Divisional Court
| Published date | 01 June 2002 |
| DOI | 10.1177/002201830206600301 |
| Date | 01 June 2002 |
| Subject Matter | Divisional Court |
Divisional
Court
Medical Reasons for Failure to Provide aSpecimen
of Blood
Rv
Gibbons
[2001] 165
lP
812
The respondent to this prosecutor's appeal was driving in his car on a
road
when
a police constable, thinking his driving somewhat odd,
stopped
him
and requested him to take a roadside breath test. Although,
on receiving this request he became aggressive
and
abusive, he under-
went
the test as required. The result was negative;
but
he was arrested
and
taken to a police station
under
the Public Order Act
1986.
The
constable apparently formed the opinion that his
manner
of driving was
due to his having consumed astimulant drug, since alcohol
had
been
ruled out. This belief was conveyed to the station sergeant,
who
sum-
moned a police surgeon to examine him. Both the surgeon
and
the
driver were informed of the reason for the attendance of the surgeon,
but
the driver said, 'You are
not
going to examine me'. He gave no
reason for this decision. Nor did the surgeon, except to suggest
that
his
obstructive conduct could possibly be due to the stimulant drug. The
police read to the driver the current rules arising
out
of s. 7 of the Road
TrafficAct
1988
and warned him that a refusal to consent to the taking
aspecimen of blood by the police surgeon would
amount
to a 'failure'
under
the
1988
Act which would be an offence contrary to the s.
7(6),
unless he offered a 'medical reason' for his failure to provide aspecimen
of blood
when
required. As no further reply was vouchsafed, he was
put
in a cell
and
was charged with an offence contrary to s. 7 (6).
When
he appeared before the magistrates' court, the events at the
police station were recounted to the court
who
were informed of the
police surgeon's opinion but the police pointed
out
that
they
had
never
received any direct answer to their query
whether
there was any 'medi-
cal reason'
why
he could not or should
not
be examined
and
aspecimen
of blood taken. The justices were of opinion
that
the police surgeon's
view expressed to the police combined with the driver's refusal to
consent to being examined together constituted a'medical reason'
under
s. 7 which should have led the police to follow the section
and
amend
his requirement to a specimen of urine. As the police had,
therefore, in the justices' view, failed to carry
out
the statutory proce-
dure, the justices dismissed the information.
The justices stated a case which posed the following question of law
for the Divisional Court:
Whether
in the course of an investigation into
whether
aperson has
committed an offence
under
section 4 of the Road Traffic Act 1988, a
constable having
been
advised by a medical practitioner
that
the
condition
of
that
person might be due to some drug,
and
that
person having failed to
consent to provide aspecimen of blood, is obliged by section 7(4) of
the
197
The Journal
of
Criminal Law
Road
Traffic
Act 1988 also to require that person also to provide a specimen
of urine for a laboratory test.
The justices raised
the
above point of law in
the
context of
the
issue as
to
the
correct interpretation of s. 7 as follows:
Section 7(1) provides:
(1) In the course of an investigation into whether a person has com-
mitted an offence under section 3A, 4 or 5 of this
Act,
a constable may
...
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.
Section 7(3) provides
that
such an alternative
requirement
may
be
made
at a police station or at a hospital
and
it
cannot
be
made
at a police
station unless
'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' (s. 7(3)(c)). The
alternative specimen
may
then
be required notwithstanding
that
the
person
has already provided or
been
required to provide
two
specimens
of
breath.
Subsection (4) further provides
that
where
an alternative
specimen is required,
the
question
whether
it is to be of blood or
urine
shall be decided by
the
constable making
the
requirement,
but
if a
medical practitioner is of
the
opinion
that
for medical reasons a speci-
men
of blood
cannot
or should
not
be
taken
the
specimen shall be a
specimen of urine.
Section 7(6) states
that
aperson
who,
without
reasonable excuse,
fails to provide aspecimen
when
required to do so in
pursuance
of s. 7
is guilty of an offence.
The appellant pointed
out
that
before
the
police surgeon
had
in-
formed
the
constable
that
he believed
the
driver was acting
under
the
influence of a drug,
the
constable had already read
out
to
the
driver
the
pro forma
which
called on
him
to state
any
medical reasons for his
not
providing aspecimen of blood. Counsel for
the
appellant argued
that
the
two
incidents should be
put
together and, as
the
police surgeon's belief
was expressed in
the
presence of
the
driver,
without
the
driver's
demur-
ring, it
must
be assumed
that
he accepted it. It
thus
became his
answer
to
the
earlier question
whether
there were 'medical reasons'. But
the
police surgeon's belief
had
not
been expressed in relation to
the
taking of
the
sample of blood
and
the
driver's
blunt
reply, 'You are
not
going
to
examine
me'
gave no indication
that
he was advancing
the
police
surgeon's belief as a medical reason for his refusal
to
provide blood.
Indeed,
the
driver's reply gave no
hint
of his intending
to
give any
reason. Sullivan Jremarked
that
the
constable was
not
left to solve
any
doubt
which might have arisen, since
the
police surgeon was present
throughout
and
could have
been
called
to
clarify
the
situation, if clar-
ification was in fact necessary. After so firm
and
uncompromising a
refusal by
the
driver, it was
not
surprising
that
the
constable did
not
formally repeat
the
requirement
for blood,
but
closed
the
interview,
removed him to
the
cells
and
later laid a charge.
198
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