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

In a statutory drink-driving specimen procedure, a defendant’s continuing consent to provide blood does not become refusal merely because he objects to the proposed health professional taking it. A misleading warning may affect the procedure, but it does not necessarily vitiate consent where the defendant’s chosen specimen remains unchanged. A fact-finding tribunal may reject expert evidence if it has a rational evidential basis for doing so. Adequate mixing of blood vials is a factual matter; compliance with a specified shaking period is not essential without authoritative evidence that the period is a minimum requirement.

The claimant appealed by way of case stated against his conviction for driving with excess alcohol. He had elected to provide a blood specimen after a breath analysis, but objected to the specimen being taken by a nurse. A police officer wrongly warned that continued objection would be treated as refusal. The blood was taken and analysed, despite a discrepancy in the recorded serial number and criticisms of the sampling procedure and expert evidence.

The court considered whether the blood-option procedure had been invalidated, whether continuity of the sample was established, and whether the sample was capable of being relied on as evidence.

1. Appeal dismissed. The conviction stood. The court answered the first question in the negative and the second in the affirmative.
2. The discrepancy in one digit of the sample’s serial number was properly treated as a typographical error. The alternative explanations were highly theoretical and unsupported by evidence. Continuity was therefore established, and permission to add that ground was refused.
3. The claimant had consented to give a blood specimen and maintained that choice throughout. His objection concerned the identity of the person taking the specimen, not the provision of blood itself. The warning that he would be prosecuted for refusal was wrong, but it did not change the nature of his continuing choice. The closest authority was Jones v DPP [1991] RTR 41. The blood sample was not rendered inadmissible.
4. A fact-finding tribunal may differ from expert opinion where there is a rational basis. The district judge was entitled to rely on the nurse’s evidence that the vials had been adequately mixed, the absence of crystals, and the lack of authoritative evidence that 30 seconds was a mandatory minimum. The expert evidence did not compel a different conclusion. The approach was supported by Gregory v DPP [2002] EWHC (Admin) 385.
5. The court observed that, had the conviction been quashed and the matter retried, the breath readings could have been used to support the blood result by demonstrating likely blood-alcohol levels. This was not the basis on which the appeal was decided.

The case came before the High Court (Administrative Court) by way of case stated from the conviction imposed by Mr Deputy District Judge Ormerod on 28 February 2006. The High Court dismissed the appeal and upheld the conviction.