Director of Public Prosecutions v Mukandiwa

Under section 7(6) of the Road Traffic Act 1988, a reasonable excuse for failing to provide a specimen must relate to the person’s physical or mental capacity to provide it, or to a substantial risk to health. Personal belief alone is insufficient.

The court must make findings about what would probably happen if the specimen were provided. A distinction must be drawn between a risk arising from seeing blood and one arising from the taking of blood. A speculative or inadequately analysed risk does not establish reasonable excuse.

The Director of Public Prosecutions appealed by case stated from the Huddersfield Magistrates’ Court. The respondent had been arrested on suspicion of driving while unfit through drink and failed to provide a blood specimen after stating that he could not give blood for spiritual reasons.

The District Judge accepted evidence that the sight of blood might cause the respondent, a Zimbabwean spirit medium, to enter a trance and become violent. The judge treated this primarily as a health concern and found a reasonable excuse. The central issue was whether that conclusion was legally open on the findings made.

1. Appeal allowed. The case was remitted to the Magistrates’ Court with a direction to convict.
2. Section 7(6) of the Road Traffic Act 1988 creates an offence where a person, without reasonable excuse, fails to provide a required specimen. The authorities establish that an excuse must relate to the person’s capacity to provide the specimen or to a substantial risk to health. Personal faith or belief, without more, does not constitute a reasonable excuse.
3. The question whether an excuse is capable in law of being reasonable is a question of law. If it is capable, whether it amounts to a reasonable excuse is a question of fact and degree, and the burden then rests on the Crown to negative it.
4. The District Judge failed to make the necessary findings. The evidence identified the sight of blood, rather than the taking of blood itself, as the relevant trigger. The respondent could apparently have avoided seeing the blood by closing his eyes or looking away. There was no finding that taking the specimen would cause a trance, nor any adequate analysis of the likely consequences if a trance occurred.
5. On the findings made, the conclusion that providing the specimen would entail a substantial risk to the respondent’s health was not open to the District Judge. The alternative argument concerning the police officer’s choice of a blood rather than urine specimen was not considered because it had not been argued below and was outside the case stated.

• High Court (Administrative Court): Appeal by case stated allowed. The matter was remitted to the Magistrates’ Court with a direction to convict.