Joseph v Director of Public Prosecutitons

J U D G M E N T

Monday 24 November 2003

THE LORD CHIEF JUSTICE:

1. This is an appeal by way of case stated from a decision of Miss Recorder Gupta sitting with two lay magistrates in respect of their adjudication at the Crown Court at Isleworth on 23 April 2003. It is yet another case involving the requirements contained in the Road Traffic Act 1988 with regard to the obtaining of evidence to show that a person has been driving with an excessive amount of alcohol in his or her blood.

2. It is convenient to set out at the initial stage of this judgment the relevant provisions of the 1988 Act. Section 7 provides:

“(1) In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, 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 provide a specimen of blood or urine for a laboratory test.

(2) A requirement under this section to provide specimens of breath can only be made at a police station.

(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless --

....

(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.

....

(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.

(7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.”

Section 8 provides:

“(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.

(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used.”

3. This case stated appeal concerns a situation covered by section 8(2). The appellant had previously given two specimens of breath for analysis. They disclosed alcohol content of no more than 50 microgrammes of alcohol per 100 millilitres of breath. Accordingly, section 7(4) had to be applied to the appellant.

4. In order to understand the issue in this case, as I see it, it is necessary to focus on the language of section 7(4). The subsection falls into two parts. The first part deals with the fact that a constable has the right to decide whether the further specimen (the further specimen in addition to the specimen of breath) shall be either a specimen of blood or a specimen of urine. The second part of the subsection goes on to provide that if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken, the specimen shall be of urine. It follows from the clear language of section 7(4) that if the officer decides that the specimen of urine is to be used, then the requirement does not involve any consideration of the second half of subsection (4). In that situation there is no need to consider whether a medical practitioner is of the opinion there indicated.

5. Difficulty has arisen, as demonstrated by this appeal, because the second half of the subsection has been treated as though it is determinative of whether a urine specimen can be requested by the constable. It has been assumed that if a blood specimen can be requested, then it should be requested, unless a medical practitioner is of the opinion that for medical reasons it should not. Such an understanding of the subsection is, in my judgment, inconsistent with the language of section 7(4).

6. An explanation for the misunderstanding which has arisen, in some situations at any rate, with regard to the proper application of section 7(4) follows the decision of the House of Lords in Director of Public Prosecutions v Warren [1992] 4 All ER 865. In that case the House of Lords gave detailed consideration to the working of the Road Traffic Act in relation to the situation which we are here considering and sought to give guidance on the law which would avoid technicalities being relied upon by defendants, particularly when those technicalities have no merit. The decision of their Lordships in that case was given in the speech of Lord Bridge of Harwich, with which all the other members of the House agreed. At page 870C he said:

“A driver may be required to provide a specimen in accordance with s7(4) in two distinct circumstances. First, it may be necessary because it is impossible or inappropriate to rely on specimens of breath for one of the reasons specified in s7(3). In this case it will be obligatory for the driver to provide the specimen which the constable decided to require, either blood or urine subject only to this, that, if the constable requires blood but a medical practitioner is of opinion that for medical reasons a specimen of blood cannot or should not be taken, the obligation on the driver will then be to provide a specimen of urine instead. Failure to comply with the obligation (which, in the case of blood, arises if the driver withholds consent to the specimen being taken by a medical practitioner: (see s11(4)) constitutes an offence, subject always to the defence that the driver had a 'reasonable excuse' for the failure. There is no need here to consider what is capable of amounting to a reasonable excuse, but it suffices to say that the defence is clearly of very limited scope.

The second case in which a requirement may be made to provide a specimen in accordance with s7(4) is where the driver, having provided two specimens of breath one of which contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, claims the right under s8(2) to have that specimen replaced by a specimen of blood or urine provided in accordance with s7(4). If the driver claims this right and then fails to provide the specimen duly required under s7(4), the sanction for that failure will be the use in evidence against him of the breath specimen which, ex hypothesi, proves an excess of alcohol above the statutory limit and accordingly in such case there will be no need, though it may be theoretically possible, to prosecute for a failure to provide a specimen without reasonable excuse under s7(6).

It has been said more than once in the decided cases that s7(4) cannot receive different constructions according to whether resort to the subsection arises for one of the reasons under s7(3) or because the driver exercises his right to claim to have his breath specimen replaced under s8(2). This is clearly right. But it does not follow that there may not be a difference in the procedures which are appropriate on the one hand in requiring the driver to provide a specimen of blood or urine under s7(4) where it is obligatory for him to do so because one of the circumstances specified in s7(3) has arisen and on the other hand in informing the driver of his right under s8(2) to claim that the specimen of breath which he has given containing the lower proportion of alcohol should be replaced by a specimen of blood or urine under s7(4).

Taking the second case first, it is clear that under s8(2) the driver, in order that he may decide whether or not to claim that the breath specimen be replaced, should be fully informed of the nature of the option open to him and what will be involved if he exercises it. He should be told that the specimen of breath which he has given containing the lower proportion of alcohol exceeds the statutory limit but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath, that in these circumstances he is entitled to claim to have this specimen replaced by a specimen of blood or urine if he wishes, but that, if he does so, it will be for the constable to decide whether the replacement specimen is to be of blood or urine and that if the constable requires a specimen of blood it will be taken by a doctor unless the doctor considers that there are medical reasons for not taking blood, when urine may be given instead. I can see no ground whatever, on the face of the statute why in a s8(2) case the driver should be invited to state whether he prefers to give blood or urine or to state any reasons for his preference. Indeed, to invite him to do so, it seems to me, can only be misleading in suggesting that the driver is entitled to some say in the matter. The statute gives him no such say. The driver is faced with the prospect of conviction on the basis of the breath specimen which he has given containing the lower proportion of alcohol. His only chance of escape from that prospect is by opting to give and then in fact giving a replacement specimen of whichever kind the constable requires of him, subject only to his right to object to giving blood on medical grounds, and, if they are accepted by the doctor, then to give urine instead. Again, so far as the language of the statute is concerned, I can see no reason in principle why the constable in the course of explaining to the driver his rights under s8(2) should not tell him, if it be the case, that he, the constable, will require the replacement specimen to be of blood.

In the case where the reason for requiring a specimen of blood or urine arises under s7(3), there is no question of the driver having any option to exercise. Hence, whatever necessity there may be to explain the position to him, the reasons why it is necessary to give such an explanation cannot be the same as those which arise under s8(2). Again, on the face of the statute, I cannot see any reason why in this case the constable should do more than tell the driver the reason under s7(3) why breath specimens cannot be taken or used, tell him that in these circumstances he is required to give a specimen of blood or urine but that it is for the constable to decide which, warn him that a failure to provide the specimen required may render him liable to prosecution and then, if the constable decides to require blood, ask the driver if there are any reasons why a specimen cannot or should not be taken from him by a doctor. This will certainly give the driver the opportunity to raise any objection he may have to giving blood, either on medical grounds or indeed for any other reason which might afford a 'reasonable excuse' under s7(6). Here again, provided the driver has such an opportunity, I can see nothing in the language of the statute which would justify a procedural requirement that the driver be invited to express his own preference for giving blood or urine, either before a constable indicates which specimen he will require or at all.”

7. It is apparent from that part of his speech that Lord Bridge was making it clear that there is no ground on the face of the statute why in a section 8(2) case the driver should be invited to state whether he prefers to give a blood or urine sample, or to give reasons for his preference. Indeed, it seems that to invite him to do so is misleading because it suggests that the driver is entitled to some say in the matter. The statute gives him no say. The driver is faced with the prospect of conviction on the basis of the breath specimen which he has given containing the lower proportion of alcohol. His only chance of escape from that prospect is by opting to give, and then in fact giving, a replacement specimen of whichever kind the constable requires of him, subject only to his right to object to giving blood on medical grounds. That passage in the speech of Lord Bridge makes it clear, as I accept is the position, that the officer has the broadest of discretions to determine what sort of specimen should be required.

8. Later in his speech at page 875 Lord Bridge also makes it clear that the earlier passage (set out above) indicates his prima facie view of the proper application of section 8(2) and section 7(4). However, although Lord Bridge differed from Bingham LJ (as he then was) as to the correct approach. He had indicated this in Director of Public Prosecutions v Byrne [1991] RTR 119, the language used by Lord Bingham in that passage helps to clarify the interpretation of section 7(4) and makes the distinction to which I have referred.

9. The discretion of the constable may be a very wide but nonetheless it is a statutory discretion conferred by the Act upon the officer concerned and therefore in the appropriate circumstances is to be tested in accordance with the well-known Wednesbury principles. The circumstances in which it will be possible to interfere with the exercise of the constable's discretion will be rare. In accordance with the speech of Lord Bridge, the officer is not required to question the alleged offender as to whether he would prefer a specimen of urine or blood to be the one selected by the officer.

10. However, as we will see when we turn to the facts, the present case is unusual. Before the officer had made his choice as to which specimen to select, the appellant had made clear that he was not prepared to give a specimen of blood. He is a Rastafarian and he said that it was contrary to his religious beliefs to give such a specimen.

11. Because there was no dispute on the facts that that was the appellant's position, the Recorder gave two decisions as to whether or not Rastafarianism is in fact a religion. In the case as it was presented before her it was thought by those who represented the appellant that it was important to establish that Rastafarianism was a religion, as the appellant had suggested. Those representing the appellant had been under the impression that it was accepted by the prosecution that Rastafarianism was a religion until about five weeks prior to the hearing before the Recorder. The prosecution then indicated that they were not prepared to accept that this was the position. Accordingly the appellant's lawyers sought to obtain evidence to establish (1) that Rastafarianism was a religion; and (2) that it is a tenet of that religion that blood should not be given in the circumstances required by sections 7(4) and 8(2) of the Act. Because it was not practical for the appellant's advisers to obtain the evidence they wanted on those issues at the outset of the hearing before the Recorder, they sought an adjournment, which was refused.

12. In my judgment the Recorder came to the right decision in refusing the adjournment. What the appellant thought were the tenets of Rastafarianism, and whether he genuinely believed that to give blood was contrary to Rastafarianism was, as I will seek to explain hereafter, relevant. But whether or not Rastafarianism is categorised as a religion was not of any particular significance to the outcome of the hearing before the Recorder. The Recorder examined the definition of Rastafarianism in a dictionary. She concluded, as she indicated in the first of her rulings, that it is a movement and not a religion. She did so after also looking at the Judicial Studies Board (Equal Treatment) Bench Book. She first examined the definition of “religion” given in that dictionary, and then referred to the definition of the Rastafarian movement. She then adopted the definition that was contained in the dictionary, namely that it:

“Relates to a religious movement of Jamaican origin with political beliefs. It is fair to say that Rastafarians have a distinctive code of behaviour and dress, including wearing dreadlocks and smoking cannabis, and that they reject Western medicine and they follow a diet that excludes pork, shellfish and milk.”

On the basis of the material which was before her, the Recorder then came to the conclusion that Rastafarianism was not a religion.

13. On the material which was before her, that was a proper conclusion to reach. However, I emphasise that, in saying what I have, I do not indicate any view as to whether Rastafarianism is or is not a religion. In my view, a proper determination of that issue would require much more investigation than was possible before the Recorder or is possible before this court today. However, the material which was before the Recorder and her findings on the matter are sufficient for the purposes of determining this appeal.

14. Mr Macdonald on behalf of the appellant would have wished to establish that Rastafarianism is a religion because he would have wished to rely upon Articles 8 and 9 of the European Convention on Human Rights in order to indicate that the approach adopted by the Recorder in determining this case was wrong and inconsistent with those articles. However, I am of the view that again that is territory into which it is not necessary to proceed in order to resolve this appeal.

15. The case stated by Miss Recorder Gupta starts off in the conventional way by setting out the facts which were found. It first set out the findings on the preliminary issue of whether or not Rastafarianism is or is not a religion. As to that I need say no more. Then under the heading “On the main issues of the Case” the Recorder sets out the other facts she had found:

“(a) The appellant had consumed alcohol in excess of the limit and this he admits.”

The Recorder was there indicating that the appellant admitted the contents of the breath specimens. The case sets out that the lower reading was 40 microgrammes in 100 millilitres of breath. The Case continues:

“(c) [The appellant] was advised by Police Sergeant Malik that he would have to go through the statutory option and this was en route from the room in which the breath procedure was carried out. At that stage the appellant said, 'I can't give blood because of my religion'. However, this was prior to the formal procedure, which was carried out a short while later.

(d) Police Sergeant Malik said at 00.36.07, before the formal procedure was carried out, 'If you don't give blood, I will have no option but to charge you.'“

Mr Gibbons, on behalf of the respondent on this appeal, said that that was stated by Sergeant Malik because he was of the view that he had no option but to request a specimen of blood if there was no medical reason for not doing so. The case continued:

“(e) Police Sergeant Malik then went through the formal procedure, by way of Form MGDDB, and read out section B5, which was the statutory option to the appellant.”

We have that document before us. In my view B5 correctly reflects the language of the statute. It refers to the discretion of the officer and then deals with the position if the officer decides on a specimen of blood. However, it does not help with what should happen if there is information provided to the officer, even though he has not requested it, as to a reason why a specimen of blood should not be selected by the officer. The case continues:

“.... To the question, 'Do you wish to provide a specimen for Laboratory Alcohol Analysis?' the appellant replied, 'No'. This is the option provided by statute for a motorist whose breath reading is between 40 and 50 microgrammes to be afforded the opportunity to provide an alternative sample for analysis. The alternative sample can be blood or urine; that, of course is not the choice of the motorist, but that of the police officer. The appellant refused to take up the offer of this option, saying, 'I can't give blood because of my religion.'“

This last finding of fact is a combination of the actual facts found by the Recorder and statements made as to the relevance of those facts by the Recorder.

16. Later in the case the Recorder dealt with the substantive issues. She referred to the evidence of Police Sergeant Malik and said:

“.... He stated that during the discussion he had informed the appellant that he (PS Malik) would ask for blood. He stated that Mr Joseph refused the option on the grounds of religion and that he felt that not to be a medical reason, and so informed the appellant that if he did not give blood he would be charged.”

The Recorder noted that the sergeant made a mistake in filling in the forms and that he was unclear as to who had the statutory option.

17. Finally, the Recorder set out the conclusions of the court in the following terms:

“7. We were of the opinion that the appellant refused to provide another specimen: at that stage the officer had not selected blood as the second specimen to be provided. In so doing the officer was left with no choice but to charge the appellant with driving with excess alcohol, as in the absence of a blood or urine analysis the breath analysis becomes the one to be relied upon. Even having made that clear to the appellant, it seems the appellant then stated he would be prepared to provide a urine sample. However, by this time, the options having been given and refused, the officer was right to proceed and charge the appellant.

8. Section 7(4) of the Road Traffic Act 1988 enables a constable to require a specimen of blood or urine. As I said earlier, the choice is that of the constable and not of the motorist. In the case of DPP v Warren in 1992 it was held that when making a decision under section 7(4) of the 1988 Act as to whether specimens should be of blood or urine, the police officer did not have to invite the driver to express his own preference before making the decision. Section 8 goes on to say that the only right to object can be for medical reasons, which are to be determined by a doctor.

9. As religion is not a medical reason we find that the appellant has no defence to sections 7 and 8 of the Road Traffic Act 1988, and we uphold the conviction.

10. If our finding that Rastafarianism is not a religion is incorrect, based on our findings of fact as already stated, and considering sections 7 and 8 of the Road Traffic Act 1988, because a valid objection to giving blood can only be made if there is a medical reason and because religion is not a medical reason, we would still uphold the conviction.....”

18. It seems clear to me from those passages that the Recorder did not appreciate the nature of the case which was being argued on behalf of the appellant: that when the officer came to exercise his discretion whether or not to ask for a specimen of blood or urine, he should have taken into account the appellant's reasons for objecting to providing a specimen of blood. In those circumstances the officer, not having any reason not to choose urine, should have chosen urine rather than blood. It is frankly conceded by Mr Gibbons on behalf of the prosecution that in this case the officer had considered that if there was no medical reason for not choosing blood, he was required to choose blood. As I have sought to make clear, this was a misunderstanding of the position. It is not challenged before us, and it was not challenged before the Recorder, that the appellant genuinely believed, whether Rastafarianism was a movement or a religion, he should not give a blood sample. That was certainly something which the officer, in exercising his discretion, should have considered before coming to his conclusion as to whether he should require a urine or blood specimen. He did not do so because he did not appreciate that he had a discretion. For this he can be forgiven, because that he had a discretion was not made clear by Forms MGDD/A and B. It would be preferable for the forms to make clear that there is such a discretion -- a discretion which does not, as DPP v Warren makes clear, require the officer to investigate the wishes of the driver whom he is testing. Where there is no reason for not choosing urine in preference to blood, and a valid reason is put forward why urine should be the choice instead of blood, the officer must at least consider whether blood or urine should be the choice. If he concludes that it should be the one to which the offender objects, without any basis for doing so, the decision may be categorised as perverse; or alternatively, it may be said that the officer has misunderstood (as was the case here) the legal position and accordingly the statutory procedure has not been validly gone through. This is because the officer failed to comply with the statutory requirements of section 7(4).

19. I reiterate what I said earlier about the exceptional nature of this case. Cases where the discretion is shown to have been exercised unlawfully by the officer will be limited in number. However, on the material which is before us on this appeal, I have come to the conclusion that in this case it has been established that the officer's discretion was unlawfully exercised. Accordingly, we have no alternative but to allow the appeal.

20. The questions posed for the opinion of this court by the Recorder are not ideal, but we I would seek to answer them in this way:

“(a) Could any reasonable tribunal, properly directed, faced with the evidence adduced, arrive at the findings of fact proposed above in this case?”

The answer to that question is “No”.

“(b) Is Rastafarianism a religion?”

That is a question I would not be prepared to answer on this appeal.

“(c) Was the court correct in stating that even if Rastafarianism were a religion, it would not affect the interpretation and application of the relevant provisions of the Road Traffic Act 1998?”

I would answer that question “Yes”.

21. Notwithstanding giving those answers to those three questions, I consider that the appeal should be allowed.

22. MR JUSTICE MACKAY: I agree.

23. MR MACDONALD: My Lord, Mr Joseph is a legally aided person and so I do not make any application for costs, save for legal aid taxation of the appellant's costs?

24. THE LORD CHIEF JUSTICE: So be it. Thank you both very much for your help.