Practice and Procedure


PUBLISHED February 28, 2003

There was no statutory or common law requirement for a person accused of drink driving to be told of his right to be given a part of the blood specimen that had been taken from him.Appeal by way of case stated against the decision of Southport Magistrates' Court on 27 March 2002 to convict the appellant ('C') of driving a motor vehicle whilst the level of alcohol in his blood exceeded the prescribed limit contrary to s.5(1)(a) Road Traffic Act 1988. C had been arrested and taken to a police station following his failure to provide an adequate specimen of breath. He was informed that a blood specimen would be taken and at 1.21 am was told of his right to be given a part of the specimen by virtue of s.15(5) of the 1988 Act. The blood was taken at 2.02 am on the same day. The magistrates convicted C but stated a case as to whether, on the evidence, it had been open to them so to do. On the present appeal, however, C raised matters of fact and law that had not been previously raised and which were not within the case stated. C contended: (i) in reliance on Price (1964) 2 QB 76 and Mitten (1966) 1 QB 10, that the magistrates should have asked whether, given a gap of more than 40 minutes between being informed of his right to a part of the sample and the sample being taken, C's knowledge of his right to part of the sample was still operative on his mind at the time the sample was taken; and (ii) that C had a common law right to be informed of his right to be given part of the sample.HELD: (1) C should not and could not be permitted to raise matters of fact and law that had not been previously raised and were not in the case stated, but the court would nonetheless consider the merits of the case advanced. (2) Mitten (supra) concerned the requirement for a part of a specimen to be offered to an accused where his consent had been sought to the taking of a sample under s.2(5) Road Traffic Act 1962. The court there held that any breach of that requirement did not render such evidence inadmissible but gave a discretion to admit the specimen subject to a discretion to exclude it on the grounds of prejudice. (3) Under s.2(4) of the 1962 Act a specimen had not been admissible unless it was one of two specimens taken at the same time or a single sample split into two and the accused had been given either one of the specimens or a part of the single specimen. There was, however, no equivalent section in the 1988 Act and therefore no statutory right for an accused to be informed of his right to a part of a such a specimen. (4) Equally, there was no common law right to such information although there might be circumstances where an accused wished to challenge the admissibility of a sample and had suffered prejudice as a result of a failure to tell him of his right to a part of the specimen.Appeal dismissed.