Noel Patrick Whelan v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,MR JUSTICE BUXTON |
| Judgment Date | 28 June 1994 |
| Judgment citation (vLex) | [1994] EWHC J0628-11 |
| Docket Number | CO 24/94 |
| Date | 28 June 1994 |
| Court | Queen's Bench Division (Administrative Court) |
[1994] EWHC J0628-11
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice McCowan and Mr Justice Buxton
CO 24/94
THE APPELLANT appeared in Person.
MR J McGUINNESS (Instructed by the Crown Prosecution Service, Anglia Headquarters, (Special Casework) Queens House, Victoria Street, St Albans) appeared on behalf of the Respondent.
Tuesday, 28th June 1994.
I am will ask Buxton J to give the first judgment.
MR JUSTICE BUXTONThis is an appeal by way of Case Stated in respect of a conviction that was recorded by the Justices for the Petty Sessional Division for the County of Bedford in respect of an offence of consuming alcohol so that the proportion of it in the blood exceeded the prescribed limit under section 5(1)(a) of the Road Traffic Act 1988. The Appellant, who appears here today in person, is Mr Whelan.
The factual information upon which that conviction was recorded was established by means of a process of back calculation from a specimen of blood that was taken at the police station at Luton in circumstances that I shall have to describe in some detail. That was found to demonstrate that the driver had been over the prescribed limit. In his address to us today, Mr Whelan has said that he had not been drinking on the appropriate occasion, but this matter was litigated in the court below and the Magistrates accepted the evidence, which does not seem to have been challenged by the defendant's expert, as to the amount of alcohol in the blood.
The question in this appeal is whether the chain of events that led to the taking of that specimen complied with the requirements of the Road Traffic Act 1988. In describing the background to the case, I will have to go to the Case Stated and the facts found in it. However, I have at the start of my judgment to say this about the Case Stated. First of all, it sets out in some considerable detail the evidence that was given to the Justices, as well as the facts hat they found. This court has frequently urged that a Case Stated should not contain a description of the evidence, but should confine itself to the facts that the Justices found on the basis of that evidence. The wisdom of that course, I have to say, is amply demonstrated by the form of the Case that we have before us. The statement of facts found by the Justices is in a number of respects defective in that it does not address matters that on any view were important for the decision to which the Justices came, and which are equally important to this court in reviewing that judgment. The principal reason why there are those lacuna in the facts found is because they are included in the statement of evidence. Of course, the difficulty about that is that in some cases this court cannot be entirely certain whether the Justices accepted the evidence or not.
What I will have to do, therefore, in describing the background to this case and the facts upon which this court has to make its judgment, is, as far as it is permissible, to supplement the statement of facts by reference to the evidence. However, as will be seen from my judgment, there are some places in which even that causes this court considerable difficulty.
I turn, therefore, to the statement of facts at page 7 of the Case Stated, which I will supplement, where it is necessary, by matters drawn from elsewhere in the Case. The incident with which this case is concerned took place on 17th February 1992, when two police officers stopped the car driven by the defendant. One of the police officers was Police Constable Cambers. That police constable smelt intoxicating liquor on the defendant's breath, and at 12.15 pm on that day required the defendant to provide a roadside breath specimen under section 6(1)(a) of the 1988 Act. The defendant refused and was arrested for failing to provide a specimen of breath under the terms of section 6(5)(b) of the Act. The defendant had indicated to the officers that he thought that he was experiencing a heart attack and required an ambulance. As the Justices say in the Case Stated:
"The officers had looked upon this with some scepticism."
They then go on, however:
"We felt, however, that the charge of failing to provide a roadside breath specimen was not fully made out since we were told by Doctor Poyner that the defendant had had cardiac palpitations in the past."
I interpose two things. Firstly, although it is not in any way apparent from any other part of the Case Stated, the defendant was on the same occasion as the count with which we are concerned charged with failing to provide a breath specimen, and was acquitted by the Justices on the ground that I have just mentioned. Second, Dr Poyner was not Mr Whelan's attending physician, but was the House Officer who attended to him at the Dunstable Hospital to which he was taken in circumstances to which I will shortly refer. However, be that as it may, the Justices dismissed the charge upon which Mr Whelan had originally been arrested.
The Justices then go on as follows:
"We accepted the evidence in the case that the defendant had been arrested at Chester Avenue and remained in the custody of the officers throughout the events, save for the period of time when he was a patient under Doctor Poyner at the Luton and Dunstable Hospital."
I interpose again to say that he was taken to that hospital because, when he was taken originally to the police station, the officers in charge there experienced concern about his state of health and thought that he ought to be taken to hospital in his own interests.
"We also accept the evidence of Officer Cambers that he requested a second breath test ….. at the hospital at 2.07 pm which the defendant agreed to."
That is described by the Justices as a "roadside" breath test and was clearly envisaged as being requested under section 6(1) of 1988 Act. They continued:
"The hospital procedure was carried out by PC Cambers using form 617."
—which I understand to be a form setting out the procedure for interventions at a hospital as opposed to at the police station. The Justices continued:
"This resulted in a positive reading. The test was administered under the supervision of Dr Poyner.
It was clear from the evidence that PC Cambers in requesting the second breath test was acting in good faith. In evidence the officer stated that in fairness to the defendant this second opportunity should be afforded. The defendant was again informed of the consequences of refusal.
As a consequence of the positive reading on the Alcohmeter device PC Cambers then went on to request a specimen of blood/urine for a laboratory test pursuant to section 7(1) Road Traffic Act 1988. Again, the procedure was carried out in the hospital with the consent of Dr Poyner. PC Cambers informing the defendant of his choice of blood or urine before deciding on blood. Again, the procedure was carried out with the officer reading verbatim from the form. Unfortunately, before the medical practitioner arrived, one Dr Madigan, the defendant was discharged by Dr Poyner after becoming aggressive and was conveyed back to the Police Station at Luton, arriving at 2.45 pm, before the blood sample was taken. At this stage, we accept that the defendant was still under arrest.
On the evidence presented to us, we felt that the officers carried out the breath test procedure in a highly conscientious manner. It was clear from PC Camber's evidence that he was aware of the strict compulsory code laid down by Law and which had to be fulfilled before any specimen produced by the defendant could be adduced in evidence against the defendant. All warnings of possible prosecution and arrest were administered to the defendant and consequently, he was made fully aware of the consequence of failure/refusal to provide. All forms were read out verbatim to the defendant. It appeared to us that the officers had acted extremely cautiously. We are of the opinion that events outside of their control, i.e. the defendant's apparent illness, may have affected the continuity of their investigation, but in the interests of justice, we felt that the evidence of the blood specimen, back calculated, was admissible. There was no evidence of the officers acting oppressively or Mala Fides."
There is nothing said about the actual taking of the blood specimen.
What happened was as follows. This is set out in the evidence of Police Constable Cambers, though not in the statement of facts, and in the evidence of PC Gibbs. Police Constable Cambers described Mr Whelan arriving at the police station in the circumstances that the Justices have set out. He then said in his evidence:
"He [Mr Whelan] was presented to PC Gibbs an authorised machine operator, Lion Intoximeter 3000. Due to a defect in the machine no breath samples were taken at the Police Station for laboratory testing.
Subsequently, Doctor Madigan arrived at the Police Station and the blood/urine procedure was carried out. A sample of blood was taken by Doctor Madigan. One part was handed to the defendant who was informed that he had the right to have it analysed. The other part was sent to be analysed."
That is all we are told. That was the evidence about what actually occurred at the police station when the blood sample, upon which this case depends, was taken.
The Justices go on to say that they convicted the Appellant, conditionally discharged him for 12 months and ordered him to be disqualified for driving for that same...
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