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

Section 15(5A) of the Road Traffic Offenders Act 1988 does not require a person supplied with part of a divided blood specimen to be given a choice of which part to receive. A request by the accused is a statutory precondition to the obligation to supply the other part. Earlier observations suggesting a general right of choice were not part of the ratio in Nicholson v Watts and could not control the construction of the later provision. For proof beyond reasonable doubt, magistrates’ reasons must be read as a whole. The expression “We believe” may, in context, signify that the tribunal was sure of the relevant facts.

The claimant appealed by way of case stated against convictions before Haverfordwest Magistrates’ Court for assaulting a police officer in the execution of his duty and driving with excess alcohol. After her arrest, she became unconscious and a blood specimen was taken with her doctor’s consent. The specimen was divided into two parts. When she regained consciousness, one part was provided to her without her requesting it and without offering her a choice between the parts.

The magistrates admitted the analysis, recording that the proper procedures had been followed and that the prosecution case had been proved beyond reasonable doubt. The appeal concerned whether section 15(5A) of the Road Traffic Offenders Act 1988 required a choice of specimen, whether the procedure for an unconscious person had been followed, and whether the magistrates applied the correct standard of proof.

1. The appeal was dismissed. The questions were answered yes, no and yes respectively.
2. Section 15(5A) of the Road Traffic Offenders Act 1988 makes a request by the accused to be supplied with the other part of the specimen a precondition to the statutory obligation. Its language does not require the accused to be offered a choice of which part should be supplied.
3. Nicholson v Watts was not technically binding. Its decision concerned whether a partly clotted specimen remained a true specimen capable of analysis. The observations relied on by the appellant, including the reference to meticulous compliance and choice of specimen, were not part of the ratio and were unnecessary to the decision. They could not establish an error of law in the construction of section 15(5A).
4. The statutory procedure for taking a sample from a person unable to consent because of unconsciousness, under section 7A of the Road Traffic Act 1978, likewise contains no requirement to offer a choice of specimen. The purpose of the provisions is sufficiently met where the police retain a specimen for analysis and the accused receives an identical specimen or part.
5. The magistrates’ handwritten reasons and the stated case had to be read together. Their repeated use of “We believe” did not demonstrate that they had applied the civil standard. In context, it expressed acceptance of the prosecution evidence and was capable of meaning that they were sure. The magistrates were not improperly correcting their decision under a slip rule; their reasons formed one complete account of the decision.

• High Court (Administrative Court): appeal by way of case stated from convictions before Haverfordwest Magistrates’ Court dismissed.