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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Townson v Director of Public Prosecutions [2006] EWHC 2007 (Admin) (13 June 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2007.html Cite as: [2006] EWHC 2007 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2 |
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B e f o r e :
MR JUSTICE MITTING
____________________
KENNETH TOWNSON | (CLAIMANT) | |
-v- | ||
DIRECTOR OF PUBLIC PROSECUTIONS | (DEFENDANT) |
____________________
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)
MR M LEWIS-JONES (instructed by CPS) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
"Were the reasons given by the appellant for refusing to supply a specimen of blood capable of being medical reasons for not providing such a specimen?"
"In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him—
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test."
"(4) 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 is to be asked to take it, shall be decided (subject to sub-section (4A)) by the constable making the requirement.
(4A) Where a constable decides for the purposes of sub-section (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 paragraph there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead."
"(1A) While a person is at a hospital as a patient, no specimen of blood shall be taken from him under section 7A of this Act and he shall not be required to give his permission for a laboratory test of a specimen taken under that section unless the medical practitioner in immediate charge of his case-
(a) has been notified of the proposal to take the specimen or to make the requirement; and
(b) has not objected on the ground specified in subsection (2)."
"The ground on which the medical practitioner may object is-
(a) ...
(b) in a case falling within subsection (1A), that the taking of the specimen, the requirement or the warning required by section 7A(5) of this Act would be so prejudicial."
"It was evidently thought that a layman is capable of deciding whether a suspect is able to blow into a machine, so the decision is left to the judgment of the police officer. Where blood is concerned the matter is treated differently. The taking of a sample is a much more serious infringement of the subject's ordinary liberties than causing him to blow into a machine, and medical questions of real significance and difficulty may arise. Accordingly, section 8(4) [the predecessor of section 7(4)] introduced the medical practitioner as the arbiter. It makes no reference to the police officer. The implication is to my mind clear that in deciding the medical issue the constable has no role to play ...
The police officer cannot have the power to rule upon a medical issue, but he must have the power to form a view on whether such an issue has been raised at all, for otherwise the medical practitioner would be troubled by excuses which have nothing to do with the expertise which is the reason for his being given a part to play under section 8(4)."
"Put another way, the officer had, in my judgment, to consider whether the reason proffered was capable of being a medical reason. On the face of it, it was. It could have affected the reading; it could have been meant that it was medically unwise for him to give blood at all. Both of these may seem far-fetched, but in the absence of any medical evidence it is impossible to know whether there may not have been substance in those points."
"It would be otiose if the legislation required the police officer to make in hospital a general medical inquiry when the medical practitioner in immediate charge of the patient may be expected to make that and other inquiries. It would not, I think, be otiose, if the legislation requires a police officer, who knows that the patient has, in the context of a proposal to take a specimen, articulated a potential medical reason for not taking a specimen of blood, to tell the medical practitioner in the hospital of the potential medical reason ...
The authorities show that, before a constable decides whether the specimen should be of blood or urine, he has to consult a medical practitioner, if he is aware of a potential medical reason affecting that decision. He necessarily has to inform the medical practitioner of the potential medical reason. The question under section 9 – whether a specimen should be required – is not the same as that under section 7(4) – whether the specimen should be of blood or urine."
"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 doctor. It is for me to decide which it will be, unless a doctor 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. You may inform the doctor of medical reasons why a specimen of blood cannot be taken by the doctor, but the matter will be for the doctor to determine."