Brian David Whitfield v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON,LORD JUSTICE SEDLEY |
| Judgment Date | 17 May 2006 |
| Neutral Citation | [2006] EWHC 1414 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1632/2006 |
| Date | 17 May 2006 |
[2006] EWHC 1414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Sedley
Mr Justice Beatson
CO/1632/2006
MR N LEY (instructed by Byrne Frodsham) appeared on behalf of the CLAIMANT
MR AR ESPLEY (instructed by CPS) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated by Bryan David Whitfield against the decision of the South Shropshire Justices sitting at Ludlow Magistrates' Court on 30 November 2005, convicting him of driving with excess alcohol in his blood contrary to section 5(1)(a) of the Road Traffic Act 1988, in that the proportion of alcohol in his blood was 107 millilitres of alcohol in 100 millilitres of blood and exceeded the prescribed limit of 80 millilitres.
The court found the following facts:
"(a) Mr Brian David Whitfield was the driver of the Mitsubishi Shogun Registration Number S650RDF.
(b) PC Titley gave the mandatory warning [about the consequences of failing to provide specimens] in the ambulance at the scene to both Mr and Mrs Whitfield.
(c) Mr Whitfield consented to and provided a positive roadside breath test. PC Titley explained blood would be required, that it would be taken at the hospital. Mr and Mrs Whitfield consented to this. The officer also explained that different officers would attend the hospital.
(d) Sgt Roberts and PC Clark attended the hospital and spoke with Dr Jarvid who gave permission for blood samples to be taken.
(e) Sgt Roberts entered Mr Whitfield's cubicle with Dr Gould. We are satisfied Dr Gould is a bona fide medical practitioner capable of taking blood samples.
(f) Sgt Roberts explained the procedure to Mr Whitfield. He explained it would be Dr Gould taking the blood. Mr Whitfield agreed to provide blood to Dr Gould. The blood was taken by Dr Gould.
(g) Sgt Roberts followed the procedure to take blood as set out in the MGDCC booklet (A booklet that the police use when obtaining samples from people) to the letter.
(h) We are 'satisfied with the chain of continuity from the taking of the blood sample by Dr Gould through to the analysis by Miss Boardman.
(i) We were satisfied of the presence of the preservative in the blood sample.
(j) The findings of Miss Boardman are accurate in that the sample was analysed and the result was 107 milligrams of alcohol in 100 millilitres of blood."
The questions stated for the opinion of this court are:
"1. Was there any evidence upon which a reasonable tribunal could have been satisfied that the defendant was told why blood was required?
2. Was there any evidence upon which a reasonable tribunal could have been satisfied that the defendant was warned in hospital that he would be prosecuted if he did not provide a specimen of blood?
3. Were we right in law to have considered the analysis of the blood sample reliable when the forensic scientist, Ms Boardman, gave evidence that a blood sample analysis was not reliable unless the sample contained preservative, and her evidence was that she did not check Mr Whitfield's blood sample to see if it contained a preservative?
4. Were we right in law to have relied on the evidence of Gyles Denn that the blood sample he analysed on 31 October 2005 for preservative was the defendant's when there was no evidence that the sample contained the unique reference number FS0017758800 referred to by Ms Boardman in her earlier testimony?
5. Were we right to have accepted that the blood sample was taken by a health care professional?"
Mr Ley, who appears on behalf of the appellant, now accepts that no basis for allowing the appeal exists in relation to the first, third and fourth questions. His submissions before us were confined to the second and fifth questions. Before making submissions on those he applied for an additional ground to be added to the questions, namely that the decision of the justices was Wednesbury unreasonable.
He argued that the decision was Wednesbury unreasonable because the statutory provision, section 15(5) of the Road Traffic Offenders Act 1988, states that only one specimen can be taken, which can then be divided into two parts; whereas the case stated at page 4, summarising the evidence of Sergeant Roberts, states that he was told that blood samples would be taken by Dr Gould, and, in the third paragraph on that page, that Dr Gould took two samples from Mr Whitfield. One was given to Mr Whitfield; the other was kept by Sergeant Roberts. The justices were not asked to address this issue. The findings of fact refer to "the blood sample" in finding (i), but also to "blood samples" in paragraphs (d) and (e). We refused this application because it was a matter which could have been addressed when the justices were asked to state a case but was not. Mr Ley applied for us to remit the matter to the justices for them to consider whether to amend their statement. We refused that application. We consider this point has arisen from the form of the case stated, rather than the substance of what occurred at the hearing. It was a matter that was available to the appellant from the time the case stated was received, and although Mr Ley stated that he hoped to take this point before the substantive matter came before the court, and was prevented from doing so because the case was brought on earlier than expected, he has not shown us any application to this effect.
The application to add a ground that the conclusion of the justices was Wednesbury unreasonable, save in relation to the two blood samples point, does not, in my judgment, raise any issue not dealt with in the questions which are contained in the case stated.
Mr Ley does not now pursue submissions based on the points addressed in the first, third and fourth questions. He states in relation to the first and fourth questions that they are of "academic interest" —the first because of the decision in Jones v DPP [2005] RTR 184. I observe that the reason that they are "academic" is because the decision in Jones made it clear that they were bad points. The first question, whether there was evidence upon which the justices could have been satisfied that the appellant was told why blood was being required of him, can be conveniently considered together with the second question, which is pursued. That is whether the appellant was given the warning in the hospital or after the breath test that failure to provide a specimen of blood would render him liable to prosecution, as is required by section 7(7) of the Act. The evidence before the justices was that he was told of the consequences of failure to provide a breath test, and he was told that blood would be taken at the hospital. That was PC Titley's evidence. PC Scimia confirmed in cross-examination that PC Titley had explained all the legal requirements at that time.
It appears, however, and the prosecution do not take any point on this, that these warnings relate purely to the breath test, and that the only evidence relating to the section 7(7) requirement to warn in relation to the blood test was given by Sergeant Roberts.
In my judgment, the justices were entitled to find on the evidence before them that Sergeant Roberts gave the mandatory warning required by section 7(7) of the Act as to the consequences of failing to supply a blood specimen. The relevant finding of fact is the finding that Sergeant Roberts followed the procedures set out in the MGDCC booklet and followed the checklist in that booklet. Mr Ley submits that the fact that the sergeant followed a booklet to the letter does not tell the court whether or no he gave a warning of prosecution because there was no evidence of what procedure the booklet advocated or recommended. He submitted that, insofar as the justices relied on their knowledge from other cases of what procedure was recommended or specified in the booklet, they were not entitled to do so: see Jarvis v DPP [1996] RTR 192 and Anderton v Waring [1986] RTR 74.
On the facts of this case, that is not what the justices were doing. There was evidence from which they were entitled to conclude that the appellant was warned about the failure to provide the specimen of blood. That was Sergeant Roberts' evidence. The booklet was, it is accepted in this court, shown to Sergeant Roberts as a memory refreshing document, and Sergeant Roberts stated that he went through the procedure using the procedure set out in the booklet. The finding of fact is that Sergeant Roberts followed the procedure set out in the booklet to the letter.
The defence, it appears, objected to the booklet being handed in as an exhibit, as they had to the officer seeing the booklet. It is accepted in this court that the booklet was not an exhibit. As I have stated, it is, however, accepted that the officer did refresh his memory. That is contrary to what is stated in the third paragraph on page 4 of the case stated. It is clear that it was right that Sergeant Roberts should have seen the booklet to enable him to refresh his memory in the light of the provisions of section 39 of the Criminal Justice Act 2003. In this case in which the only reason the booklet was not an exhibit was an objection by the defence, the justices were entitled, in my judgment, to use their knowledge about this standard booklet.
The decisions upon which Mr Ley relies ( Anderton v Waring and Jarvis v DPP) are clearly distinguishable because those cases were cases in which it was said that a Tribunal was not entitled to use previous experience as to a matter of fact to conclude that the fact was...
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Table of Cases
...White, DPP v [1988] RTR 267, DC! 513 ................................................. Whitfield v DPP [2006] EWHC 1414 (Admin), DC! 92 ........... Whitley v DPP [2003] EWHC 2512 (Admin), (2004) 168 JP 350, DC! 369 , 371 Whittall v Kirby [1947] KB 194, [1946] 2 All ER 552, ......................
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The Requirement to Provide Specimens
...the doctor by the constable of his proposal to require a specimen be made in the patient’s absence. Appeal allowed. Whitfield v DPP [2006] EWHC 1414 (Admin), unreported, 17 May 2006, QBD (DC) Where an officer had followed form MG DC/C, the justices were entitled, in the absence of challen......