decision of the QBD Court allowing an appeal by case stated by Jackson against his conviction at Magistrates' of failing to provide a specimen blood sample contrary to section 7(6) of the Road Traffic Act 1988.

Their Lordships dismissed an appeal by Stanley from the QBD Court which upheld the dismissal by Crown Court of Stanley's appeal against his conviction by Justices of driving 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 1988 Act.

Comment

It is necessary to re-examine the case of Warren. At the time the headline given by this writer was ,"choice of specimens: Blood or Urine: Common sense at last". Obviously too optimistic.

DPP v Warren.(The case)

It was decided that where a police officer required a driver to provide a specimen of blood or urine pursuant to s.7(3)(b) of the Road Traffic Act 1988 because of the unavailability of the Intoximeter breath testing device, the officer making the decision under s.7(4) of the Act as to whether the specimen should be of blood or urine did not have to invite the driver to express his own preference before making that decision.

The House of Lords, in overruling previous authorities, so held in allowing an appeal by the DPP in DPP v Warren (1992) The Times, 6 November.

S.7 of the Road Traffic Act 1988 provides:

(3) A requirement... to provide a specimen of blood or urine...cannot be made at a police station unless - ...(b) at the time the requirement is made [an Intoximeter] is not available at the police station or it is...not practicable to use such a device..."

(4) If the provision of a specimen other than a specimen of breath may be required...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 be taken the specimen shall be of urine."

The facts of the case were simple and undisputed, however the defendant pleaded not guilty before the Stipendiary Magistrate at Bow Street.

A road-side breath test proved positive. Warren was arrested and taken to Vine Street police station where he duly provided two specimens of breath for the intoximeter. The calibration of the machine was not correct which gave rise to a s.7(3)(b) situation, and permitted the officer to require a specimen of blood or urine pursuant to s.7(4).

Using the Metropolitan police proforma 116 instructions, the officer said, "The approved evidential breath testing device cannot be used...I require you to provide an alternative specimen...The specimen may be of blood or urine but it is for me to decide which...Are there any reasons why a specimen of blood cannot or should not be taken by a doctor?" Warren replied "No" and was then asked to provide a specimen of blood which on analysis proved to exceed the statutory limit.

At the magistrates' court the defence submitted that the requirement had not been validly made in accordance with s.7(4). The Magistrate upheld the submission and his decision was affirmed by the Queen's Bench Divisional Court. This decision was inevitable, since as the authorities stood the Magistrate and Divisional Court had no option, they were bound by previous decisions.

In DPP v Byrne [1991] RTR 119;, Bingham LJ, had stated,

"...it is for the police officer to make the decision whether the sample provided shall be of blood or of urine, but the police officer must convey to the defendant that the sample to be required May be of either blood or of urine and must give the defendant an opportunity to consider which sample he would prefer to give if the choice were his and any reasons for that preference....He must not address the defendant in terms which suggest that the sample must be of one kind rather than the other unless and until the two possibilities have been explained to the defendant and a fair opportunity given to him to say, if he wishes, which he would prefer and why."

Thus Byrne effectively decided the case, and it was this unwarranted judicial gloss upon the statutory language that was challenged. On the face of it there was nothing in the Act which justified a procedural requirement in either a s.7(3) or 8(2) case that the driver should be invited to express his own preference for giving blood or urine, subject only to the right to object to giving blood on medical grounds.

All the earlier decisions were based on a misreading of a few words taken from Anderton v Lythgoe [1985] RTR 395, those words simply could not stand with the statutory language.

Lord Bridge said, "that having examined the decided cases, his Lordship had found nothing which caused him to depart from his view as to the appropriate procedure to be followed under s.7(3) and s.8(2) considered simply on the basis of statutory language.

In summary, in the case where the necessity to require a specimen of blood or of urine under s.7(4) arose for one of the reasons specified in s.7(3), what was required was no more and no less than the formula used in the instant case or words to the like effect. (most forces probably use similar words, for instance the City of London Police Form 152, page 9, was of like effect).

In a case where the driver's option was to be explained to him under s.8(2), the driver should be told that if he exercised the right to have the replacement specimen taken under s.7(4), it would be for the officer to decide whether that specimen was to be of blood or urine.

If the officer intended to require a specimen of blood to be taken by a medical practitioner, the driver should be told his only right to object to giving blood and to give urine instead would be for medical reasons to be determined by the medical practitioner. In neither case was there any need to invite the driver to express his preference for giving blood or urine."

It is worth while examining other Phobia.