Persaud v Director of Public Prosecutions [2010] EWHC 52 (Admin)

[2010] EWHC 52 (Admin)Case No CO/10885/2009IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONADMINISTRATIVE (DIVISIONAL) COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 January 2010
Before
LORD JUSTICE MOSESMR JUSTICE TOMLINSON
Between
MYLES LEO PERSAUDAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondent
Mr Neil Corre (instructed by Messrs Punatar & Co) for AppellantMs Kate Wilkinson (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 12 November 2009
JudgmentThe Hon. Mr Justice Tomlinson :
[1]This is an appeal by way of case stated against the decision of the Woolwich Magistrates’ Court on 18 February 2009 convicting the Appellant of driving a motor vehicle on 16 November 2008 after consuming so much alcohol that the proportion of alcohol in his breath exceeded the legally prescribed limit contrary to section 5(1)(b) of the Road Traffic Act 1988. The question for determination arises out of the procedure habitually followed where a driver is entitled to exercise the option afforded him by section 8(2) of the Act to provide a specimen of blood or urine for laboratory alcohol analysis as an alternative to use of the specimen of breath with the lower proportion of alcohol.[2]The Justices record the basic facts at paragraphs 1 and 2 of the Case as follows:
“1. On the 17th day of November 2008 an information was preferred by the Respondent against the Appellant that on 16th November 2008 at Shardloes Road SE4 he drove a motor vehicle on a road after consuming so much alcohol that the proportion of alcohol in his breath exceeded the legal permitted limit contrary to section 5(1)(b) of the Road Traffic Act 1988. 2. We heard the said information the 18th February 2009 and found the following facts (i) It was not disputed that on 16th November 2008 the Appellant had been driving a black Vauxhall Corsa on Shardloes Road, London SE4. He had been stopped and the roadside breath test had been administered it had tested positive. The appellant was arrested for driving with excess alcohol and had been conveyed on arrest to Lewisham police station. (ii) At Lewisham police station PC Everacott booked in the Appellant and the evidential breach machine procedure was administered using a machine classified for this purpose. The lower reading on the evidential breath machine was 50 microgrammes of alcohol in 100 millilitres of breath. Mr Persaud was therefore entitled to the blood urine option. PC Everacott then set out the statutory option by using the form MG DD/B a copy of which is attached for ease of reference. When asked the question at B7 ‘Do you wish to provide a specimen for laboratory alcohol analysis?’ the Appellant said yes. When asked the question at B14 ‘Do you consent to provide a specimen of blood, which will be taken by a doctor or health care professional?’ he refused to answer. The officer took this as a refusal and continued to process and charge the Appellant with the alleged offence.”
[3]The Justices attached to the Case a copy of the form MG DD/B which had been used by PS Vellacott (the reference by the Justices to PC Everacott is an error) in carrying out the procedures at the police station. We were told by Mr Corre for the Appellant that this is one of two standard forms devised by the Department for Transport and used by police forces throughout England and Wales. These forms represent an attempt to standardise procedures which previously varied from county to county. The forms do not have the force of law but attempt to provide guidance in a somewhat complex area of procedure. They attempt to reflect changing case law as illustrated by Note 1 at page 1 of MG DD/B, which is a reference to the decision of this Court in Joseph v DPP [2003] EWHC 3078 (Admin). A precursor of these forms was referred to with approval by the House of Lords in DPP v Warren [1993] AC 319, a decision to which I must return.[4]The Justices do not appear to have attached to the Case Form MG DD/A which was also, and necessarily, used by PS Vellacott in carrying out the required procedures. Counsel were agreed that Form B cannot sensibly be understood without reading it together with Form A. It was as a result of PS Vellacott tracking through the procedures in Form A that Form B became relevant. Counsel were therefore agreed that we were at liberty in seeking to understand what had here occurred to have resort to the content of both the completed Forms, MG DD/A and MG DD/B.[5]I turn next to the statutory framework. The relevant statutory provisions are as follows: “Road Traffic Act 1988 s 5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.(1) If a person— (a) drives or attempts to drive a motor vehicle on a road or other public place, or (b) is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence. … s 7 Provision of specimens for analysis. (1) 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. … (3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless— (a) the constable making the requirement has reasonable cause to believe that for medical purposes a specimen of breath cannot be provided or should not be required, or (b) specimens of breath have not been provided elsewhere and at the time the requirement is made a device or reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or (bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, or (bc) as a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body, or (c) the suspected offence is one under section 3A or 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug; but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath. (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 subsection (4A)) by the constable making the requirement. (4A) Where a constable decides for the purposes of subsection (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 subsection there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead. (5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine. (6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence. (7) 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. s 8 Choice of specimens of breath. (1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used. … s 11 Interpretation of sections 4 to 10. (1) The following provisions shall apply for the interpretation of sections 3A to 10 of this Act. (2) In those sections— … ‘fail’ includes refuse, … ‘the prescribed limit’ means, as the case may require— (a) 35 microgrammes of alcohol in 100 millilitres of breath, (b) 80 milligrammes of alcohol in 100 millilitres of blood, or (c) 107 milligrammes of alcohol in 100 millilitres of urine, or such other proportion as may be prescribed by regulations made by the Secretary of State. ‘registered health care professional’ means a person (other than a medical practitioner) who is— (a) a registered nurse; or (b) a registered member of a health care profession which is designated for the purposes of this paragraph by an order made by the Secretary of State. … (4) A person provides a specimen of blood if and only if— (a) he consents to the taking of such a specimen from him; and (b) the specimen is taken from him by a medical practitioner or, if it is taken in a police station, either by a medical practitioner or by a registered health care professional. Road Traffic Offenders Act 1988 s 15 Use of specimens in proceedings for an offence under section 4 or 5 of the Road Traffic Act. … (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 (ii) elsewhere by a medical practitioner; (b) it was taken from the accused by a medical practitioner under section 7A of the Road Traffic Act 1988 and the accused subsequently gave his permission for a laboratory test of the specimen.” (a) 35 microgrammes of alcohol in 100 millilitres of breath, (b) 80 milligrammes of alcohol in 100 millilitres of blood, or (c) 107 milligrammes of alcohol in 100 millilitres of urine, Road Traffic Offenders Act 1988 (i) in a police station by a medical practitioner or a registered health care professional; or (ii) elsewhere by a medical practitioner;

Road Traffic Offenders Act 1988

[6]The effect of the foregoing provisions is, briefly stated, as follows. Section 5 provides, insofar as is relevant, that it is an offence to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in a person’s breath, blood or urine exceeds the prescribed limit. Section 11 provides that the prescribed limit means 35 microgrammes of alcohol in 100 millilitres of breath.[7]Section 7(1) provides that in the course of an investigation into whether a person has committed an offence under section 5, a constable may require him to provide two specimens of breath for analysis by an approved device. Section 8(1) provides that of any two specimens of breath provided by a person in pursuance of section 7, that with the lower proportion of alcohol shall be used and the other shall be disregarded.[8]Section 8(2) provides that if the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) and if he then provides such a specimen, neither specimen of breath shall be used.[9]Section 7(4), as amended by section 55 of the Police Reform Act 2002, provides that if the provision of a specimen other than the specimen of breath may be required in pursuance of section 7, the question whether it is to be a specimen of blood or a specimen of urine and, in the case of the 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. Section 7(4A) deals with circumstances in which the doctor or registered health care professional who is asked to take a specimen of blood is of the opinion, for medical reasons, that it cannot or should not be taken.[10]Section 11(4) provides that a person provides a specimen of blood if, and only if,(a) he consents to the taking of such specimen from him, and(b) the specimen is to be taken from him by a medical practitioner or, if it is taken in a police station, either by a medical practitioner or by a registered health care professional. Before its amendment by the Police Reform Act 2002 section 11(4) read as follows:
“A person provides a specimen of blood if, and only if, he consents to its being taken by a medical practitioner and it is so taken.”
[11]Section 15(4) of the Road Traffic Offenders Act 1988 provides that a specimen of blood shall be disregarded unless (a) it was taken from the accused with his consent either in a police station by a medical practitioner or a registered health care professional or elsewhere by a medical practitioner.[12]Before its amendment by the Police Reform Act 2002, section 15(4) of the Road Traffic Offenders Act 1988 simply provided that a specimen of blood shall be disregarded unless it was taken from an accused with his consent by a medical practitioner.[13]When being offered the statutory option prescribed by section 8(2) the Appellant was read the form of words which appears at paragraph B7 of Form MG DD/B which is in these terms:
“As the specimen with the lower proportion of alcohol is in excess of the prescribed limit, but contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, you may claim that it should be replaced by a specimen for a laboratory test. If you elect to provide such a specimen it will be of blood or urine which, in the case of blood, will be taken by a doctor (or health care professional). It is for me to decide which it will be unless a doctor (or health care professional) 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 (or health care professional) of medical reasons why a specimen of blood cannot be taken by them, but the matter will be for the doctor (or health care professional) to determine. You will be supplied with part of the specimen if you so require. The other part will be sent to a forensic laboratory for analysis. The result of the analysis of the laboratory specimen will replace the result of the breath test. Do you wish to provide a specimen for laboratory alcohol analysis?”
On answering “Yes” to that question the Appellant was asked the prescribed follow-up question:
“Are there any medical or other reasons why a specimen of blood cannot or should not be taken by a doctor (or health care professional)?”
He answered “No”.[14]The constable was then directed by the Form to proceed to paragraph B9, which reads, under the rubric “IF NO MEDICAL REASONS”, “It is for the officer to decide whether the specimen shall be of blood or urine (See note at B2).” The officer determined that the specimen should be of blood. He was then directed by the Form to proceed to paragraph B14 which reads, under the rubric “BLOOD-Option Case” “I have decided the specimen shall be of blood. Do you consent to provide a specimen of blood, which will be taken by a doctor (or health care professional)?”[15]If the answer to this question is “yes” the instruction on the form is to “call a doctor (or health care professional) unless already called” and, if the answer is “no”, the instruction on the form is to state any reasons given. Against question B14 there are printed on the form the words YES/NO with an instruction to delete as applicable. Reverting to the facts of this case, PS Vellacott neither deleted nor circled either of the words YES/NO. He wrote underneath them “Refused”. In the space provided for the stating of any reasons given for the answer “No” he wrote:
“Would not give Yes or No to providing a sample of blood. Taken as a refusal.”
[16]It is to be noted that paragraph B14 envisages that the question which it directs to be asked may be asked before a doctor or health care professional has been called. We are told by Mr Corre that an earlier version of the form, Version 2.2/February 1999, left the question of consent until the doctor had arrived – it will be recalled that before enactment of section 55 of the Police Reform Act 2002 only a doctor could take a specimen of blood. Paragraph B10 of that earlier form provided:
“Say to accused in presence of doctor ‘I have decided that the specimen shall be of blood and I now required that specimen. Do you consent to provide a specimen of blood, which will be taken by a doctor?’ ”
It will be immediately apparent therefore that, consequent upon the introduction of a health care professional as a person by whom a specimen of blood may be taken, Form MG DD/B has been amended in a manner unrelated to that limited statutory change. An amendment intended only to track the amendment to the legislation would simply have provided that question B10 (as it then was) should be asked in the presence of a doctor or of a health care professional. The amendment in fact provides for the asking of the relevant question in the absence of a doctor or health care professional.[17]It may be that this is a practical amendment, since it will usually prevent the possibility of a doctor, or health care professional, being called to the police station only to be met by the driver declining to give consent when he arrives. However an affirmative answer given to question B14 in the absence of a doctor or health care professional will not obviate the need for consent to be given again in the presence of the doctor or health care professional. So much is clear from the decision of the High Court of Justiciary in Friel v Dickson [1992] RTR 366. This was a case in which provision of a specimen of blood or urine was obligatory rather than optional – it was not concerned with the section 8(2) procedure. Nonetheless the discussion of the relevant statutory provisions and of the procedures habitually adopted contained within the opinion of the court delivered by Lord Hope, then the Lord Justice General, is of some assistance. Lord Hope said, at pages 376-377:
“The provisions on which the argument in this case depends are those which require that the person must consent to the taking of the specimen. First there is section 11(4) of the Road Traffic Act 1988, which is in these terms: ‘A person provides a specimen of blood if and only if he consents to its being taken by a medical practitioner and it is so taken.’ Then there is section 15(4) of the Road Traffic Offenders Act 1988, which provides: ‘A specimen of blood shall be disregarded unless it was taken from the accused with his consent by a medical practitioner.’ At first sight there is no material difference between these provisions. There is certainly a measure of overlap between them, in that they both require that a specimen of blood must be taken by a medical practitioner and that this must be done with the consent of the person who provides the specimen. His consent is therefore an essential prerequisite to the take of a specimen of blood and for the purposes of the laboratory test. The advocate depute accepted that the giving of consent to this procedure is an essential fact which required to be proved by the Crown beyond reasonable doubt. But his proposition was that so long as it was clear that the specimen was being taken with his consent that was enough, and that there was no requirement that the consent had to be given or specified at any particular time or that it needed to be signified to the medical practitioner. The distinction which underlies this argument is between the giving of consent to the procedure when the requirement to provide the specimen is made by the police, and the giving of consent to a medical practitioner who carries out the procedure. The first stage is the making of the requirement by the constable. The effect of section 11(4), which appears in a definition section, is that the constable must explain to the person at this stage that the specimen will be taken from him by a medical practitioner. That is important to a proper understanding of the warning which must be given under section 7(7), that failure to provide the specimen without reasonable excuse is an offence and may render the person liable to prosecution. If the person agrees to provide the specimen it may be assumed that he has consented to undergoing the procedure. His consent at this stage is important, because the context in which it is given is that of an explanation by the constable as to the purpose for which the specimen is required and the consequences of a refusal. A sufficient explanation is necessary so that the person is aware that he is being asked to provide evidence that may incriminate him, and the appropriate person to give that explanation is the constable who makes the requirement. But there remains the next stage when the person is seen by the medical practitioner. Now it is clear that the medical practitioner who is to take the specimen can only take it from the person with his consent. No one can be forced to provide a specimen of blood against his will. What the legislation requires is that the taking of the specimen by the medical practitioner is with the person’s consent. The point of time to which this requirement relates must be the time when the specimen is taken, and it is on this point that section 15(4) of the Road Traffic Offenders Act 1988 may be seen to be more precise. Accordingly, the medical practitioner who takes the specimen must have the consent of the person from whom it is to be taken before he takes it. It is not sufficient for this purpose for the Crown to prove that at some earlier stage the accused told the police that he consented to the procedure being carried out. It must also be proved that the accused signified his consent to the medical practitioner at the stage of the taking of the specimen, because only then can it be said that the specimen was taken with his consent by the medical practitioner.”
Then there is section 15(4) of the Road Traffic Offenders Act 1988, which provides:[18]As I have already indicated, I can well understand the convenience and practicality of asking the question at paragraph B14 of Form MG DD/B before the doctor or health care professional is telephoned and asked to attend. Normally no doubt it gives rise to no difficulty. However the question which arises in the present case is whether the failure by the Appellant to give a reply to question B14 when asked by the constable in the absence of a doctor or health care professional could in the circumstances properly be regarded as an abandonment by the appellant of the election which he had already made under section 8(2) to provide a specimen for laboratory alcohol analysis. That is as I understand it the second of the questions posed for the opinion of this court by the Justices in their case. The questions which they ask are:
“1. Were we entitled to convict the appellant of driving after having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit? 2. Were we entitled to conclude on the evidence that he had withdrawn his election to replace the breath specimen with a laboratory specimen? 3. Is there any legal authority for the question at B14 of the MG/DD/B pro forma? 4. Were we entitled to find that a person exercising his statutory option under s.8(2) of the Road Traffic Act 1988 must give his consent to the taking of a specimen of blood both to the police officer and the medical practitioner?”
[19]Miss Wilkinson for the Crown does not accept that the question which I have formulated in paragraph 18 above is the question which here arises. She suggests that the relevant question is whether the Justices were entitled to rely on evidence of the Appellant’s behaviour when being asked at B14 whether he consented to provide a blood specimen to be taken by a medical professional as capable of proving that he failed to provide the specimen as required by section 7(4). That is not one of the questions posed by the Justices and it does not reflect the manner in which they dealt with the case. They convicted the Appellant of driving with excess alcohol, not of failing to provide a specimen without reasonable excuse. In my judgment the question of failure to provide a specimen does not here arise. If a specimen for laboratory alcohol analysis is provided pursuant to a section 8(2) election, then neither specimen of breath shall be used. If however a driver who has elected under section 8(2) to provide a specimen for laboratory alcohol analysis thereafter does not provide such a specimen, for whatever reason, the Crown will be entitled to use in evidence against him a breath specimen which, ex hypothesi, proves an excess of alcohol above the statutory limit. Lord Bridge of Harwich so pointed out in DPP v Warren [1993] AC 319 at the conclusion of the following passage at page 326H-327A:- “A driver may be required to provide a specimen in accordance with section 7(4) in two distinct circumstances. First, it may be necessary because it is impossible or inappropriate to rely on specimens of breath for one of the reasons specified in section 7(3). In this case it will be obligatory for the driver to provide the specimen which the constable decides to require, either blood or urine subject only to this, that if the constable requires blood but a medical practitioner is of opinion that for medical reasons a specimen of blood cannot or should not be taken, the obligation on the driver will then be to provide a specimen of urine instead. Failure to comply with the obligation (which, in the case of blood, arises if the driver withholds consent to the specimen being taken by a medical practitioner: see section 11(4) constitutes as offence, subject always to the defence that the driver had a “reasonable excuse” for the failure. There is no need here to consider what is capable of amounting to a reasonable excuse, but it suffices to say that the defence is clearly of very limited scope. The second case in which a requirement may be made to provide a specimen in accordance with section 7(4) is where the driver, having provided two specimens of breath one of which contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, claims the right under section 8(2) to have that specimen replaced by a specimen of blood or urine provided in accordance with section 7(4). If the driver claims this right and then fails to provide the specimen duly required under section 7(4), the sanction for that failure will be the use in evidence against him of the breath specimen which, ex hypothesi, proves an excess of alcohol above the statutory limit and accordingly in such case there will be no need, though it may be theoretically possible, to prosecute for a failure to provide a specimen without reasonable excuse under section 7(6).”[20]It is true that Lord Bridge went on to say that in such a case there will be no need, though it may be theoretically possible, to prosecute for a failure to provide a specimen without reasonable excuse under section 7(6). This was a tentative expression of opinion, unnecessary for the decision of the case, although obviously entitled to great weight. However it is a tentative view with which I respectfully have some difficulty. Section 8(2) speaks of the right to claim that the breath specimen should be replaced “by such specimen as may be required under section 7(4) of this Act” and spells out the consequence if such an alternative specimen is provided. The offence under section 7(6) is the failure, without reasonable excuse, to provide a specimen when required to do so in pursuance of section 7. It seems to me, with diffidence and respect, that having moved into the regime governed by section 8(2), the Appellant here was not being required to provide a specimen pursuant to section 7, he was rather being given the opportunity to provide such specimen as may be required under section 7(4). Thus the choice of specimen, blood or urine, was bestowed upon the constable by the Appellant’s election, it was not a choice and hence a requirement to which the Appellant had to submit pursuant to section 7. It would to my mind be an extremely odd result if a driver who exercised his election under section 8(2) and then, on being told that the constable had opted for a specimen of blood rather than of urine, thought better of it and decided not to submit himself to that procedure, would thereby put himself in jeopardy of prosecution for failure without reasonable excuse to provide a specimen as well as of the inevitable conviction of the excess alcohol offence of which the breath specimen provided proof. Miss Wilkinson submitted that this is indeed the law, that Lord Bridge has so declared it to be and moreover that the decision in Warren has subsequently been approved by the House of Lords in DPP v Jackson, Stanley v DPP [1999] 1 AC 406. I disagree. Lord Bridge’s tentative view, unnecessary for the decision of the case before the House of Lords, is not binding on us and it was not approved in the subsequent decision of the House of Lords to which I shall return. In my respectful opinion Lord Bridge’s tentative view does not reflect the statutory scheme.[21]My view in this respect is borne out by the structure of the Forms MG DD/A and MG DD/B. Section 7(7) provides that a constable must, on requiring any person to provide a specimen in pursuance of section 7, warn him that a failure to provide it may render him liable to prosecution. Thus here the Appellant was told, as required by Form MG DD/A paragraph 14, under the rubric “BREATH SPECIMEN REQUIREMENT”:
“I require you to provide two specimens of breath for analysis by means of an approved device. The specimen with the lower proportion of alcohol in your breath may be used as evidence and the other will be disregarded. I warn you that failure to provide either of these specimens will render you liable to prosecution. Do you agree to provide two specimens of breath for analysis?”
It is to be noted that this warning refers in terms to “these specimens”, i.e. the two specimens of breath. If the testing device had for some reason proved unreliable, or if there was reasonable cause to believe that it had not produced a reliable indication of the proportion of alcohol in the Appellant’s breath, thereby triggering the procedure under section 7(3) and the consequent requirement for a specimen for blood or urine, the Appellant would have been given a further warning under section 7(7) referable to these different types of specimen. The procedure is reflected in the forms at MG DD/A paragraph A22, which leads to form MG DD/B, where the constable would have been led to paragraph B3. The form of words there set out reads, so far as is appropriate to these circumstances:
“As a reliable breath testing device is not available for use/I have reasonable cause to believe that the device used has not produced a reliable indication of the proportion of alcohol in your breath, I require you to provide me with a specimen of blood or urine which, in the case of blood, will be taken by a doctor or health care professional. It is for me to decide which it will be unless a doctor or health care professional 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 or health care professional of medical reasons why a specimen of blood cannot be taken by them, but the matter will be for the doctor or health care professional to determine. You will be supplied with part of the specimen if you so require. The other part will be sent to a forensic laboratory for analysis. I warn you that failure to provide a specimen will render you liable to prosecution. Before I decide whether the specimen shall be of blood or urine, are there any medical or other reasons why a specimen of blood cannot or should not be taken by a doctor or health care professional?”
[22]However, because the present was a section 8(2) case, PS Vellacott was directed not to paragraph B3 but to paragraph B7. I have already set out that form of words. It contains no warning such as is required by section 7(7), and advisedly so in my opinion since a driver invoking that regime is not being required to provide a further specimen pursuant to section 7.[23]I would also observe that Warren was a case in which the intoximeter did not function correctly and so the procedure under section 7(3) was invoked. At page 324 of the report there appears the form of words which was then addressed to the driver Mr Warren, which was the then equivalent of paragraph B3, which included the warning “if you fail to provide a specimen you may be liable to prosecution”. As a matter of the procedure habitually followed therefore there is that important distinction between the two sets of circumstances to which Lord Bridge refers at pages 326E to 327A. In indicating that in the second set of circumstances a prosecution for failure to provide a specimen might theoretically be possible, I respectfully doubt whether Lord Bridge could have had in mind that in those latter circumstances, if normal procedures were followed, no section 7(7) warning would have been given. As I understand it, a section 7(7) warning is a prerequisite to a conviction under section 7(6).[24]Accordingly, I do not consider that the question of failure to provide a specimen here arises, and I do not understand the Justices to have approached the case on the basis that it did. I therefore derive no assistance from the decision in Burke v DPP [1999] RTR 387, which was concerned with section 7(6). The second case considered in DPP v Jackson, Stanley v DPP, [1999] 1 AC 406 was a case of a driver who indicated that he did not wish to provide a blood specimen and whose answer was treated as amounting to an unequivocal indication that he did not wish to exercise the option available to him under section 8(2). Although this was referred to as “a refusal”, it is important to bear in mind that the defendant in that case was under no obligation to provide a further specimen, whether of blood or urine. Hence the Divisional Court in certifying the point of law in that case referred to it as one in which a motorist entitled to make a claim under s.8(2) of the Road Traffic Act 1988 declined to do so, that being in effect the finding made by the Justices. The House of Lords considered that the point for decision was whether the defendant had been deprived of the opportunity to exercise the option under s.8(2), or whether he had been caused to exercise it in a way that he would not otherwise have done had a further question been asked whether there were any medical reasons for his refusal to supply a specimen of blood – see per Lord Hutton at pp.427H-428A.[25]In my judgment one question raised by the present case is whether the Appellant’s conduct amounted to an unequivocal indication that he would not provide a blood specimen, like the defendant’s answer in Stanley:
“No, I don’t want no needle.”
As I read their findings the Justices did not address this question. Had they done so, they might have been entitled to conclude that the Appellant had withdrawn his election to replace the breath specimen with a specimen for laboratory alcohol analysis. The issue raised by the Justices’ question 2 is whether they were entitled so to conclude, but in my judgment they reached no such conclusion. On the contrary, they record that the Appellant refused to answer question B14. I am not for my part persuaded that this is an accurate reflection of what appears on the forms MG DD/A and MG DD/B. I have already set out what is recorded in this regard on Form B. A little more detail is given on Form A under the rubric “Additional Particulars”. It is worth setting this out in extenso:
“Throughout procedure subject has been extremely talkative. He successfully provided two samples of breath. Section B7 statutory option is read out to subject. He does not make a decision and asks for me to read it again. I explain the matter in my own way. Subject is still indecisive and refuses to answer yes or no to providing a specimen for laboratory alcohol analysis. I then warn subject that a refusal may result in his charge for excess alcohol. On request I read out section B7. After a short delay he consents to provide laboratory specimens. Section B9 completed. At 0740hrs I read out section B14 requesting consent to provide blood. Subject stalls and asks numerous questions. On request I explain the procedure. Subject paces about a bit. I advise that failure to answer the question will be taken as a refusal and he will be charged with excess alcohol. At 0744 I repeat the request for consent to providing a blood sample. Subject makes no reply. Subject informed that he will be charged with excess alcohol and escorted by PC Cripps to cell.”
[26]Rightly or wrongly the Justices have characterised what transpired as a refusal to answer question B14. They then simply record that the officer took this “as a refusal,” without spelling out of or to do what it was a refusal and without indicating whether they agreed with the constable’s conclusion, whatever it was. As I have already indicated, the Justices might have been entitled to find, although they would not in my judgment inevitably have found, that what had occurred was a “refusal” in the sense that the Appellant had given an unequivocal indication that he would not provide a blood specimen. That is the sense in which that expression was used in Stanley. However I do not think that it necessarily follows that the Appellant would have understood the police officer to be using the expression in that sense. It was not the sense in which Miss Wilkinson used the expression in argument before us. She used the expression in the sense of a failure to comply with a police officer’s requirement after a warning about the consequences of a failure to comply with it. The problem with the repeated use by the officer of the expression “a refusal” is that it is, in this context at any rate, the language of obligation. The Appellant was under no obligation to provide a specimen of blood. I would accept that in the context of the warning that a failure to answer the question would be treated as “a refusal”, the Justices were probably entitled to treat the Appellant as having refused to answer question B14. However they needed to go on to ask themselves whether this amounted to an unequivocal indication that he would not provide a blood specimen and whether he had thereby abandoned his earlier election to provide a specimen for laboratory alcohol analysis. It was for the Justices to make that finding, but without a finding that the Appellant had abandoned his election they were not in my judgment entitled to convict the Appellant on the evidence of the breath sample. I would only add that in analysing the effect of a refusal to answer question B14 the Justices would have had carefully to bear in mind that the Appellant was under no obligation either to give his consent to the provision of a blood specimen or to provide one.[27]I hasten to add that I have considerable sympathy with the Justices. The arguments addressed to them were misguided and diverted their attention from the real point in the case. Thus it was contended before the Justices that the procedure using form MGDD/B was unlawful, that the same question is asked twice at B7 and B14 and that this was confusing and unlawful in that it created an extremely contrived procedure. The Appellant it was argued had already consented to providing a laboratory specimen at B7 and the repetition of the same question at B14 had the effect of frustrating the clear objective of the legislation.[28]Before us Mr Corre did not suggest that the Defendant’s affirmative answer to question B7 should be treated without more as consent to undergoing the procedure required for the giving of a blood or urine specimen as the case may be. In any event it is his case that it is to the doctor or health care professional that consent must be given at the stage of the taking of the specimen. I do not therefore approach the case on the footing that the Appellant had already by his answer to question B7 signified his consent to undergo whichever of the two procedures, giving of a blood specimen or giving of a urine specimen, the constable might decide.[29]I do not agree with Miss Wilkinson that the effect of Friel-v- Dickson is that the court set out a two-stage process where a driver is expected to provide his consent both to the police officer, first stage, and to the medical professional, second stage. Friel –v- Dickson was a case in which it was mandatory to give a specimen of blood or urine, and what Lord Hope says at page 377, as it seems to me, is that an agreement in such circumstances to provide a specimen, given against the background of a warning that a failure to provide such a specimen without reasonable excuse is an offence, can properly be construed as a consent to undergo the procedure. That as it seems to me leaves at large the question whether in a section 8(2) case, where a section 7(7) warning is neither appropriate nor given, a driver must at the first stage indicate to the police constable his consent to provide a specimen of blood. Under the earlier, 1999 procedure, to which I have already referred a driver would not have been asked for his consent in the absence of a doctor.[30]As I have already remarked, I doubt if ordinarily the new procedure gives rise to any difficulty. If the driver gives his consent to the police constable, the doctor or health care professional will be summoned. It follows from Friel –v- Dickson that at that second stage the driver will nonetheless have the opportunity, and must be given the opportunity, to give or to decline his consent to the taking of a blood specimen by the doctor or health care professional who attends with a view to taking it. His earlier consent given to the police constable does not bind him and if he refuses consent at this second stage the specimen of breath will simply be used as evidence of commission of the offence.[31]On the other hand the driver may when the question in terms of B14 is posed by the police constable indicate unequivocally that he does not consent to provide a specimen of blood, which may be taken as an unequivocal indication that, were a doctor or health care professional summoned to attend, he would not on their arrival give his consent to that person taking a specimen of blood. Such would in my view amount to an abandonment of the election earlier made to provide a specimen for laboratory alcohol analysis, with the obvious consequence that the specimen of breath would again be used to prove the commission of the offence of driving with excess alcohol.[32]Question B14 is no doubt intended to save wasted time and expenditure, and ordinarily it is likely to do so. Whilst an indication of consent at this stage does not eliminate the risk of a wasted journey by the doctor or health care professional, I doubt if a driver often changes his mind. Most drivers placed in this situation will be anxious to provide a specimen of blood as their only chance of avoiding conviction, and are likely to indicate their consent at this stage. I would also note that once the police constable has ascertained that there are no medical or other reasons put forward why a specimen of blood cannot or should not be taken, and in the light thereof opted for a blood specimen rather than a urine specimen, there is no question thereafter of resort to a specimen of urine where time constraints come into play – see section 7(5).[33]I doubt therefore if question B14 ordinarily gives rise to problems. I appreciate that it is probably undesirable to give the opportunity for prevarication which spelling out the entitlement to reconsider the issue of consent on arrival of the doctor might present. However it has to be recognised that by asking at this stage in the absence of a doctor for an indication of consent to the provision of a specimen of blood the risk is run that in a very small number of cases an equivocal answer to the question may be given, or, as here, no answer at all. Care is then required in ensuring that the driver is not led to believe that he has failed to do something which he is obliged to do. Similarly, in analysing the effect of the response or the lack thereof, it must be borne in mind that there is a clear distinction between the situation where provision of a blood or urine specimen is obligatory and that where it is an option of which the driver is entitled to avail himself. It is because I am not satisfied that the police constable, the Appellant or the Justices had this distinction clearly in mind that I decline Miss Wilkinson’s invitation to regard the Justices as having impliedly concluded that the Appellant had unequivocally abandoned his election to provide a specimen for laboratory alcohol analysis as an alternative to use of the specimen of breath. The distinction is one which Miss Wilkinson herself did not recognise in argument.[34]I would therefore answer the questions posed as follows: 1: No. 2: Does not arise as no such conclusion was reached. 3: There is no legal impediment to the question being asked. 4: No.[35]I would add that it is inherent in my answers to the questions posed that this case in my view turns on the failure of the Justices, in the understandable circumstances which I have described, to make an essential finding of fact. It raises I think no point of principle, save to the limited extent indicated by my answers to questions 3 and 4. It will be a rare case in which those questions are of any practical relevance.

Lord Justice Moses :

[36]I agree that this appeal should be allowed for the reasons given by Tomlinson J. The Justices made no clear finding that the appellant had withdrawn his election to provide a specimen pursuant to s.8(2) [25]. The importance of his judgment lies in the clear distinction he has identified between two separate statutory schemes, which must not be confused.[37]Under the section 7 scheme, the suspect may be required to provide the specimens identified in s.7(1). A suspect must be warned of the consequences of failure to comply with the constable’s requirement in pursuance of this section (i.e. section 7) and is guilty of an offence if he fails to comply with such a requirement in pursuance of this section.[38]Under the section 8 scheme, once two specimens of breath have been provided, the provision of blood or urine (described as such specimen as may be required under s.7(4)) is a result not of any requirement but of the choice (described in s.8(2) as a claim) made by the suspect and the provision of such a specimen in pursuance of that election. If he withdraws his election and fails to provide such a specimen he is left with the inevitable result of a conviction on the basis of the lower specimen. In the instant appeal, the Justices could have found that he had withdrawn his election but did not do so.[39]Lord Bridge’s confusion in Warren between the two distinct schemes was, in my view, expressed in obiterdicta and is incorrect (see Tomlinson J at[20]). The only relevance of s.7 is that it triggers the application of s.8, where a lower specimen of breath provided under s.7 does not exceed 50 microgrammes of alcohol in 100 millilitres of breath, and that it gives, by reference to s.7(4), a description of the type of specimen a suspect chooses to provide by way of alternative.[40]I share Tomlinson J’s concern that a tiresome suspect who shilly-shallies may cause an unnecessary journey for a medical practitioner or registered health care professional [31] and [32]. But it should, in the light of Tomlinson J’s judgment [26], now be understood that the suspect should not be recorded as giving a negative answer to question B.14 (cited at [14] and [15]) unless and until he has clearly demonstrated that he has withdrawn his earlier indication that he wishes to give a sample of blood or urine. Conversely, the question at B.14, if answered in the affirmative, can never be a guarantee that the journey will not be wasted. If those principles are borne in mind, the Justices should have no difficulty in deciding, on the basis of the evidence, whether a suspect did withdraw his election under s.8 or not.

Cited in 1 later judgment