DPP v Nesbitt ; DPP v Duffy ; Ogburn v DPP ; Williams v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY,MR JUSTICE MITCHELL |
| Judgment Date | 28 January 1994 |
| Judgment citation (vLex) | [1994] EWHC J0128-3 |
| Date | 28 January 1994 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 851/93 CO 1747/93 CO 1982/93 |
[1994] EWHC J0128-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Henry Mr Justice Mitchell
CO 851/93
CO 1340/93
CO 1747/93
CO 1982/93
MR N LEY (instructed by Byrne Frodsham & Co., Widnes, Cheshire WA8 6EB) appeared on behalf of the Appellant, JOHN OGBURN.
MR E LAWSON QC and MR T SPENCER (instructed by The Crown Prosecution Service, Warrington Branch Office, Warrington WA1 1UP) appeared on behalf of the Respondent.
MR M BUCKPITT (instructed by Amory Glass & Co., Wembley, Middx HA0 3EA) appeared on behalf of the Appellant, GLADSTONE WILLIAMS.
MR E LAWSON QC and MR T SPENCER (instructed by The Crown Prosecution Service Headquarters) appeared on behalf of the Respondent.
MR P RHODES QC (instructed by Walker Morris Leeds LS1 2HL) appeared on behalf of the Respondent DEREK DUFFY.
MR E LAWSON QC and MR T SPENCER (instructed by The Crown Prosecution Service, Yorkshire Branch, Wakefield WF1 1LR) appeared on behalf of the Appellant.
THE RESPONDENT did not appear and was unrepresented in the case of JOHN NESBITT.
MR E LAWSON QC and MR T SPENCER (instructed by The Crown Prosecution Service, North Tyne Branch, Cramlington, Northumberland NE23 6QW) appeared on behalf of the Appellant.
Friday, 28th January 1994
I will ask Mitchell J to give the judgment of the Court.
MR JUSTICE MITCHELLThe decision of the House of Lords in the case of DPP v Warren [1993] AC 319 was concerned with the construction of section 7 and 8 of the Road Traffic Act 1988. More particularly it was concerned with the construction of section 7(3) and (4) and section 8(2). Notwithstanding Lord Bridge's analysis of the provisions and his detailed review of the relevant authorities, these provisions remain a source of difficulty. They were further considered by this Court in the cases of Edge v DPP [1993] RTR 146; Meade v DPP [1993] RTR 151; DPP v Winstanley [1993] RTR 222 and ( Hayes v DPP unrep. 12.3.93).
Before considering the questions raised in four cases, which have been stated by four different Magistrates' Courts for our consideration, it may be helpful if we set out what we believe the law to be, having regard to the decision in Warren, and to the more recent decisions of this Court which we have already referred to.
The relevant statutory provisions are as follows: Section 7
(1) In the course of an investigation into whether a person has committed an offence under section 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 a specimen 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 a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless-
(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or
(c) the suspected offence is one under section 4 of this Act and 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;
but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.
(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 shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen 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 specimen 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 a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.
(8). -(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.
(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used.
(3) The Secretary of State may by regulations substitute another proportion of alcohol in the breath for that specified in subsection (2) above.
(9) …..
(10) …..
(11).-(1) The following provisions apply for the interpretation of sections 4 to 10 of this Act.
(2) In those sections-
'breath test' means a preliminary test for the purpose of obtaining, by means of a device of a type approved by the Secretary of State, an indication whether the proportion of alcohol in a person's breath or blood is likely to exceed the prescribed limit,
'drug' includes any intoxicant other than alcohol,
'fail' includes refuse,
"'hospital means an institution which provides medical or surgical treatment for in-patients or out-patients,
(3) …..
(4) A person provides a specimen of blood if and only if he consents to its being taken by a medical practitioner and it is so taken."
A driver may be required by a constable to provide a specimen of blood or urine in accordance with section 7(4), either because it is impossible or inappropriate to rely on specimens of breath for one of the reasons specified in section 7(3), or because the situation identified in section 8(2) has arisen. Lord Bridge characterised these two distinct sets of circumstances as "obligatory section 7(4) cases" and "the driver's option cases". There is a third situation which was not considered by their Lordships in Warren. This situation arises when a driver is required by a constable to provide a specimen of blood or urine in accordance with section 7(4) at a time when the driver is at a hospital as a patient. By virtue of section 7(2) a requirement for specimens of breath can only be made at a police station. The circumstances in which a requirement of blood or urine may be made of a hospital patient are identified in section 9 of the Act. To these provisions we return later in this judgment.
Section 7(4) must clearly be construed in the same way regardless of whether the reason for resorting is to be found in section 7(2), section 7(3) or section 8(2). However, that "indisputable proposition", as Lord Bridge called it, does not preclude differences in the procedures which are appropriate to each of the three situations, and it was the procedure appropriate to a section 7(3) situation and the procedure appropriate to a section 8(2) situation which Lord Bridge was attempting to identify in his speech.
Strictly speaking his observations upon and identification of the procedure appropriate to a section 8(2), "driver's option", situation were obiter because Warren was a case in which the breath testing equipment at the police station (the intoximeter) was not functioning properly, and by virtue of section 7(3)(b) the officer was therefore permitted to require a specimen of blood or urine in accordance with section 7(4). In other words, Warren was an "obligatory section 7(4) case".
Counsel appearing for the Director of Public Prosecutions in the cases we have considered also appeared for the Director before their Lordships' House in Warren. He has told us that it was at the instance of the Director that their Lordships were invited to consider and pronounce upon the "driver's option" situation. That was not in the least surprising given that the previous decisions had laid down that identical procedures be followed in both cases. In any event, these provisions are being applied daily by every police force in the land. It is in the public interest that as great a measure of certainty as it is possible to achieve should attach both to their interpretation and to the manner of their application. For that reason counsel for the Director has not sought to argue that, because the appropriate procedure which Lord Bridge identified for the "driver's option" cases is not strictly a part of the ratio decidendi, this Court should approach that aspect of the provisions de novo.
We turn now to consider...
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