Beatrice v Director of Public Prosecutions

A statutory warning required before obtaining a specimen must be given by the constable who requires the specimen. A warning by a doctor does not satisfy Road Traffic Act 1988, section 7(7). Evidence that the standard drink-driving procedure was followed may support an inference that the warning was given, even if the officer cannot recall the exact words. However, an appellate court cannot allow a conviction to stand where the magistrates may have proceeded on the legally erroneous basis that a doctor’s warning was sufficient, and made no finding that the constable gave the warning.

The claimant appealed by way of case stated from his conviction by the South East Surrey Justices for driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. After a road accident, he was taken to hospital, where a police surgeon obtained a blood specimen. The justices found that he had been warned about the consequences of refusal by the doctor and were satisfied that the required warning had been given.

The central issue was whether the conviction could stand when the case stated did not record a finding that the constable, rather than the doctor, had given the warning required by section 7(7).

1. The appeal was allowed and the conviction was quashed. No retrial was ordered.
2. Section 7(7) of the Road Traffic Act 1988 requires a constable, when requiring a specimen, to warn the person that failure to provide it may lead to prosecution. A doctor cannot perform that statutory function. The justices’ answer to the relevant question was therefore legally wrong if it meant that the doctor’s warning alone satisfied the subsection.
3. The decision in Murray v Director of Public Prosecutions [1993] RTR 209 remained applicable. Evidence that the standard procedure form or booklet had been completed, together with undisputed evidence that the procedure had been followed, could permit an inference that the statutory warning had been given. If necessary, the justices could have required further evidence or asked the officers to explain the procedure.
4. That possibility did not cure the present defect. The justices had emphasised the doctor’s warning and had made no finding that the constable gave the statutory warning. There was a real possibility that they had been misdirected on a fundamental point of law. The evidence did not make a finding that the constable had given the warning inevitable.
5. The court declined to order a rehearing. The claimant was awarded his costs out of central funds for costs incurred before the grant of legal aid, including costs reserved on 23 January 2004, subject to lodging the legal aid certificate within seven days. Legal aid assessment was ordered.

South East Surrey Justices: convicted the claimant of driving with excess alcohol and stated a case after being directed to do so.

High Court (Administrative Court): allowed the appeal, answered the relevant question “no”, quashed the conviction and declined to order a retrial.