|Judgment - Director of Public Prosecutions v. Jackson |
Stanley (A.P) v. Director of Public Prosecutions
(On appeal from a Divisional Court of the Queens Bench Division)
(Conjoined Appeals) continued
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  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  R.T.R. 287, 291 when referring to the decision in Warren's case he said:
The approach in the other line of cases is exemplified by the statement of Waller J. in Hayes v. Director of Public Prosecutions  R.T.R. 163, 172:
The same approach was taken by Curtis J. in Baldwin v. Director of Public Prosecutions  R.T.R. 238, 246:
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  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):
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:
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  A.C. 319, immediately before stating what the driver should be told, said, at p. 327:
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  R.T.R. 387 Holland J. described the submission advanced on behalf of the defendant as follows ,at p. 390:
And he stated, at p. 393:
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)  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:
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:
In Robinson's case the Divisional Court followed the approach taken by Kennedy L.J. in Director of Public Prosecutions v. Charles (Note)  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:
In my opinion the approach taken by the Divisional Court in Robinson v. Director of Public Prosecutions  R.T.R. 403 and Director of Public Prosecutions v. Charles  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  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:
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  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 óKóóKthe 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  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:
(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  373 and Director of Public Prosecutions v. Donnelly  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.
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