Case No: CO/14296/2009
Neutral Citation Number: [2010] EWHC 883 (Admin)
IN THE HIGH COURT OF JUSTICE
LEEDS ADMINISTRATIVE COURT

Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date:  Tuesday 23rd March 2010

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR ANTHONY MAY)
and
MR JUSTICE LANGSTAFF:

- - - - - - - - - - - - - - - - - - - - -

Between:

	Angel	
Claimant	
	- and -		
	
Chief Constable of South Yorkshire	

Defendant	

- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr M Stanbury appeared on behalf of the Claimant.
Mr I Goldsack appeared on behalf of the Defendant.

- - - - - - - - - - - - - - - - - - - - -
Judgment
THE PRESIDENT (LORD JUSTICE MAY):

1.	In this case the appellant, Dominic Angel, being suspected by a police constable in the early hours of 12 March 2009 of driving a motor vehicle while he was under the influence of drugs, refused to give a specimen of his blood for laboratory analysis.  He was charged with failing, without reasonable excuse, to do so, and convicted by the South Yorkshire Justices of an offence under Section 76 of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.  

2.	He appeals against this conviction by case stated by the justices.  The main ground of appeal is that the necessary advice of the medical practitioner under Section 73(c) of the 1988 Act was given on a legally incorrect basis.  

3.	The facts found by the justices are, in summary, as follows.  On 12 March 2009 at 00.35 hours, Police Constable John Seaman stopped the appellant's vehicle on Beaumont Road, North Sheffield, as the officer was concerned that the vehicle was being driven at an excessively slow speed. Upon speaking through the vehicle window with the appellant, who was sat in the driver's seat, PC Seaman detected a strong smell of cannabis coming from within the vehicle.  Upon being asked by PC Seaman how much cannabis he had had that night, the appellant replied "only a bit, not much".  At 00.47 hours PC Paul Haigh carried out a roadside preliminary impairment test with the appellant and concluded that the appellant was impaired through some form of intoxicant and was therefore not fit to drive.  The appellant was arrested and taken to Bridge Street charge office, where the drink drive procedure was carried out using the Lyon Intoxilyzer testing device.  The appellant complied with the procedure and both readings taken were noted.  

4.	Shortly thereafter, PC Steven Askham commenced the MGGD/B procedure in the presence of the appellant and police surgeon Dr Katherine Close.  The police surgeon was told by the police officers in the case what had happened at the scene, including the result of the preliminary impairment test.

5.	The police surgeon in her witness statement said that, as she could find no medical reason for his previous impairment, she informed the police officer that his condition might be due to drugs.  She was therefore addressing his earlier condition and not his condition at the police station, which was some two hours after the police officers had stopped him driving on the road.

6.	Section 4 of the 1998 Act provides that a person is guilty of an offence if he drives, or attempts to drive, a motor vehicle on a road or other public place when he is unfit to drive through drink or drugs.  Section 6(b) provides for preliminary impairment tests.  Section 7 provides the circumstances in which a constable may require a person to provide specimens of breath for analysis or a specimen of blood or urine for a laboratory test.  Section 73 provides that a specimen of blood or urine can only be required at a police station or a hospital and that it cannot be made at a police station unless one of the preconditions is fulfilled.  The third of these is Section 3(c) and is that: 

"(c) The suspected offence is one under section 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;"

7.	The short point of this appeal is whether the medical practitioner's advice should address only the condition of the person as it appears at the police station or whether he or she can also address his condition at the time of the offence under investigation as related to the doctor by police officers. Procedure forms MG/DD, provided to police officers, adopt the second of these in Section B22 in noting that, in deciding whether the person has a condition which might be due to drink or some drug, the doctor is entitled, it is said, to take into account relevant information concerning earlier events, such as an admission by the defendant that he smoked cannabis shortly before being stopped.

8.	The justices decided that the police surgeon was entitled to have regard to earlier reported facts and events. They expressed their decision as follows: 

"We were of the opinion that:

a) The purpose of the statute in directing a requirement for a medical examination of the Appellant prior a request for blood or urine is to ascertain whether there is any medical condition which would explain the Appellant's behaviour at the time when he was arrested. 

b) The Police Surgeon made an assessment of the Appellant's general condition as he presented himself before her and found no medical issues at that point in time.  

c) The Police Surgeon was aware of the results of the Preliminary Impairment test and whilst the Appellant may not have exhibited the same behaviour at the time of the medical examination, she was entitled to form the opinion that the Appellant's failure on the Preliminary Impairment Test might be due to some drug. 

d) The form MG DD/B was correctly followed in this case."

9.	The appellant contends that this was wrong. He relies on Cole v The Director of Public Prosecutions [1988] RTR 224, a Divisional Court decision under Section 83(c) of the Road Traffic Act 1972, the statutory predecessor of the present Section 73(c).  In that case, the appellant was seen by a doctor who concluded that his condition was either due to drugs or epilepsy, but the doctor did not communicate this view to the police.  Watkins LJ said this at page 230 of the report: 

"At no time after the doctor came to the police station, either on the first or the second occasion according to the evidence before the justices, did the doctor say a single word to the constable as to his view that the condition of the defendant on either occasion was either due to drugs or was due to epilepsy.  When Section 83(c) was enacted, I have not the slightest doubt that Parliament intended that there should be a clear indication from a doctor to a police officer at a police station, in circumstances such as this, of the doctor's view as to the possible cause of a defendant's condition as found by him at the police station. By a ‘clear indication’ I mean a clear oral statement by the doctor to the police officer of his opinion.  Here obviously there was none."

10.	On one reading this gives some superficial support to the appellant's contention, although Watkins LJ's phraseology is such that it is not crystal clear that he was referring only to the applellant's condition at the police station, rather than the place at which the medical practitioner had formed her view of the possible cause of the condition.  

11.	More significantly, the issue which arises in the present appeal did not arise for decision in Cole.  Mr Stanbury submits that the medical practitioner is only concerned with the suspected person's condition at the time of the examination and that the police procedural advice is both wrong and irrelevant.  He submits that the statutory provision in Section 73(c) of the 1988 Act was enacted, in essentially its present form, in earlier legislation and before the present Section 6(b) came along.  No complementary amendment was made to Section 73(c).  It is suggested that the police wrongly now assume that the purpose of Section 73(c) is to rule out the possibility of a medical explanation rather than to rule in the possibility of drug misuse.  In my view, the purpose is plainly the latter, but that does not dictate or indicate the resolution of the issue in this appeal.  The purpose of the medical advice is to provide a protection against the invasive requirement of a blood test when there is a clear medical explanation of the person's condition which excludes the influence of drugs.

12.	Mr Staples, in a written submission, and now Mr Goldsack, is, in my judgment, plainly correct that the condition referred to in Section 73(c) of the 1988 Act is the person's condition at the time he was driving.  It is that for which he has been arrested and is under investigation and it is to that condition that the specimen of blood will be relevant.  Insofar as it might be different, his condition later at the police station is not that to which the investigation is directed.  Mr Goldsack has referred us to Section 15 of the Road Traffic Offenders Act 1988 for the statutory assumption that the proportion of alcohol or drugs in a blood or urine test was at least that at the time of driving, and says that this indicates that what is relevant is the condition at the time of driving.

13.	It is common sense, therefore, that the doctor is entitled to take into account all relevant information relating to the person's earlier condition.  In some cases, of course, the person's condition at the police station may alone be sufficient to enable the doctor to give the necessary advice, but the doctor is not limited to the finding of his or her own police station examination.  In my judgment, the requiring of the blood specimen in this case was lawful.  I would answer the justices' formal questions as follows: 1) the issue to be addressed by the medical practitioner under Section 73(c) is the suspect's condition at the time of the alleged offence; 2) MG DD/B 22 is not a guide to statutory interpretation but what it says is relevantly correct; 3) the justices were correct to find that the appellant had been lawfully required to provide a specimen of blood.  

14.	For these reasons, I would dismiss this appeal.

MR JUSTICE LANGSTAFF:  

15.	I agree.

MR GOLDSACK:  My Lords, for my part, I seek an order for detailed assessment of the claimant's costs as publicly funded.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  For public funding purposes?
MR GOLDSACK:  Yes.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes, well you can have that.
MR GOLDSACK:  I am obliged.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Thank you very much.
MR STANBURY:  There is, on the face of my papers, a request that I ask for costs, but I am afraid that I have no details of what they may be.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Are you asking for those costs to be ordered or not?
MR STANBURY:  I would ask for that, but they will need to be assessed.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Is that a proportionate thing to do in the circumstances?  Will we have power to assess them summarily or not?  Perhaps not.
MR STANBURY:  I am not sure that your Lordships would.
MR JUSTICE LANGSTAFF:  As I understand it, no, pursuant to Section 11 of the Access to Justice Act, the ...
PRESIDENT OF THE QUEEN'S BENCH DIVISION::  No, that's right ...
MR STANBURY:  The claimant ... the appellant endures some protection.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Well, are you asking for such an order?
MR STANBURY:  My instructions are to ask for one, yes.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes, what do you say to that?
MR STANBURY:  Simply that it be not enforced without leave of the court.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Well, it's an order in relation to the Legal Services Commission anyway, isn’t it?
MR STANBURY:  It is.
PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Yes. OK, we will make the appropriate ... we will make the appropriate order under Section 11.
MR STANBURY:  Thank you.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you very much, we are very grateful.