Recent Judicial Decisions
| Published date | 01 January 1999 |
| Date | 01 January 1999 |
| DOI | http://doi.org/10.1177/0032258X9907200110 |
| Subject Matter | Article |
ROB R. JERRARD, LLB, LLM
Legal
Correspondent for The Police Journal
RECENT JUDICIAL DECISIONS
Drink-Drive: Addressing Needle Phobia of Suspected Drink-
Drivers
Director
of
Public Prosecutions
v.
Jackson
Stanley
v.
Director
of
Public Prosecutions House of Lords
(1998) The Times, July 30
The facts
These two appeals related to the procedures to be followed by the police
in relation to ss.7(3) or 8(2) of the 1988 Act where a specimen of blood
or urine was to be provided by a driver suspected of driving under the
influence of drink or drugs.
It
was desirable that as far as possible the law governing that
procedure should be simple and free from complexity but regrettably
questions arising under those sections had given rise to many appeals to
the Divisional Court.
Jackson was driving on a public road in an erratic manner and, on
being stopped, it was noticed that his eyes were red and glazed and his
speech slurred. He was arrested on suspicion of driving while unfit
through drink or drugs and taken to the police station where he was
examined by a doctor. A police sergeant requested Jackson to provide a
sample of blood or urine and warned him that failure to do so might
make him liable to prosecution. Jackson refused and the sergeant asked
him if there was any reason why a specimen should not be taken and
told him that his only right to object would be for a medical reason to
be determined by a doctor. Jackson replied: "I don't like needles.
I'm
not giving anything anyway."
The Divisional Court allowed his appeal against his conviction for
failing to provide a blood sample on the ground that there had been a
failure at the police station to comply with the requirements laid down
by Lord Bridge in DPP
v.
Warren (1993) 157 JP 297; [1993] AC319,
328; in that the police sergeant erred in telling Jackson that his only
right to object to giving blood would be for a medical reason to be
determined by a doctor.
In Stanley's case, police officers stopped him while he was driving,
arrested him and took him to the police station where he provided two
specimens of breath for analysis by Intoximeter machine. The specimen
with the lower proportion of alcohol contained less than 50
microgrammes
of
alcohol per 100 millilitres of breath so that Stanley
was entitled to the option given by s.8(2) of the 1988 Act to claim that
the specimen should be replaced by a specimen of blood or urine. The
January 1999 The Police Journal 75
officer informed him of that entitlement and told him that if he elected
to supply such a specimen it would normally be
of
blood which would
be taken by a doctor. He also told Stanley that his only right to object to
giving blood and to give urine instead would be for a medical reason to
be determined by a doctor. Stanley replied that he did not want a needle.
The law
The court said that much of the argument in the present appeal related
to the effect
of
the speech of Lord Bridge in Warren where the issue was
whether, when a driver was requested under s.7(3) of the 1988 Act to
provide a specimen of blood or urine, the police officer was required to
ask him whether he had a preference for givingblood or urine. The ratio
of that decision was that the Act imposed no such requirement.
But in order to give guidance as to the appropriate procedures to be
followed by the police in a s.7(3) case and a s.8(2) case, Lord Bridge
stated certain requirements as to what the officer should tell or ask the
driver.
It had been hoped that that would settled thelaw on the vexed topic
of the procedures to be followed by the police, but unfortunately that
had not been achieved. The principal difficulty which arose was that
different approaches had been taken in two lines
of
cases to the question
whether the requirements stated by Lord Bridge were mandatory so that
the failure to observe a requirement must leadto an acquittal, or whether
a breach of a requirement was not necessarily a
bar
to a conviction.
In considering the issues raised by those two lines of cases it was
necessary to have regard to the respective functions of the police officer
and the doctor under the 1988 Act.
The respective functions
of
the police officer and doctor
Section 7(4) provided that if a specimen other than specimen of breath
was required it was for the police officer to decide whether that
specimen would be blood or urine. But
s.ll
(4) provided that the
specimen of blood was to be taken by a doctor. In addition, the police
officer's right to choose whether the specimen would be blood or urine
was subject to the qualification that if a medical reason was raised why
a specimen of blood could not or should not be taken, the issue was to
be decided by a doctor and not a police officer.
An offence of failure without reasonable excuse to provide a blood
or urine specimen when required to do so or an offence of driving while
over the prescribed limit proved by a breath specimen where the driver
had not claimed under s.8(2) to replace it with a blood or urine
specimen, was an unusual offence in that the driver had a choice to
make in the police station prior to being charged.
It was because the driver had those choices and because a doctor had
a role to play both in the taking of blood and in deciding the validity of
a reason advanced by the driver as to why blood should not be taken that
Lord Bridge said in Warren (at p.327D) that the driver "should be fully
76 The Police Journal January 1999
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