QUEEN'S BENCH DIVISIONAL COURT
A reason which did not go to a driver's medical ability to provide a specimen of breath was capable of amounting to a medical reason within section 8(3)(a) of the Road Traffic Act 1972, as substituted in Schedule 8 to the Transport Act 1981.
The Queen's Bench Divisional Court so held in a reserved judgment in dismissing an appeal by way of case stated by the defendant, Gordon Edward Davies, against his conviction by Aldershot Justices on January 11, 1989, of failing without reasonable cause to provided a specimen of urine contrary to section 8(7) of the 1972 Act, as substituted.
Section 8, as substituted, provides:
“(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station ... unless (a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required...”
Mr Philip Kolvin for the defendant; Mr Roger Shawcross for the prosecution.
said the issue in the case was whether the police officer was entitled to require the defendant to provide a specimen of urine.
The defendant was seen driving erratically and was stopped by police officers. He was required to provide a specimen of breath which proved to be positive and the defendant was arrested and taken to Aldershot police station.
A police sergeant required the defendant to supply two specimens of breath for analysis by means of an approved device.
The defendant refused to supply them as he was taking a drug called Priadel which a psychiatrist had told him would influence the alcoholic content of his bloodstream.
The police sergeant accepted that explanation and required the defendant to supply a sample of blood for a laboratory test.
The defendant refused to supply such a sample as the duty solicitor to whom the defendant had spoken earlier had told him to tell the sergeant that he suffered from haemophiliac tendencies as could be evidenced by a small cut received earlier which was still bleeding.
That explanation was also accepted by the sergeant who then required the defendant to provide two specimens of urine within one hour of the request.
The defendant was asked if there was any medical reason why he could not supply urine. He replied that while there was no such medical reason he was currently taking large doses of various vitamins which would influence the analysis and as such would not provide the urine samples.
As a result he was charged with failing to supply specimens of urine.
The questions for the opinion of the High Court were:
(a) Could a reasonable bench, properly directed, have found that a reasoable cause to believe that for medical reasons a specimen of breath could not be provided, or should not be required, existed where the defendant claimed to be taking medication which would affect either the analysis of his breath by the Lion Intoximeter 3000, or of the alcohol in his blood?
(b) Could a reasonable bench, properly directed, have found that there was reasonable cause to believe that for medical reasons a specimen of breath could not be provided, or should not be required?
(c) Did the police sergeant make a valid requirement for the defendant to provide a specimen of urine pursuant to section 8(3)(a)?
The primary submission put forward on behalf of the defendant was that “medical reasons” in section 8(3)(a) were confined to reasons which related to the capacity of the driver to supply a specimen of breath.
In the alternative it was submitted that section 8 provided a detailed code relating to the provision of specimens for analysis and that threfore an explanation which was insufficient as a reasonable excuse for the purposes of section 8(7) was incapable of constituting a medical reason why a specimen of breath could not be provided or should not be required.
So far as the second submission was concerned, there was a clear distinction between the evidence which was relevant to the question of reasonable excuse under section 8(7) and the evidence which was relevant to the question raised by section 8(3)(a). The provisions in the two subsections were not in any sense mirror images.
When dealing with the primary submission, it was important to bear in mind the purpose of the elaborate provisions of section 8 which were designed to provide a mechanism whereby evidence could be obtained to support a prosecution while at the same time ensuring that sufficient safeguards were introduced to protect the position of the potential defendant.
In a case such as the present, where the investigation had been carried out at a police station a constable could not require a specimen of blood or urine for the purpose of providing evidence unless one or more of the conditions set out in section 8(3) had been satisfied.
His Lordship saw great force in the argument that the reason put forward by the defendant that he was taking Priadel was incapable of leading to the reasonable belief that a specimen of breath could not be provided.
But even if it was right that the words “cannot be provided” in section 8(3)(a) related exclusively to physical or mental capacity to provide a specimen, no similar restriction could be placed on the words “should not be required”.
The authorities established that the court was not concerned with the actual belief of the police officer but with whether a police officer with that state of knowledge had reasonable cause to hold a certain belief.
In the present case, the question for consideration was whether the facts known to the police sergeant when he asked the defendant whether there was any medical reason why he could not supply urine, he had reasonable cause to believe that for medical reasons a specimen of breath should not be required.
In his Lordship's view the sergeant did have reasonable cause to have that belief and thus the officer was entitled to proceed to ask for a specimen of blood and then a specimen of urine. The appeal would be dismissed.
Mr Justice Pill agreed.
Solicitors: Heald Nickinson, Camberley; CPS, Eastleigh.