The motorist who had been arrested and required to provide a laboratory test specimen under what was then section 9, under which it was for him to choose to provide a specimen of either blood or urine. He decided to provide two specimens of urine within the hour. He was taken to the lavatory by a police sergeant. He urinated into a jar, supplying a half to three-quarters of an inch of urine, when he was told by the sergeant to stop. That urine was discarded under section 9(6). This required the discarding of the first specimen, and the jar was washed out. Then the sergeant immediately directed the defendant to resume urinating, which he did. The justices concluded that two specimens of urine had not been provided. The two portions of urine constituted one and the evidence of the analysis was inadmissible. The prosecutor appealed.
Held: The appeal failed. Since the entire operation had occupied only two minutes, it was obviously one single operation, which was momentarily discontinued on the direction of the sergeant, and the justices had been justified in concluding as they had.
Phillips J said that the finding of fact as to whether there was within section 9(5)(b) two specimens of urine within one hour, depended: ‘partly on law but mainly on the view which the justices took of the facts of the case. It may be said, I suppose, that they have linked that finding to the proposition that there was only one specimen because — and I underline that word — two portions were provided from the same bladder content. So, although it is a finding of fact, and therefore binding on us, it is open to criticism if there is, in law, no requirement that two specimens come from different bladder contents. But essentially it is a factual question, provided the justices direct themselves properly, whether here there was one specimen or two, and essentially their decision is that there was only one.’ He cited Roney, and having quoted the Lord Chief Justice’s reference to a ‘full and fair opportunity’ to give his sample of urine, said: ‘Those words are important, because they indicate the purpose of these provisions, which in part at all events are for the protection of the motorist. It has be said here that, although Sergeant Prosser acted in good faith, the effect of what he did in practice was to deprive the defendant of that protection, and the defendant did not have what Lord Widgery CJ there refers to as the . . ‘full and fair opportunity to give his sample of urine’ in what, from his point of view would be the most beneficial circumstances. That is the vice which arises when the officer gives directions of this sort to the motorist which are not directions which he is authorised to give by the Act.’ There had been only one single operation momentarily discontinued on the direction of the sergeant.
Judges:
Phillips and McNeill JJ
Citations:
[1982] RTR 96
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Roney v Matthews QBD 1975
The LCJ considered an argument that the officer had not complied with the requirement that a defendant to be requested to provide two specimens within one hour of the request. He said: ‘The reference to two specimens of urine, I think, is explained . .
Cited by:
Cited – Ryder v Crown Prosecution Service Admn 14-Apr-2011
The defendant appealed by case stated against his conviction for driving with excess alcohol, saying that the collection of a sample of urine had not been in accordance with the requirements of section 7. He had had the samples taken whilst in . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 04 May 2022; Ref: scu.470575