Law Report: Specimen formula obligatory: Williams v Director of Public Prosecutions and three other appeals - Queen's Bench Divisional Court (Lord Justice Henry and Mr Justice Mitchell), 28 January 1994

Where a constable requires a specimen of blood from a driver under section 7(4) of the Road Traffic Act 1988, he must ask the driver if there are any reasons why a specimen could not or should not be taken from him by a doctor.

The Divisional Court quashed two convictions of failing to provide a specimen when required to do so under the Road Traffic Act 1988 and dismissed two appeals by the DPP against justices' dismissals of informations alleging failures to provide specimens.

Edmund Lawson QC and Timothy Spencer (DPP) for the DPP; Michael Buckpitt (Amory Glass & Co, Wembley); Robert Rhodes QC (Walker Morris, Leeds); Nigel Ley (Byrne Frodsham & Co, Widnes) for the defendants.

LORD JUSTICE HENRY, giving the court's judgment, said that the House of Lords in DPP v Warren (1993) AC 319 was concerned with the construction of sections 7 and 8 of the Road Traffic Act 1988, particularly section 7(3) and (4) and section 8(2).

A driver might be required by a constable to provide a specimen of blood or urine in accordance with section 7(4) either because it is impossible or inappropriate to rely on specimens of breath for one of the reasons specified in section 7(3), namely medical reasons why a breath specimen could not be provided, no reliable device for breath analysis available, or a condition of the driver due to some drug, or because the situation in section 8(2) had arisen, that is the breath specimen with the lower proportion of alcohol contained no more than 50 microgrammes of alcohol in 100 millilitres of breath and the driver claimed it should be replaced.

Those two distinct sets of circumstances were characterised as 'obligatory section 7(4) cases' and 'the driver's option cases'. There was a third situation, when a driver was required by a constable to provide a specimen of blood or urine in accordance with section 7(4) at a time when the driver was at a hospital as a patient in the circumstances identified in section 9.

Section 7(4) must be construed in the same way regardless of whether the reason for resorting to it was to be found in section 7(3) or section 8(2).

However, that did not preclude differences in the procedures which were appropriate to each of the three situations. In Warren the House of Lords identified the procedure appropriate to a section 7(3) situation and section 8(2) situation, although the observations about section 8(2) were obiter.

The constable was required to tell the driver the reason under section 7(3) why breath specimens could not be taken or used. The constable was also required to tell the driver that he was required to give a specimen of blood or urine, but that it was for the constable to decide which; warn him that a failure to provide the specimen required might render him liable to prosecution; and, if the constable required blood, ask the driver if there were any reasons why a specimen could not or should not be taken from him by a doctor.

In Edge v DPP (1993) RTR 146 and Meade v DPP (1993) RTR 151, the drivers' convictions were quashed where the drivers were not given an opportunity to give a reason for not giving blood. The court rejected the DPP's submission that the formula in Pine v Collacott (1985) RTR 282, of asking whether the driver would provide a specimen of blood or urine, was sufficent.

It was abundantly clear that Warren identified the appropriate procedure to be followed both in the obligatory section 7(3) cases and in the section 8(2) driver's option cases.

That view was correctly reflected in Edge and Meade. Given that in Warren the House of Lords had identified the procedures to be followed in those two distinct situations, it must follow that a failure to observe the relevant procedure would be fatal to any proceedings founded either on the results of an analysis or on a refusal to provide a specimen.

In the two obligatory section 7(4) cases before the court, there was a failure to follow the appropriate procedure.

The third case involved a patient at a hospital, who was not told that a specimen of breath could not be taken because, under section 7(2), a specimen could only be made at a police station and the patient was not asked if there were any reasons why a specimen of blood could not or should not be taken from him by a doctor.

In driver's option cases under section 8(2), the Divisional Court in DPP v Winstanley (1993) RTR 222 held that, where a driver had exercised his option and a requirement of blood was then made of him, the fact that thereafter the services of a doctor could not be obtained did not preclude the constable from then requiring a specimen of urine.

However, the driver was unable to provide a specimen of urine and he was prosecuted on the basis of the breath specimen containing the lower proportion of alcohol.

The provision of that breath specimen was untainted by any later breach of 'the driver's option' formula.

A failure to conform with the procedure at the time a specimen of blood was required was immaterial if the requirement for blood was abandoned and the case against the driver was founded on the later provision of urine. In the driver's option case before the court, the appropriate procedure was not followed and therefore the analysis of the driver's blood was inadmissible.

Ying Hui Tan, Barrister.