Cuns, R (on the application of) v Hammersmith Magistrates' Court

For an offence involving refusal to provide a specimen, the prosecution bears the legal burden of disproving a reasonable excuse, but only after the defendant has provided some evidential basis for that excuse. A bare assertion made during the specimen-taking procedure does not require the prosecution to investigate and disprove the asserted condition. The defendant must provide evidence capable of showing both the existence of the excuse and its sufficient intensity to prevent consent. A magistrates’ court may refuse to state a case where the proposed question is technically a question of law but has no tenable basis on the evidence.

The claimant was convicted by Hammersmith Magistrates’ Court of failing, without reasonable excuse, to provide a blood specimen under section 7(6) of the Road Traffic Act 1988. He was fined and disqualified from driving.

He sought judicial review of the magistrates’ refusal to state a case. He argued that his statement at the police station that he had needle phobia was sufficient to place the issue of reasonable excuse before the court and required the prosecution to disprove it. The application also raised, separately, whether the specimen-taking procedures had been properly followed.

1. The application for permission to apply for judicial review was refused and the application was dismissed. The magistrates were entitled to refuse to state a case.

2. Under section 7(6) of the Road Traffic Act 1988, the prosecution bears the legal burden of proving that the defendant had no reasonable excuse for failing to provide the specimen. That burden does not require the prosecution to discover possible excuses and disprove each one.

3. Where a reasonable excuse is raised, the defendant must first provide some evidential basis sufficient to put the issue in play. In this case, the claimant’s bare assertion at the police station that he had needle phobia did not meet that threshold. He gave no evidence, called no medical evidence and provided no other evidence supporting the existence or intensity of the alleged phobia.

4. The relevant evidential basis had to address both the existence of the alleged phobia and whether it was sufficiently severe to prevent the claimant consenting to the procedure. The prosecution was not required, on the basis of the bare assertion, to obtain medical records or arrange a medical examination.

5. The question proposed for the case stated was technically a question of law, but it was incapable of producing any answer other than that supported by the evidence before the magistrates. It was therefore frivolous in the technical sense applicable to a refusal to state a case. The magistrates had correctly understood the burden of proof and had made no error of law.

6. The separate challenge concerning compliance with the specimen-taking procedure was not before the court because it had not formed part of the question submitted to the magistrates for a case to be stated. Costs were ordered against the claimant in the sum of £997.

• Hammersmith Magistrates’ Court: convicted the claimant, imposed a fine and disqualified him from driving for one year. The magistrates refused to state a case because the proposed question was not a question of law.

• High Court (Administrative Court): refused permission to apply for judicial review and dismissed the application.