MacDougall v MacPhail
| Jurisdiction | Scotland |
| Judgment Date | 21 December 1990 |
| Date | 21 December 1990 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
JC
L. J.-G. Hope, Lords Allanbridge, Brand.
Evidence—Best evidence—Statutory offence—Road Traffic Acts—Driving whilst unfit through drink—Urine sample—Failure to provide—Whether oral evidence of quantity of specimen admissible—Sample given incapable of division into two parts—Whether failure to provide specimen—Road Traffic Act 1988 (cap. 52), sec. 71—Road Traffic Offenders Act 1988 (cap. 53), sec. 15 (5).2
Section 7 of the Road Traffic Act 1988 enables a police officer to require a person to provide a specimen of urine for laboratory analysis in circumstances set forth therein. Section 15 (5) of the Road Traffic Offenders Act 1988 enacts that where at the time an accused provides a specimen of urine he asked to be provided with such a specimen, evidence of the analysis of the specimen is not admissible unless the specimen was one of two parts into which the specimen
2provided was divided at the time it was provided, and the other part was supplied to the accused.An accused person was charged with inter alia failing to provide a specimen of urine for the laboratory test in contravention of sec. 7 (6) of the Road Traffic Act 1988. After being arrested and taken to the police station the accused was required to provide such a specimen and in response to the request provided three drops of urine. No specimen was produced in court but police officers gave evidence that the specimen provided by the accused was insufficient in quantity. Objection was timeously made to this evidence being elicited on the ground that the sample provided by the accused was not produced. The sheriff repelled the objection. At the close of the Crown case it was submitted that there was no case for the accused to answer, which submission was repelled on the basis that the sheriff was of the view that the sample provided by the accused had been insufficient for analysis. On being convicted, the accused appealed to the High Court of Justiciary by way of stated case.
Held (1) that for the purposes of this case it was sufficient to prove that urine supplied by the appellant could not be divided into two parts for this was a task which had to be carried out in the police station by a police officer and was not a task for an analyst; and although there was no doubt that the evidence of an analyst would have been required if the question was whether, the urine having been divided into two parts and sent for analysis, the part which was sent to him was capable of being analysed in the laboratory, the division into two parts had to be carried out in the police station, not in the laboratory; (2) that, accordingly, what had to be supplied by the appellant had to be enough urine for a police officer to be able to carry out this task in a way which was practicable in the police station; (3) that the best evidence as to whether this could be done was that of the police officers themselves who were present at the time so that it was not essential that the urine itself should be produced; and (4) that, although the police officers in this case had said that the urine could have been retained in a phial and produced in court to confirm its volume, that might not be so in every case where very small quantities were involved for there might be practical difficulties, where the quantity supplied was very small indeed, in preserving the sample for trial sometime later due to the processes of evaporation and absorption to which liquids were exposed but, in any event, it could not be affirmed as a general rule that what might be preserved for production would be of any real assistance to the court in considering what the police officers might have done with it months earlier in the police station, so that the evidence of the police officers in this case had not been rendered inadmissible by the fact that they had discarded the very small quantity of urine which had been supplied; and appealrefused.
Aitchison v. JohnstoneUNK 1987 S.C.C.R. 225overruled.
Mungo Cameron MacDougall was charged in the sheriffdom of Tayside, Central and Fife at Perth at the instance of Malcolm MacPhail, procurator fiscal there, on a
summary complaint, the libel of which set forth in charge (3) thereof that: "[O]n 7th April 1990, at Divisional Police Headquarters, Barrack Street, Perth, Perth and Kinross District [he] did without reasonable excuse, fail to provide a specimen of urine in pursuance of a requirement imposed under the Road Traffic Act 1988, sec. 7; contrary to said Act, sec. 7 (6), and it will be shown that the said specimen of urine was required to ascertain [his] ability to drive or the proportion of alcohol in [his] urine at the time [he] was driving motor vehicle registered number F850 SMH on 7th April 1990 on the Perth to Inverness road, north of its junction with the road to Bankfoot."The pannel pled not guilty and, after sundry procedure, the cause came to trial before the sheriff (C. Smith) in Perth Sheriff Court on 7th June 1990. During the course of the trial the pannel timeously...
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