Mills v Director of Public Prosecutions

Where the identity and continuity of a forensic specimen are challenged, the prosecution must prove, to the criminal standard, that the specimen analysed came from the defendant. A statutory certificate procedure may make the analyst’s evidence conclusive as to matters within the provision, but it does not remove the need to establish the specimen’s origin. Material gaps in the chain of custody may therefore prevent a reasonable tribunal from being satisfied that the analysed specimen is the defendant’s.

This was a defendant’s appeal by way of case stated from the Preston Crown Court, which had dismissed his appeal against conviction by Ormskirk Magistrates’ Court for driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. The prosecution relied on an analyst’s certificate concerning a blood specimen. The evidence did not establish that the specimen analysed was the specimen taken from the defendant. The central issue was whether there was evidence on which a properly directed reasonable bench could find that the blood analysed was the defendant’s blood.

Appeal allowed. The court held that the prosecution had failed to establish beyond reasonable doubt that the blood analysed by the authorised analyst was the blood taken from the appellant.

1. The court found a material lacuna in the continuity evidence. The officer had marked the samples, but there was no evidence that he placed either sample in the refrigerator. The marking recorded by the officer did not match the marking seen on the specimen later collected. The analyst examined a specimen carrying further information, including the wrong police station, and there was no evidence identifying the source of that information.
2. The court held that Paterson v DPP [1990] RTR 329 was not materially distinguishable merely because it concerned the Road Traffic Act 1972 and evidence admitted under section 9 of the Criminal Justice Act 1967. The procedure in section 16 of the Road Traffic Offenders Act 1988 did not make proof of the specimen’s identity unnecessary.
3. Once the issue was raised, the prosecution had to prove the specimen’s origin to the criminal standard. In the absence of evidence from which the necessary inference could properly be drawn, the Crown Court should not have been satisfied that the analysed sample was the appellant’s.
4. Lord Justice Scott Baker agreed. The matter was remitted to the Crown Court with a direction to acquit. Costs were awarded from central funds for the period not covered by legal aid, subject to notification of the relevant dates.

1. High Court (Administrative Court): allowed the defendant’s appeal by way of case stated from the Preston Crown Court and remitted the matter with a direction to acquit.
2. Preston Crown Court: on 7 June 2002, dismissed the appeal against conviction by Ormskirk Magistrates’ Court.
3. Ormskirk Magistrates’ Court: convicted the defendant on 9 January 2002.