Jake Worsley, R (on the application of) v Tameside Magistrates' Court [2026] EWHC 1789 (Admin)

[2026] EWHC 1789 (Admin)Case No AC-2025-MAN-000429
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate 16/07/2026
M60 9DJ
Before
MRS JUSTICE HILL DBE
Between
The KingClaimantOn the application ofClaimantJAKE WORSLEYClaimant
Darren Finnegan (instructed by Joe Egan Solicitors Ltd) for Claimant for The Defendant did not appear and was not legally representedThomas Williams (instructed by Crown Prosecution Service) for Interested PartyHearing Hearing date: 9 July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Thursday 16 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]By a claim form filed on 11 September 2025 the Claimant seeks judicial review of the decision of Tameside Magistrates’ Court dated 31 July 2025 to refuse to state a case for the opinion of the High Court. This followed his conviction after trial on 30 May 2025 for failing to provide a specimen of blood without reasonable excuse.[2]The Claimant advances two grounds of review, to the effect that the Magistrates erred in refusing to state a case on the issues of:(i) Whether they were entitled to find that the evidence of the MGDD/C procedure (described further at [70]-[71] below) should not be excluded under section 78 of the Police and Criminal Evidence Act 1984 (“the exclusion ground”); and(ii) whether they were entitled to convict the defendant before hearing closing arguments from both prosecution and defence (“the premature verdict ground”).[3]The Defendant has adopted a neutral stance in these proceedings.[4]The Interested Party (“the CPS”) accepts the merit of the premature verdict ground, such that the Claimant’s conviction should be quashed and the case remitted to the Magistrates Court for re-trial before a differently constituted bench. However, the CPS contests the exclusion ground.[5]The case was heard by way of a “rolled up” hearing. I have been greatly assisted by the clear and comprehensive submissions from both counsel. The factual and procedural background Events leading up to the Claimant’s trial

The factual and procedural background

[6]Just after midnight on 15 December 2022 the Claimant was driving his van at 50 mph on Tonge Moor Road, Bolton, when he was involved in a head on collision with another vehicle. He was found lying in the van with his right leg impaled by a metal pole. Extraction was performed by the fire service and he was taken to Manchester Royal Infirmary.[7]PC 9001 Weaver of Greater Manchester Police attended at the hospital and conducted the procedure for requiring a specimen of blood from the Claimant while in hospital, using the MGDD/C form. The Claimant did not provide a specimen.[8]On 16 February 2023, the Claimant was charged with(i) driving without due care and attention; and(ii) failing to provide a blood specimen on the night of the collision, contrary to, respectively, sections 3 and 7(6) of the Road Traffic Act 1988 (“the RTA 1988”) and Schedule 2 to the Road Traffic Offenders Act 1988.[9]On 9 May 2023, the Claimant entered not guilty pleas to both offences, indicating that the issues were that(i) he had not been the driver of the vehicle and(ii) he had a reasonable excuse for failing to provide a specimen.

The trial

[10]On 8 July 2024, the matter was listed for trial. The Claimant pleaded guilty to driving without due care and attention. He has yet to be sentenced for this matter. The trial of the charge of failing to provide a specimen was adjourned.[11]On 30 May 2025, the trial took place. The Claimant was represented by Mr Finnegan who appeared in this claim. The bench of three magistrates was advised by Alexander Smith, a trainee legal adviser (“the legal adviser”).[12]Mr Finnegan took a note of the hearing, which was commendably detailed given the speed with which events happened and the fact that he was regularly “on his feet” during the hearing. It was prepared almost contemporaneously and is much more detailed than either the “Hearing Record Sheet” prepared by the CPS advocate or the legal adviser’s note of the trial, which appears to be incomplete. To the extent that there were differences between these documents and the witnesses’ recollections, as set out in their witness statements, Mr Williams fairly accepted that it would be open to the court to conclude that Mr Finnegan’s record was to be preferred. I agree.[13]The central issue at the trial was whether PC Weaver had followed the correct procedure with respect to requiring a specimen of blood from the Claimant. PC Weaver gave evidence and was taken through the MGDD/C while doing so. The footage from PC Weaver’s body worn video camera (“BWV”) was played. PC Weaver was cross-examined by Mr Finnegan. A statement from Dr Joseph Godfrey, a Consultant in Emergency Medicine, dated 26 September 2023, was read under section 9 of the Criminal Justice Act 1967. The MGDD/C form at question C6 showed that at 1.52 pm PC Weaver had told Dr Godfrey that he was proposing to require a specimen of blood from the Claimant and that the doctor had confirmed that he had no objections to the procedure.[14]At the close of the prosecution case, the defence made an application under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). This section provides as follows: “Exclusion of unfair evidence (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”.[15]The section 78 application was advanced on the basis that(i) although PC Weaver accepted in evidence that the Claimant “appeared to be confused” during the procedure and the Claimant told the officer he was concussed, PC Weaver did not seek further medical advice but relied instead on Dr Godfrey’s consent given 56 minutes earlier; and(ii) PC Weaver’s written statements were inconsistent with the footage, which meant that it was not reasonable to treat PC Weaver as a credible witness. Reliance was place on Butler v Director of Public Prosecutions [2001] RTR 28: see [81]-[85] below.[16]The legal adviser gave directions to the bench on the proper approach to a section 78 application and they retired to consider it. When they returned, they indicated that they refused the application, finding that it would not be unfair to admit the evidence. Mr Finnegan’s note of the hearing reflects the following as being their reasons:
“cannot see that it would poison tree re procedural matter prevents us not going further”
. He indicated that he did not intend to call any evidence on behalf of the defence and closed his case.[17]At this point, without conferring with his colleagues, or hearing any closing speeches, the bench Chair said “[We] find the matter proven and… we will now move to sentencing”.[18]Mr Finnegan’s attendance note understandably records “[t]his was very sudden and took everyone by surprise”, not least because “the crown, in their opening, did not outline burden and standard of proof nor lay out the ingredients of the offence”. He said something to the bench to the effect of: “I was expecting my learned friend to close…but I suspect the horse has already bolted”.[19]The legal adviser told the Chair that he “needed to provide reasons”, which the Chair proceeded to do, although these may have related to the section 78 application rather than the conviction. The Chair was interrupted by the legal adviser, who reminded the bench that they had not heard closing submissions. The Chair then apologised and invited closing submissions from both representatives, which were then made.[20]The legal adviser gave the bench assistance on the law. In due course they convicted the Claimant of the failing to provide offence. The form which records their reasons notes that they found PC Weaver “clear…concise…[and]…credible” with a “good knowledge of the law”. They found that Dr Godfrey “gave authority to the officer” and that the “officer followed procedure’. Mr Finnegan recollects that the Bench said that they did not consider that Butler assisted them but did not say why.

The application to state a case

[21]On 12 June 2025, the Claimant’s solicitors filed an application for the Magistrates to state a case.[22]On 30 July 2025, the legal adviser emailed the parties indicating that the application to state a case had been rejected. The key reasons for this decision were as follows: “I consider the application to be frivolous…There was no suggestion that the [blood specimen] evidence was obtained oppressively, improperly or unfairly and both parties could have made an application for a Re trial but chose not to do so. Neither did the defendant give evidence in his own right or call any witnesses. Any application to state a case to the [H]igh Court would be for reasons which the Court would not wish to concern themselves with. I would therefore suggest the case to be frivolous”.[23]On 7 August 2025, sentence was adjourned to await the outcome of this claim.[24]On 15 August 2025, a draft response to the Claimant’s pre-action protocol letter was prepared by Dionne Barrett, a senior legal manager in the North West Region. The draft letter stated that it was accepted that there had been a procedural error leading to the Claimant’s conviction, in that: “the Guilty verdict was announced independently by the Presiding Judge without consulting colleagues on the bench and prior to closing submissions being heard”.[25]The letter stated that the case would be listed for a hearing under the Magistrates’ Courts Act 1980 (“the MCA 1980”), section 142 (the power of a Magistrates’ Court to re-open cases to rectify mistakes etc) to correct the procedural irregularity by re-opening the case, quashing the conviction and arranging for the Claimant to be re-tried.[26]The Claimant’s solicitor, Karen Hall, has filed a witness statement dated 2 April 2026 indicating that she never received the letter dated 15 August 2025 and has received no communication from the Defendant about re-opening the case under section 142. It is now agreed that the draft of the letter was never sent for reasons which are not clear. However, Mr Finnegan confirmed that even if the suggestion of a section 142 hearing had been made to the Claimant he would have indicated that this claim should take precedence, because a section 142 hearing would not have addressed the Claimant’s arguments under the exclusion ground. Mr Williams nevertheless accepted that the apparently provisional view of the Defendant as to the premature verdict ground was something that this court could properly take into account.

The overarching legal framework

[27]Appeals by way of case stated are governed by section 111 of the MCA 1980 and Part 35 of the Criminal Procedure Rules 2025 (“the Crim PR”).[28]A person may apply to the court for the justices to state a case for the opinion of the High Court on a question of law under section 111(1), which by section 111(2) must be within 21 days of the decision.[29]Under section 11(5), the justices may refuse to state a case if they are of the opinion that it is “frivolous”. This phrase was considered in R v North West Suffolk (Mildenhall) Magistrates’ Court, ex p Forest Heath DC (1997) 161 JP 401, [1998] Env LR 9, at 16, where Lord Bingham CJ said the following:
“I think it very unfortunate that the expression “frivolous” ever entered the lexicon of procedural jargon. To the man or woman in the street “frivolous” is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic”
[emphasis added].[30]He continued: “That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come. It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge. Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre. But there are cases in which justices can properly form an opinion that an application is frivolous”.[31]Further, where justices reach such a conclusion, it would be “very helpful” if they could “indicate, however briefly, why they form that opinion”. A “blunt and unexplained refusal…may well leave an applicant entirely uncertain as to why the justices regard an application futile, misconceived, hopeless or academic”; and “[s]uch uncertainty is liable to lead to unnecessary litigation and expenditure on costs”: 16-17.[32]If the court declines to state a case, under Crim PR 35.2(5) the court officer must serve on each party notice of the decision and the court’s written reasons for the decision.[33]A refusal to state a case may be challenged under section 111(6), which provides that the High Court may “on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case”.[34]However, where a claim is made for judicial review in these circumstances, it is open to the court to quash the decision to refuse to state a case and proceed to a substantive hearing of the application for a case to be stated, using the evidence provided by the parties as the “case stated”. Adopting that procedure has the benefit of “avoiding the delay involved in the Divisional Court having to wait for the case to be returned to the Crown Court (or the magistrates’ court) for a case to be stated before deciding whether a conviction should be quashed”, thereby limiting “expense, delay and duplication of proceedings” R (Skelton) v Winchester Crown Court [2017] EWHC 3118 (Admin) at [9], per Lindblom LJ, citing R v Blackfriars Crown Court, ex p Sunworld Ltd [2000] 1 WLR 2102 at 2106F-H, per Simon Brown LJ (as he then was).[35]When a conviction is quashed, the usual practice is to remit the case for retrial before a differently constituted bench, although there is a discretion as to whether to do so: R (Director of Public Prosecutions) v Stratford Magistrates’ Court [2017] EWHC 1794 (Admin), [2018] 4 WLR 47 at [52]-[55]case; and R (Director of Public Prosecutions) v Highbury Corner Magistrates’ Court [2022] EWHC 3207 (Admin), [2023] 4 WLR 22, at [56]-[57], per Dame Victoria Sharp P and Johnson J.[36]The power under section 78 is not, strictly speaking, a discretion, because “if a court decided that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it”: see R v Bogie [2023] EWCA Crim 1280, at [55].[37]Where a decision under section 78 is challenged on an appeal by way of case stated, the question is whether the decision on the section 78 application was irrational in the Wednesbury sense, meaning that “no reasonable judge, having heard the evidence, could have reached the evidence that [the] judge did”: R v Dures [1997] 2 Cr App R 247, at 261G-262A and Thomas v Director of Public Prosecutions [2024] EWHC 3259 (Admin) at [26]).[38]Accordingly in relation to decisions under section 78 and other fact-specific decisions by Magistrates, a case should only be stated where it is arguable that no reasonable bench could have reached the factual finding in question on the evidence. By contrast “if a defendant believes that the justices have arrived at a finding for which there was evidence but at which he contends they should not have arrived (for example, because it was against the weight of the evidence)” then the remedy lies in an appeal to the Crown Court: Oladimeji v Director of Public Prosecutions [2006] EWHC 1199 (Admin), at [4], per Keene LJ.

The Claimant’s grounds

[39]Both parties agreed that it was possible and appropriate in this case to adopt the procedure described in Skelton, at [34] above. I therefore approach the grounds on the basis of asking in respect of each ground first, whether it is arguable that the Magistrates erred in law in refusing to state a case, such that permission should be granted and if so whether the claim should be allowed; and second, if so, how the question the Magistrates should have stated should be answered. I deal with the grounds in reverse order given the measure of agreement with respect to the premature verdict ground. (1): The premature verdict ground The relevant law[40]Crim PR 24.3(3), which sets out the procedure for trials in the Magistrates’ Court, provides at (h) that at the end of the evidence, the prosecutor may make final representations in support of the prosecution case, where the defendant is represented by a legal representative, or whether represented or not, the defendant has introduced evidence other than his or her own. The rule then provides that the next step is that:
“(i) The defendant may make final representations in support of the defence case.”
[41]The rule relating to Crown Court trials is identical: Crim PR 25.9(2)(k).[42]Archbold at 4-427 cites section 2 of the Criminal Procedure Act 1865 as the source for “the right of counsel for the defendant, or the defendant himself, to make a speech at the conclusion of the evidence”. It confirms that: “The right of the defence to make a closing speech will fall to be exercised after the conclusion of any closing speech for the prosector, or if there is no closing speech for the prosecutor, at the conclusion of the evidence…”.[43]Several cases have considered scenarios where guilty verdicts have been returned prematurely and/or in circumstances which give an appearance of bias.[44]In R v Young [1964] 1 WLR 717, towards the end of the trial, the judge had summed up the prosecution case and then adjourned over the weekend before summarising the defence case. On the Monday morning, the judge summed up the defence case and then asked the jury to retire to consider their verdict. At that point the foreman, without “so much as a glance at any member of the jury”, stood up and said that they had found the accused guilty. The Court of Criminal Appeal allowed the appeal against conviction on the basis that the proper inference was that the jury had all agreed on the guilty verdict before the summing-up continued on the Monday morning. As Lord Parker CJ explained at 719-720, this was contrary to “their duty, before returning a verdict of guilty, to listen to what the judge had to say about the defence”. In those circumstances the verdict could not stand: the appeal was allowed.[45]In R v Midhurst Justices, ex p Thompson [1974] QB 137, the Magistrates heard a submission that there was no case to answer. The Chair “[e]vidently by a complete mistake” and without retiring, then announced a guilty verdict, before asking whether the defendant wished to give or call any evidence: 139B. Bridge J (with whom Lord Widgery CJ and May J agreed) observed, obiter, that the justices were “entirely right in taking the view that it was not proper for them to proceed with the hearing of the case after what had occurred”, bearing in mind that had they done so any conviction ultimately reached would have been “reached in breach of the rules of natural justice”:140F.[46]In R v Romsey Justices, ex p Gale, The Times, January 24, 1992, [1992] Crim LR 451, the trial was listed for 2 days. At the end of the first day, the Chair prepared a note of what he intended to say at the conclusion of the case on the assumption that he and his colleagues found the prosecution evidence proved. He took the note to court with him the next day and kept it to himself until, after discussion, he and his colleagues reached the conclusion that the applicants were guilty. He then read out the note, slightly amended, on passing sentence and handed it down to the clerk. On seeing the note, the clerk realised what must have happened. The justices on reflection recognised that although actual bias was not suggested, a reasonable and fair-minded person sitting in court, appraised of all the facts, was clearly likely to have a reasonable suspicion that a fair trial was impossible in these circumstances. The applicants’ application for judicial review succeeded and their convictions were quashed.[47]In Evans v Director of Public Prosecutions [2001] EWHC Admin 369, the appellant had been convicted by the Magistrates because, as their reasons explained, after “weighing up” the two different accounts, they had found the complainant’s account the “most credible”. Bell J, with whom Lord Woolf CJ agreed, held that the justices had given the impression that they had not applied the correct test of whether the prosecution had satisfied them beyond reasonable doubt of the requisite facts and had therefore “given an appearance that justice was not done”, such that the appeal was allowed: [10]-[12].[48]Shortly after the judgment in Evans, the House of Lords considered the test for apparent bias in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. As is now well-known, Lord Hope set out the test to be applied at [102]: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility…that the tribunal was biased”.[49]Evans was cited in JS v Director of Public Prosecutions [2017] EWHC 1162 (Admin), [2017] 4 WLR 102 at [18]. There, although the Magistrates had indicated that they were “satisfied so that [they] were sure” that the appellant did tamper with moped as alleged, they had prefaced it with the observation that they “were of the opinion that the prosecution had made out a viable case” and that although they had “listened to the appellant’s evidence”, this “did not persuade us that there was no intention to tamper with the moped”: [10]. The Divisional Court held that these indications at very least gave the impression that the Magistrates may not have applied the correct standard of proof and quashed the conviction: [28] and [32].

Submissions and analysis

[50]The decision not to state a case appears to have been made by a trainee legal adviser. There is no suggestion that it had been referred to the Magistrates themselves: see [22] above. It would appear that this in itself was procedurally improper: section 111(1) of the MCA 1980 specifies that an application to state a case is to be made to “the justices composing the court” (i.e. the court where the issue generating the application is said to have taken place); and sections 111(5) and (6) refer to decisions not to state a case being made by “the justices”.[51]In any event, the Claimant’s central submission on this ground was that the declaration of a verdict before hearing closing submissions from the defence was a clear breach of natural justice and procedurally unfair.[52]The CPS accepted that when the Magistrates convicted, or purported to convict, the Claimant before hearing any closing submissions and suggesting that they should “move to sentencing” before the legal adviser intervened, this would have given the appearance that justice was not done.[53]I agree with the analysis of both counsel. The law has been clear since at least 1865 that the defendant to a criminal trial has the right to make a closing submission at the end of the evidence or to have one made on their behalf by their representative. This right is currently enshrined for Magistrates Court proceedings in Crim PR 24.3(3)(i). The Magistrates’ failure to allow this important procedural right to be exercised before convicting the Claimant was therefore a procedural failing.[54]The Magistrates’ decision to convict the Claimant after hearing his counsel’s speech, would, in these circumstances meet the Porter test: as Mr Williams insightfully put it, “a fair-minded and informed person sitting in the public gallery in Tameside Magistrates’ Court on that afternoon would, rightly, have found it difficult to see how the magistrates could have continued to keep an open mind after announcing a conclusion about guilt, prematurely, earlier in the proceedings”.[55]In my judgment this was a serious procedural failing akin to those that occurred in Young, ex p Thompson and ex p Gale, such that the Claimant’s conviction cannot stand. Accordingly, the application to state a case was far from frivolous: it was plainly well-founded and, contrary to the view of the legal adviser, a matter that the High Court would “wish to concern themselves with”. There were other errors in the legal adviser’s reasoning which I address at [94]-[95] below which further vitiated his reasoning.[56]For these reasons, I grant permission and allow the claim for judicial review on this ground.[57]Adopting the procedure described in Skelton at [34] above, the question on which a case should have been stated was the one formulated by the Claimant in his application, namely:
“Were the justices entitled to convict the defendant before hearing closing arguments from both prosecution and defence?”
. The answer to that question is “No”, for the reasons given at [52]-[56] above.

(i) The obtaining of blood specimens under the RTA 1988

[58]Under section 5(1) of the RTA 1988 it is an offence for a person to drive a vehicle on a road after consuming so much alcohol that the proportion of it in his or her blood exceeds the prescribed limit, which by section 11(2) is 80 milligrams of alcohol in 100 millilitres of blood.[59]In the course of an investigation into whether a person has committed an offence under section 5, a constable may require that person to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or “provide a specimen of blood or urine for a laboratory test”: section 7(1)(b).[60]The requirement to provide a specimen of blood can only be made at a police station or at a hospital: section 7(3).[61]Section 7 continues:
“(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”
[emphasis added].[62]Section 9 makes specific provision for suspects in hospital, as follows:
“(1) While a person is at a hospital as a patient he shall not be required…to provide a specimen under section 7 of this Act unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement; and — (a) if the requirement is then made, it shall be for co-operation with a test administered, or for the provision of a specimen, at the hospital, but (b) if the medical practitioner objects on the ground specified in subsection (2) below, the requirement shall not be made… (2) The ground on which the medical practitioner may object is— (a) in a case falling within subsection (1), that the requirement or the provision of the specimen or (if one is required) the warning required by section 7(7) of this Act would be prejudicial to the proper care and treatment of the patient”
[emphasis added].[63]The object of obtaining the consent of the medical practitioner in charge of a suspect in hospital before a blood specimen can be taken is “to protect the suspect’s health”: Bourlet v Porter [1973] 1 WLR 866, at 881, per Lord Diplock.[64]In R v Burton upon Trent Justices, ex p Woolley [1995] RTR 139, Buxton J (as he then was) concluded that where a suspect is in hospital, as opposed to a police station, it would not usually be necessary for a police officer to ask the suspect specifically whether there was a medical reason why they could not give a specimen, because the doctor would already have considered their circumstances in accordance with section 9.[65]Buxton J observed that in such cases, it would be “sufficient if the driver is asked simply whether there is any reason why the specimen of blood should not be taken from him”. This question, when added to the requirements of section 9, would satisfy the objective identified by Lord Bridge in Director of Public Prosecutions v Warren [1993] AC 319, at p328, that the driver must have “the opportunity to raise any objection he may have to giving blood, either on medical grounds or indeed for any other reason which might afford a “reasonable excuse” under section 7(6)”: 149E-150C.[66]Although there was some conflict in the Divisional Court authorities, Buxton J’s approach was supported by successive editions of Wilkinson’s Road Traffic Offences and by Laws LJ in Jones (Vivian) v Director of Public Prosecutions [2004] EWHC 3165 (Admin), [2005] RTR 15 at [11]-12]. (ii). The offence of failing to provide a specimen[67]Section 7(6) provides that a person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of section 7 is guilty of an offence.[68]As a result, section 7(7) provides that 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.[69]For the purposes of the offence of failing to provide a specimen under section 7(6):(i) Failing to provide a specimen includes refusing to do so: section 11(2);(ii) A reasonable excuse must arise out of circumstances where the defendant is “physically or mentally unable to provide [the specimen] or the provision of the specimen would entail a substantial risk to his health”: R v Lennard [1973] 1 WLR 483 at 487C.(iii) A general desire to seek legal advice before providing a specimen does not constitute a reasonable excuse: Salter v Director of Public Prosecutions [1992] RTR 386;(iv) Rude behaviour and delaying tactics can constitute a failure to provide a specimen without a reasonable excuse even if, for example, a breathalyser is not in fact brought out: Director of Public Prosecutions v Swan [2004] EWHC 2432 (QB) at [9];(v) Once a defendant has properly raised a reasonable excuse on the evidence, it is for the prosecution to prove the absence of reasonable excuse to the criminal standard: Rowland v Thorpe [1970] 3 All ER 195 at 197C and McKeon v Director of Public Prosecutions [2007] EWHC 3216 (Admin), [2008] RTR 14, at [10]; and(vi) There is, in relation to this offence, a particular need for magistrates to guard against gullibility: Director of Public Prosecutions v Eddowes [1991] RTR 35 at 41B. (iii). “MGDD” forms[70]MGDD (Manual of Guidance for Drink and Drug Driving) forms are standard forms used by police forces in England and Wales in drink and drug cases. The MGDD form C (the MGDD/C) is for use in hospitals. In Director of Public Prosecutions v Smith (Robert) [2000] RTR 341 at 349C-D, Turner J said the forms were: “….in essence, no more than what I would describe as the “plain man’s guide” to a simple understanding of the procedures provided by the 1988 Act to ensure, in a practical way, that those called upon to operate the procedures do not omit a relevant step; that at stages where there is a choice of steps, they appreciate that such a choice exists, and it also offers quite clearly common sense guidance as to the way in which choices should be exercised when they fall to be made”.[71]In Cummings v Crown Prosecution Service [2016] EWHC 3624 (Admin), Soole J observed that “the evident purpose of the form is to provide a contemporaneous documentary record”; and found that when two officers had filled in an MGDD form together, each officer must be taken to have been satisfied as to the accuracy of its contents for the purposes of later refreshing their memories under section 139(1) of the Criminal Justice Act 2003 (“the CJA”): [19]-[23]; see also on the latter: Director of Public Prosecutions v Sugden [2018] EWHC 544 (Admin); and for the admission of MGDD forms as hearsay by agreement under section 114(1)(c) of the CJA, see Clarke v Crown Prosecution Service [2024] EWHC 704 (Admin), [2024] RTR 29. (iv). Challenging the admissibility of blood specimen evidence[72]If the statutory warning as to the risk of prosecution in section 7(7) is not given, the evidence of any blood specimen is inadmissible: Murray v Director of Public Prosecutions [1993] RTR 209 at 217G–H.[73]In contrast, it is now the case that other breaches of the statutory requirements in sections 7 and 9 do not render the blood specimen evidence automatically inadmissible, but are relevant to any application to exclude the evidence under section 78 of PACE: R v Twigg [2019] EWCA Crim 1553, [2019] 1 WLR 6533 at [61]-[63]; see also R v Chalupa [2009] EWHC 3082 (Admin). This means that earlier authorities which talk of procedural breaches “invalidating” the evidence, or words of that nature, need to be treated with care.[74]Where there has been a failure to provide a specimen, any failure to follow the statutory requirements may also be relevant to the defence of reasonable excuse under section 7(6): Archbold Criminal Pleading and Evidence and Practice (2026 edition) at 15A-184.

Key authorities

(i) Scoble v Graham [1970] RTR 358

[75]In Scoble, the respondent defendant was involved in a road traffic accident and was taken to hospital, where he was found to have a suspected fractured ankle and a superficial abrasion to his head and right thigh. The doctor confirmed that specimens could be taken. At various times between 3.48 am and 3.57 am the constable asked the defendant to give specimens of breath, blood or urine. The defendant refused all the requests, variously answering “No. Leave me alone”, “I will give you nothing”, “No”, and “No. Leave me alone. Do you want me to buy you something?”. His attitude towards the officer trying to take specimens was at variance with his attitude to the doctor: he had sat up and conversed freely with the doctor, but needed to be roused by the officer when making his requests for specimens.[76]The justices found that the defendant knew he was being interviewed by a police officer and understood what was required of him and convicted him of failing to provide a specimen of blood or urine without reasonable excuse, contrary to section 3(3) of the Road Safety Act 1967. However, they found special reasons why they should not disqualify him from driving, on the basis that he had been in hospital and in a certain amount of pain; and that he had received a blow to his head which might have affected him.[77]The prosecutor appealed on the question of whether the facts of the case as found amounted to a special reason why the justices should not disqualify the defendant. Lord Parker CJ, with whom Cooke and Bridge JJ agreed, held that it could not. The fact that the defendant was in hospital at the time was irrelevant because the Act itself made specific provisions for the taking of specimens in hospital. The sole ground, therefore, was that he had had a blow on the head, that he may have been a bit dazed and confused, and was in pain. As against that, there was the clear finding that he understood the police officer and knew what was required of him. He continued at 361: “Of course, a man may be in such a condition of pain and so dazed and confused that it can properly be said that his failure to provide a specimen was with reasonable excuse. Quite clearly here the justices found by their conviction that he had no reasonable excuse, and there being no reasonable excuse for his failure it is difficult to see how what is alleged could amount to special reasons”.[78]The appeal was allowed, and the case remitted to the justices with a direction to disqualify. (ii). Wade v Director of Public Prosecutions [1996] RTR 177[79]Wade was an appeal by way of case stated after the appellant had been convicted of an offence under section 5(1). In answer to the question whether there was any reason why a specimen of blood could not or should not be taken, the appellant had replied “I do take tablets”. It was argued that this was clearly a medical reason and therefore the officer should have either required urine from the defendant or informed the doctor of the reason and allowed the doctor to decide in accordance with section 7(4): [3] of the stated case at 180B-C.[80]McCowan LJ, with whom Dyson J agreed, allowed his appeal and quashed the conviction, holding as follows at 183B-E: “…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 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 The officer, if he had doubts about it, could have questioned the defendant as to the nature of the tablets and the condition for which he took them. To repeat the example which we cited to counsel: supposing the man had said that they were vitamin tablets; then the officer might well have been justified in thinking that this could not possibly be a medical reason. As it was, he asked, as far as we know, no questions at all. There is no evidence that he gave consideration to the answer at all. If he had concluded that there was no medical reason, he could have required blood, but, otherwise if he was left in a state of doubt about the matter, he should have taken the view of a doctor”. (iii). Butler v Director of Public Prosecutions [2001] RTR 28[81]In Butler, the defendant was arrested following a positive roadside test and was taken to a police station, where a requirement for specimens of breath was made. When he was asked if he was suffering from any medical conditions, he told the officer that he had had an “immune system breakdown”. He was seen by a forensic medical examiner at 10.17 pm. The defendant’s condition deteriorated and he was taken to a hospital, where a requirement for a specimen of blood was made. A different officer accompanied the defendant to the hospital and did not tell the doctor in charge that he had mentioned immune system breakdown at the police station, nor was the doctor told of any medication the defendant was taking. The doctor indicated that he had no objections to the procedure and in the circumstances the defendant consented to providing a blood specimen. When analysed it contained alcohol in excess of the prescribed limit. He was duly convicted of an offence under section 5(1)(a).[82]The defendant appealed by way of case stated arguing that there had been two errors of procedure that invalidated the taking of the blood specimen: first, that the officer who went with the defendant to the hospital should have passed on the information about his immune system breakdown as this was a potential medical reason why a blood specimen should not be authorised; and second, she should not have asked if the doctor consented to the specimens being taken in the defendant’s hearing.[83]May LJ, with whom Jackson J agreed, determined the appeal in the defendant’s favour on the first issue. He distinguished Woolley on the basis that while it would be otiose if the legislation required an officer to make a general medical query of the patient when the doctor in charge may be expected to make that and other inquiries, the same did not apply if the officer knew that the patient had articulated a potential reason for not taking a specimen of blood and did not pass this information on to the doctor. As he said at [13]: “There is a difference between making an unnecessary general inquiry and passing on potentially relevant specific knowledge which you actually have. That is not otiose, even though in many cases (but not this one) the doctor’s own inquiry might elicit the same information”.[84]He continued: “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”.[85]As the procedure required by the legislation was not followed the specimen was not admissible in evidence and the conviction was quashed: [14]. (iv). Townson v Director of Public Prosecutions [2006] EWHC 2007 (Admin)[86]Townson was an appeal by case stated against a decision of the Chester Crown Court, dismissing the appellant’s appeal 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). The sole issue was whether the reasons given by the appellant for refusing to supply a specimen of blood were capable of being medical reasons for not providing such a specimen. Those reasons were that(i) he had had a lot of tests recently and there had been difficulty finding veins;(ii) he was in pain;(iii) he was diabetic;(iv) he had high blood pressure: [4]. These reasons were provided by the appellant to the officer, after the hospital doctor had indicated that he did not object to specimens being taken: [3].[87]Maurice Kay LJ, with whom Mitting J agreed, allowed the appeal and quashed the appellant’s conviction. He observed that the relevant authorities (namely Johnson v West Yorkshire Metropolitan Police [1986] RTR 167, Wade and Butler) 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”: [15].[88]He concluded that the officer 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 the hospital doctor had not dealt with the matter because what was being advanced by the appellant in answer to the officers’ questions was not information which was already in the possession of the officer: [18].[89]He continued: “18…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… 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.” (v). Director of Public Prosecutions v Tandey [2024] EWHC 1992 (Admin)[90]In Tandey the respondent defendant had been prosecuted for driving a motor vehicle whilst over the prescribed limit. The issue was whether the person spoken to before a blood specimen was taken was a doctor. There was an MGDD/C on which the name of a doctor had been written but the end of the surname was illegible, and there was no statement available from the person in question. They had been traced to Australia, but there was no admissible evidence of that fact. The District Judge refused to admit hearsay evidence about the doctor’s identity and excluded the MGDD/C altogether under section 78 on the basis that some of the matters recorded on it were incorrect.[91]Bean LJ, with whom Hilliard J agreed, allowed the prosecutor’s appeal by way of case stated on the following basis:
“17…the whole basis of the decision to exclude the MGDD/C form in toto was flawed. It must be remembered that the test under section 78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. I am quite unable to see that there would have been anything unfair in allowing the MGDD/C form to be used as a memory aid by PC Ward, for him to be called in the usual way and for any points such as whether there really was a hospital doctor on duty at the time who was spoken to by PC Ward, to be put to the officer in cross-examination. The decision to exclude the evidence in toto was, in my judgment, so flawed that it does not fall within the bounds of the discretion given to a trial judge under section 78”
.

Submissions and analysis

(i) Were the justices entitled to refuse to state a case on the exclusion ground?

[92]Mr Williams submitted that it was not arguably irrational for the Defendant to dismiss the Claimant’s section 78 application, such that the Defendant was justified in refusing to state a case in relation to the exclusion ground, and permission should not be granted.[93]I respectfully disagree for the following reasons.[94]First, when the legal adviser stated as part of the rationale for the decision that “[t]here was no suggestion that the [blood specimen] evidence was obtained oppressively, improperly or unfairly”, as set out at [22] above, that was a material error. The Claimant’s counsel had argued precisely the opposite on the section 78 application, namely that the errors in the specimen taking procedure had rendered it oppressive, improper and unfair, such that the evidence should be excluded.[95]Second, the fact that the Claimant had chosen not to give evidence or call witnesses in his own defence, which also appeared to be part of the reasoning as set out at [22] above, was irrelevant to the issue of whether to state a case on this issue of law. The same is true of the legal adviser’s apparent reliance on the fact that either party could have applied for a retrial (which was likely to have been a reference to the power in section 10 of the MCA1980 to adjourn a summary trial “at any time, whether before or after beginning to try an information”, which includes the possibility of adjourning for a retrial before a different bench).[96]Third, and most importantly, the Claimant had advanced arguable grounds supported by authority, principally Butler, to the effect that the Defendant’s decision on the section 78 application was irrational. Accordingly, the application to state a case on this issue could not properly be said to be “futile, misconceived, hopeless or academic”, as required by Mildenhall: see [31] above. In any event the Defendant’s conclusion to the effect that the application was frivolous was, in my judgment, permeated and vitiated by the error at [94] and possibly also those at [95] above.[97]For these reasons, I grant permission and allow the claim for judicial review on this ground. The question on which a case should have been stated was again the one formulated by the Claimant in his application, namely: “Were the justices entitled to find that the evidence of the MGDD/C procedure should not be excluded under section 78 of the Police and Criminal Evidence Act 1984?”. (ii). Were the justices entitled to find that the evidence of the MGDD/C procedure should not be excluded under section 78 of the Police and Criminal Evidence Act 1984?[98]Mr Finnegan’s overall contention was that the Defendant’s dismissal of his section 78 application was Wednesbury irrational, because there had been a profound failure to comply with the requirements of sections 7 and 9 of the RTA 1988 such that no rational bench could have failed to exclude the evidence.[99]In response, Mr Williams relied on the principle derived from Twigg (see [73] above), to the effect that aside from the statutory warning under section 7(7), any failure to comply with the other statutory requirements in the RTA 1988, including sections 7(4A) and 9, does not render evidence automatically inadmissible and is instead only one factor to be taken into account when considering an application under section 78 PACE. He also emphasised that the bar to challenging a decision under section 78 PACE is a high one, namely Wednesbury irrationality: see Dures and Thomas at [37] above.[100]The submissions supporting these overall positions can be distilled into the following themes.

(a) PC Weaver’s reliability as a witness

[101]Mr Finnegan argued that PC Weaver was a fundamentally unreliable witness given the inconsistencies between his two witness statements and the BWV footage.[102]For example, in PC Weaver’s 19 December 2022 statement he had said that the Claimant had replied “No comment” and shaken his head in response to each question about post-incident alcoholconsumption, when the BWV showed that he did not answer every question in this way. PC Weaver had also said that the Claimant continued replying “No comment” after PC Weaver explained to him that he was not being interviewed, which was not an entirely accurate reflection of the BWV: in fact the Claimant had said other things at this point.[103]Similarly, in his 22 May 2023 statement, PC Weaver had said that when he asked questions throughout the evidential procedure, the Claimant had said “No comment” and “I think you should f**king go away from me”, whereas the BWV showed that the Claimant did not consistently answer “No comment” (although he did say it a number of times).[104]Mr Finnegan submitted that through this evidence PC Weaver was selectively quoting what the Claimant said and unfairly trying to portray him in the worst light possible, as someone whose actions were decidedly obstructive and calculated.[105]However, as Mr Williams highlighted, insofar as there were differences between PC Weaver’s witness statements and the BWV, or his contemporaneous notes on the MGDD/C, these were all issues capable of being explored in cross-examination. This was especially so given that the BWV, the MGDD/C notes and PC Weaver’s witness statements were all available to the Magistrates and PC Weaver was able to give live evidence.[106]This process was what Bean LJ had in mind in Tandey at [16] (see [90]-[91] above) and was what actually happened during the Claimant’s trial. Having watched the BWV footage myself I have concluded that I cannot accept Mr Finnegan’s submission that PC Weaver’s lack of reliability was “irrefutable”. In my judgment, while another bench of Magistrates might have accepted (or in the future accept) Mr Finnegan’s submissions as to PC Weaver’s reliability, it was not irrational for this bench to reject them and find him credible as they did: see [22] above. (b). PC Weaver’s response to the Claimant saying he was “concussed”[107]Towards the end of the MGDD/C procedure, at 3:23 on the second part of the BWV, the Claimant said he was “concussed and not sure what’s going on and don’t know where I am”. PC Weaver responded to this as follows:
“You don’t know who you are? Listen I just walked behind you when you were having a conversation with the nurse down the corridor okay and I’ve stood at the end of the bed while you’ve had conversations with the doctors lucidly and when I come to speak to you, you’re silent and don’t seem to know what’s going on.”
[108]Then, at 4:13, PC Weaver said the following:
“I asked you previously was there a medical reason why you couldn’t provide me a sample of blood and you replied to me and I’ll quote ‘I think you need to effing get away from me’, OK? So you are going to be reported for consideration of the question of prosecuting you for failing to provide a sample of blood for analysis.”
[109]Mr Finnegan submitted that PC Weaver’s response to the Claimant saying he was concussed was entirely inappropriate and unlawful.[110]The exchanges, he argued, showed that PC Weaver had effectively taken it upon himself to conduct a medical assessment of the Claimant, whereas sections 7 and 9 make clear that it is only medical professionals who are to make such assessments. At trial, PC Weaver had been unable to recall the contents of the apparently lucid conversations he said had overheard the Claimant having with the medical staff beyond there being some reference to the Claimant’s daughter.[111]Further, Mr Finnegan submitted that it was wrong of PC Weaver to have repeated to the Claimant the answer to the question concerning medical reasons he had given earlier in the procedure (which had been recorded at C14 on the form as being asked at 2.17 am, 31 minutes previously), without inviting the question to be answered again and instead moving immediately to warning the Claimant that he was to be reported and cautioning him. He argued that PC Weaver appeared, thereby, to dismiss what the Claimant told him about being concussed and was again taking it upon himself to make a determination on the Claimant’s medical situation, which was inappropriate.[112]Mr Williams submitted that the essential parts of the BWV were as follows: the Claimant made clear that the Claimant was asked, in terms, whether there was a medical reason why he could not give a blood specimen, and he told PC Weaver he should “f**king go away from me”. When he was asked to give his consent to a blood specimen being taken, he said “No comment” then said that he would like to speak to a solicitor, and then said that his answer was not “yes or no”. He was given the mandatory warning under section 7(7).[113]Accordingly, he argued that when the Claimant later said to the officer that he was “concussed” , he had by then already failed to provide a specimen: PC Weaver had followed the steps set out in the MGDD/C and the Claimant had declined to engage with those questions, including the specific medical question, to which he responded with offensive language. Whether as a matter of law a person has failed to provide a specimen does not depend on whether the MGDCC form has been completed by the time that failure occurs.[114]In any event, Woolley (see [64]-[65] above) made clear that it was not usually necessary in a hospital for a police officer to ask specifically whether there is a medical reason why a patient cannot not give a specimen with section 7(4A) RTA in mind, as a doctor would already have considered the patient’s circumstances in accordance with section 9.[115]In reply, Mr Finnegan submitted that the comment “I think you should f**king go away from me” must be viewed in the context of the Claimant complaining of concussion after a traffic collision, symptoms of which are aggression and confusion.[116]He also argued that the proposition that the offence had been completed at this point was inconsistent with the structure of the MGDD/C form, in particular questions C14, C22 and C23 which would have directed PC Weaver to seek the advice of a medical professional; and inconsistent with a fair interpretation of the caselaw: it would mean that if, on being given the statutory warning some 30 minutes after refusing to provide the specimen, a suspect reported, for example, having a heart attack, the officer could still determine that he had failed to provide a specimen of blood.[117]In my judgment the position advanced by the Claimant on the issue of the point in time at which the offence had been completed was not so clear that any reasonable bench of Magistrates would be compelled to accept it. Put another way, it was rational to accept the CPS analysis summarised at [113]-[115] above.

(c) Reliance on the authorities

[118]Mr Finnegan submitted that Wade was an example of how sensitive the jurisprudence is to a scenario such as this, where a patient seeks to draw attention to a medical issue in the context of a request for a specimen.[119]Further, he contended that PC Weaver’s failure to refer the concussion issue to the doctor in charge placed it on all fours with Butler. There, at [10], it had been held that if a constable is aware of a potential medical reason why a specimen of blood cannot or should not be taken, they must consult a medical practitioner, informing the medical practitioner of the potential medical reason. If the constable does not do this and a specimen of blood is subsequently taken, the procedure is invalidated.[120]He also argued that this case was almost on all fours with Townson. The differences such as the specific medical issue complained of and the point during the MGDD/C that the Defendant raises the medical issue were immaterial. Accordingly, he argued that the procedure was fundamentally flawed such that the evidence of it should have been excluded under section 78.[121]Mr Williams submitted that although Scoble makes clear that involvement in a road traffic accident may lead a person to be so dazed and confused that they have a reasonable excuse, a careful analysis of all of their behaviour is required, particularly if they appear to behave in a different way towards the police officer asking for a specimen, as was said to be the case here. A police officer is entitled to exercise rational judgment when deciding whether to again involve a medical practitioner: Townson, at [22].[122]Mr Williams observed that the facts of Butler had been described by May LJ in [8] as “comparatively unusual” because the defendant there had been taken first to a police station and then to a hospital. Here, in contrast, the Claimant had been taken straight to a hospital after a serious road traffic accident. It was, therefore, appropriate for PC Weaver to infer that the treating doctor in the emergency department would be particularly astute to look for head injuries and any resulting concussion.[123]It was clear that Dr Godfrey had done so: his statement made clear that there was no vomiting and no other obvious injury to the Claimant on his arrival at hospital; that the main injury was to his leg; and that the Claimant “did not remember events of the accident”. The Claimant failed to provide a specimen within an hour of being seen by Dr Godfrey.[124]Dr Godfrey also noted that the CT scan of the Claimant’s head, torso, pelvis with angiogram of the lower limbs showed a soft tissue injury of the right lower leg without bone or vascular involvement (although, in fairness, it is not clear when the CT scan took place and it does not appear that PC Weaver was aware of it).[125]The principle that Magistrates are directed to guard against gullibility in this regard (see Eddowes at [69](vi) above) is also potentially relevant.[126]Mr Finnegan contended that the corollary of the CPS submission with respect to Butler is that every treating doctor must be assumed to have considered all medical issues which may prevent a sample being taken or a warning being given. There will, according to the CPS, never be any requirement for a police officer to mention to a doctor comments made to that police officer by a suspect. This was entirely contrary to the ratio of Butler and to the parts of the MGDD/C which require a police officer to engage with medical reasons given and to report same to a medic (such as at C22).[127]Mr Williams submitted that Townson could be distinguished from this case: there was no suggestion in that case that the appellant’s diabetes and high blood pressure had been brought to the attention of the hospital doctor before he or she confirmed that there was no medical objection to a breath test or blood sample (see [3]-[4] and [18]-[20]). Further, these are not medical conditions connected with road traffic accidents which the doctor would necessarily have been looking out for. The position was different here: see [123]-[125] above.[128]In my judgment Mr Finnegan had advanced careful and credible arguments to the effect that the caselaw assisted him, but there was a potentially persuasive alternative position being put forward by the CPS. This was to the effect that not only could Butler and Townson be distinguished from this case, but that there had in fact been no breach of the statutory procedure at all: the statutory warning under section 7(7) been given, section 9 had been complied with, and the stage had not been reached where a medical practitioner or health care professional was being asked for their further opinion in relation to section 7(4A).[129]Even if there had been a failure in procedure other than one relating to section 7(7) (which was never in issue here), the decision as to whether or not to exclude the evidence under section 78 was an evaluative one for the Magistrates, bearing in mind “all the circumstances, including the circumstances in which the evidence was obtained” and whether “the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”: see [14] above. The former of these issues at least was likely to rely to some degree on the Magistrates’ own assessment of PC Weaver’s credibility; and the other issues raised under (a)-(b) above and (d) below. This adds a further subjective and discretionary element to the section 78 decision-making process in this case.[130]Accordingly, I do not consider that the fact that the Magistrates apparently accepted the CPS’ position on the authorities (or at least Butler) renders their section 78 decision irrational. Whether or not the CPS will prevail at any retrial is a separate matter.

(d) PC Weaver’s level of experience

[131]Mr Finnegan submitted that there were other parts of the procedure conducted by PC Weaver which should have contributed to a decision to exclude the evidence under section 78. The BWV suggested that PC Weaver was plainly inexperienced in conducting the necessary procedure, because at times he appeared to be asking his colleague for guidance and assistance.[132]This lack of experience, he argued, cast doubt on the conclusion PC Weaver gave in his second witness statement that the Claimant was choosing to refuse to engage in the process and failing to provide a specimen for analysis, which he stated was based on his “policing experience in conducting evidential procedures in these matters”. Further, had PC Weaver indeed been experienced, he would have known that the mention of concussion by a suspect in these situations indicates a need to consult a doctor. In addition, the option to have the Claimant assessed by a doctor was available to PC Weaver through question C33, but this was never explored.[133]Again, in my judgment, these were, and can be, proper matters for cross-examination of PC Weaver at trial. Different benches of Magistrates may take different views as to whether the points made by Mr Finnegan find favour or not. The fact that this bench of Magistrates chose to reject them does not make their decision irrational. (e). The Magistrates’ reference to a lack of “cranial injuries” to the Claimant[134]Finally, Mr Finnegan recalled that the Magistrates referred as part of their reasons for dismissing the section 78 application that the Claimant had no cranial injuries, although this does not feature in any of the written notes of the hearing. This fact had emerged as a result of a question to the prosecutor from the bench. Mr Finnegan argued that this was highly suggestive of the bench falling into the same error as PC Weaver and usurping the role of the doctor under the RTA 1988.[135]However, it could be said that the statement that the Claimant did not have any cranial injuries was objectively fair, in light of Dr Godfrey’s statement which mentioned no such injuries. On that basis, reliance on this matter was not irrational.

Overall conclusion on this ground

[136]For all these reasons, as attractively and comprehensively as Mr Finnegan advanced his case, I am not persuaded that the Magistrates’ decision on the section 78 application was irrational. I therefore answer the stated question “Yes”.

Conclusion

[137]Accordingly, for all these reasons, I grant permission on both grounds and allow the claim for judicial review. The Magistrates should have stated a case on the two issues raised in this claim.[138]Had they done so, the first stated question would have been “Were the justices entitled to convict the defendant before hearing closing arguments from both prosecution and defence?”. The answer to that question is “No”.[139]The second stated question would have been“Were the justices entitled to find that the evidence of the MGDD/C procedure should not be excluded under section 78 of the Police and Criminal Evidence Act 1984?”. The answer to that question is “Yes”.[140]In light of the answer to the first question, the Claimant’s conviction is quashed.[141]There is nothing in the circumstances of this case which would justify departing from the usual course of remitting the case for retrial, nor did Mr Finnegan contend for any such circumstances. The matter is therefore remitted to the Magistrates to determine next steps in this matter, as well as sentence the Claimant for the offence of driving without due care and attention.[142]If there is to be a retrial, I agree with Mr Williams that it should be heard by a District Judge (Magistrates’ Courts).[143]The Claimant seeks an order for his costs before the Magistrates Court to be paid out of Central Funds. This will be referred to a Divisional Court, in accordance with the Administrative Court Guide 2025 at section 25.11.[144]I reiterate my thanks to both counsel for their considerable assistance.