High Court of Justiciary
| DOI | 10.1177/002201839305700202 |
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| Subject Matter | High Court of Justiciary |
HIGH
COURT
OF
JUSTICIARY
CONSENT TO TAKING ASPECIMEN OF BLOOD
Friel v Dickson
Now that the House of Lords has, in
DPP
v Warren (1992] 3 WLR 884,
removed the gloss placed by the courts on s 7(4) of the Road Traffic Act
1988, the procedure for the taking of a specimen of blood, either under
that subsection or any
other
section, ought to be straightforward. But
there remain the provisions of s 11(4) that
'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.' And, in respect of a charge of driving with
excess alcohol contrary to s 5, s 15(4) of the Road Traffic Offenders Act
1988 provides that
'A
specimen of blood shall be disregarded unless it was
taken from the accused with his consent by a medical practitioner.' The
case of Friel v Dickson which came before the High Court of Justiciary in
Scotland and is reported in [1992]
RTR
366, demonstrates that problems
may still arise
out
of the question whether the driver 'consented' to the
taking of the specimen which had actually been taken by a medical
practitioner. There, the driver, having been involved in a road accident,
was given medical aid at the roadside. On his arrival at hospital, this
was found to have been maladministered and further drugs had to be
administered as an antidote, followed by a further dose of the original
drugs. When a police officer required him to provide a specimen of blood,
he did not speak, but apparently nodded his head in assent. Nor did he
speak when the doctor later asked him for a specimen, though he held
out
his arm. When charged under s 5, the driver stated that he had no
recollection of anything which happened at the hospital and it was argued
on his behalf that the prosecution had not sustained the onus of showing
that, notwithstanding the reduction in the level of consciousness of the
driver and the breathingdifficulties (requiring the administration of oxygen)
he was in, he was nevertheless in a sufficiently fit condition to understand
and consent to the request made of him by the police. The sheriff dismissed
the case on the basis of two findings; first, that the driver's condition was
such that he did not consent to the police request and, secondly, that he
did not consent to the doctor's request by the holding
out
of his arm.
The appeal by the prosecutor was dismissed on the ground that the
sheriff was, on the evidence, entitled to hold that the prosecution had not
proved beyond reasonable doubt that the driver had consented to the
police officer's request; but the court also held that the sheriff was in error
in finding that the Crown had equally failed to prove that the driver, in
holding
out
his arm, had not thereby indicated his consent. Lord Hope
UG
stated (at p 380G) that 'the consent which is required here is consent by a
person who is conscious of what he is doing and has heard and understood
the request for it. Unless these simple requirements are satisfied, there
can be no consent within the meaning of the statute.'
111
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