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R v Bolton Magistrates Court, ex parte Scally ; R v Bolton Magistrates Court, ex parte Greenfield ; R v Eccles Magistrates Court, ex parte Meredith ; R v Trafford Magistrates Court, ex parte Dura-Jordan

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Vincent
JurisdictionEngland & Wales
Date1990
CourtQueen's Bench Division
[QUEEN'S BENCH DIVISION] REGINA v. BOLTON JUSTICES, Ex parte SCALLY REGINA v. BOLTON JUSTICES, Ex parte GREENFIELD REGINA v. ECCLES JUSTICES, Ex parte MEREDITH REGINA v. TRAFFORD JUSTICES, Ex parte DURRAN-JORDA 1990 July 17, 18, 31; Oct. 1 Watkins L.J. and Hutchison J.

Judicial Review - Magistrates' court - Irregularity in proceedings - Justices convicting motorists of driving with excessive blood-alcohol concentration in body - Prosecution based on laboratory analysis of blood - Probability of contamination of blood specimen by cleansing swabs containing alcohol - Whether convictions wrongfully obtained - Whether certiorari available to quash convictions

Each applicant was arrested in the Greater Manchester area on suspicion of driving a motor vehicle with a blood-alcohol concentration in excess of the prescribed limit, contrary to section 6(1) of the Road Traffic Act 1972, as amended. A laboratory analysis of a specimen of each applicant's blood showed that the proportion of alcohol in the blood exceeded the prescribed limit. The applicants pleaded guilty to a breach of the section and were convicted. It was subsequently discovered that at the time of taking the specimens the medical cleansing swabs in some of the blood sampling kits then in use in the Greater Manchester area contained alcohol. The Crown Prosecution Service had since decided not to prosecute in cases where the specimen might have been contaminated by use of such swabs.

On applications for judicial review of the applicants' convictions:—

Held, granting the applications, that the police as part of the prosecution process had failed in their duty to ensure the suitability of the blood sampling kits, and that in relying, albeit innocently, on a laboratory analysis of specimens which might have been contaminated but could not be challenged by the applicants the prosecutor had corrupted the process leading to the convictions in a manner which was unfair to the applicants by not giving them a proper opportunity to decide whether to plead guilty or not guilty; that, on the facts, the applicants were wrongly denied a defence which was a complete defence to the charge; and that, therefore, the convictions were obtained by conduct which was analogous to fraud, collusion or perjury and would be quashed by an order of certiorari (post, pp. 249H–250A, 256C–E, 257D–E).

Reg. v. Leyland Justices, Ex parte Hawthorn [1979] Q.B. 283, D.C. and Reg. v. Secretary of State for the Home Department, Ex parte Al-Mehdawi [1990] 1 A.C. 876, H.L.(E.) applied.

Reg. v. West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd. [1974] Q.B. 24, C.A.; Reg. v. Kingston-upon-Thames Justices, Ex parte Khanna [1986] R.T.R. 364, D.C. and Reg. v. Knightsbridge Crown Court, Ex parte Goonatilleke [1986] Q.B. 1, D.C. considered.

The following cases are referred to in the judgments:

Ladd v. Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, C.A.

Reg. v. Birmingham Crown Court, Ex parte Ricketts (unreported), 8 June 1990, Farquharson J.

Reg. v. Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All E.R. 646

Reg. v. Foster [1985] Q.B. 115; [1984] 3 W.L.R. 401; [1984] 2 All E.R. 679, C.A.

Reg. v. Kingston-upon-Thames Justices, Ex parte Khanna [1986] R.T.R. 364, D.C.

Reg. v. Knightsbridge Crown Court, Ex parte Goonatilleke [1986] Q.B. 1; [1985] 3 W.L.R. 553; [1985] 2 All E.R. 498, D.C.

Reg. v. Leyland Justices, Ex parte Hawthorn [1979] Q.B. 283; [1979] 2 W.L.R. 28; [1979] 1 All E.R. 209, D.C.

Reg. v. Liverpool Crown Court, Ex parte Roberts [1986] Crim.L.R. 622, D.C.

Reg. v. Secretary of State for the Home Department, Ex parte Al-Mehdawi [1990] 1 A.C. 876; [1989] 2 W.L.R. 603; [1989] 1 All E.R. 777, C.A.; [1989] 3 W.L.R. 1294, H.L.(E.)

Reg. v. West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd. [1974] Q.B. 24; [1973] 3 W.L.R. 149; [1973] 3 All E.R. 289, C.A.

The following additional case was cited in argument:

Archbold v. Jones [1985] Crim.L.R. 740

APPLICATIONS for judicial review. REGINA v. BOLTON JUSTICES, Ex parte SCALLY

By a notice of motion dated 8 August 1989, the applicant, Josephine Sarah Scally, sought, inter alia, an order of certiorari to quash her conviction by Bolton Justices on 9 September 1988 of driving a motor vehicle with excess alcohol in her blood contrary to section 6 of the Road Traffic Act 1972. The grounds of the application were that, inter alia, the police investigation of her alleged offence was flawed by the contamination of a blood sample provided pursuant to statute; the police possessed a monopoly of the only relevant evidence admissible in the case against the applicant, who was obliged to accept that their analysis was accurate; the opportunity for any independent analysis was lost; there was a gross irregularity in the proceedings before the justices stemming from their initiation on no admissible evidence; evidence wrongly presented was accepted and acted upon by the applicant, whose guilty plea was thereby vitiated; the police through the offices of the Crown Prosecution Service had acted in breach of natural justice; and in the interests of justice and fairness her conviction should be quashed.

 REGINA v. BOLTON JUSTICES, Ex parte GREENFIELD

By a notice of motion dated 14 September 1989, the applicant, George Raymond Greenfield, sought, inter alia, an order of certiorari to quash his conviction by Bolton Justices on 23 August 1988 of driving a motor vehicle with excess alcohol in his blood contrary to section 6 of the Road Traffic Act 1972. The grounds on which relief was sought were substantially the same as those relied on by Miss Scally.

 REGINA v. ECCLES JUSTICES, Ex parte MEREDITH

By a notice of motion dated 11 October 1989, the applicant, John Meredith, sought an order of certiorari to quash his conviction by Eccles Justices on 21 October 1987 for driving a motor vehicle with excess alcohol in his blood contrary to section 6(1)(a) of the Road Traffic Act 1972 as amended. The grounds of the application were that, inter alia, he had pleaded guilty to the summons on the basis of the information provided by the prosecution as to the result of the blood-alcohol analysis and he did not know and could not have known at the time when his plea was entered that the blood sampling kit used in the extraction of his blood sample contained a swab which might have been contaminated by alcohol; and his plea of guilty was entered as a result of evidence provided to him by the prosecution which had subsequently been shown to be unsafe and unreliable.

 REGINA v. TRAFFORD JUSTICES, Ex parte DURRAN-JORDA

By a notice of motion dated 18 October 1989, the applicant, Frederick George James Durran-Jorda, sought, inter alia, an order of certiorari to quash his conviction by Trafford Justices on 9 December 1988 of driving a motor car with excess alcohol contrary to section 6 of the Road Traffic Act 1972. The grounds on which relief was sought were that, inter alia, there was an irregularity in the proceedings before the justices stemming from their conviction on no evidence in view of the contamination of a blood sample obtained from him pursuant to statute; the prosecution possessed a monopoly over the only relevant admissible evidence against the applicant who was obliged to accept that the analysis provided by the Home Office was accurate; the opportunity for any independent analysis was lost and the applicant was bound to plead guilty; the police investigation of the alleged offence committed by the applicant was flawed by the contamination of the blood sample and the prosecution of him was in breach of natural justice; and in the interests of justice and fairness the conviction should be quashed.

The facts are stated in the judgment of Watkins L.J.

Roderick Carus Q.C. and Brian Williams for Miss Scally.

Brian Williams for Mr. Greenfield and Mr. Meredith.

Alan Conrad for Mr. Durran-Jorda.

Edmund Lawson Q.C. and Peter Openshaw for the Director of Public Prosecutions.

Michael Beloff Q.C. and Robert Jay as amici curiae.

Cur. adv. vult.

1 October. The following judgments were read.

WATKINS L.J. We heard these four applications for judicial review together at the invitation of the applicants, for they all seek orders of certiorari to quash their convictions following pleas of guilty to driving a motor vehicle or being in charge of it with excess alcohol in blood contrary to section 6 of the Road Traffic Act 1972, as amended, and the issues raised in all applications are the same.

The legislation in point is in the Act of 1972, as amended by section 25(3) of Schedule 8 to the Transport Act 1981, and, so far as relevant, provides:

“6(1) If a person — (a) drives or attempts to drive a motor vehicle on a road or other public place, or (b) is in charge of 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 prescribed limit he shall be guilty of an offence …

“7(1) Where a constable in uniform has reasonable cause to suspect — (a) that a person driving or attempting to drive or in charge of a motor vehicle on a road or other public place has alcohol in his body or has committed a traffic offence whilst the vehicle was in motion; … he may, subject to section 9 below, require him to provide a specimen of breath for a breath test …. (5) A constable may arrest a person without warrant if — (a) as a result of a breath test he has reasonable cause to suspect that the proportion of alcohol in that person's breath or blood exceeds the prescribed limit ….

“8(1) In the course of an investigation into whether a person has committed an offence under section 5 or section 6 of this Act a constable may, subject to the following provisions of this section and section 9 below, 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...

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