On 2nd March 2015 the government’s new drug driving legislation came into force. Since then it has been reported that four drivers a day are being convicted of drug driving offences and there is a 98% conviction rate for those charged under the new legislation.
Given the new and complex nature of the legislation there may be reluctance on the part of defence advocates to challenge such charges. However, a recent Mackrell Turner Garrett case is bucking the trend.
The defendant in this matter was charged with a drug driving offence involving cannabis. Samples of his blood were taken at the police station. On the Crown’s evidence, he declined to take one of the samples when offered although this was disputed. The Crown’s analysis of the blood sample gave a reading of 2.3µg/l. The legal limit is 2.0µg/l which would be well within a margin of error for forensic analysis of this type. After taking detailed instructions from the defendant, we advised that the Crown’s findings should be challenged and arrangements were made to have the blood samples taken at the police station retested.
Numerous disclosure requests were made to the Crown to have access to the defendant’s ‘A’ blood sample. Not unusually, their requests were ignored and the trial date was delayed several times as a result. Finally a response from the CPS was forthcoming. The ‘A’ sample had yielded insufficient blood to be tested and so the Crown’s toxicologist had accessed the ‘B’ sample in order to gain the result on which the Crown relied. Despite representations that we should be allowed access to the exhibits to carry out our own assessment the Crown refused to disclose the exhibits.
A section 8 disclosure application was made to the Court. The District Judge refused the application on the basis that the defendant had completely forfeited his right to access and analyse the blood exhibits the very moment he declined to take possession of his ‘B’ sample at the police station. The defendant was unrepresented at the police station and received no legal advice on this issue at the time.
Section 15(5) of the Road Traffic Offenders Act 1998 states:
(5) Where, at the time a specimen of blood or urine was provided by the accused, he asked to be provided with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the prosecution unless—
(a) the specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the accused was divided at the time it was provided, and
(b) the other part was supplied to the accused.
The Judge’s position was that the sample was not subsequently disclosable under the usual disclosure regime if the defendant had refused it when offered at the police station. His view was that if in fact the sample was not offered, the prosecution case would be fatally damaged (which is undoubtedly correct, given s15 (5) RTOA 1988). If on the other hand the sample was offered but refused, the Judge argued that the defendant was then not entitled to request it at a later stage. The normal disclosure regime under the CPIA was, in his view, ousted by the specific statutory provisions in the RTOA as to access to a sample. The Judge did however accept that we were now in ‘uncharted territory’ and that an appeal to the High Court on this issue would be available in the event of a conviction. Without any defence evidence to challenge the Crown’s analysis of the samples, the trial went ahead and the defendant was convicted.
Counsel representing the defendant – Josh Normanton of 5 Paper Buildings – quickly advised in favour of stating a case in respect of whether the learned Judge was right to find that section 15 of the Road Traffic Offenders Act 1988 effectively nullified the disclosure regime under the CPIA 1996 in respect of samples taken from defendants in drug-driving cases. In counsel’s opinion there was nothing to suggest that the intention of the statute is such that if you refuse to take the sample B, you cannot then access and (effectively) challenge the accuracy of the Crown’s sample; such an interpretation is likely to lead to significant injustice if there is an error in the course of the Crown’s analysis leading to an impossibly high reading which cannot then be challenged. Further, as a matter of statutory interpretation, an earlier statute cannot nullify or oust a later statute. This is a principle which must apply in respect of the disclosure regime under the CPIA 1996 which imposes significant obligations on the Crown to disclose material to defendants to ensure a fair trial. There is no indication that Parliament intended those obligations to be limited other than as stated in the CPIA 1996.
The case will be heard at the High Court specifically in respect of this issue in due course. For more information please contact Robert Jappie.