Clarke v Crown Prosecution Service

Factual and Procedural Background

This appeal arises from a conviction by Magistrates at Skipton Magistrates Court on 3 October 2022 of the Appellant for two offences under the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988. The offences involved driving a motor vehicle on a public road with a proportion of controlled drugs, cocaine and benzoylecgonine, in the Appellant's blood exceeding the statutory limits. The Appellant was arrested following a positive roadside drug test and subsequently provided a blood sample at a police station, taken by a registered healthcare professional with consent recorded on standardised forms known as the Manual of Guidance, Drink and Drug Driving ("MGDD") Forms.

The Appellant pleaded not guilty and challenged the prosecution's evidence on procedure and consent to the blood sample being taken. The police officers' evidence, including the MGDD Forms, was agreed at a case management hearing and admitted at trial. The Magistrates convicted the Appellant, finding the consent requirements and procedural safeguards were satisfied. The Appellant did not give evidence at trial and subsequently appealed by way of Case Stated, challenging the admissibility of the MGDD Forms and the sufficiency of consent given to the police officer alone for the blood sample to be lawfully taken.

Legal Issues Presented

1. Whether the Magistrates were correct to admit as evidence the contents of the MGDD Forms.
2. Whether the Magistrates were correct to determine that giving consent to the taking of the blood sample to the police officer alone was sufficient to satisfy the consent requirements of Section 11(4) of the Road Traffic Act 1988 and Section 15(4) of the Road Traffic Offenders Act 1988.

Arguments of the Parties

Appellant's Arguments

• The MGDD Forms were inadmissible hearsay evidence and should not have been admitted without the officer who completed them giving oral evidence.
• Reliance on Crown Prosecution Service guidance stating that MGDD Forms contain out-of-court assertions and require formal admissions or evidence from the officers who completed them to be admissible.
• Consent to taking blood must be a two-stage process: first consent to the police officer following the statutory warning, and second consent to the medical professional actually taking the blood, with the latter consent needing to be given directly to the medical professional.
• Case law (Friel v Dickson and Persaud v DPP) supports the requirement of explicit, informed consent given to both parties.

Respondent's Arguments

• The MGDD Forms were admissible as exhibits attached to the police officer’s agreed written statement, pursuant to section 9(7) of the Criminal Justice Act 1967, effectively treating them as if produced and identified in court by the maker of the statement.
• Even if hearsay, the MGDD Forms were admissible by agreement under section 114(1)(c) of the Criminal Justice Act 2003, as the Appellant agreed to the officer’s evidence including the forms and did not challenge them at trial.
• The requirement for consent is that the accused consents to the blood being taken and continues to consent at the time the medical professional takes the sample, not necessarily that consent be given separately and explicitly to the medical professional.
• The Magistrates correctly found that a single continuing consent given to the police officer was sufficient, supported by the fact that consent was given again in the presence of the medical professional.
• Case law cited by the Appellant was distinguished as involving doubtful or absent consent, unlike the clear consent found on the facts here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the admissibility of the MGDD Forms. It held that the forms were properly admitted as exhibits attached to the police officer’s agreed written statement under section 9(7) of the Criminal Justice Act 1967. The forms were identified in the statement, bore the Appellant’s name, and related to the specific occasion and individual. The Magistrates were entitled to conclude the forms were part of the evidence and admissible. Additionally, the court found that the forms were admitted by agreement as hearsay evidence under section 114(1)(c) of the Criminal Justice Act 2003, since the Appellant agreed to the officer’s evidence including the forms and did not challenge them at trial.

Regarding the consent issue, the court noted some ambiguity in the Magistrates’ question about whether consent given "to the police officer alone" was sufficient. The court clarified that on the facts found, the Appellant gave consent twice: first to the police officer and second in the presence of the medical professional. This satisfied the statutory requirements under Sections 11(4) of the Road Traffic Act 1988 and 15(4) of the Road Traffic Offenders Act 1988.

The court rejected the Appellant’s argument for a strict two-stage consent process requiring separate consent explicitly given to the medical professional. Instead, it held that consent is a continuing process and that a single continuing consent given to the police officer, which was not withdrawn and was confirmed in the presence of the medical professional, was sufficient. The court distinguished the cited case law as involving facts where consent was doubtful or absent, unlike the present case.

The court observed that the CPS Guidance relied upon by the Appellant does not represent definitive legal authority and that clearer drafting by the police officer, explicitly describing the MGDD Forms as exhibits, would have avoided complications.

Holding and Implications

The appeal is dismissed.

The court affirmed the Magistrates' decision to admit the MGDD Forms as evidence and upheld the finding that consent given to the police officer alone was sufficient to satisfy statutory requirements for blood sampling. The direct effect is that the Appellant's convictions stand. The court did not establish new precedent but clarified the application of existing statutory provisions and evidential rules in the context of MGDD Forms and consent to blood sampling in driving under the influence cases.