Townson v Director of Public Prosecutions [2006] EWHC 2007 (Admin)

Case No CO/2686/06[2006] EWHC 2007 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 13 June 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE MITTING
Between
KENNETH TOWNSONClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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 D FISH QC (instructed by Freeman & Co) appeared for CLAIMANTMR M LEWIS-JONES (instructed by CPS) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAURICE KAY:

This

[1]is an appeal by case stated against a decision of Chester Crown Court on 22 December 2005, when the court dismissed the appeal of Mr Townson against conviction by Chester Magistrates' Court for an offence of failing to provide a specimen of blood for analysis without reasonable excuse, contrary to section 7(6) of the Road Traffic Act 1988.[2]The case stated succinctly recites the following findings of fact. At about 9.15pm on 6 January 2005, the appellant drove his motor vehicle up and onto the Saughall roundabout in Chester, thereby causing it to overturn. A police officer arrived at the scene. He asked the appellant if he was injured, to which he replied: "I feel stupid". The appellant was asked to provide a specimen of breath. He refused to do so (he was later to plead guilty to an offence as a result of that refusal).[3]An ambulance took the appellant to hospital. At the hospital, the appellant was asked his occupation by Sergeant Bluck, but he refused to disclose it. The appellant smelt strongly of intoxicants. The doctor in charge of the appellant, Dr Rao, assured Sergeant Bluck that there was no medical objection to the appellant undergoing a breath test or supplying blood or being given the appropriate warnings of prosecution. The appellant was again asked to provide a specimen of breath. He asked for, and was given, time to consider his reply. Eventually he said: "I am hurting too much", and refused.[4]The appellant was then lawfully required by Sergeant Bluck to provide a specimen of blood for analysis. The appellant was sitting up on a bed and carried on a rational conversation with the police officer. He refused to supply such a specimen and gave four reasons:(a) he had had a lot of tests recently and there had been difficulty finding veins;(b) he was in pain;(c) he was diabetic;(d) he had high blood pressure. Sergeant Bluck did not consider any of those four reasons, singularly or cumulatively, as capable of being medical reasons excusing the appellant from providing a specimen of blood, and concluded that the appellant was simply providing excuses to justify the refusal.[5]It was submitted on behalf of the appellant that he had given reasons capable of being medical reasons for not providing a specimen of blood. However the court held that the reasons given for refusing to provide a specimen of blood were not capable, singularly or cumulatively, of being medical reasons for not providing a specimen of blood and upheld the conviction.[6]The single question posed for this court by the case stated is in these terms:
"Were the reasons given by the appellant for refusing to supply a specimen of blood capable of being medical reasons for not providing such a specimen?"
[7]The relevant statutory provisions are to be found in sections 7 and 9 of the Road Traffic Act 1988 (as amended). Section 7(1) provides:
"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."
[8]A requirement to provide a specimen of blood or urine can only be made at a police station or a hospital (section 7 (3)). Sections 7(4) and (4A) are then in these terms. "(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 and, in the case of a specimen of blood, the question who is to be asked to take it, shall be decided (subject to sub-section (4A)) by the constable making the requirement. (4A) Where a constable decides for the purposes of sub-section (4) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if —(a) the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or(b) the registered health care professional who is asked to take it is of that opinion and there is no contrary opinion from a medical practitioner; and, where by virtue of this paragraph there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead."[9]Section 9 is specifically about hospital patients. It provides as follows in section 9(1A):
"(1A) While a person is at a hospital as a patient, no specimen of blood shall be taken from him under section 7A of this Act and he shall not be required to give his permission for a laboratory test of a specimen taken under that section unless the medical practitioner in immediate charge of his case- (a) has been notified of the proposal to take the specimen or to make the requirement; and (b) has not objected on the ground specified in subsection (2)."
[10]Section 9(2) then provides:
"The ground on which the medical practitioner may object is- (a) ... (b) in a case falling within subsection (1A), that the taking of the specimen, the requirement or the warning required by section 7A(5) of this Act would be so prejudicial."
[11]The point made on behalf of the appellant in this court is that Sergeant Bluck, when he concluded that the four matters advanced by the appellant were not capable of amounting to medical reasons for not providing a specimen of blood, was reaching a conclusion which he was not entitled to reach under the statute without the intervention or further intervention of a medical practitioner. There is a line of authority dealing with this aspect of the procedure. Whilst it comprises cases which were decided before the most recent amendment of the legislation, in my judgment the principles established by that line of cases still hold good.[12]The first such case is Johnson v West Yorkshire Metropolitan Police [1986] RTR 167, where Mustill LJ said at page 10:
"It was evidently thought that a layman is capable of deciding whether a suspect is able to blow into a machine, so the decision is left to the judgment of the police officer. Where blood is concerned the matter is treated differently. The taking of a sample is a much more serious infringement of the subject's ordinary liberties than causing him to blow into a machine, and medical questions of real significance and difficulty may arise. Accordingly, section 8(4) [the predecessor of section 7(4)] introduced the medical practitioner as the arbiter. It makes no reference to the police officer. The implication is to my mind clear that in deciding the medical issue the constable has no role to play ... The police officer cannot have the power to rule upon a medical issue, but he must have the power to form a view on whether such an issue has been raised at all, for otherwise the medical practitioner would be troubled by excuses which have nothing to do with the expertise which is the reason for his being given a part to play under section 8(4)."
[13]Similarly, in Wade v Director of Public Prosecutions [1996] RTR 177, McCowan LJ said at page 183:
"Put another way, the officer had, in my judgment, to consider whether the reason proffered was capable of being a medical reason. On the face of it, it was. It could have affected the reading; it could have been meant that it was medically unwise for him to give blood at all. Both of these may seem far-fetched, but in the absence of any medical evidence it is impossible to know whether there may not have been substance in those points."
[14]The most recent authority is Butler v Director of Public Prosecutions [2001] RTR 430, in which May LJ said at page 442. "It would be otiose if the legislation required the police officer to make in hospital a general medical inquiry when the medical practitioner in immediate charge of the patient may be expected to make that and other inquiries. It would not, I think, be otiose, if the legislation requires a police officer, who knows that the patient has, in the context of a proposal to take a specimen, articulated a potential medical reason for not taking a specimen of blood, to tell the medical practitioner in the hospital of the potential medical reason ... The authorities show that, before a constable decides whether the specimen should be of blood or urine, he has to consult a medical practitioner, if he is aware of a potential medical reason affecting that decision. He necessarily has to inform the medical practitioner of the potential medical reason. The question under section 9 – whether a specimen should be required – is not the same as that under section 7(4) – whether the specimen should be of blood or urine."[15]These three authorities illustrate the way in which the statute and, by its construction of the statute, this court, have consistently looked to the interposition of the medical practitioner to protect the interests of the suspect in cases where medical reasons or potential medical reasons are raised. In the present case, it seems to me that Sergeant Bluck properly complied with his obligations under section 9(1A) when first consulting Dr Rao and receiving the response that he did. However, that is not the end of the matter. It is apparent from the evidence in the Crown Court, which is effectively contained in the pro-forma that was filled in by the officer on the day, that the appellant, having been told of Dr Rao's initial view and lack of objection to requiring a specimen of blood or urine, was then told:
"I therefore require you to provide me with a specimen of blood or urine which, in the case of blood, will be taken by a doctor. It is for me to decide which it will be, unless a doctor is of the opinion that for medical reasons a specimen of blood cannot or should not be taken, in which case it will be of urine. You may inform the doctor of medical reasons why a specimen of blood cannot be taken by the doctor, but the matter will be for the doctor to determine."
[16]The appellant was then asked whether there were any medical or other reasons why a specimen of blood could not or should not be taken by a doctor. He replied in the affirmative and advanced the four matters to which I have referred.[17]The pro-forma filled in by the sergeant then reads:
"Could the reasons given amount to medical reasons? Yes/no"
. The sergeant has deleted "yes". In other words, that is the moment at which he made the decision that the reasons advanced by the appellant could not amount to medical reasons. It was later in the procedure when the appellant reaffirmed a refusal to provide a specimen of blood.[18]In my judgment, the sergeant was not entitled to conclude, on the material before him, that the reasons advanced by the appellant were incapable of being medical reasons to such an extent that resort to medical opinion was unnecessary. The initial reference to Dr Rao did not deal with the matter because what was being advanced by the appellant in answer to Sergeant Bluck's questions was not information which was already in the possession of Sergeant Bluck. What is envisaged by section 7(4A) is that a medical practitioner and only a medical practitioner shall decide whether or not the specimen should be taken having regard to the reasons advanced by the suspect. It is true, and is confirmed by the authorities to which I have referred, that there are cases where what is put forward by the suspect is so self-evidently incapable of forming a medical reason that the officer is entitled to form his own judgment that it is so incapable and proceed accordingly. That is what Sergeant Bluck sought to do here. It is clear from the evidence that he had formed the opinion that the appellant was simply playing games.[19]When asked by counsel what had led to his coming to his conclusion, he said:
"I did not see the fact that he was in too much pain or the fact that they had difficulty finding the veins would be an excuse to get away with providing blood or urine"
. When asked whether he considered going back to Dr Rao with any of this information, he said not, and it is plain that he was equally dismissive of the matters of diabetes and high blood pressure in relation to whether there was a potential medical reason.[20]It seems to me that the strength of the case for the appellant lies particularly in those latter matters of diabetes and high blood pressure. Once the sergeant had been informed of those, it was not within his reasonable powers to conclude that they were matters incapable of amounting to medical reasons. Accordingly, he ought not to have reached the decision that he did and by so doing prevent the intervention of a medical practitioner, whose better view under the statute was required to prevail.[21]In the circumstances, I conclude reluctantly that the procedure was flawed, and that the question posed by the case stated must be answered in the affirmative. It follows that, in my judgment, the appeal should be allowed and the conviction quashed.[22]MR JUSTICE MITTING: I agree for the reasons given. I add only that, in my view, the changes introduced to sub-section (4) of section 7 of the Road Traffic Act 1988 and the insertion of sub-section (4A) have produced no change in the obligation on the police officer to make a rational judgment about the objections advanced by a suspect to the provision of a specimen of blood. If they are capable of being reasons which might cause a doctor to be of the opinion that for medical reasons a specimen of blood cannot or should not be taken, the medical practitioner must be summoned before the decision to acquire a sample of blood is finally made.[23]MR FISH: My Lord, may I apply for costs out of central funds?

LORD JUSTICE MAURICE KAY: That is the usual order in these circumstances, I think.

[25]MR LEWIS-JONES: It is my Lord, yes.

LORD JUSTICE MAURICE KAY: Yes, certainly. Thank you both very much.

Cited in 1 later judgment