Joseph v Director of Public Prosecutitons

Under section 7(4) of the Road Traffic Act 1988, a constable has a broad statutory discretion to require either a blood or urine specimen. The constable need not ask the driver which specimen is preferred. The discretion must nevertheless be exercised lawfully and in accordance with Wednesbury principles. A genuine and relevant objection to providing blood is a matter the constable must consider, even though it is not a medical objection determined by a doctor. A failure to appreciate the existence of the discretion may invalidate the statutory procedure. Such unlawful exercises of discretion will be exceptional.

The appellant appealed by way of case stated from his conviction following proceedings before a recorder and two lay magistrates. He had provided breath specimens producing a lower reading of 40 microgrammes of alcohol per 100 millilitres of breath. He declined the statutory opportunity to provide a replacement specimen, stating that he could not provide blood because of his religious beliefs.

The recorder upheld the conviction, reasoning that only a medical reason could justify objection to blood and that the choice between blood and urine belonged to the constable. The central issue was whether the officer had lawfully exercised the discretion under section 7(4) of the Road Traffic Act 1988.

1. The appeal was allowed. The officer had unlawfully exercised the discretion conferred by section 7(4) of the Road Traffic Act 1988.
2. Section 7(4) contains two distinct elements. The constable first decides whether the specimen should be blood or urine. Only where blood is selected does the medical practitioner’s opinion become relevant. The subsection does not require blood to be selected unless a doctor gives a medical reason against it.
3. The constable’s discretion is broad, but it is statutory and may be reviewed under Wednesbury principles. The officer need not investigate the driver’s preference. However, where the driver puts forward a valid reason for preferring urine, and there is no reason against selecting urine, the officer must at least consider whether blood or urine should be required.
4. Here the officer mistakenly believed that he was required to select blood unless there was a medical reason against it. He therefore failed to exercise the statutory discretion. That error meant that the statutory procedure had not been validly completed.
5. The court declined to decide whether Rastafarianism was a religion. That issue was unnecessary to the result. It answered the related question concerning the effect of religion on the statutory provisions in the affirmative: the classification of the belief did not determine the appeal, but the appellant’s genuine objection was relevant to the officer’s discretion.

The recorder’s questions were answered accordingly. The appellant’s costs were subject to legal aid taxation.

• High Court (Administrative Court): allowed the appeal by way of case stated from the decision of Miss Recorder Gupta sitting with two lay magistrates at the Crown Court at Isleworth on 23 April 2003.