Neutral Citation no. [2001] NICA 27	Ref:     	MCCF3429	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	19.06.2001	
(subject to editorial corrections)	 	 	

 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
 _______ 
 
BETWEEN:
 
CHIEF INSPECTOR McCLENAGHAN
 
Complainant/Appellant;
 
-and-
 
JOHN ANTHONY McKENNA
 
Defendant/Respondent.
 
 ________ 
 
McCOLLUM LJ
 
	This is an appeal by way of case stated from a decision of Mr John Fyffe, Resident Magistrate sitting at Antrim on 31 May 2000.
	The respondent was charged with two offences: 
(a)        Driving a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit contrary to Article 16(1)(a) of the Road Traffic (Northern Ireland) Order 1995, (“the 1995 Order”);
(b)       Driving a mechanically propelled vehicle on a road or other public place when unfit to drive through drink or drugs contrary to Article 15(1) of the 1995 Order.      
The respondent was the driver of a motor car which was involved in a road traffic accident at about 1.30 am on 15 July 1999 on Nutts Corner Road near its junction with the Radox Road in the Petty Sessions District of Antrim.
	Constable Kerr, a police officer on duty, arrived at the scene of the accident at about 1.40 am and found the respondent unconscious and, due to the smell of intoxicating liquor, he believed the defendant had been driving after consuming alcohol.  He accompanied the respondent in an ambulance from the scene of the accident to Antrim Area Hospital, Accident and Emergency Unit.
	Some time after arrival in hospital the respondent recovered consciousness and at 4.30 am Constable Kerr commenced the standard procedure for obtaining specimens of blood or urine for a laboratory test where the person suspected is at a hospital as a patient.  
	The respondent was under the care of Dr Murnaghan who did not object to the provision of a specimen of blood or urine by the respondent.
	Constable Kerr addressed the respondent as follows.  
“Dr Mark Murnaghan who is in immediate charge of your case has no objection to me requiring you to provide a specimen of blood or urine for laboratory tests.  I therefore require you to provide me with a specimen of blood or urine which in the case of blood will be taken by a medical practitioner.  It is for me to decide which it will be unless the medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken, in which case it will be of urine.  If I decide a specimen shall be of blood your only right to object and give urine instead will be for medical reasons.  You will be supplied with part of the specimen if you so require.  The other part will be sent to a forensic laboratory for analysis.  I warn you that failure to provide a specimen will render you liable to prosecution.  Are there any reasons why a specimen of blood cannot or should not be taken by a medical practitioner?”
 
	The answer to the question in the last sentence was recorded as “No”.
	A forensic medical officer, Dr Kapur arrived at the hospital and found the respondent fully conscious on a hospital trolley.  He had neck injuries but was able to answer questions clearly.  The doctor noted the presence of cannulae in both the defendant’s arms at the elbows, through which fluid was being fed.
	Dr Kapur spoke to the respondent and was of opinion that there was no medical reason why a specimen could not or should not be given by the respondent.
	At 5.05 am Constable Kerr requested the consent of the respondent to the provision of a specimen of blood and he did consent.
	Because of the presence of the cannulae in the fore part of each elbow Dr Kapur elected to take a specimen of blood intravenously from the back of the defendant’s left hand, but could only obtain a very small specimen which could not be divided into two parts.  To supplement the specimen, Dr Kapur requested the respondent to permit him to take a further specimen from a vein in the back of the defendant’s right hand.  The defendant refused.  The specimen obtained from the respondent’s left hand was of insufficient quantity to be capable of division and it was sealed and labelled by Dr Kapur and handed to Constable Kerr.
	No part of the specimen was offered by either Dr Kapur or Constable Kerr to the respondent.
	A specimen was transported to the Forensic Science Agency of Northern Ireland for analysis.
	At the conclusion of the prosecution case the Resident Magistrate refused to admit the certificate of analysis of the specimen on the grounds that it had not been obtained in accordance with the statutory requirements of Article 18(5) of the Road Traffic Offenders (Northern Ireland) Order 1996 (the “1996 Order”).
	That such paragraph provides as follows:
“5.       Where, at the time a specimen of blood or urine was provided by the accused, he asked to be provided with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the prosecution unless -
 
(a)        The specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the accused was divided at the time it was provided, and
 
(b)       The other part was supplied to the accused.”
 
	The Resident Magistrate took the view that Article 18(5) of the 1966 Order presupposes that the specimen should be of sufficient adequacy to be capable of division should the defendant request a part of the sample and whilst both Dr Kapur and Constable Kerr gave evidence that the respondent was not offered a part of the specimen neither gave evidence that he did not request a part of the specimen.
	He therefore refused to admit the specimen and dismissed both summonses against the respondent in the absence of any other evidence of his condition.
	The resident magistrate posed the following question for the opinion of this court “Whether I was correct in law to exclude evidence of the result of an analysis of the portion of alcohol in a specimen of blood provided by the defendant/respondent on the grounds that he was not offered a part of the specimen, notwithstanding that he had not asked to be provided with such a specimen”.
	He also put a further question “Was I right in law in holding that to comply with the requirements of Section 18(5) of the Road Traffic Offenders (Northern Ireland) Order 1996, the specimen obtained from the defendant must be of sufficient adequacy as to be capable of division in two parts.”
	It appears from the first question that the resident magistrate took the view that on the evidence he was entitled to hold that the respondent had not asked to be provided with a specimen.
	In our view this is correct because no evidence whatever had been given, nor, apparently had any suggestion been made in cross-examination, that a sample had been requested by him.
	While Mr Valentine on behalf of the appellant had prepared a comprehensive skeleton argument his submissions, with the approval of the court, were brief.
	He submitted that the provisions of Article 18 are clear and unequivocal.
	The paragraph therefore only takes effect if the defendant asks for a sample at the time when the specimen of blood or urine is provided.
	In the present case there is no finding to that effect and no material to suggest that the respondent did so ask and therefore the provisions of Article 18(5) of the 1996 Order do not apply to the case.
	Mr Larkin on behalf of the respondent strove persuasively to uphold the learned magistrate’s decision.
	He argued that the statutory right provided by Article 18(5) of the 1996 Order is rendered nugatory if the person is not asked at the time of providing the specimen if he wishes to invoke that right, or is actually offered a specimen at that stage.
	He criticised the procedure used by the police in that it contains no provision requiring the police (1) to ascertain whether the suspected person wishes to invoke his right under Article 18(5) or (2) to provide for a positive offer of part of the specimen.
	He argued that since the question of a request by the respondent for a specimen was a live issue in the case the burden therefore lay on the appellant to establish that the request was not made.
	However we find ourselves unable to accept the submissions made on behalf of the respondent.
	It appears to us that the wording of the Article is clear and that it requires a request by the accused in order to create the requirement to provide him with part of the specimen.
	In the instant case there was some difficulty in obtaining a sufficiently large specimen to be divided into two parts and it appears to us that that circumstance illustrates one aspect of the purpose of the article.
	If a suspected person does not require part of the sample then the minimum amount of blood can be extracted.
	If he does require part of the sample then a sufficient quantity should be obtained to enable that to be provided.
	The suspect’s attitude therefore determines the quantity of blood required to be obtained.
	We have not heard any measurements of what quantity would constitute a minimum amount of blood to provide a single sample or how much would be required to have a sample sufficiently large to be divided.
	However that is an academic question since in our view it is clear that Article 18(5) only applies where a request is made at the appropriate time by the accused.
	The intention of Parliament is clear on the question of whether an offer of part of the specimen should be made to the suspect, since such an offer was required under the terms of Article 143(5) of the Road Traffic (Northern Ireland) Order 1981 which provided as follows:
“(5)      Where any person has been requested to consent to the taking of, or to provide a specimen of blood or urine for analysis, the person taking the specimen shall offer to supply to the first-mentioned person in a suitable container, part of the specimen or, in the case of a specimen of blood which it is not practicable to divide, another specimen which he may consent to have taken.”
 
	However Article 143 was repealed by the Road Traffic (Northern Ireland) Order 1995 and no similar provision has been re-enacted.
	This effectively disposes of both questions put by the learned Resident Magistrate on the facts of this case.
	We are further satisfied that the rendering inadmissible of evidence of the proportion of alcohol found in the specimen falls within the definition of “any exception, exemption, proviso, excuse or qualification” the burden of proving which is on the defendant under the terms of the Magistrates’ Courts (Northern Ireland) Order 1981 Article 124(1).
	Had it been necessary to decide this matter we would therefore have held that the burden of proving a request for a specimen at the time the specimen was provided lay on the respondent and not on the appellant.
	Mr Larkin also relied on the right of the respondent to a fair trial under Article 6 of the European Convention of Human Rights.  Although this issue is not directly raised by the case stated we considered that we must have regard to it.
	The right to obtain a sample is created by the statute and it is therefore essential to a fair trial that the accused should be fully aware of his right and facilitated in its exercise.
	He submitted that the form of requisition to provide a blood or urine specimen set out in the procedure for obtaining a sample is defective in that it uses a different expression from that used in Article 18(5) of the 1996 Order.
	The former uses the expression “you will be supplied with part of the specimen if you so require” whereas the article provides that the form in which the request is to be made is that the suspect should have “asked to be provided with a specimen”.
	He further submitted that at the time of providing the specimen the accused should not only be further reminded but he should also be invited to invoke his right under Article 18(5).
	He also argued that the respondent had the right to legal assistance at the time of providing the specimen on the basis that the possible consequences of a request for a specimen and refusal thereof could be information of value to the suspect, since if part of the specimen were not provided analysis of the specimen would not be admissible in evidence.
	Mr Larkin submitted that since the proceedings to detect alcohol related driving offences are technical and complex a suspect is entitled to consult with his solicitor to decide his response to the various requirements put to him by the police.
	However in our view this could lead to unreasonable delay since there could well be difficulty in obtaining the attendance of a solicitor, particularly since such offences are often investigated late at night and a prompt recording of alcohol content is desirable in the interests of both prosecution and defence.
	We do not accept that the procedures require expert legal advice to determine the attitude which a suspect should adopt.
	There is no doubt that a suspected drunken driver may find himself in a dilemma when asked to provide a sample.  If he refuses to do so he is guilty of an offence which carries penalties commensurate with that for the substantive offence.  If he provides a sample it may show a state of gross intoxication which may enhance the penalty.
	However this is a decision that a suspect is himself in the best position to make since he should know, according to the amount of alcohol which he has consumed, whether providing a sample may show at worst that the level is not greatly over the legal limit or may show it to be below the limit.
	A sample in the possession of the suspect only becomes of value to him if an independent analysis thereof throws doubt on the accuracy of the analysis of the part retained by the police.
	The offence of driving after consuming an excessive amount of alcohol is a serious one and is a matter of great concern to the public as well as to the authorities.
	One objective way of assessing the quantity of alcohol consumed is to analyse a specimen of blood which requires the co-operation of the suspect to provide what may prove to be evidence against him.
	However it is widely recognised that such a procedure is reasonable and is necessary for the protection of the public.
	In our view the decision whether or not to request a part of the sample does not require legal advice provided that the suspect has been made aware of his right to do so and it is sufficient if a suspect is informed of that right in the way laid down by the procedures used in this case.  We are satisfied that once that procedure has been properly followed a suspect does not require any further advice of a legal nature.  We are satisfied therefore that there has been no breach of the appellants human rights and that Article 18(5) of the 1996 Order has no application to the case.
	We answer the first question posed by the Resident Magistrate ‘No’.
	We amend the second question by the addition of a further phrase at its conclusion so that it now reads “Was I right in law in holding that to comply with the requirements of Section 18(5) of the Road Traffic Offenders (Northern Ireland) Order 1996, the specimen obtained from the defendant must be of sufficient adequacy as to be capable of division in two parts, when at the time of providing the specimen the defendant has not asked to be provided with a specimen?”.  We also answer this question ‘No’.
	Accordingly we allow the appeal and remit the case to the Resident Magistrate with a direction that he admits the evidence of the result of the analysis of the proportion of alcohol found in the specimen provided by the respondent to Dr Kapur at 5.05 am on 15 July 1999 and proceeds to a determination of the case according to law.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
 _______ 
 
APPEAL BY WAY OF CASE STATED
 
MAGISTRATES’ COURT NORTHERN IRELAND ORDER 1981
ARTICLE 146
 
 ________
 
BETWEEN:
           
CHIEF INSPECTOR McCLENAGHAN
 
Complainant/Appellant;
 
-and-
 
JOHN ANTHONY McKENNA
 
Defendant/Respondent.
 
 ________ 
 
J U D G M E N T
O F
McCOLLUM LJ
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