Bryan v R

For a hospital patient, the requirements in section 9(1A) of the Road Traffic Act 1988 are mandatory. The doctor in immediate charge must be notified of the proposal to take blood and must not object. The provision does not require that doctor’s positive consent.

A misdirection about those requirements will not render a conviction unsafe where the jury’s verdict necessarily shows that the factual safeguard actually in issue, including the statutory warning, was observed and the error was immaterial to the verdict.

The appellant was convicted at Cardiff Crown Court of causing death by careless driving while over the prescribed drink-drive limit and of perverting the course of justice. He received seven years’ imprisonment for the driving offence, with a concurrent 18-month sentence for perverting the course of justice.

His principal conviction ground challenged the judge’s direction on the requirements for taking a blood sample from a hospital patient. The defence contended that failure to notify the treating doctor supported its case that the appellant had not received the statutory warning about the consequences of refusing to provide blood. The appeal also challenged the sufficiency and fairness of the evidence and the length of sentence.

1. The appeals against conviction and sentence were dismissed.

2. The trial judge’s direction on the hospital blood-sample procedure was wrong in two respects. Section 9(1A) of the Road Traffic Act 1988 imposes a mandatory condition, rather than a matter of good practice. It does not require the treating doctor’s consent. It requires notification of the proposal and the absence of an objection by that doctor.

3. The error did not make the conviction unsafe. The defence had not submitted that the blood evidence was inadmissible for breach of section 9. Its case before the jury used the alleged failure to consult the treating doctor as part of a wider attack on the police officer’s reliability and on whether the statutory warning under section 7(7) had been given. The verdict necessarily showed that the jury accepted the officer’s evidence and was satisfied that the warning requirement had been met. The erroneous direction was therefore immaterial.

4. The remaining conviction grounds disclosed no unfairness. There was substantial evidence that the appellant drove the vehicle. The judge correctly excluded irrelevant material concerning alleged drug use, bad driving and the route taken. There was no improper restriction of cross-examination and no Crown-biased summing up.

5. The seven-year sentence was not manifestly excessive. The appellant’s alcohol level, driving record, uninsured and unlicensed driving, and attempt to mislead police were serious aggravating features. The judge had taken account of the appellant’s emotional reaction to the death of a close friend.

• Court of Appeal (Criminal Division): The court dismissed the appeals against conviction and sentence: [2008] EWCA Crim 1568.

• Crown Court at Cardiff: On 30 March 2007, Judge Morton convicted the appellant and imposed seven years’ imprisonment for causing death by careless driving while over the prescribed limit, with 18 months concurrently for perverting the course of justice.