CO/3318/2004 
Neutral Citation Number: [2004] EWHC 2635 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 29th October 2004
 
B E F O R E:

MR JUSTICE FORBES
 
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THE QUEEN ON THE APPLICATION OF IJAZ
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR K MOLLOY (instructed by Messrs Gordon Young & Co) appeared on behalf of the CLAIMANT
MR A MALIK (instructed by the Crown Prosecution Service) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	MR JUSTICE FORBES:  This is an appeal by way of case stated ("the Case") from the decision of the Luton Magistrates sitting at Luton Magistrates' Court on 19th April 2004, whereby they convicted this appellant of the offence of driving over the prescribed alcohol limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule Two of the Road Traffic Offenders' Act, in that a sample of his breath exceeded the prescribed limit.  In this particular case, the lower proportion of alcohol in the two specimens of breath provided by the appellant was 49 micrograms of alcohol in 100 millilitres of breath.  
2.	As a result of the statutory procedures followed in this case, the appellant was given the option provided by section 8(2) of the Act which, so far as material, provides as follows:
"(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.	Section 7(4) of the Act provides as follows:
"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 [and, in the case of a specimen of blood, the question who it is to be asked to take it shall be decided (subject to subsection (4A)) by the constable making the requirement]."
4.	Section 7(4A) of the Act reads as follows:
"Where a constable decides for the purposes of subsection (4) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if -- 
"(a) the medical practitioner who is asked to take the specimen is of the opinion that for medical reasons, it cannot or should not be taken; or
"(b) the registered health care professional who is asked to take it is of that opinion and there is no contrary opinion from a medical practitioner; 
"and, where by virtue of this subsection there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead."
5.	The question posed by the Case stated is as follows:
"When is the procedure pursuant to section 7(3) and 8(2) of the Road Traffic Act 1988, where a specimen of blood or urine was to be provided by a driver suspected of driving under the influence of drink or drugs, completed?"
6.	It is necessary to refer to the facts of this matter, as set out in paragraphs 4 to 16 inclusive of the Case: 
"The Facts
"4.  The court heard oral evidence from two Police Officers, PC 649 Dunn and PC 5294 Watkins.  
"PC Dunn 
"5.  PC Dunn gave evidence that he was on duty Patrolling Luton Town centre on the 20th July 2003.  At 03.00am hours he had cause to stop a Black Toyota Yaris Motor vehicle registration Y998RCT.  The driver was the appellant Mr Ijaz, the officer stated at this point he noticed the appellant's eyes were red and his breath smelt of intoxicating liquor. 
"6.  PC Dunn requested that the appellant take a breath test.  A breath machine was called for.  The appellant provided a specimen of breath and the machine light went to red indicating he was over the prescribed alcohol limit.  At 03.25am PC Dunn arrested the appellant and conveyed him to Luton Police station.  PC Dunn suggested that the appellant's demeanour was jittery and very uneasy.  
"7.  The defence did not Cross-examine PC Dunn.  
"PC Watkins
"8.  The court heard evidence from PC Watkins that when dealing with the appellant she was alone in the room where the Lion Intoxilyzer 6000 UK is positioned at Luton Police station, save for PC Dunn who was occasionally present.  
"9.  PC Watkins indicated that she asked the appellant to sit down and went through his identity to ensure that she had the correct person.  The court also heard that PC Watkins read everything in Italics on the computer screen to the appellant, to which the officer noted his reply was no to all questions put to him.  The officer informed the court that the lists of questions were put to the appellant at 03.58am.  
"10.  PC Watkins then required the appellant to provide two specimens of breath for analysis.  The appellant provided two samples.  The first was provided at 4.07am and the second sample a minute later.  
"11.  The court heard evidence that because one of the appellant's samples fell below 50 micrograms in millilitres of breath, the computer automatically defaulted to a paragraph which gave the appellant the option to provide a specimen of blood or urine.  PC Watkins informed the court that this had been read out in its entirety to the appellant, as the machine would not have allowed her to proceed if this had not been read.  
"12.  PC Watkins informed the court, at this point when given the option the appellant declined to give a blood or urine sample.  
"13.  PC Watkins then stated that because the appellant had declined the option of blood or urine, after entering his refusal to give a sample, the machine automatically concluded the proceedings and produced reports.  The procedure was completed at 04.11am hours.  
"14.  PC Watkins informed the court that at this point, once the procedure was deemed completed by the computer and it was printing the reports the appellant stated he had not wanted to give a blood sample as he had a phobia of needles.  
"15.  PC Watkins gave evidence that Ijaz indicated his phobia of needles some two to three minutes after the procedure was deemed completed, and upon hearing this PC Watkins consulted the custody sergeant who stated that the option of Blood and Urine had been properly given and declined, and thereby a Medical Practitioner was not needed. 
"PC Watkins accepted during cross examination that the issue of phobia of needles would not have raised a medical reason for not providing blood.  
"16.  The defendant exercised his right NOT to give evidence."
7.	It is also necessary to turn to the Justices' reasons for coming to the conclusions that they did.  These are set out in paragraphs 21 and 22 of the Case, as follows:
8.	"Justices' Reasoning 
"21.  We feel that PC Watkins properly completed the procedure.  The option of an alternative sample was properly offered, the officer clearly asked Mr Ijaz (the appellant) for his decision and recorded his answer as No, by typing this into the machine.  
"22.  We therefore find that we are entitled to rely upon the breath specimen offered which was over the prescribed limit, and therefore find Mr Ijaz (the appellant) guilty of driving over the prescribed limit."
9.	On behalf of the appellant, Mr Molloy submitted that the option procedure had not been completed at the time the officer finished entering the information into the computer.  His submission was that, although the appellant had said "No" initially, his thought processes were obviously still continuing, because a very short time later he indicated his reasons for not wanting to give a blood sample.  Mr Molloy submitted that in such circumstances the human element is very important.  He contended that the officer should have allowed a period of time to elapse before entering the appellant's answer into the computer, so as to ensure that the person subject to the procedure (ie the appellant) had made up his mind completely, and that his answer "No" had therefore been a wholly unequivocal one.  
10.	In support of that general submission, Mr Molloy referred to the decision of this court, differently constituted, in the case of Smith v Director of Public Prosecutions [1989] Road Traffic Reports 159, and in particular a passage from the judgment of Schiemann J (as he then was) at page 164, where he said this:
"There may be problems in situations where the man cannot make up his mind for a little while, or where perhaps he wants first to consult somebody else, but in substance it is up to the justices to decide (in the last analysis), and the police officer to decide (in the first analysis), without the justices being bound by the police officer's preliminary view, as to whether or not the defendant has made a claim that his breath specimen should be substituted by another specimen."
11.	Mr Molloy submitted that, in the circumstances of this case, if PC Watkins had given the appellant a short period of time in which to reflect upon his answer, he would have raised the medical issue with regard to his phobia of needles and that would then have triggered the medical procedure for determining whether the appellant should be given the option of providing a urine specimen.
12.	On behalf of the respondents, Mr Malik submitted that the proper question in this case, and the sole issue with which this court is concerned, is in respect of section 8(2) of the Act.  He therefore posed his preferred form of question in the following terms:
"If the 'driver's option', the replacing of a breath specimen with that of blood or urine, as provided by section 8(2) of the Act, has been given to the driver, when can it properly be said that the driver has exercised the option and elected not to take the 'replacement' option which has been extended to him."
13.	Although I can understand the reasons for Mr Malik's preferred form of question, I am satisfied (in the event) that this appeal can be satisfactorily disposed of by reference to the question posed in the Case.  
14.	Mr Malik submitted that, on the facts, the appellant had been given the option to replace the 49 micrograms breath specimen by a specimen for a laboratory test.  That much is undoubtedly clear from the facts as found by the Justices on the evidence that they heard.  Mr Malik submitted that the appellant had been given the option to replace his breath specimen in terms that were comprehensible and that made it perfectly clear that the option to replace the earlier breath sample with a blood or urine sample was being offered.  It was Mr Malik's submission that it was apparent from the facts as found that the appellant had considered the option and had given the answer "No".  Mr Malik submitted (correctly in my view) that the answer was unequivocal.  As a result, the officer typed the answer into the computer and the computer then proceeded to produce the necessary forms to complete the procedure at 4.11 am.
15.	In my view, Mr Malik's submissions are correct.  Indeed, it is difficult to see how one can come to any other conclusion on the facts as found by the Justices in this case.  As Mr Malik pointed out, the Justices did not find that the appellant immediately changed his mind after giving the answer "No" and then attempted to exercise the option to replace the breath sample.  In fact, all the appellant did was to say that he had not wanted to give blood because he had a phobia of needles.  That was a partial explanation for his refusal to exercise the option when it was offered to him and he gave that explanation some two to three minutes after the procedure had been completed by the officer.  I accept Mr Malik's further submission that the statement made by the appellant to the effect that he had a phobia of needles was not, in any event, a purported exercise of the statutory option.  
16.	In my judgment, this case is clearly one in which the appellant had given an unequivocal answer "No" when given the option to replace the breath sample with either a blood or urine sample.  This is not a case of the type considered by Schiemann J in Smith, of a man who could not make up his mind for a little while.  This defendant did make up his mind.  He gave the answer "No".  A relatively short time later he said words which, in effect, gave a partial explanation for his earlier decision not to exercise the option.
17.	In my view, there is no merit in the arguments put forward on behalf of this appellant.  I would answer the question posed in the case in the affirmative, and for those reasons I dismiss this appeal.
18.	MR MALIK:  May I just deal with two things, my Lord.  The first matter is that my Lord referred to the judgment of Watkins LJ.  In fact it was Schiemann J, as he then was.
19.	MR JUSTICE FORBES:  I am sorry.  Is it not the case of Drury?  I beg your pardon.  It is Smith, is it? 
20.	MR MALIK:  Indeed and it is Schiemann J, as he was then.
21.	MR JUSTICE FORBES:  I am sorry, I was misled by the way it has been photocopied.  Thank you, Mr Malik.
22.	MR MALIK:  May I deal with a second matter, which is this, my Lord.  I am instructed to make an application for costs, or a contribution towards costs, from the appellants in respect of this particular appeal.
23.	MR JUSTICE FORBES:  What do you say about that, Mr Molloy?  In my view, it was a hopeless appeal, although you have said everything that could be said.
24.	MR MOLLOY:  Your Lordship, it was a matter that he was granted legal aid for, and I would respectfully submit that it was an area which required clarification.
25.	MR JUSTICE FORBES:  Did you say he was legally aided for this appeal? 
26.	MR MOLLOY:  Yes, he was granted legal aid by this court.  I have the certificate here.  So it was valid, in my respectful submission.
27.	MR JUSTICE FORBES:  Has he had to make a contribution before at all?
28.	MR MOLLOY:  In relation to the costs originally for the original trial, he was fined and had to make a contribution to costs, which he paid off.  Your Lordship, I think, given the fact that he is on state benefits and this was a legal point which was properly appealed, in my respectful submission, he should not be penalised, given his circumstances.
29.	MR JUSTICE FORBES:  This was a hopeless case, Mr Molloy.  I know you said everything you possibly could say, and you did it, if I may say so, with great charm and courtesy.  But it really was --  anyway.  Your short point is that he is on benefits and he was legally aided for the purposes of the appeal? 
30.	MR MOLLOY:  Indeed.
31.	MR JUSTICE FORBES:  Mr Malik, if I were to make an order, but not to be enforced without leave of the court, would there be anything you would want to say about that?  
32.	MR MALIK:  No, my Lord.
33.	MR JUSTICE FORBES:  The Associate informs me that there is no certificate on the file, by the way, so you will have to lodge that if you would not mind.
34.	MR MOLLOY:  If your Lordship is asking for --  
35.	MR JUSTICE FORBES:  I am minded to make an order for a fixed sum of money by way of a contribution to costs of, say, £500, but such order not to be enforced without leave of the court.  Is there anything you want to say about that? 
36.	MR MOLLOY:  No.
37.	MR JUSTICE FORBES:  Very well.  The appeal is dismissed.  The appellant is to pay the sum of £500 towards the respondent's costs of this appeal, such order not to be enforced without the leave of the court.
38.	MR MALIK:  I am grateful, my Lord.
39.	MR JUSTICE FORBES:  Anything else?  Thank you both very much.