Campbell v DPP

A case stated appeal cannot ordinarily introduce a new factual or legal issue which was not raised before the justices or stated in the case, particularly without an application to amend. The Road Traffic Act 1962 requirement to inform a suspect of the right to obtain part of a specimen was not re-enacted in the 1988 legislation. It was not therefore a settled principle of common law that such information had to be given during proceedings under section 7 of the Road Traffic Act 1988. A failure concerning the provision of a specimen may nevertheless support an application to exclude evidence where it caused prejudice. Where the accused knew of the right, made no such application and offered no evidence of prejudice, the conviction could properly stand.

The claimant appealed by way of case stated against his conviction by justices for driving with excess alcohol, contrary to section 5(1) of the Road Traffic Act 1988. After an approved breath-testing device failed its self-test, the police required a blood specimen and informed him that he could request part of the specimen. The justices found that the relevant warning had been given.

On appeal, the claimant advanced a new argument that the justices had to determine whether the information about requesting his own sample remained operative in his mind when the blood was taken. The central issues were whether that argument could be raised on a case stated appeal and whether the omission of a statutory requirement from the 1988 legislation created a continuing common-law obligation.

1. Disposition. The appeal was dismissed. The claimant was ordered to pay the respondent’s costs, enforceable only with the leave of the court.
2. The proposed issue had not been raised before the justices, was not included in the stated case and was advanced without an application to amend. The claimant could not conduct the appeal on that basis. The court nevertheless considered the merits.
3. Under section 2(5) of the Road Traffic Act 1962, the officer had been required to offer part of the specimen or, where appropriate, another specimen. R v Price [1964] 2 QB 76 construed that provision according to its terms. R v Mitten [1966] 1 QB 10 established that breach did not automatically make the analysis inadmissible, although exclusion could be considered where prejudice resulted.
4. The equivalent consequence provision, section 2(4) of the 1962 Act, was substantially reproduced in section 15(5) of the Road Traffic Offenders Act 1988. Section 2(5), however, was not re-enacted. There was consequently no settled common-law rule requiring an officer proceeding under section 7 of the 1988 Act to inform the suspect of the right to request a specimen.
5. A defendant might, in an appropriate case, seek exclusion under section 78 of the Police and Criminal Evidence Act 1984 if lack of awareness caused prejudice. Here the justices found that the claimant had been told of the right. He had made no application to exclude the evidence, had not given evidence and had not suggested how he was prejudiced. Applying the reasoning referred to from DPP v Jackson and Stanley v DPP [1999] AC 406, the justices were bound to convict.

• High Court (Administrative Court): The appeal by way of case stated from the claimant’s conviction by Merseyside justices was dismissed.
• Merseyside justices: On 27 March 2002, the justices convicted the claimant of driving with excess alcohol on 14 November 2001.