CO/196/2007 
Neutral Citation Number: [2007] EWHC 1138 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand 
London WC2 

Tuesday, 26th April 2007 
 
B E F O R E:

MR JUSTICE IRWIN 

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THE QUEEN ON THE APPLICATION OF RAINSBURY 
(CLAIMANT)

-v- 

THE DIRECTOR OF PUBLIC PROSECUTIONS 
(DEFENDANT) 
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MR M SYLVESTER (instructed by Motoring Lawyers.com, Altrincham, Cheshire WA15 7ZS) appeared on behalf of the CLAIMANT
MR M FORSTER (instructed by CPS Eastleigh, Hampshire SO50 9FH) appeared on behalf of the DEFENDANT
 
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J U D G M E N T
1.	MR JUSTICE IRWIN:  This is an appeal by way of case stated by Richard Myles Rainsbury against a conviction, on 28 February 2006, by Mr Deputy District Judge Ormerod sitting in North West Hampshire.  The appeal has proceeded by way of case stated.  The facts as found by the learned deputy district judge are as follows: on the 9th October 2005 the appellant was charged that at Otterbourne in Hampshire, on 20 August 2005, he drove a Volkswagen Golf (the registration number is given) in Otterbourne, after consuming so much alcohol that the proportion of it in his blood, namely 107 milligrammes of alcohol in 100 millimetres of blood, exceeded the prescribed limit contrary to s 5(1)A of the Road Traffic Act 1998.  The defendant entered a not guilty plea on 18 October 2005.  The case stated goes on to recite a number of facts.
2.	At subparagraph (a) of paragraph 3 the district judge found:  
"The appellant drove his motor car from a garage forecourt at 23.45 hours on 20th August onto the main road at Otterbourne. A breath test was properly administered by the roadside and proved positive. He was arrested and taken to Winchester Police Station where the procedure for obtaining a specimen of breath for analysis was commenced at 00:22 hours by an experienced officer namely PC Axton.  The procedure for obtaining a specimen of breath for analysis was in all respects properly carried out and the lower reading was 50mg of alcohol in 100 mls of breath."
3.	The remainder of the detailed facts I will come to shortly.  It is obvious that the district judge proceeded to convict Mr Rainsbury and then stated a case in answer to a request so to do.
4.	He certified two questions for the opinion of this court as follows:  
"(1)	 Whether on the bases of the facts as I have found them, the statement made to the appellant PC Axton, that if he refused to give a blood sample he would be charged with refusing to give a specimen for analysis, invalidated the blood option procedure and rendered inadmissible the evidence of the level of alcohol in his blood.
 (2)	Bearing in mind the facts found in paragraph 3(e) was I correct in law in forming the opinion that the blood sample taken by nurse Tremlett was admissible as evidence of the level of alcohol in his blood."  
5.	In the course of argument we have agreed to amend the second question to read, "Whether the blood sample taken by Nurse Tremlett was capable of being relied on as evidence of the level of alcohol in his blood."
6.	The appellant sought to raise a third question, namely the question relating to the continuity of the blood sample tested by the toxicologist.  Initially he sought to do so by means of parallel proceedings and that application was eventually dealt with by the Divisional Court. It was stated that it was wrong to attempt to raise separate proceedings so as to ventilate that issue, and that the issue as to continuity fell properly to be dealt with within the instant case, and that an application to do so, if appropriate at all, should be raised with me.  There is an application to do so.  I will deal with that application and with the merits of that issue, since they are intermingled together, and I will do so first.
7.	The facts in respect of this issue are straightforward: PC Axton gave evidence that he placed two vials of blood into the relevant bag.  On the bag in addition to the vial of blood, which was eventually tested, he put his own name, that is PC Axton, and the appellant's name, Richard Myles Rainsbury, or RM Rainsbury on the bag.  It was that bag, the evidence suggested, which went to the toxicologist, Stephanie Chapman.  The sample was taken from Nurse Tremlett's possession. According to the findings from the learned district judge at paragraph 3(f), the bag was taken from Nurse Tremlett: 
"…at 01.35 on 21st August 2005 and labelled with serial number LGC08009301 and was then sent for analysis.  The sample analysed by Stephanie Chapman, Forensic Toxicologist on 26th August 2006 was labelled LGC08009381 [according to her written evidence] and was found to contain 107 milligrams of alcohol in 100 millimetres of blood."  
In other words, the penultimate digit in the serial number is different.
8.	There are only two possibilities, which might have taken place, apart from this being an error of transcription or typographical error, as has been conceded by Mr Forster, who appears for the appellant.  One alternative to a mere typographical error might be that the same Mr Rainsbury, this appellant, had been arrested by Mr Axton on a different occasion, close in time to the index occasion, that a blood sample had been taken which had a slightly different, but accurate, serial number from that recorded as the sample in this case, and that it was that other sample which was tested by the toxicologist. That would involve Mr Rainsbury being involved in such a separate incident, about which his advocate was given no instructions, or else the matter would no doubt have been ventilated with Mr Axton in cross-examination.  
9.	The only other possibility is that a different Mr Rainsbury, with the same initials, had been involved in a drink driving episode and had a blood sample taken by the same police constable, Mr Axton, again within a very short space of time from this Mr Rainsbury.
10.	Given these very narrow alternative possibilities, highly theoretical and based on no evidence whatever, in my judgment it was perfectly proper for the learned district judge to dismiss this single digit difference as a mere typographical error, and to rely upon this blood sample as being properly established in continuity as being the sample in question for this episode.  I decline to give leave to add this issue.  Had it been raised initially I would have regarded it as fantastic and as no basis for any successful appeal.
11.	I turn then to the second issue in the case, and the first question that was formulated by the learned district judge, that is to say: 
"whether on the bases of the facts as I have found them, the statement made to the appellant by PC Axton, that if he refused to give a blood sample he would be charged with refusing to give a specimen for analysis, invalidated the blood option procedure and rendered inadmissible the evidence of the level of alcohol in his blood."  
12.	Within the stated case at paragraph 3(b) to (d) the learned district judge found that, after taking the breath sample in the police station, PC Axton: 
 "(b)…thereupon offered the appellant the statutory blood option and read appropriately from Form MGDDB.  The offer was accepted and the police arranged for the Registered General Nurse of Prime Care, a Mr Tremlett to attend.
 (c)The nurse qualified in September 2001 and worked first as a Community Registered Nurse before joining Prime Care 14 months ago.  Throughout his career he has taken blood samples for subsequent analysis. He is very experienced.
 (d)For some 25 minutes or thereabouts, the appellant objected to the nurse taking the blood sample insisting that a Doctor should take it.  It was explained by three people that Mr Tremlett was qualified to take the sample but the Appellant withheld his consent to the procedure arguing that a qualified doctor should take the sample... Eventually PC Axton said to him 'If you don't agree to the nurse taking blood, we will regard it as a refusal and the custody officer will charge you with refusal to give a blood sample.' Such a warning even if it had been correct was not required and the appellant was at liberty to change his mind about producing such a sample.  If he did so, the effect would be that the breath specimen would be used as evidence."  
13.	Then in subparagraph (e) the findings were as follows:  
"The appellant agreed to give the specimen which was taken by the nurse in an office at the Police Station.  The taking of the blood sample was video recorded.  Although the conditions were not ideal, the sample was properly taken in accordance with the procedures of Prime Care.  Nurse Tremlett had never seen the MGDD/A or the MGDD/B forms before."  
I shall stop at that point in relation to this issue.
14.	In the bundle produced before this court, comprising, for these purposes, evidence which was before the learned district judge, is what has been referred to as "the booklet".  That is the drink/drugs station procedure proforma from Hampshire constabulary as filled in by PC Axton on the night in question.  Following the sequence of time, we begin at page 98 of the bundle, form MG DD/B at section B7: "STATUTORY OPTION - READING 40-50 mg/100 ml INCLUSIVE."  It is not necessary for me to read out the whole of the proforma wording which the officer put to Mr Rainsbury.  What it amounts to is that in careful language he was asked whether he wished to provide a specimen for laboratory alcohol analysis, that could be blood or urine, and he clearly elected "yes": that is ringed.
15.	Second in time is page 92 of a previous form, MG DD/A.  It reads as follows: "ADDITIONAL PARTICULARS". This is section A27: 
"On arrival of the health care professional the MGDD/B procedure was commenced.  Mr Rainsbury would not initially consent to the blood being taken by the nurse stating that he felt that it should be taken by a doctor.   
The procedure was explained to Mr Rainsbury on a number of occasions (all was on tape) - he finally consented to allowing the blood to be taken by the nurse."
16.	Reading those matters together it is clear, in my judgment, that the sequence of fact can be summarised shortly as follows: Mr Rainsbury agreed to giving a blood sample, after the proper procedure was gone through and he had been offered the option of blood or urine.  He then said "no" to the sample being taken by the nurse.  He never said "no" to giving a blood sample.  He was continuing to say, in effect, "I will give a blood sample, but not if the professional is this man or is a nurse."  That is not a refusal to give a blood sample, it is a refusal to give a blood sample under specific conditions, which might  possibly have been changed.  
17.	He was wrongly told that he would be prosecuted if he continued to maintain that stance for failing to give a sample.  He should have been told that the matter would revert to reliance upon the breath tests but, as a matter of fact, he was throughout, choosing, as his preferred option, to give blood for testing.  Against that factual background, I have been referred to a number of authorities by both Mr Silvester, for the applicant, and Mr Forster.  Howard v Hallett [1984] RTR 353 was a case where three specimens of breath were taken because the first attempt at the breath procedure was mishandled.  Subsequent specimens from urine, as I think it was, but it does not matter, were held to be inadmissible, because a proper breath procedure had not been gone through.  That is not the same facts as the instant case, but does demonstrate a strict approach to the taking of blood and urine samples and is so relied on by Mr Silvester.  Wakeley v Hyams [1987] RTR 177 was a case where the constable concerned had not properly informed the defendant of his right under section 8(6) of the then Road Traffic Act 1972, to claim that breath specimens be replaced by specimens of blood or urine.  The constable instantly, but mistakenly, required the defendant to provide a specimen of blood for analysis.  He consented, which on analysis revealed an excessive level of alcohol in the blood.  
18.	The court at first instance dismissed the charges, upholding the submission that the specimens were all inadmissible by reason of the failure to follow proper procedure. That position was upheld by the Divisional Court on the basis that the constable had no lawful power under section 8 of that Act to require provision for the blood specimen. The blood specimen was not provided pursuant to the statutory provisions and was inadmissible. Again not exactly the facts in this case, but relied on as evidence of a strict approach.  
19.	Then both sides made reference to the case of Jones v DPP [1991] RTR 41.  Again reading from the headnote, in this instance the defendant was required in accordance with section 7 of the Road Traffic Act 1988, to provide two specimens of breath for analysis by a Lion Intoximeter device.  He provided the specimens and the police sergeant operating the device saw that, after carrying out a satisfactory self-calibration check, the device recorded provided 45 micrograms respectfully of alcohol in 100 millimetres of breath. The specimen of the lower proportion of alcohol containing no more than 50 micrograms in accordance with section 8(2) of the 1988 Act, the defendant claimed that the breath specimen should be replaced. Because the defendant stated that he feared needles, the sergeant said that he would take a specimen of urine for a laboratory analysis, to which the defendant agreed.  
20.	At that stage the sergeant noticed that the Lion Intoximeter device had not provided a printout and thinking that the switch activating the device was, as it usually was, in the armed position, he decided that the device was unreliable.  In accordance with section 7(1)(b) and section 7(3)(b) he required a specimen of blood or urine. The defendant, who again expressed fear of needles and did not withdraw his claim under section 8(2), agreed to provide, and provided, urine for analysis, which duly demonstrated an excessive amount of alcohol.  
21.	At trial the Justices were of the opinion in that case that, as the defendant had agreed to provide urine under the claim in accordance with section 8(2), the analysis was not rendered impermissible by the provision of urine having followed a second, different and more onerous requirement by the sergeant and they convicted.  The appeal against that conviction was dismissed.  The Divisional Court held that the Justices were right in concluding that, since the defendant had claimed the breath specimen was to be replaced by the urine sample and provided such a sample, the requirements of section 4(8) were fulfilled.  Mr Forster, for the Respondent, says that is much closer in its facts in the instant case than any other and also demonstrates a more common-sensical approach to the law surrounding taking such samples.  
22.	I have also been referred to DPP v Winstanley [1993] RTR 22. This was a case that the learned district judge relied on, not having been referred to it by either party at the trial below.  In that case the defendant had provided two specimens of breath for analysis and in accordance with section 8(2) was asked if he wished to replace the breath specimen for blood or urine. He said he would supply such a specimen and raised no objection to a blood specimen. However, half an hour later, there being no doctor available to take a blood specimen, the custody officer required the defendant to provide two specimens of urine. He said he was willing to do so, but as it transpired was unable to do so.  He subsequently appealed his conviction, which was sought and obtained on the evidence of the breath specimens.  
23.	The appeal was dismissed. 	The defendant was not entitled to an opportunity to make representations as to which specimen he might wish to supply in exercising his option to replace the breath specimen. There was no reason why the custody officer, having decided that any replacement  specimen would have to be a specimen of blood, could not, thereafter, when it became clear no doctor was available, ask him to provide a specimen of urine.  
24.	The  Winstanley case, it is clear, was relied on by the district judge to show that it was proper, an election having been made, for a sensible and less technical approach to be followed to the evidence.  Again it is not the facts in the instant case and is indeed rather far further removed from these facts than the case of Jones.
25.	Those are the two competing positions before me.  In my judgment the position on the facts here is clear and as follows: there was in fact consent by Mr Rainsbury to give a blood sample.  There remained throughout consent to give a blood sample, although there was a qualification as to how it was to be performed.  The "threat" made him accept a nurse operator, but that did not touch his continuing choice of blood sample as the means by way which his level of ingested alcohol should be assessed.  The closest parallel of the facts is the case of Jones, to which I have referred, and while there are differences of emphasis discernible from the different authorities that have been cited, and upon which I have touched above, I am clear that the approach followed by the learned district judge here, in analysing this evidence, was correct.  Consent was never vitiated. There was never such a technical problem with the way this procedure was followed so as to render inadmissible the blood sample, which had been taken and upon which the conviction depended.
26.	Accordingly, I answer the question 1: "Did the facts mean that the procedure adopted invalidated the blood option procedure and rendered inadmissible the evidence of the level of alcohol in Mr Rainsbury's blood": "No".
27.	The third issue in the case and the second question which has been formulated, I repeat, reads as follows:   
"Bearing in mind the facts found in paragraph 3(e) was I correct in law in forming the opinion that the blood sample taken by Nurse Tremlett was capable of being relied on as evidence of the level of alcohol in his blood."  
The facts found relevant to this issue by the learned district judge are as follows, and I pick up paragraph 3(e) where I left off: 
"Nurse Tremlett had never seen the MGDD/A or MGDD/B forms before.  The sample was placed in two vials.  The nurse shook them for up to fifteen seconds, spoke to the appellant and shook them again satisfying himself that there were no crystals at the base or sides of each vial.  The need for this arises as follows: the white deposits otherwise stop the blood clotting. The new forms MGDD A & B include a requirement to shake the container for at lease 30 seconds and make the white preservatives adhering to the side of the vial dissolve. chcked
 (f)The sample was taken into nurse Tremlett's possession at 01.35 on 21st August 2005 and labelled… and was then sent for analysis."  
28.	The learned district judge at paragraph 4 summarised the evidence, which was advanced by the appellant and an argument based on that evidence, as follows, picking it up at paragraph 4(b) of the stated case:   
"In any event the procedure was not satisfactory as the vials should have been shaken for a longer period of time and [ the appellant] called Professor Forrest of Sheffield University as an expert witness to support this contention.  Professor Forrest also criticised the taking of the blood sample as being taken in a room with contemporaneous conversation and at a desk that was not devoid of paperwork. 
 (c)That the blood sample was contaminated, evidenced by the fact that the lower breath sample was 50 ugs one hour before the taking of the blood sample and was almost precisely the same an hour later despite the fact that the blood alcohol level would have been expected to fall over the period of one hour as the alcohol was metabolised through the liver."  
 (d) The 'lack of shaking in accordance with the MGDD/B protocols combined with non sterile way in which the sample was taken was compatible with the blood sample being unreliable." 
29.	The relevant part of the evidence of Nurse Tremlett, as recorded in the notes, reads as follows:  
"I was aware we had to shake vials but not for the length of time.  He shook the vials.  Looks like I did it - 10 to 15 seconds.  I did stop and speak to Mr R. I always aware you need to shake.  There a crystal base to stop clotting. Once I shake vials, need to place in 2 pots. Can't recall if I did in this case - can't see myself putting them in two pots without looking. Would look to see if any residue in bottom. Always make sure labels on."
30.	The evidence of Professor Forrest appears within the bundle and part of it it is helpful to recite, beginning at page 28.   He said that if there is a protocol laid down it should be followed. He was asked whether there was a protocol for police officers and he said, he would like to see one for doctors.  The witness said that he had had to deal with a young doctor collecting blood samples when the protocol was not followed. The result had had very negative problems.  The district judge asked him whether if he found a textbook, would he find anywhere in it 30 seconds (relating to the period of time to be shaking a vial).  The witness said no, and that you will probably find it says that you follow instructions, as is appropriate. They produce guidance for young doctors which says that samples should be mixed adequately.  The District Judge asked whether it says 30 seconds anywhere. The witness said that the only place which refers to inadequate mixing is an American textbook really for defence advocates. It says nothing about how long you should mix the sample. 
31.	 He went on a little further in his evidence to say that all he can say is that he is not sure that the sample is reliable in the legal sense.  He went on to comment on the discrepancy between the level of blood alcohol implied by the breath samples, and says that on the basis of the breath samples and an hour's delay he would have expected the reading one hour later to be 90 or 91.  In fact the reading was above 100. 
32.	The appellant says that the district judge closed his mind to the evidence of this expert.  The respondent says, "No he did not.  He was entitled to agree with that expert provided he did so rationally and that he was entitled to disagree on the evidence here and to find, as he did, that the samples were adequately mixed."  It is trite law that the fact-finding Tribunal, whether jury or Magistrate, is perfectly entitled to differ from the opinion evidence offered by any expert, providing that there is a rational basis for doing so.  That is the nub of the case, to which I have been referred: Gregory v DPP [2002] EWHC (Admin) 385, a decision of the Divisional Court in 2002, which in fact turned on the evidence of the same expert, Professor Forrest, although he has been referred to as "Forrester" wrongly in that case.  
33.	In my judgment it is absolutely correct to say that a fact-finding Tribunal is fully entitled to differ from an expert, it but only if there is a rational basis for doing so.  The learned district judge did differ from him.  He had evidence that the relevant consideration was: were the vials adequately mixed or adequately shaken, so that the liquid was adequately mixed?  The evidence came from Nurse Tremlett.  There was no evidence that forced the learned district judge to differ from that.  He was entitled, in my judgment, to rely upon the absence of any authoritative stipulation that 30 seconds was a minimum, and to rely upon the absence of crystals, as evidenced by Nurse Tremlett, as meaning that there had been adequate mixing.  In the end that was all that Professor Forrest set up as a relevant standard.
34.	An interesting aspect of this case is that part of Professor Forrest's evidence was the suggestion of discrepancy between the breath samples and the blood results.  In essence, Professor Forrest was saying that if we analyse the breath sample levels, look at the time between breath and blood, then, absent complete absence of liver function, there is no other explanation than contamination as to why the blood levels remained as high.  If the breath sample levels were admissible in this case (and they were admitted), then part of Professor Forrest's evidence would also be to say, as he gave it, "I would expect a fall over that period of some 10 to 15 per cent in the blood alcohol levels."  If the breath sample levels were admissible to show the discrepancy with the blood levels as found, they would also be admissible to favour the Crown so as to say this, "If that was the level of alcohol in the breath samples then we can infer that the blood levels must have been above the limit, because a fall of 10 to 15 per cent would leave them still above the level prohibited by the law".
35.	The court has been referred to the case of Yhnell v DPP [1989] Crim L.R. 384, where in very closely parallel circumstances, discrepant blood samples, one held by the prosecution and the other by the defence, were analysed by relation to breath sample results which could not be "used" for the purpose of the Road Traffic Act, because the blood samples had been taken. Nevertheless, the breath samples were admitted into evidence and used by the prosecution in an approach sustained in the Divisional Court, so as to demonstrate that the blood sample held by the prosecution was accurate and that held by the defendant in that case had been tampered with.  
36.	If the conviction in Mr Rainsbury's case had been quashed and the matter remitted on the basis that the expert evidence should not have been rejected, as it was, then, in my judgment, it would have been open to the Tribunal at retrial,  to have looked to the breath samples to demonstrate the likely blood-alcohol levels to support the blood levels in the blood sample as demonstrating excessive alcohol in the blood.  That is not what happened.  The learned district judge did not in fact rely upon the breath samples, but in my judgment that would have been the likely outcome of a successful appeal on that ground.
37.	The second question, formulated by the learned district judge, bearing in mind the facts found in paragraph 3(e):
"was I correct in law in forming the opinion that the blood sample taken by Nurse Tremlett was capable of being relied on as evidence of the level of alcohol in his blood?"  
The answer to that is "yes".  It follows that the appeal fails and the conviction stands. 
38.	MR FORSTER:  There is an application for costs. A statement of costs was faxed to the court.  I do not know whether it has reached my Lord's papers.  The claim is for £3,805.37, including VAT.   
39.	MR JUSTICE IRWIN:  Mr Sylvester, have you looked at this to see--   
40.	MR SYLVESTER:  My Lord, yes. The only matter is that £2000 of that is my learned friend's fee for today. It is quite expensive but really I certainly cannot take issue with anything else on that.  It is really a matter for my friend.     
41.	MR JUSTICE IRWIN:  Do you want to say anything about that?  It is always difficult to be asked to justify your own--
42.	MR FORSTER:  It is, but all I would say is that it is a fee agreed by the Crown Prosecution Service and the public body.  They do not agree fees lightly. In my submission it is perfectly reasonable.  
43.	MR JUSTICE IRWIN:  There are guidelines, are there not?
44.	MR FORSTER:  It is based on an hourly rate of less than £100 an hour, which is considerably less than a commercial rate which my learned friend would have claimed had he been successful.   
45.	MR JUSTICE IRWIN:  It is based on less than £100 per hour.    
46.	MR SYLVESTER:  That is more than 20 hours work in that case probably. That is quite a lot of work. More than I put into the case.     
47.	MR JUSTICE IRWIN:  You may be a full-time specialist.  
48.	MR SYLVESTER:  I am really not making a particular matter about it.  If my friend says that is the work he has done on the case, I really do not want to take the matter further.    
49.	MR JUSTICE IRWIN:  I shall assess costs in favour of the respondent in the sum of some £3,805.37.