Divisional Court
| Published date | 01 February 2002 |
| Date | 01 February 2002 |
| DOI | http://doi.org/10.1177/002201830206600102 |
| Subject Matter | Divisional Court |
Divisional
Court
Procedure at Police Station and at Hospital Before Charge
Butler
vDPP
[2001]
RTR
430
Amotorist driving
on
aroad
was
required
by a constable to
undergo
a
breath
test. On its proving positive, he
was
arrested
and
taken
to a police
station,
where
he was
taken
into
the
custody of
the
custody sergeant
who,
before requiring
him
to provide
two
specimens of
breath
for
analysis, asked
him
whether
he was suffering from
any
medical condi-
tion. The motorist replied
that
he was suffering from
immune
system
breakdown.
The sergeant
noted
the
fact of his
making
this claim in
the
custody record he
had
opened
in
the
motorist's
name,
and
at
once
called
apolice forensic medical
examiner
to
the
police station. The doctor, after
examining
the
motorist, gave his
opinion
that
his condition did
not
render
him
unfit to provide aspecimen of
breath
for analysis.
When
the
motorist
returned
to
the
custody area,
the
sergeant explained
the
proce-
dure
to him,
but
on
his complaining of chest pains,
the
police
doctor
saw
him
again. On his
return
to
the
custody sergeant,
the
procedure
for
taking
the
specimen was
recommenced,
but
he stated
that
he was
unwell
and
wished to see
the
doctor again. He was told
that
he
had
already
seen
him
twice
and
that
he
should
blow
into
the
device. He did
not
do so
and
made
as
if
to leave
the
room
(probably to see
the
doctor
again). At
that
moment,
the
doctor
appeared
at
the
door. The motorist
seized his wrist
and
collapsed
on
to
the
floor. An
ambulance
was called
and
he was
taken
to hospital.
where
he
came
into
the
charge of
the
hospital doctor. A
woman
police sergeant later followed
him
to hospital
and
there
interviewed
the
hospital doctor (in fact in
the
presence of
the
motorist,
although
she
did
not
recognise him). As
the
procedure
for
taking
the
specimen of
breath
had
not
been
completed,
the
woman
police sergeant, in
contemplation
of having to offer
him
an
alternative
(blood or urine) asked
the
hospital
doctor
whether
the
motorist's condi-
tion was such
that
the
taking of a blood specimen
would
prejudice
any
treatment
which
the
hospital
doctor
might be contemplating. The doctor
raised no objection and, on
hearing
this,
the
motorist agreed to supply
such aspecimen.
When
the
hospital doctor gave his opinion, he was
unaware
of
the
motorist's
statement
to
the
custody sergeant
that
he was
suffering from
immune
system
breakdown.
Neither
the
motorist
nor
the
woman
police sergeant
had
mentioned
it to
the
doctor
and
he had no
reason to suspect it. Indeed, it was
never
known
to
the
courts
whether
the
woman
police sergeant was
then
aware
of
the
statement,
for
she
did
not
give oral evidence at
the
trial, as
her
evidence consisted of a
written
statement
admitted
under
s. 9 of
the
Criminal Justice Act 1967. The
sample of blood which
the
motorist provided was
taken
by yet
another
hospital doctor.
It
proved positive
and
he was charged
with
an offence of
driving a
motor
vehicle on a road, after
consuming
so
much
alcohol
that
the
proportion in his blood was in excess of
the
prescribed limit, contrary
4
Procedure
at
Police
Station and at Hospital
Before
Charge
to s 5( I) (a) of
the
Road
Traffic
Act
1988.
The
justices
convicted
him
as
charged.
He
appealed
by
way
of
case
stated.
The
Road
Traffic Act
1988
provides
for
the
pre-charge
procedure
at
a
police
station
(in
s. 7)
and
at
a
hospital
(in
s.
9).
There
are
additional
requirements
as
to
what
is to
happen
at
a
hospital.
Section
7
provides:
(I)
In
the
course of an investigation into
whether
aperson has com-
mitted 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 aspcimen of blood or
urine
for a laboratory test.
(2) A
requirement
under
this section to provide specimens of
breath
can
only be
made
at a police station.
(3) A
requirement
under
this section to provide aspecimen of blood or
urine
can only be
made
at a police station or at a hospital
...
(4)
If
the
provision of a specimen
other
than
aspecimen 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
shall be decided by
the
constable
making
the
requirement,
but
if a medical practitioner is of
the
opinion
that
for medical reasons aspecimen of blood
cannot
or should
not
be taken
the
specimen shall be a specimen of urine.
(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 speci-
men
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 aspecimen in
pursuance
of this section,
warn
him
that
a failure to provide it may
render
him
liable to procesution.
Section
9
provides:
(I) While aperson is at a hospital as a patient he shall
not
be required to
provide aspecimen of
breath
for a
breath
test or to provide aspecimen for
alaboratory test 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
the
provision of a
specimen at
the
hospital,
but
(b) if
the
medical practitioner objects on
the
ground
specified in subsec-
tion (2) below,
the
requirement
shall
not
be made.
(2) The
ground
on
which
the
medical practitioner
may
object is
that
the
requirement
of
the
provision of a specimen or, in
the
case of a specimen of
blood or urine,
the
warning
required
under
section 7(7) of this Act,
would
be prejudicial to
the
proper care
and
treatment
of
the
patient.
The
questions
which
were
posed
for
the
opinion
of
the
court
in
the
case
stated
were:
(a)
whether
the
justices
were
right
in
holding
that
the
procedure
applicable
to
the
provision
of a
specimen
by
a
person
who
was
at
a
hospital
as a
patient
was
governed
by
s. 9 of
the
Road
Traffic Act
1988,
(b)
whether
the
justices
were
right
to
conclude
that
compliance
with
s. 9
did
not
require
the
woman
police
sergeant
to
inform
the
hospital
doctor
of
any
medical
reason
actual
or
potential
as to
why
a
5
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