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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:
"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.
(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) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1) (a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or
(c) the suspected offence is one under [section 3A or 4] of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;
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.
8. (1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.
(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes 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.
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) That the prosecution had failed to comply with the necessary procedure because whilst the sergeant had asked if there were 'any reasons' why a specimen could not be given, he had immediately negated that statement by informing the Appellant that only 'medical reasons' would be considered.
(b) That the Appellant raised a potential medical reason for not providing a sample of blood when he said 'I don't like needles,' the sergeant should have referred this to a doctor to determine whether or not it could amount to a medical reason."
The justices convicted the defendant and the case stated recorded the reasons for their decision as follows:
"We were of the opinion that the defendant understood the procedure. The defendant clearly indicated that he would not give any specimen of any type before he was asked if there was any reason why he could not give a specimen of blood. We were satisfied that the sergeant had complied with the procedure laid down in Director of Public Prosecutions v. Warren. We were of the opinion that the Sergeant did not have to enquire whether there was any medical substance in the statement 'I don't like needles' as the defendant had within the same sentence stated for the third occasion that he would not give a sample of any type.
We therefore convicted the Appellant as charged . . ."
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
"in a case where the necessity to require a specimen of blood or urine under section 7(4) arises for one of the reasons specified in section 7(3), what is required is no more and no less than the formula used in the instant case or words to like effect."
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:
"If what is required, to cite Lord Bridge's ruling, is that the Warren formula must be used and must not be added to or subtracted from, then we are reluctantly forced to conclude that a rider to that formula that can plausibly be read as indicating that the only reasons that the driver is being invited to state are medical ones does indeed provide less than Warren's case [1993] A.C. 319 requires. We therefore feel forced to follow the authority of the House of Lords in Warren's case rather than that of this court in Director of Public Prosecutions v. Donnelly [1998] R.T.R. 188 and allow this appeal.
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:
"To what extent if at all should the guidance given by the House in Director of Public Prosecutions v. Warren as to the procedure to be followed when a request is made for a sample of blood under the provisions of section 7(4) of the Road Traffic Act 1988 be applied beyond the issue arising in that case of whether the driver should be invited to express a preference for giving blood or urine? If that guidance does not apply other than in respect of that issue what on the true construction of the Road Traffic Act 1988 is the procedure to be followed when a request is made under sections 7(3) 7(4) and 8(2) of that Act?"
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.'
(i) The second ground of appeal was based upon 'inadequate performance' in that the police sergeant forgot to ask the medical question. We were referred to Anderton v. Lythgoe [1985] 1 W.L.R. 222 and Edge v. Director of Public Prosecutions [1993] R.T.R. 146.
(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.:
"There is a second point in this appeal, which Mr. McGuire recognises has now been overtaken by the decision in this court in Fraser v. The Director of Public Prosecutions (unreported), 29 January 1997. Prior to that decision an argument could have been mounted that it was required for the police officer before asking the appellant to give any reply to his lengthy question also to make clear to him that he could refuse to give a sample of blood for medical reasons. As it happens, that situation never in fact arose here. The police officer concerned came to the conclusion that the reply was an unequivocal refusal. That decision was upheld by the judge and his colleagues. Consequently there was no need to ask any further questions."
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:
"When a motorist who is entitled to make a claim under s.8(2) of the Road Traffic Act 1988 declines to do so, is it incumbent on a police officer to ensure that the motorist has understood his rights by asking whether there are any medical reasons for his refusal to supply an alternative specimen?"
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.
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