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Lord Rooker: The noble Viscount is commendably brief. But this is a serious issue that has exercised many Members of the other place in recent times, particularly following road traffic accidents where the driver may be unconscious but someone else has been killed. The driver is in no condition to give consent for blood samples to be taken and therefore one would not know what the blood contains.

I accept that the proposed amendments reflect the existing wording of the Road Traffic Act, which refer to the constable making a requirement to give a blood specimen having,

"reasonable cause to believe that for medical reasons a specimen of breath cannot be provided".

The exact wording of this provision was chosen carefully after consultation with the British Medical Association. So the provision with regard to breath

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tests refers to the obvious phenomenon such as a mouth injury. On the other hand, to assess a person's general medical state and its effect on his capacity in the circumstances envisaged under this power—he could be delirious—would be more difficult and would require a degree of medical knowledge. A constable would not have that expertise and so could not base his judgment on reasonable grounds. However, it could appear to him that a person's medical condition rendered him incapable of consent—that is to say, unconscious. That is the provision that we have chosen.

For the avoidance of doubt, I would say that the medical condition and safety of an unconscious person would, at all times, be a paramount consideration. I want to make that absolutely clear. However, after tragic road accidents, in which people are killed, there can be problems with getting the necessary information about whether the driver was under the influence.

4.30 p.m.

Viscount Bridgeman: I thank the Minister for that reply, in the light of which I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Bridgeman moved Amendment No. 273:

Page 41, leave out line 34 and insert—

"(b) to store the same at the place where the person from whom the sample has been taken is being treated.
( ) The sample shall be kept in a secure storage facility at the place where the person from whom the same has been taken is being treated and no person shall have access to the sample without the consent or the permission of the suspect from whom it was taken."

The noble Viscount said: In moving this amendment I shall speak also to Amendment No. 279. This is a question of practicalities. The new provisions are radical, because they entitle the police to take intimate samples without the consent of the subject. For that reason, the power should be carefully drawn and limited, as far as is possible without defeating the aim of the provision. It is likely that the subject will be unconscious when the sample is taken. To avoid the risk of any later challenge to the integrity of the sample, we should provide that, if a specimen is taken, it should not be delivered up to the police, after being split or otherwise, but maintained by the hospital authority until the subject is capable of consenting to its use and making arrangements for tests. The subject should know that the sample has been taken.

There is a further consideration. What is the purpose of handing it over to the police, if the police cannot use it until the subject's consent has been sought? I beg to move.

Viscount Simon: My amendment, Amendment No. 276, mirrors almost exactly part of the amendment to which the noble Viscount has spoken. I cannot add to that.

Lord Swinfen: I shall raise one point about the amendment. The sample should be kept not only in

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secure storage but in a place where it will not deteriorate or its chemical properties change, for any reason.

Lord Rooker: The amendments rightly seek to prevent tampering with blood samples or analysis of them without the driver's consent, by requiring them to be kept at the hospital where the driver is. We have no evidence that tampering is a problem at present. Tampering by analysing without consent would be pointless, as the results would not be admissible in evidence anyway.

Subsection (4) of the new Section 7A already explicitly ensures that the sample cannot be used without the consent of the driver from whom it was taken. If the sample is to be used in evidence, the driver is party to that. By then, he will not be unconscious—in other words, he will be in a position to give consent. There would be a long evidential chain between the taking of the sample and the presentation of the results, post-analysis; it would not be just a day after the event. If the blood samples are sent to the forensic science laboratory for analysis, every step of that chain can be accounted for, if challenged in court.

It is crucial that the Forensic Science Service runs systems that are fully compatible with the requirements of the court, both for the defence and the prosecution. That is fundamental, so that the courts can rely on what they are told has happened to the samples during their analysis in the forensic science laboratory, including questions about whether they have been moved from room to room and who was responsible for them. All that information is recorded for the safety of the process in court. It would be unnecessarily complicated—and could result in cases being dismissed on a technicality—to require the breaking of that chain, by compelling hospitals to be in charge of the evidence.

The Forensic Science Service has advised against storing drivers' blood samples in hospitals. The practical difficulties for the hospitals would be considerable. I know that they have refrigerators and laboratories, but I assure noble Lords—particularly all the former Home Office Ministers present, who have, no doubt, been to the forensic science laboratories—that hospitals and forensic science laboratories are entirely different operations. We are dealing with a substance that must be locked in. We must be sure that everyone has absolute confidence in the procedure.

The amendments would also change and corrupt the practice of separating the driver's medical care from any possible prosecution. The British Medical Association is absolutely opposed to that. We should think more than once before proceeding down that road. So that we do not repeat ourselves in our discussion of other amendments, I must point out that the specimens taken will be divided into two. One will be made available to the driver and his representatives,

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if they wish to get a second opinion. It is important to see how that works. I hope that that will satisfy the noble Viscount.

Viscount Bridgeman: The Minister has given a helpful reply and some useful information. In the light of his assurance that the Forensic Science Service is confident of its ability to maintain the integrity of the samples and his assurance that that system has the support of the British Medical Association, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I call Amendment No. 274. If the amendment is agreed to, I shall be unable to call Amendment No. 275, owing to pre-emption.

Viscount Bridgeman moved Amendment No. 274:

Page 41, leave out line 41.

The noble Lord said: Amendment No. 274 relates to a small point, but we consider that the line is inconsistent with subsection (6) of the same new clause. The offence is committed not by a mere failure to give consent but by a failure to consent "without reasonable excuse". The warning before the request to use should be framed in the same terms. I beg to move.

Lord Rooker: I hope that I can satisfy the noble Viscount. All the amendments in the group relate, essentially, to the same issue.

I accept that it is an innovative clause. I am also sympathetic to the underlying motive for the amendments as regards removing the suspect's absolute right to refuse consent for a blood sample to be used. The amendments would prevent the possibility that suspects would evade more serious charges by refusing to allow their sample to be analysed. However, when the new procedure for testing unconscious drivers for alcohol was devised, it was designed to match as closely as possible the procedure now in place for dealing with conscious drivers. Accepting the amendments would mean that, although conscious drivers could refuse consent, so that there could be no analysis results, such results would be available for unconscious drivers. That would be a difference in treatment. The unconscious driver would, in effect, have fewer rights than a conscious suspect.

Addressing that inconsistency would require a further amendment depriving conscious drivers of their right of refusal. That would be operationally difficult, especially if force had to be used, and would not be supported by the Association of Chief Police Officers. It would also raise serious human rights issues that we have taken care to avoid by the proportionate proposals in the Bill.

I hope that, seen in the round, the set of procedures for taking samples from drivers or other persons—it will not necessarily be only drivers—who are not capable of consenting in the kind of circumstances that

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we have discussed ensure that they are fully protected. Their health is a paramount consideration, at all times, when the samples are taken. The health of the unconscious person is absolutely crucial. The be-all and end-all is not taking the sample: it is looking after the medical condition of an unconscious person. That is the number one priority. I want to make that clear. Nevertheless, if the information can be made available, it will solve a lot of distressing problems later on, some of which have already been brought to the attention of noble Lords.

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