Jubb v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MCCOMBE |
| Judgment Date | 25 October 2002 |
| Neutral Citation | [2002] EWHC 2317 (Admin) |
| Date | 25 October 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3955/2002 |
[2002] EWHC 2317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Mccombe
CO/3955/2002
MR N LEY (HEARING) & MISS R J CALDER (JUDGMENT) (instructed by Byrne Frodsham & Co, Widnes) appeared on behalf of the CLAIMANT
MR J CAUDLE (HEARING) & MR J AGEROS (JUDGMENT) (instructed by CPS Essex) appeared on behalf of the DEFENDANT
Friday 25th October 2002
This is an appeal by Mr Alexander Jubb by way of case stated against his conviction by the North East Essex Justices, sitting at Harwich, on 30th April 2002 of an offence of driving a motor vehicle after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988.
The facts as found by the justices were these.
At 11.50 pm on 7th December 2001 the appellant was the driver of a car along By-pass Road, St Osyth, which was stopped by police officers on patrol in a parked police vehicle. The appellant provided a positive roadside breath test, following which he was arrested and conveyed to the Clacton on Sea Police Station, where the custody sergeant opened a custody record.
The appellant stated in answer to the sergeant's inquiries that he suffered occasionally from asthma and that he received medication. The constable who arrested the appellant was present throughout this procedure. The sergeant was also the machine operator who conducted the breath test procedure.
In pursuance of his investigation as to whether the appellant committed an offence under section 5 of the Act, the sergeant required him to provide two specimens of breath for analysis by means of an approved device. He warned the appellant that failure to provide either of these specimens would render him liable to prosecution and asked if the appellant agreed to do so. The appellant did so agree.
The appellant provided two specimens of breath. The instrument printed out the results. These showed readings of 52 and 63 micrograms of alcohol in each 100 millilitres of breath respectively. The print-out also stated "breath difference", thereby indicating that an unreliable indication of breath/alcohol had been recorded. The sergeant then formed the view that the unreliable indication of breath/alcohol was not due to the machine itself having become unreliable, but to the defendant having provided breath specimens of uneven volumes.
The print-out was not signed either by the sergeant or by the appellant, nor was a copy of it given to the appellant on that occasion. No copy was subsequently served on the appellant.
The sergeant gave the appellant the chance to repeat the breath analysis procedure, but stressed that he was under no obligation to do. The appellant declined.
The appellant was then required to provide a specimen of blood for laboratory test in accordance with section 7(1)(b) and 7(3)(bb) of the Road Traffic Act of 1988. The constable who arrested the defendant then took over the procedure and required the appellant to provide a specimen of blood or urine. He followed the specified form of request on the Essex Police Form pro-forma, which stated that the choice of sample is that of the officer and that it should be blood in the absence of medical reasons to the contrary. The appellant was asked if there were any medical reasons why a blood specimen should not be taken from him, to which he answered that there were none. With the appellant's consent, the police surgeon then took a specimen of blood from the appellant. One part of the specimen was delivered to the Home Office Forensic Science Laboratory. Analysis established the proportion of alcohol in the appellant's blood to have been 125 milligrams per 100 millilitres, and therefore in excess of the prescribed limit.
Before the Justices the appellant raised the following contentions.
First, that the documentary evidence as to the breath specimen given in the course of the procedures, namely the print-out recording the breath difference which denoted an unreliable indication of breath/alcohol, was not admissible evidence and that there was therefore no evidence before them upon which they could base the finding that the sergeant had reasonable cause to believe that the device had produced such a indication. Section 16 of the Road Traffic Offenders Act 1988 was relied upon.
Secondly, it was submitted that, where, as in the instant case, the police officer who required the specimen of breath had had reasonable cause to believe that the device had not produced a reliable indication of the breath/alcohol level, but also believed that the device itself was a reliable device, then the officer should require the person to provide a further two specimens of breath for analysis by means of that device rather than require a blood or urine sample.
Thirdly, it was submitted that the police officer's request that the appellant should provide a specimen of blood was invalid. It was submitted that the constable who made the request should have sought the police surgeon's opinion, on the facts of the present case, on whether there were medical reasons why a blood sample should not be taken.
The Justices rejected each of these contentions and, in a carefully reasoned case, have set out their reasons for so doing.
The arguments raised before the Justices cover much the same ground cover as those argued on this appeal, and I intend therefore no disrespect to what was indeed a carefully reasoned case if I do not rehearse that reasoning again here.
Having rejected the appellant's contentions, they convicted the appellant of the offence charged and have raised the following questions for the opinion of this court:
"1. Was the Print-out from the EC/IR admissible in evidence when a copy thereof had not been served at the time it was produced nor seven days in advance of the hearing?
2. Was the constable entitled to require a specimen of blood or urine, or did the constable have to require the defendant to provide two further specimens of breath?
If the constable was entitled to require a specimen of blood or urine, was the constable, on the facts before us, entitled to require a specimen of blood rather than one of urine?"
On the three questions so raised the appellant makes the following three submissions.
First, he submits that the print-out was not admissible in evidence as no copy of it had been served on the accused, and he relies upon section 16 of the Road Traffic Offenders Act 1988 and the case of Tobi v Nicholas [1988] RTR 343.
Secondly, it is submitted that the police were not entitled to require the appellant to provide a specimen of blood, and that if they believed that the approved device would have provided a reliable reading if used again, they should have required the appellant to provide a second set of two specimens of breath.
Thirdly, it is contended that a constable is not permitted to require an accused to provide a specimen of blood if the accused has already stated that he is on medication. Reliance is here placed on the case of Wade v Director of Public Prosecutions [1996] RTR 177.
Before addressing these submissions individually, I should set out the relevant provisions of the legislation. Those are to be found in the 1988 Act, to which I have already referred, and in the Road Traffic Offenders Act of 1988. First, the offence is created by section 5 of the Act, which provides:
"If a person —
(a) drives or attempts to drive a motor vehicle on a road or other public place …
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribe limit he is guilty of an offence."
Section 7, so far as material, provides as follows:
"(1) In the course of an investigation into whether a person has committed an offence under section … 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 …
(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
(bb) a device of the type mentioned in subsection(1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned …
but it 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...
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