Practice and Procedure


PUBLISHED June 20, 2003

A certificate that a blood sample had been taken by consent could not be admitted in evidence where the requirement to serve it on the accused seven days prior to the hearing had not been fulfilled.Appeal by way of case stated against the decision of Burton upon Trent Magistrates Court on 6 February 2002 to convict the appellant ('W') of driving a motor vehicle whilst the level of alcohol in her blood exceeded the prescribed limit. Following a positive roadside breath test, W consented to provide breath samples at the police station. However, the intoximeter malfunctioned and a police surgeon took a blood sample, on the prosecution's case by consent. At trial, the prosecution relied on a certificate regarding the blood sample pursuant to s.16(2) Road Traffic Offenders Act 1988. Shortly after the certificate had been handed to the court W objected that it had not been served on her solicitor. On the present appeal W argued that: (i) under s.16(3)(b) of the Act, service of the certificate was required seven days prior to the hearing; (ii) the requirement could not be waived and the prosecution was obliged to strictly prove service; (iii) in circumstances where she had told the court that the certificate had not been served, unless the prosecution had then called evidence to prove service the certificate was inadmissible; and (iv) the mere statement by W that the certificate had not been served should have been sufficient for the court to refuse to admit evidence of it.HELD: (1) If a certificate had not been served at least seven days before the hearing there was a bar to its reception. (2) That requirement could not be waived (Tobi v Nicholas (1998) RTR 344 considered) but the requirement that service be strictly proved could (Lewis v Director of Public Prosecutions (1998) RTR 344 considered). (3) In the present case the Court was unable to discern any conduct that could give rise to a waiver. The short period between the certificate being handed to the court and the objection to it was not sufficient to constitute a waiver. (4) Further, B had had no prior opportunity to object to the certificate being put in evidence as the certificate had not in fact been served; and (5) in circumstances where there was no other evidence to prove that the blood sample had been taken by consent the conviction could not stand.Appeal allowed