Specimens for Laboratory Testing
| Author | Pauline M Callow |
| Pages | 141-190 |
Taking Specimens: Blood
Chapter 3
Specimens for Laboratory Testing
See s 15, Road Traffic Offenders Act 1988 – use of specimens in proceedings for an offence under ss 3A to 5A, Road Traffic Act 1988..
1. Taking Specimens: Blood
See also Jones (Vivian Mary) v DPP, page 568 – where a specimen is taken at hospital, there is no requirement to explain why a breath specimen cannot be taken; and DPP v Carless, page 358, where the analysis of a blood specimen given in connection with the investigation of a possible abduction was admissible to prove driving with excess alcohol.
Russell v Devine
[2003] UKHL 24, [2003] 1 WLR 1187, [2003] 2 Cr App R 26,
8 May 2003, HL
Where a requirement for a blood specimen is made at a police station, the specimen may be taken by a medical practitioner elsewhere than at a police station or a hospital (in this case, at a health centre).
A motorist had been arrested on suspicion of driving while unfit through drink, contrary to art 15(1), Road Traffic (Northern Ireland) Order 1995 (SI 1995/2994). Article 18 of that Order is in substantially the same terms as s 7, Road Traffic Act 1988 (provision of specimens for analysis). At the police station, no officer trained to operate the evidential breath testing device was available, and the defendant was required to provide a specimen of blood. He consented. The police officer conducting the proceedings contacted a doctor. The doctor was the only doctor on duty at a nearby health centre, so he asked that the defendant be taken to the health centre for the specimen to be taken. The defendant was duly taken to the health centre, where the requirement for a specimen of blood was repeated, and the specimen was taken. Analysis of the specimen revealed excess alcohol.
Certified question: Whether it is necessary, if the requirement to provide a specimen of blood or urine has been duly made under article 18 of the Road Traffic (Northern Ireland) Order 1995 at a police station or a hospital, that the specimen be taken at a police station or a hospital.
CHAPTER 3: SPECIMENS FOR LABORATORY TESTING
Held: Section 15(4)(a)(ii) of the Road Traffic Offenders Act 1988 (as amended by s 57(3), Police Reform Act 2002), the wording of which was identical to art 18(4) of the Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996 No 1320) “states, in effect, that a specimen of blood may be taken by a doctor at a place other than a police station or a hospital. In my opinion section 57(3) was not intended to change the law and to remove a restriction as to where a doctor could take a specimen of blood … In Northern Ireland the road traffic legislation is based on, and is virtually identical to, the equivalent English legislation. Therefore in the light of section 57(3) I consider that the Court of Appeal were right to hold that after a requirement for a specimen of blood had been made in the police station, the specimen might be taken elsewhere by a medical practitioner …
[On the argument that the requirement had been made not at the police station or at a hospital, but at a health centre] “the requirement made … in the police station about 2 a.m. was not superseded by the requirement made … in the health centre about 2.15 a.m. When the appellant was taken to the health centre I think it was to give effect to the requirement made in the police station and his consent given there, and I consider that the specimen was provided in consequence of this requirement and that the repetition of the requirement within such a short period of time did not deprive the first requirement of its operative effect.”
The answer to the question was “no”; appeal dismissed.
Afolayan v CPS
[2012] EWHC 1322 (Admin), unreported, 1 May 2012, QBD (Admin)
On the findings in this case, the procedure for taking a blood specimen was correctly followed, even though the MG/DD form had not been fully completed.
A motorist had been charged with driving with excess alcohol in blood, contrary to s 5(1), Road Traffic Act 1988. The arresting officer gave evidence that he was present when the blood specimen was taken and that he packaged the specimen, gave it a unique reference number and placed it in a safe. The desk sergeant gave evidence that “all normal procedures” were correctly followed. The doctor who took the specimen did not give evidence. The MG DD/A form had not, however, been fully completed. It did not record that part of the specimen was offered to the motorist, sealed in his presence and accepted by him. The motorist did not agree that the specimens were sealed in his presence, but did accept he had been given a specimen, which he did not have analysed. The analyst of the specimen said, in an agreed statement, that she had received the specimen with the unique reference number allocated by the arresting officer and conducted a routine analysis. The magistrates were satisfied that the procedure for taking the blood specimen had been correctly followed and convicted. The motorist appealed.
Question(s) for the Court: Whether the magistrates could be satisfied beyond reasonable doubt that the correct medical procedures were followed.
Held: The simple answer to that question is yes. The police officers could give evidence, as they did, about the procedure that was followed and that it was followed correctly. The magistrates were entitled to prefer that evidence to such evidence as may have been given by the appellant to opposite effect. They
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Taking Specimens: Blood
were entitled to rely upon the undisputed evidence of the forensic scientist that a properly sealed and bagged specimen reached her laboratory and was analysed by her. The appellant had his own opportunity to have the sample, which he admits was given to him, tested. Had it been and had it cast doubt upon the result achieved on the sample analysed by the forensic scientist, then there may well have been a difficult issue for the court to resolve. But on the evidence that they heard, the magistrates were clearly entitled to reach the conclusion they did.”
Appeal dismissed.
CHAPTER 3: SPECIMENS FOR LABORATORY TESTING
2. Taking Specimens: Urine
See s 7(5) Road Traffic Act 1988 – a specimen of urine is to be provided within one hour of the requirement for it and after the provision of a previous specimen. See also the cases under the heading “Urine Specimens” in Chapter 1, page 103; Walters (Julian) v DPP, page 212– in calculating the one hour allowed for providing urine specimens, seconds need not be taken into account; and Robertson (Eric) v DPP, page 213,where the officer delayed allowing the driver to produce the first specimen, and disallowed a second specimen to be provided after the expiry of the hour.
Ross v Hodges
[1975] RTR 55, 1 November 1974, QBD
Where the container holding the second urine specimen was spilt, whether deliberately or not, no second specimen was provided.
A motorist had been charged with failing without reasonable excuse to provide a laboratory specimen contrary to s 9(3), Road Traffic Act 1972. He provided a first urine specimen, and then filled a jar with urine for the second specimen. The officer reached to take the jar, but it fell from the motorist’s hand and the contents were spilt. The driver declined to provide a further specimen. The justices accepted that, since there was no suggestion that the jar had been deliberately dropped, the passing of the urine into the jar was sufficient provision, and that, even if there had been a failure to provide, it was not without reasonable excuse. They accepted a submission of no case to answer and dismissed the case. The prosecutor appealed.
Question(s) for the Court: Whether, on the facts, the justices came to a correct determination and decision in point of law.
Held: “In my view the second urine specimen was not provided. I am not prepared to accept that the mere passing of the urine was a provision for present purposes unless and until the police officer was given the opportunity of taking charge of it and did take charge of it. He did not have that opportunity, and it matters not … whether the jar was deliberately dropped or not. The specimen contained in the jar was not provided.”
Any question of reasonable excuse would have been for the defendant to make out.
Appeal allowed.
R v Coward
[1976] RTR 425, 11 March 1976, CA
To be sufficient, a urine specimen must be capable of being divided into two parts such that both parts are capable of analysis; there can be no failure to provide a urine specimen until the hour is up.
A motorist had been charged with driving with excess alcohol in urine, contrary to s 6(1), Road Traffic Act 1972. At the police station, he provided a first urine specimen which was discarded in the usual way. The second specimen was insufficient to cover the bottom of a glass jar. The station sergeant decided it was insufficient for division into two parts and discarded it. A third specimen was produced within one hour of the original request. It was
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Taking Specimens: Urine
divided and analysed, and revealed excess alcohol. The motorist was convicted and appealed.
Grounds for appeal: The prosecution had failed to establish that the second sample of urine provided by the appellant was insufficient for the purposes of division and analysis; even if the second specimen was insufficient, there was no power to require a further specimen and the motorist should have been treated as having failed to provide.
Held: “… this appeal turns upon what is meant by a ‘specimen of … urine’. There is no statutory definition. … a specimen of urine within the meaning of section 9 must be large enough to be divided into two parts by a police constable in a police station; and each part must be capable of analysis. … In this case the sergeant gave evidence that there was not enough urine for him to divide into two parts. The jury were entitled to accept his evidence and they must have done so. …
“If the appellant did not provide a specimen within the meaning of the Act at all when he made his unsuccessful try, he...
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