Ryder v Crown Prosecution Service

On 26 March 2010, the Justices for North Yorkshire, sitting in Selby, convicted the appellant on an information which had alleged that on 12 July 2009 he drove a motor vehicle after consuming so much alcohol that the proportion of it in his urine, namely 172 milligrams of alcohol in 100 millilitres of urine, exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. He appeals against that determination by way of case stated.

The case centres on the requirements of section 7 of the Road Traffic Act 1988. That provides, by subsection (5), for the provision of a specimen of urine in these terms:

“A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.”

The word “provides” is not otherwise defined in the statute, though it is to be noted that insofar as the taking of a specimen of blood is concerned, section 11(4) provides that a person provides a specimen of blood:

“...if and only if—

(a)

he consents to the taking of such a specimen from him; and

(b)

the specimen is taken from him by a medical practitioner or, if it is taken in a police station, either by a medical practitioner or by a registered health care professional.”

So far as urine is concerned, except to the extent that consent, or at least voluntary action, is implicit in the word “provides”, there is no express requirement for consent and there is no express requirement as to who it is who will take the sample of urine. It is, however, plain to me that the word “provides” involves providing it to someone, and that someone, in the context of the Road Traffic Act 1988, is the police officer making a request for such a specimen.

The appeal centres upon two matters. The first is the meaning of the expression “provides” and the second is whether, in the facts that occurred, the appellant provided two separate samples, or whether the two specimens which purported to be taken were in truth one and the same specimen but two different portions of it.

The facts taken from the case stated may be summarised in this way. At paragraph 2, the magistrates set out the evidence which they had heard. No evidence to the contrary was given to the bench. The evidence included that at paragraph 2(c), to the effect that after having been involved in a road traffic accident, the appellant was admitted to York District Hospital. A doctor attended at the hospital in order to take blood with the permission of the supervising doctor. Blood could not be provided for medical reasons because the appellant had several drips in his arm at the time. The next option was for a sample of urine and the appellant, who was conscious at the time, was asked if he were happy to give a sample and replied that he was.

Miss Eastwood, who appears to defend the case for the Crown Prosecution Service, observes that this consent necessarily implies that the appellant knew that, though he was catheterised at the time, as I shall describe, the samples which he was asked to give would be taken from the flow of urine through the catheter, and he must have been content for that to occur. Paragraph 2(d) reads as follows:

“TC Holden [he was the Traffic Officer concerned] started the procedure at 5.43 a.m. He explained that there was a catheter fitted to the Appellant that drained urine from his bladder. The catheter had two chambers. The initial top chamber collected urine, which would then be drained into a second, larger chamber on the bottom for examination. The initial top chamber was drained into the bottom chamber so that it was empty at 5.43 am and was then allowed to fill again. It was then drained to the main chamber for a second time at 5.44 a.m. The initial chamber filled again for a third time with a sample of urine until the officer felt there was a sufficient amount for analysis. He then drained it off externally into a container for collection at 5:50 a.m. He divided this sample into two containers, labelled them and offered one to the Appellant. He retained the police sample...

(e)

In cross-examination [he] stated that the flow of urine from the Appellant’s internal organs was continuous. He ...took no action to stop the flow.”

There was medical evidence given by the doctor to the magistrates. The doctor said that in a usual case the bladder received a constant trickle or urine from the kidneys and was used as a reservoir for urine waiting to be expelled from the body. He explained that the catheter tube would be attached to the bladder and would come through the penis into a collecting bag with a tap attached, which was like an external bladder. It was not appropriate in this case to disconnect the tube, as it checks for blood, can be difficult to reinsert and thus it may then not be possible to monitor this. He went on to say that in functional terms the catheter bag was a bladder, although in anatomical terms it clearly was not.

The findings of the Bench, expressly recorded as such, are set out at paragraph 6. So far as material to the discussion before us, they are as follows:

“6(c) A sample of urine was tested and found to contain an alcohol level of not less than 172 milligrams per 100 millilitres

(d)

The sample came from the Appellant.

(e)

The Appellant, due to his physical state, had no control over the flow of his urine.

(f)

The catheter bag, being attached to the Appellant was, in effect, acting as the appellant’s bladder and therefore the sample was provided by him.

(g)

TC Holden emptied the initial chamber for a first time at 5.43 am, for a second time at 5.44 am, and then took a sample for evidential purposes at 5:50 am.

(h)

TC Holden emptied the initial top chamber of the catheter bag on two occasions prior to taking the sample for analysis. This procedure therefore allowed the top chamber time to fill with sufficient urine so that it could be used as a specimen for analysis.”

The appellant had contended before the magistrates that the appellant had not provided two samples of urine. If the prosecution could not satisfy the court that there had been two separate samples, he contended that the offence could not be made out. The sample of urine, he argued, should have been taken as it left the physical body of the appellant, rather than taken from the catheter. The catheter was not part of the appellant. Once the urine left the appellant’s body, then it could only be classed as one sample and was therefore incapable of amounting to two separate samples. Thirdly, the catheter could not be deemed to be a bladder, as it was physically outside the body.

The respondent contended that the procedure adopted by the officer, to the contrary, did indeed comply with the requirements of section 7(5) of the 1988 Act.

The questions arising from those submissions, in those circumstances, are these: (a) whether, where there was a continuous flow of urine from the appellant into a catheter bag, the Justices were right to conclude that the providing of a specimen for analysis under section 7(5) of the Road Traffic Act 1988 occurred at the point at which the catheter bag was emptied, rather than at the point the urine left the defendant; (b) whether an external catheter bag, into which urine was free-flowing from the appellant, could be said to amount to an extension of the appellant’s person; (c) if the sample was provided at the point that the urine left the appellant, whether the emptying of the catheter bag on two occasions was capable of amounting to two separate specimens.

Mr De La Poer has submitted that the magistrates were wrong to treat the point of provision as being the point at which the catheter bag was empty. That is because the statutory procedure is, he maintains, of universal application and it must follow that the point of provision is the same in all cases. In any event, as a matter of common sense, and the ordinary interpretation of the English language, a person provides a specimen of urine at the point at which they excrete it. He contended that the magistrates were wrong to treat the catheter bag as if it were an extension of the appellant’s body and, next, that emptying the catheter on two separate occasions was not capable of amounting to providing two separate specimens. That was because, he said, the urine was provided when it left the appellant’s body; the catheter bag was not part of that body; urine was continuously flowing; and that because the urine which was discarded was part of the same continuous flow of excreted urine as the part taken for analysis, it could not amount to a previous specimen of urine, as required by the Act. All the urine which entered the catheter bag was part and parcel of the same specimen. If he is right in those contentions, then I do not understand there to be any contention that the evidence of the analysis of the sample was not admissible and should have been excluded and it would follow there was no evidence against the appellant on the charge of which he was convicted.

There is, he told us in impressive oral submissions, no decided case that deals with a patient catheterised in hospital who is subject to a requirement to provide a specimen of urine for analysis. He suggested that the answers which he posed to the questions asked by the magistrates could be informed by such authorities as there were which dealt with the provision of specimens under section 7(5) and more particularly its statutory predecessors. It needs to be noted, before I begin to review such cases as seem to me to be of materiality, that the statutory provisions have changed a little over time. This case concerns itself with what is now section 7(5). What was initially section 9 of the Road Traffic Act 1972 is in slightly different terms.

The Lord Chief Justice, in the case of Roney v Matthews [1975] RTR 273 was concerned with the requirement then in statute for a defendant to be requested to provide two specimens within one hour of the request. He said this:

“The reference to two specimens of urine, I think, is explained in this way. It is an accepted medical fact that a specimen of urine may be misleading as to its alcohol content if given after a substantial time with a bladder inactive. Accordingly, a person requested to give a sample of urine might fairly be justified in saying that he would wish to give two after an interval, in order to get rid of the possibility of being tried on the basis of the first and inaccurate specimen. I think that Parliament, trying to make absolutely certain that the subject is given a full and fair opportunity to give his sample of urine, has laid down this requirement of two specimens in section 9(5)(b), but I do not believe that the relevance of a period of one hour goes beyond that.”

It may be, as I anticipate my Lord in his judgment will suggest, and I agree, that the provision that the samples be given within one hour is to ensure that there is a sufficient opportunity for the ordinary person to accumulate sufficient urine within their body so that they may reasonably be required to expel two specimens or samples of it within that period and that Parliament had that in mind as the basis for the hour.

That expression of view finds its most modern exposition in the judgment of May LJ in the case of Nugent v Ridley [1987] RTR 412. At page 415, in relation to what was then section 8(5) of the Road Traffic Act, which is in terms identical to the provisions of section 7(5) of the 1988 Act, he said that the only construction that he could give to that subsection was to read it precisely as it reads, namely that a specimen was to be provided within one hour of the request for it, and after the provision of the previous one, and then this:

“The medical reason why there has to be a previous specimen of urine is well known. It is to ensure that the one that is ultimately sent for analysis is a fresh specimen and properly reflects the bodily condition of the person from whom it is taken.”

The words are, as Mr De La Poer notes, not identical in their expression to those which appealed, in respect of the earlier statute, to Lord Widgery CJ, but they are essentially to the same effect. What it is suggested must be avoided is the risk that a specimen may not properly reflect the bodily condition of the person from whom it is taken because it is drawn from what might be considered a stale pool of urine, whose contents (having accumulated over time) reflect an earlier condition and not the condition at the time which is relevant to conviction or acquittal. For my part, I am happy to adopt those words as informative as to the reason for their being two specimens, the first of which was, in the language of the earlier statute, “to be disregarded”, although those words are not in terms echoed in the current statute.

Mr De La Poer derives considerable assistance, he argues, from the reference made by the Lord Chief Justice to a “full and fair opportunity” in the light of the case of Prosser v Dickeson [1982] RTR 96, a decision of the Divisional Court consisting of Phillips and McNeill JJ. The judgments in that case concerned a motorist who had been arrested and required to provide a laboratory test specimen under what was then section 9 of the Road Traffic Act 1972. Under that Act, it was for the defendant to choose whether he provided blood or urine. It was not, as it is now, for the police officer to require one or other at his election. The defendant agreed to provide two specimens of urine within the hour. He was taken to the lavatory by a police sergeant. He urinated into a jar, supplying a half to three-quarters of an inch of urine, when he was told by the sergeant to stop. That urine was discarded under section 9(6). Thisrequired the discarding of the first specimen, and the jar was washed out. Then the sergeant directed the defendant to resume urinating, which he did. The justices were of the opinion that two specimens of urine had not been provided. The two portions of urine constituted one and the first specimen. Accordingly, they concluded that the evidence of the analysis was inadmissible, and they dismissed the information.

The issue before the court was thus whether or not the justices were entitled to come to the conclusion, on those particular facts, that there had been one specimen, albeit that there had been an interruption to the flow at the direction of the police sergeant. The finding of the court, and the principle upon which it was decided, appears to me to be accurately encapsulated by the head note in the Road Traffic Reports. That reads as follows:

“Held, dismissing the prosecutor’s appeal, that, since the entire operation had occupied only two minutes, it was obviously one single operation, which was momentarily discontinued on the direction of the sergeant; and that, accordingly, the justices were justified in reaching the conclusion that there was one and not two specimens of urine.”

In the judgment of Phillips J at page 100, he observed that the finding of fact as to whether there was within section 9(5)(b) two specimens of urine within one hour, depended:

“... partly on law but mainly on the view which the justices took of the facts of the case. It may be said, I suppose, that they have linked that finding to the proposition that there was only one specimen because -- and I underline that word -- two portions were provided from the same bladder content. So, although it is a finding of fact, and therefore binding on us, it is open to criticism if there is, in law, no requirement that two specimens come from different bladder contents. But essentially it is a factual question, provided the justices direct themselves properly, whether here there was one specimen or two, and essentially their decision is that there was only one.”

He then cited from the decision in Roney, and having quoted the Lord Chief Justice’s reference to a “full and fair opportunity” to give his sample of urine, said this:

“Those words are important, because they indicate the purpose of these provisions, which in part at all events are for the protection of the motorist. It has be said here that, although Sergeant Prosser acted in good faith, the effect of what he did in practice was to deprive the defendant of that protection, and the defendant did not have what Lord Widgery CJ there refers to as the….‘... full and fair opportunity to give his sample of urine’ in what, from his point of view would be the most beneficial circumstances. That is the vice which arises when the officer gives directions of this sort to the motorist which are not directions which he is authorised to give by the Act.”

A little later in his judgment, having discussed those authorities, he returns to what he described as the circumstances of the present case, and confirmed the view taken on the facts by the magistrates that there was here one single operation momentarily discontinued on the direction of the sergeant.

What is argued forcefully by Mr De La Poer is that the full and fair opportunity to which the Chief Justice made reference in Roney was here denied the appellant, because it is said he had no control over the exit of urine from his body. He therefore did not have the advantage of what is described as “the most beneficial circumstances” in which to give a sample of urine. There was some discussion in argument as to whether that phrase was intended to mean that the motorist might choose to delay urination so as to provide a sample until effectively the 59^th minute of the hour that he was permitted after the initial request, in the hope or expectation that the sample then provided might show a lower alcohol content than one which might have been provided earlier.

In the case of R v Musker [1985] RTR 84 what on the face of it may seem to be similar circumstances to those in the case of Prosser v Dickeson arose. . It concerned a motorist who had been required to provide a laboratory test specimen, again pursuant to section 9(1) of the Road Traffic Act 1972. He filled one-third of a two-pint container at 2:15 a.m. A police constable disposed of that pursuant to section 9(6) and the container was washed out. A police sergeant who had been present throughout informed the defendant to indicate when he was ready to give the second specimen. The defendant adjusted his clothing; he sat down; he then indicated to the police constable that he was ready to give the second specimen, and provided it at 2:16 am. There was thus here a second specimen provided a minute after the first. It was that specimen which was taken for analysis and which showed that the proportion of alcohol in his urine exceeded the prescribed limit.

The magistrates felt bound by Prosser v Dickeson to regard what had happened as having been the provision of one single sample. The prosecutor appealed. The appeal was allowed. As the head note suggests, the defendant having indicated that he was ready to give a second specimen, and having given it albeit only a short time after the first, the only conclusion which could properly be reached on the facts was that two distinct specimens had been given. The statutory procedure having complied with, and the second specimen when duly tested having an alcohol content above the permitted level, the Justices were wrong to hold that there was no case to answer.

In the judgment of Robert Goff LJ at page 89, he cited from the Court of Appeal decision in R v Radcliffe [1977] RTR 99 with this observation, that that case provided clear authority that it does not matter that the first specimen was of any particular quantity, and that it must follow that, provided two specimens are given, it does not matter whether there is any particular gap in time between the two specimens. All that matters is that the statutory procedure should be carried out. He regarded Prosser v Dickeson as a case where, on the special facts of that case, the court concluded that the justices had rightly decided that only one specimen had been given and not two. He added that there was no question in that case, that is R v Musker, of the defendant not being given a full and fair opportunity to supply a second specimen because he of his own free will gave the second specimen. There was no question of his being told to stop and start again, as the defendant in Prosser v Dickeson was told to do. I would observe for my part, that he plainly took the view that the vice in Prosser v Dickeson was the direction given by the sergeant, which interfered with the way in which the claimant would have otherwise wished to provide the specimen for analysis and which effectively converted his giving one specimen then, with a view to providing another later, into his providing two at the same time, if indeed it had complied with the statute.

What Mr De La Poer argued was that point of provision was at the point of excretion. He freely conceded that the expression “point of provision” does not appear in the statute. “Provided” equalled, he submitted, “excreted”. Thus, the moment urine left the body it was “provided”, within the statute. For my part, I cannot accept this submission. First, what must be applied are the words of the statute. Those words do not require in terms that a motorist should urinate. What is requested from the motorist under the statutory provisions is a specimen. What is not requested is urination as such. A specimen of urine is in my view not provided at the moment it is excreted. Provision involves the concept of provision to someone. As I have already observed, this is plainly to the requesting officer. Excretion is indifferent to this concept.

Within the Oxford English Dictionary, the meaning of “provision” is said to be “to supply something for use, or to make available”. I have some difficulty in thinking that within the statutory context the words “to make available” are entirely apposite, since it seems to me that that says no more than “to be prepared to provide”. But to supply for a purpose does seem to me to correspond with the plain English meaning of the words and I do not seek to be prescriptive, because what must be applied, as it seems to me, is the plain English of the statute. If one asks here whether or not two samples -- I shall call them samples to distinguish them from the statutory requirement, which is that of a specimen for analysis -- were provided, then factually, as it seems to me, there could be no other conclusion to which the Bench could come other than that they were. Urine came within the hour after the request from the motorist. It went to the officer in some suitable container. The motorist knew that it would, and had accepted the procedure. The urine was plainly “provided”.

What is more difficult to resolve, as it seems to me, is the submission as to whether there was here a single sample divided into two portions, so as to be only one specimen within the meaning of Act and not two. Mr De La Poer has argued that where there is a constant flow of urine, it is sensible, and can only be sensible, that that flow be regarded in the same way as was the continuous stream in Prosser v Dickeson before it was interrupted, and that the product of that continuous stream is one sample. Therefore there was here no previous specimen, as required by section 7(5).

I cannot accept those submissions. First, here there is no question of the officer interfering with what would otherwise have been the intention of the motorist, as was the vice in Prosser v Dickeson. The full and fair opportunity to which Lord Widgery, CJ referred was given to this motorist, as it seems to me, when, as Miss Eastwood submits, he consented to the provision of two specimens from his urine, knowing at the time, as he must have done, she submits and I accept, that that provision must have come inevitably from the catheter which dwelt within his penis and drained into the catheter bags, as the magistrates described. He therefore consented to the very way in which the specimens were taken.. I add that counsel assured us that no point arose on this appeal as to the consent procedure. We assume, therefore, as we are entitled to do, that it was correctly and faithfully carried out in accordance with the statute.

The question whether there was one or two samples brings me back, first of all, to the facts. As it seems to me, if a flow of urine is connected in a chamber and that chamber is emptied, as it was here, into another chamber, the urine which thereafter collects in the first chamber is not the same sample, not the same urine as that which has been drained away. A specimen of that second filling seems to me to constitute a second specimen of urine. In this case, there were in fact three samples, one or two specimens being disregarded before that which was taken for evidential purposes shortly before 6.00 a.m. in the morning. Given that the purpose of the provisions was to ensure that the urine ultimately sent for analysis was a fresh specimen, and properly reflected the bodily condition of the person from whom it was taken, it seems to be entirely consistent with that principle that the statutory words should be interpreted here as the Bench interpreted them, , that there was here more than one specimen.

Next, I am comforted in reaching this conclusion by these considerations. If it were otherwise, then someone who had the misfortune to drain his urine into a catheter, as a number of people do day by day, would never on the appellant’s arguments be able to supply a specimen of urine for analysis, because the courts would be bound to take the view that any specimen taken for analysis had not been taken after the provision of a previous specimen of urine, because it was all part of one and the same flow. This would be a surprising conclusion to draw. There is, therefore, as it seems to me, no vice in the construction which I adopt, which seems to be in accordance with the plain language of the 1998 Act, and which would answer the questions posed by the bench in a way contrary to that suggested by the appellant.

To return, in the light of those observations, to the questions: I would answer the first question yes: the justices were right to conclude that the providing of a specimen for analysis occurred at the point at which the catheter bag was emptied, rather than at the point the urine left the defendant. It seems to me unnecessary to answer either of the other two questions. My conclusion rests upon an application of the statutory words and not upon it is correct or not that a catheter could be regarded as an extension of an appellant’s person. There is an analogy, undoubtedly. I do not think it necessary to go further than that.

The third question is based upon an hypothesis which asks the court to adopt the appellant’s interpretation of when urine is provided, that is when it is excreted. Since I reject that argument for the reasons I have given, the third question does not arise for determination.

It follows, in my judgment, that this appeal, attractively presented though it has been by Mr De La Poer, must be dismissed.

I am in complete agreement with my Lord’s analysis and conclusion and would add only this. It is a matter which my Lord has already touched upon.. Part of Mr De La Poer’s argument before us was that there was a fundamental departure from the proper statutory procedure in the present case because it was the police officer who determined the time at which the specimens were provided, whereas the thrust of the cases is that it must be for the motorist to provide the specimens as and when he chooses. In advancing that submission, Mr De La Poer developed an argument based upon the passage already quoted by my Lord from the decision in Prosser v Dickeson, at page 101, where Phillips J referred to the “full and fair opportunity to give his sample of urine”, identified previously by Lord Widgery CJ. Phillips J went on to say in the passage already quoted by my Lord that the important thing was that the motorist should have that full and fair opportunity to give his sample of urine in what would be, from his point of view, “the most beneficial circumstances".

When pressed, Mr De La Poer submitted that, in the context of a case such as this the “most beneficial circumstances” must mean, or include, being able to wait as long as possible right up until the last moment of the hour in which to provide the evidential specimen, thereby hoping that by that stage the alcohol reading might be lower.

In my judgment, that would not be a proper or permissible approach. The purpose of Parliament providing the statutory hour is, in my judgment, as my Lord has already suggested, that one hour represents a reasonable time within which the average motorist would be able to produce the necessary two specimens. It was not designed to provide an additional opportunity for the motorist to delay until the very last moment the time of provision of the evidential specimen.

In my judgment, Miss Eastwood’s approach in her response on this point was correct, adopting as she did the words of May LJ in the case of Nugent v Ridley in the passage to which my Lord has already made reference. The purpose of Parliament was to ensure that the specimen ultimately sent for analysis is a fresh specimen, which “properly reflects the bodily condition of the person from whom it is taken” and, one might add, at the time it is taken. That, in my judgment, is the proper interpretation and context of the phrase “the most beneficial circumstances” in the case of Prosser v Dickeson.