Director of Public Prosecutions v Carless [2005] EWHC 3234 (Admin)

Case No CO/1076/05[2005] EWHC 3234 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 13th April 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE STEEL
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
ROBERT CAVIN CARLESSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR N HALL (instructed by the Crown Prosecution Service ) appeared for CLAIMANT.MR T. GODFREY (instructed by Messrs Evans Main, Sevenoaks, Kent) appeared for DEFENDANT.
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is a prosecutor's appeal by way of case stated against the decision of the West Kent Magistrates' Court sitting at Sevenoaks on 17th November 2004, when they acquitted the respondent of an offence of driving a motor vehicle having consumed so much alcohol that the proportion of it in his blood (it was 95mg per 100mls of blood) exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.[2]The offence is said to have taken place on 1st November 2003 on the M26 motorway. The issue in the case concerns the circumstances in which, on somewhat unusual facts, the blood sample (which was in due course adduced in evidence) was obtained. It is convenient to recite the facts found by

the justice as set out in paragraph 3 of the case:

"(i) At about 3 a.m. on Saturday 1st November 2003, a road traffic accident occurred on the M26 in Kent whereby a car crashed into the back of a lorry, spun round and overturned several times. The motor car had been travelling at about 80 miles per hour. The driver of the car, which was now on its roof, walked away from the scene. (ii) Traffic police soon arrived at the scene of the accident and it was noted that there were blood splatters on the inside of the roof of the car and on a compact disc cartridge that was inside the car. A sample of blood was taken from the car for analysis. (iii) At 9 a.m. the same morning, an off duty policeman in the village of Seal, in Kent, saw the respondent was confused and suffering from a head injury. The respondent gave an account of being abducted from Watford the previous evening and dumped in Kent. (iv) The respondent was taken to hospital and an investigation of the respondent's allegation was commenced. The respondent was initially dealt with by the police officers as a witness to a crime of abduction and was asked by an officer to provide samples of blood and urine for analysis in order to ascertain if he had been drugged, for no other reason than as part of the investigation into the crime. Furthermore, by consent, a mouth swab was taken for DNA elimination. (v) A sample of blood was taken some nine hours after the incident and after some difficulty, the respondent provided a sample of urine which was cold and cloudy and which the investigating officer suspected of being diluted; (vi) Analysis of the blood sample taken from the car involved in the accident on the M26 matched the respondent's DNA sample taken in the course of the investigation of the alleged kidnapping, and a connection was made between him and the accident; (vii) The procedure for obtaining specimens under section 7 of the Road Traffic Offenders Act 1988 was not followed, in that the specimens were not initially obtained in the course of an investigation of an offence under section 5 of the Road Traffic Act 1988; (viii) Both blood and urine samples were submitted for forensic testing. Upon analysis, the proportion of alcohol in the blood sample was found to be 95 milligrams of alcohol in 100 millilitres of blood, which exceeded the legal limit. The proportion of alcohol in the urine sample was found to be below the legal limit; (ix) Following receipt of the sample results by the police, the respondent was suspected of committing an offence under section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. The respondent was charged with the offence.

(a) "

[3]The respondent submitted that evidence of the blood sample should be excluded pursuant to section 78 of The Police and Criminal Evidence Act 1984. The magistrates' court agreed. More pertinently, they held that evidence of the blood sample was in the circumstances inadmissible as a matter of law. Accordingly they excluded it, and in the absence of any other evidence to establish the proportion of alcohol in the respondent's blood, they dismissed the charge. The questions posed in the case stated for the opinion of this court are framed as follows:
"1. Is a sample of blood (or indeed urine or breath) which is obtained with consent, by a medical practitioner before a defendant is suspected of committing a driving offence, admissible to prove that the level of alcohol present at the time of driving exceeded the prescribed limit applying the provisions of section 15 of the Road Traffic Offenders Act 1988 as amended by the Road Traffic Act 1991, legislation which distinguishes Howard v Hallett? 2. Were we correct in the instant case to exclude the evidence of the analysis of the blood taken from the respondent by consent, at a time when he was believed to be the victim of crime rather than a suspect under investigation for the commission of an offence under section 5 of the Road Traffic Act 1988?"
The case of Howard v Hallett [1984] RTR 353 is central to the argument. That was a decision of this court (Robert Goff LJ and Mann J) under the predecessor statute, the Road Traffic Act 1972. Section 10(2) of that Act provided in part:
"Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, be taken into account..."
In Howard v Hallett the prosecutor had sought to prove an offence of driving with excess alcohol by reliance on a specimen of breath which had not been obtained in accordance with the statutory procedure laid down under section 8 of the 1972 Act. Robert Goff LJ said this at 361B-C:
"In my judgment, it is plain that section 10(2) is referring to specimens taken in accordance with the statutory procedure laid down under section 8 of the Act. There must be read into the section as implicit in it, after the words 'specimen of breath blood or urine provided by the accused', the words 'pursuant to the provisions of this Act.' That must include a reference, in particular, to the procedure laid down under section 8 of the Act."
Accordingly, the specimen of breath was only admissible if it had been obtained strictly in accordance with the statutory procedure. In Howard v Hallett it had not been and so the defendant's appeal succeeded. The respondent says that the same applies in the present case. The fact that the applicable legislation is now the Road Traffic Act 1988 makes no difference. Reliance is placed on Murray v DPP 158 JPR 261 where there had been a failure to comply with section 7(7) of the Road Traffic Act 1988. That provides:
"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."
This court (Watkins LJ and Ognall J) followed Howard v Hallett and held that the specimen in question was inadmissible, albeit, as was accepted, there was no prejudice to the defendant occasioned by the absence of a warning. The appellant prosecutor does not suggest that Howard's case or Murray's case was wrongly decided. Rather he relies on a change in the legislation.[4]Section 10(2) has been replaced by section 15(2) of the 1988 Act with certain words, which are critical for the Crown's argument, inserted by the Road Traffic Act 1991. In its current and relevant form section 15(2) reads:
"Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account...."
I should also read section 15(4):
"A specimen of blood shall be disregarded unless - (a) it was taken from the accused with his consent and either - (i) in a police station by a medical practitioner or a registered health care professional; or (2) elsewhere by a medical practitioner."
There may be an argument as to whether the provision made by section 15(4) applies in a case where the parenthesis in section 15(2) is in play, namely a case where the specimen was not provided or taken in connection with the alleged offence. We are not required to decide that today. The reason, as we understand it, is that the particular circumstances in which the relevant specimen was taken in this case have not yet been gone into by the magistrates so as to yield a conclusion on the question whether, if it does apply, section 15(4) has effect so that the specimen should be disregarded or not. If the matter is returned to the magistrates for the proceedings to be continued, that would no doubt have to be gone into.[5]The Crown submit that, by force of the added words in section 15(2), "including cases where the specimen was not provided or taken in connection with the alleged offence," the blood sample relied on by the prosecution in the present case was, on the facts, properly admissible under section 15(2). In my judgment that is right. The specimen was undoubtedly provided otherwise than in connection with the alleged offence, and therefore necessarily in a manner or in circumstances at variance with the statutory procedure now contained in section 7 of the Road Traffic Act 1988. The propriety of relying on it, in contrast to the position arising in Howard v Hallett, is saved by the words which have been added in section 15(2).[6]I recognize that this view may be thought to lead to the conclusion that the circumstances in which a specimen may be obtained and later used in an excess alcohol prosecution are left vague and indeterminate. But it is important to have in mind that in any case where the specimen is provided in connection with the alleged offence, then the full discipline of all the procedural requirements of the 1988 Act apply and those requirements must be strictly complied with. In those circumstances Howard v Hallett remains the applicable principle. Moreover, any potential injustice arising on the facts of any other case may, it seems to me, be averted by the vigilant use of section 78 of the Police and Criminal Evidence Act 1984. It seems to me, in short, inescapable that the words added in section 15(2) of the 1988 Act have created a new set of circumstances in which samples may be admitted in prosecutions for excess alcohol offences.[7]For all theses reasons I would answer question 1 posed for the opinion of this court in the affirmative and question 2 in the negative and allow the prosecutor's appeal. If my Lord agrees, there will be an issue as to whether the matter goes back to the magistrates' court for a retrial or for the trial to continue.

MR JUSTICE STEEL: I agree.

[9]MR HALL: I ask for it to be sent to the justices for them to continue hearing the information. The point my Lords have referred to will be gone into.

LORD JUSTICE LAWS: We will order that the matter be remitted to the same bench of magistrates to continue hearing the information in light of this judgment.

[11]MR HALL: Would you consider an order for the prosecutor's costs today.[12]MR GODFREY: It was my learned friend's application in the magistrates' court.

LORD JUSTICE LAWS: He won the appeal.

[14]MR GODFREY: It is not Mr Carless's fault that this has come to this court.

LORD JUSTICE LAWS: It is the lower court's fault. That is the usual case.

[16]MR GODFREY: It is the magistrates' decision. It is not Mr Carless himself. He is an interested party in these proceedings.

LORD JUSTICE LAWS: This is the case in any appeal. If the judge below or the court below made a decision which is appealed against, the usual rule is that the loser pays. It may be that you have a submission that the costs should await the outcome of the trial of the merits. It is a free standing appeal.

MR JUSTICE STEEL: You could have consented and said that the magistrates got it wrong.

[19]MR GODFREY: In light of your ruling I must accept that.

LORD JUSTICE LAWS: A lot of costs and time could have been saved if you had conceded to the appeal. You are entitled to have a go.

[21]MR GODFREY: He is not a man of any great means.

LORD JUSTICE LAWS: What is his occupation?

[23]MR GODFREY: He is involved in the car trade. As a result of the proceedings in the magistrates' court he lost his job. He is trying to get himself employed. I will take instructions as to his correct situation. It seems that he is still unemployed. He is awaiting the outcome of these proceedings. He will have to wait even further in the light of your decision. He has no spare money to his name. I would ask you to bear that in mind.

LORD JUSTICE LAWS: We think that this was a pure point of law. It needed to be determined. In the circumstances we are not going to make any order for costs.