LAW REPORT: Driver should face query over sample to be asked about sample

LAW REPORT 27 January 1995

Regina v Burton on Trent Magistrates' Court, ex parte Woolley.

Queen's Bench Divisional Court (Lord Justice Beldam and Mr Justice Buxton).

11 November 1994.

An injured driver lying in bed in hospital after an accident need not be formally told, by a police constable investigating whether he had committed a drink-driving offence, why a specimen of breath could not be taken, if he had already stated that his injuries prevented it; but he should at some stage be asked if there was any reason why a specimen of blood should not be taken, though he need not be asked specifically whether any such reason was based on medical grounds.

The Queen's Bench Divisional Court dismissed an application by the defendant, Philip John Woolley, for judicial review to quash his conviction, following a guilty plea, at Burton on Trent Magistrates' Court on 26 July 1994, for driving a motor vehicle when the proportion of alcohol in his blood exceeded the statutory limit, contrary to section 5(1)(a) of the Road Traffic Act 1988.

The relevant blood sample was provided in the hospital to which he was taken after being injured in an accident in which he was involved while driving his father's car. He had at the time been disqualified from driving.

He pleaded guilty and was also convicted for driving whilst disqualified, aggravated vehicle taking, using a motor car without insurance and failing to stop after an accident. He received concurrent sentences of four, three and two months' imprisonment.

The CPS subsequently wrote to his solicitors saying that as a result of a deficiency in the alcohol test procedure, the defendant had not at the relevant time been asked whether there were any reasons why a blood specimen could not be taken by a doctor.

In accordance with the judgments in Williams v DPP [1994] RTR 241, 261 and DPP v Warren [1993] AC 319, this was a deficiency that should not allow the drink-driving conviction to stand. Accordingly, the CPS said, it would not resist any appeal against conviction.

However, under section 108 of the Magistrates' Courts Act 1980, such an appeal to the Crown Court against conviction, based on the inadmissibility of what would have been the only evidence the CPS could have relied on had the matter been contested, only lay where the appellant had pleaded not guilty in the magistrates' court. But the applicant had pleaded guilty. He therefore applied to the High Court for judicial review to quash the conviction.

Morris Cooper (Ormsby Mills, Burton on Trent) for the defendant; John McGuinness (CPS) for the Crown; Clare Montgomery (Treasury Solicitor) as amicus curiae.

MR JUSTICE BUXTON said there was no suggestion that the defendant had not consumed excess alcohol, or that the reading of the blood specimen was anything other than accurate. He could not give a specimen of breath, he said, because of his injuries.

The question was what procedure should be followed before a specimen of blood was taken in a "hospital" case such as this, where the driver had the protection of section 9 of the 1988 Act, which required the independent approval of the medical practitioner in immediate charge of his case before the blood specimen could be taken. Was the driver, in addition to that protection, himself to be asked a specific medical question, and if so in what terms and when?

In his Lordship's judgment, having regard to the House of Lords' decision in Warren, as applied by the Divisional Court in Williams: (1) there was no obligation in hospital cases for the constable to inform the driver why a specimen of breath could not be taken, but (2) at some stage during the process at the hospital the constable had to ask the driver why a specimen of blood should not be taken, though he need not ask specifically whether any such reason was based on medical grounds.

In this case, the questions asked and the information given by the constable contained all the information required to be given. Despite the criticisms of the applicant and the DPP, the requirements of the 1988 Act were observed. It followed that the evidence of the specimen would have been admissible if the applicant had contested the charge and the application had to be dismissed because its fundamental premise was incorrect.

LORD JUSTICE BELDAM concurred.

Paul Magrath, Barrister.