Byrne, R (on the application of) v Director of Public Prosecutions

Section 16 of the Road Traffic Offenders Act 1988 provides an additional evidential route and does not exclude admissible expert evidence from an unauthorised analyst. Continuity of a blood sample may be established by sensible inferences from contemporaneous records, identifying codes, labels and ordinary police procedures. A defendant’s right to independent analysis is protected where the statutory procedure is followed and the defendant, knowing that right, freely chooses not to use it. Formal objections to documentary admissibility should be made when the document is tendered. A true copy may be admitted where properly authenticated under section 27 of the Criminal Justice Act 1988.

The claimant appealed by way of case stated against his conviction at Basingstoke Magistrates’ Court for driving with excess alcohol. The prosecution relied on a blood analysis conducted by an analyst who was not authorised under section 16 of the Road Traffic Offenders Act 1988. The claimant challenged the analyst’s status, continuity of the sample, comments made by a custody sergeant when providing the retained sample, and the admission of a photocopied consent certificate. The central questions were whether the evidence was admissible, whether continuity had been established, whether the claimant’s right to independent analysis had been impaired, and whether the consent certificate could properly be admitted.

Appeal dismissed. The High Court answered the questions in the case stated in accordance with the following conclusions.

1. Analyst and section 16. Section 16 of the Road Traffic Offenders Act 1988 is permissive and evidential. It provides one method of proving the proportion of alcohol in a specimen, but is not an exclusive code. Evidence from an appropriate expert who is not an authorised analyst may therefore be given orally or by a statement under section 9 of the Criminal Justice Act 1967. The analyst’s qualifications and experience made his evidence admissible as expert evidence.
2. Continuity. The proper course is ordinarily for the officer or doctor who labels the retained sample to give evidence about the labelling, with the analyst referring to the label. However, the trial court may draw sensible inferences from the evidence and take judicial notice of ordinary police-station procedures, including the use of unique bar-code references. The matching reference code on the police booklet, doctor’s certificate and laboratory vial entitled the district judge to find that the analysed blood was the claimant’s. The case was distinguishable from Patterson v DPP because there was no discrepancy in the evidence or labelling.
3. Independent analysis. Police comments discouraging independent analysis may affect the fairness of the prosecution and render the prosecution analysis inadmissible. Where the accused knows of the right to independent analysis and freely elects not to exercise it, fairness is unaffected. That was a question of fact. The written instructions and findings of fact showed that the claimant had not been discouraged. The custody sergeant’s advice was nevertheless strongly deprecated.
4. Consent certificate and documentary objections. Section 16 requires service of the relevant certificate or document, but the prosecution need prove service only if the issue is raised. Section 27 of the Criminal Justice Act 1988 permits an authenticated copy of an admissible document to be proved. The true photocopy had been served on the claimant’s solicitors and no timely objection had been made when it was tendered. The district judge was therefore entitled to admit it and find that the blood was taken with consent. The appeal was dismissed.

• Basingstoke Magistrates’ Court: District Judge Carling convicted the claimant on 10 June 2002.
• High Court (Administrative Court): On appeal by way of case stated, the court dismissed the appeal: [2003] EWHC 397 (Admin).