Director of Public Prosecutions v Mukandiwa [2005] EWHC 2977 (Admin)

Case No CO/6713/2004

[2005] EWHC 2977 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 21st October 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE SCOTT BAKER

MR JUSTICE NEWMAN

Between

DIRECTOR OF PUBLIC PROSECUTIONSAppellant

-v-

Between

NYARARAI MUKANDIWARespondent

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MR MATTHEW HARDING (instructed by Crown Prosecution Service, Criminal Justice Unit, Huddersfield Police Station, Castlegate, Huddersfield HD1 2NJ) appeared for Appellant

MR JOHN ELVIDGE (instructed by Messrs Kingsley Brookes, Huddersfield HD1 1JY) appeared for Respondent

J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The issue in this appeal by way of case stated from the Huddersfield Magistrates' court is whether District Judge Bennett was entitled to find that the respondent, Mr Mukandiwa, had a reasonable excuse for not providing a blood specimen.

[2]The District Judge found the following facts. The respondent was driving a Peugeot and was seen by police sergeant Womersley to stray across a white line in the early hours of 28th February 2004. The officer stopped the vehicle and, on speaking to the respondent, noticed that his breath smelt of intoxicants. The officer requested a breath-testing kit, but was told that none was available. Accordingly, he decided to give the respondent the benefit of the doubt and allowed him to continue on his journey. But as he set off, the respondent clipped the central reservation. So the officer stopped him again, and this time arrested him on suspicion of being unfit to drive through drink.

[3]The respondent was taken to Castlegate Police Station in Huddersfield. The breath-test procedure was not completed. Police Constable Whittaker, who was responsible for that part of the procedure, was satisfied that there were good medical reasons for this. Consequently, the procedure moved on to the requirement of a blood or urine specimen. This was dealt with by Sergeant Womersley. He gave the appropriate statutory warning, which included asking the respondent if there was any medical reason why he could not provide a specimen of blood or urine. The respondent replied, indicating that there was no medical reason, but went on to say, "I cannot give blood for spiritual reasons."

[4]Sergeant Womersley elected that the specimen should be one of blood rather than urine, as he was entitled to do. The respondent did not consent to providing such a specimen. He was warned again in accordance with the procedure, and replied, "I do not give blood." Sergeant Womersley did not regard this as a medical excuse. The District Judge found that the respondent was not given any further opportunity to elaborate on his answer. The respondent was then charged with the offence of failing to provide a specimen for analysis.

[5]Section 7(6) of the Road Traffic Act 1988 provides that:

"A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section shall be guilty of an offence."

[6]What was the respondent's excuse? It was this. He originates from Zimbabwe and is a licensed healer. He is registered as a member of the Zimbabwe National Traditional Healers Association, known as Zinatha. He was authorised to practice healing using both traditional and ritual healing. He is a spirit medium, known as a Mhondoro and, as such, had to avoid situations that drove him into a trance. The sight of blood was one such situation. The sight of blood may, he claims, cause him to go into a trance and become violent, thereby creating serious risk of injury to his health and to others in the police station.

[7]The respondent called an expert witness, Professor Werbner, who is professor of African Anthropology at Manchester University. His evidence was that he was satisfied that the respondent was a spirit medium of the type known in Zimbabwe as a Mhondoro. He confirmed the type of triggers that could bring on a trance, such as the sight of a corpse, extreme anger and the spilling of blood. He said that when someone went into a trance there was a loss of consciousness, and he said they became another being. When the context of this is a ritual ceremony, there are others who understand what is happening and are able to provide support. However, if it takes place out of context -- as would be the case in the police station -- then there are great dangers. In particular, he could be violent to himself or others. Professor Werbner also confirmed the concern, when going accidentally into a trance, not only for his life, but also for those around him. Amongst other things, he foresaw dangers for the respondent if his behaviour was misunderstood.

[8]The District Judge accepted the evidence, both of the respondent and the expert witness, Professor Werbner. He found that when the respondent told the police he could not give blood for spiritual reasons, this was primarily a health concern, both for him and for those around him in the police station.

[9]I wish to make it clear that no one in this court, or in the court below, is challenging anything that the respondent or his expert witness said about the spiritual background to this case. The judge made it plain that he was deciding the issue of reasonable excuse in relation to matters of health concern. As I have mentioned, the judge accepted both the respondent's evidence and that of Professor Werbner.

[10]The first question posed by the case is whether, without a finding that the respondent would have gone into a trance, the court was entitled to draw the conclusion that to give a specimen of blood would cause a substantial risk to the respondent's health.

[11]Mr Harding, on behalf of the appellant, points out that the District Judge made no finding that the respondent would go into a trance if a specimen of blood was taken from him. It is to be noted from the case stated that the respondent's argument was that he must avoid situations that could drive him into a trance; and the whole case was advanced on the basis that the sight of blood was one such situation.

[12]In my judgment, there is a material difference -- and it is highly relevant for the purposes of this case -- between, on the one hand, the sight of blood and, on the other hand, the taking of blood. But the District Judge does not appear to have had in mind this distinction.

[13]The obvious way for the respondent to avoid the sight of blood when giving a blood sample, so it seems to me, was for him to shut his eyes and/or look the other way when the sample was being taken. That is something that many people do in circumstances where they are giving a blood sample, some who have a real fear of fainting. The District Judge makes no mention of this. Nor does he make any finding that the respondent would go into a trance if required to provide a specimen of blood.

[14]The particular danger identified by Professor Werbner in the event that the respondent did go into a trance was that he could be violent to himself or others. Bearing in mind that at the relevant time the respondent was in a police station, one might have thought that if this problem did in the event manifest itself the police would be well capable of dealing with it. But, again, the judge makes no mention of this, save to say that the police would not know how to respond to a situation with which they were totally unfamiliar.

The judge summarised his findings thus:

"I found that, although the Respondent had used the phrase 'spiritual' when refusing to provide a specimen of blood, it was primarily a health concern both for him and those around him, namely in this situation, the police. The Respondent in this case had raised the issue of a reasonable excuse. I did not find it was a religious excuse and it is established law that that would not afford him a defence in any event. It was not a matter for the Respondent's conscience or beliefs preventing him from providing the specimen."

So there the District Judge is four-square deciding the issue on the basis of risk to health.

[16]I turn briefly to the law. In R v Lennard [1973] RTR 252, the defendant ran the argument that the consumption of alcohol since he had been driving could amount to a reasonable excuse. The Court of Appeal Criminal Division rejected this contention. Lawton LJ said, at page 255H:

"In our judgment no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health."

[17]The breadth of that statement had been questioned in later cases. In R v John [1974] RTR 332, a defendant's sincerely held belief precluding him from providing a specimen of blood was held by the Court of Appeal Criminal Division not to be capable of amounting to a reasonable excuse. Roskill LJ said this at page 337H:

"... the Road Traffic Act 1972 provides rules for the safety of the public. It provides rules in order to protect the public from certain classes of users of the road. The securing of that protection involves restriction on the liberty of individuals. It is against that background that one returns to consider the language used R v Lennard [1973] RTR 252. It may be - and we say this with the utmost respect to Lawton and Scarman LJJ - that the language used, if construed too strictly, might involve an over-rigid approach to the language of the section. Certainly, in the view of this court and in the light of what was said by Scarman LJ in R v Reid (Philip) [1973] RTR 536, 543H-544A, the court did not intend to lay down something rigid and exhaustive. In truth what the court was there saying was that for an excuse to be capable of being a reasonable excuse, it must be an excuse which is related to the capacity of the person concerned to supply a sample, be it of urine or be it of blood. It is not related to his belief whether or not he ought because of his personal faith or belief, to be required to supply a sample of urine or blood. There is, in the view of this court, this very marked difference between the two positions. One depends on whether or not, for example, he is in a mental or physical condition which enables him physically to give the sample. It may be in some cases that he will not be in that condition. Such facts, if proved, may at least be capable of affording a reasonable excuse for not giving the sample. But it is not enough for someone to come along and say, 'True others are obliged to comply with the law, but my personal faith or belief frees me from the obligation which rests upon others'."

[18]I make two points. It is not suggested that it was the respondent's personal faith or belief that prevented him from providing the sample in this case. Nor is it the case that there was anything about his condition that prevented him from giving the sample. The judge, as we have said, approached this case on the basis of risk to health which, as Lawton LJ said in Lennard, must amount to a substantial risk to his health if there is to be a reasonable excuse for refusing to supply the specimen.

[19]The District Judge did not seek to go behind anything Roskill LJ said in John, and there is, in essence, no dispute about the law between the two sides in this case. The District Judge linked his decision to what might happen to the respondent and the police, rather than any religious or spiritual views of the respondent. In my judgment, however, there were fatal flaws in the District Judge's analysis. It appears that he must have assumed that the mere taking of blood was sufficient to trigger the trance, rather than, as the evidence made clear, it was the sight of blood that caused such a trance to arise.

[20]The court in deciding whether the respondent had a reasonable excuse for not providing a specimen of blood had to make findings on the evidence about what would or was likely to happen if the respondent was required to do so. The District Judge did not properly undertake that exercise. Had he done so, he would have identified, accepting the whole of the respondent's evidence as he did, that it was the sight of blood that was the problem -- the problem that in my judgment could, on the face of it, easily have been avoided by the respondent shutting his eyes or looking away. Secondly, the District Judge made no finding that a trance would in the event have followed the sight of blood. Thirdly, even if the respondent went into a trance, the District Judge conducted no real analysis of the likely consequences, other than to conclude that the respondent might be violent to himself or to others.

[21]All this seems to me to be a far cry from the evidence showing that to give a sample would entail a substantial risk to the respondent's health.

[22]The District Judge decided the case on the basis that there was a substantial risk to the respondent's health, and in my view that finding was not open to him on the facts that were found. It has been established since Law v Stephens [1971] RTR 358 that it is a question of law whether something put forward is capable of being a reasonable excuse. If it is capable, it is then a matter of fact and degree whether it does amount to a reasonable excuse on the facts of the case, and the burden is then on the Crown to negative it. If in truth there was evidence of substantial risk to the respondent's health and the judge accepted it, that in my view would be sufficient. But as I have endeavoured to outline, that was not the case and the judge was, in my judgment, not entitled to make the finding that he did.

[23]Mr Elvidge sought to advance an alternative argument on the lines of Joseph v Director of Public Prosecutions [2004] RTR 21, on the grounds that the police officer did not exercise his discretion properly in deciding to opt for a specimen of blood rather than urine. This point was not argued before the District Judge. There are no findings in relation to such a question, and it forms no part of the case stated. In these circumstances, the court took the view that it was not open to Mr Elvidge to take the point before us.

[24]In these circumstances, I would allow the appeal. I would remit the case to the Magistrates' Court, with a direction to convict.

[25]As to the three questions that have been posed for this court, as will be apparent from my judgment, the first question only really relates to part of the story because it does not tackle the issue about the judge's failure to make any finding in relation to the sight of blood.

[26]In so far as it is necessary to answer question 1, I would answer that question in the negative, but it seems to me that the second and third questions do not, on the facts of this case, arise.

[27]I would accordingly allow the appeal.

MR JUSTICE NEWMAN: I agree with everything that has been said and with the order that is proposed.

[29]MR ELVIDGE: My Lord, might I just raise one matter?

LORD JUSTICE SCOTT BAKER: Yes.

[31]MR ELVIDGE: In the light of your Lordships' findings regarding the deficiencies -- may I put it that way -- in the fact-finding exercise, and in the light of the absence of evidence concerning the attitude of the police officer when exercising his discretion with regard to the sample, and of course the fact that I have not addressed you on Joseph, which does raise an important point. Would your Lordships consider in fact remitting this matter for rehearing, rather than on a direction to convict?

LORD JUSTICE SCOTT BAKER: We will consider it, but I do not hold out much hope for you. But let us see what the other side has to say.

[33]MR HARDING: As your Lordships may anticipate, it is certainly not a course that the appellant would invite your Lordships to adopt. You are possessed of that power, clearly.

LORD JUSTICE SCOTT BAKER: It is a very stale case now, apart from anything else.

[35]MR HARDING: Quite. I have no doubt that there will be very real difficulties, notwithstanding the somewhat unique facts, in certain of the witnesses recalling the operation of the discretion. (The Bench conferred)

LORD JUSTICE SCOTT BAKER: Do you want to say any more?

[37]MR ELVIDGE: Simply this, that the facts will be easy for those involved to recall. This is a most unusual case. There is a substantial argument to be had in a case like this on Joseph and on the exercise of discretion, and it ought to have been put. Although it is an old case, of course the penalty would be visited upon the defendant if he is convicted. (The Bench conferred)

LORD JUSTICE SCOTT BAKER: No, we are not going to accede to your application. This case has been advanced on a very specific basis about reasonable excuse, and we think it would be quite wrong for the case to be sent back and argued on a point that was never argued before this late juncture, when the point was not taken.

[39]MR ELVIDGE: My Lord, might I just mention the question of costs? This is a case which enjoys the support of public funding. Would you make a legal aid direction in respect of the respondent's costs?

[40]MR HARDING: I have no objection to that direction.