Neutral Citation Number: [2002] EWCA Crim 2836
No: 200103613/S3
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 18th November 2002
 
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE GIBBS 
 
MR JUSTICE DAVIS
 
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R E G I N A 

‑v‑ 

JANE MARY‑ELLEN BOYD
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR BOLTON appeared on behalf of the APPELLANT
MR SHORROCK appeared on behalf of the CROWN
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J U D G M E N T 

1.	THE VICE PRESIDENT:  On 11th May 2001 at Winchester Crown Court, following a trial before His Honour Judge Hooton, this appellant was convicted of causing death by careless driving, when under the influence of drugs.  She was subsequently sentenced to 18 months' imprisonment, suspended for 2 years and a suspended sentence supervision order was made.  She appeals against conviction by leave of the Single Judge, on one ground.
2.	The facts were that, on 27th October 1999, the appellant, at about 5 o'clock in the afternoon, was involved in a road traffic accident on the A 35 Totton bypass. She was driving her recently acquired Ford Escort motorcar, when she lost control and crashed into a lorry coming the other way.  Her 10 year old daughter, who was a passenger in the rear of the car, was killed.
3.	It was the prosecution case that, during the afternoon before the accident, she had taken heroin.  The paramedic who attended at the scene gave evidence that she said that she had taken it at 5.30.  The doctor who examined her recorded that she had constricted pupils, and said she had taken heroin that afternoon.  The doctor observed a recent injection mark in the appellant's groin which was consistent with that having happened.
4.	A blood sample was taken from the appellant at the hospital, at 7.15 in the evening.  It was analysed on behalf of the prosecution and it was said, on behalf of the prosecution, to give a positive screening test for free morphine and opiate drugs.  The defence disputed that interpretation of the test but had been unable to conduct their own screening tests.
5.	The judge decided, following a voir dire, in which evidence was heard from Mr Hiscutt, a chartered biologist with 32 years' experience in the Home Office forensic science service, to exclude the evidence of the blood sample from being called before the jury.  He, however, rejected a submission that there should be a stay as an abuse of process. It is the rejection of that submission which gives rise to the ground of appeal before this Court.
6.	The issue for the jury to decide was whether the appellant had used heroin in the afternoon before she drove and, if so, whether her ability to drive properly had been impaired by that heroin.
7.	The defence was that the appellant had used Diconal that afternoon, that there was some mechanical problem with her car and that she, the defendant, had been distracted at the crucial time by the behaviour of her child passengers.
8.	The paramedic who attended the scene described the appellant's pupils as being constricted. He thought at first that her condition which, was pallid and clammy, might be due to shock, but her blood pressure was normal.  He was unable to find a vein because they had collapsed; there were areas of scarring inside the defendant's elbows, consistent with the regular injection of drugs.  He asked her if she took drugs and she said that the last time she had taken heroin was at 5.30, but she did not say whether by that she meant am or pm.  They arrived at the Southampton General Hospital at 6.07 in the evening and, as we have said, a blood sample was taken at 7.15.  As it turned out, morphine was given to her at 7.30 so a further blood specimen taken in the early hours of the following morning can be disregarded.
9.	The doctor who saw the appellant at the hospital at 6.10 was told by the appellant that she had used some intravenous drugs before driving her car that afternoon. She said she had used a small amount of heroin and injected into her right groin earlier during the day, but she did not give the doctor a time when that had been done.  There was, however, a puncture wound, bruise and some tissue paper over the site where she had injected.  The appellant's pupils, on examination, were small but they reacted to light.
10.	There was evidence that intoxication by heroin would cause pupils to constrict and the constriction would last for 2 hours or less.
11.	The professor who gave that evidence, in cross‑examination, agreed that Diconal, which is a heroin substitute, could cause pinpoint pupils. Indeed, after taking Diconal constricted pupils would appear within 30 minutes, and the symptoms could persist for the same length of time as those resulting from heroin.  It would all depend on the dosage.
12.	There was evidence from a vehicle examiner as to the inflation of the tyres which indicated that the front off‑side tyre was very substantially over‑inflated.  There was also evidence, from an accident investigator called by the defence, that there had been an extreme loss of control in the car.
13.	The evidence which the defendant gave before the jury was that she took heroin by injection and Diconal orally.  On the day in question, she had taken heroin in the early hours of the morning between 3.00 and 4.00 am.  She had taken Diconal between 11.00 and 11.30 and, by the time she was driving, she said she was not under the influence of Diconal.  She accepted that she had lost control of the motorcar. She had not taken heroin during the afternoon immediately prior to the accident.
14.	In the course of the voir dire, Mr Hiscutt, called on behalf of the defence, said that, if a second test of the blood sample had been possible, it might have yielded results favourable to the defendant.  A second test was not possible. The defence statement, served on 21st July 2000, had identified the potential crucial importance of toxicological evidence and had indicated that the defence was that the defendant was not effected by drugs. Over a period of time, enquiries had been made by the defence with regard to the whereabouts of part of the blood sample, so that it might be examined on behalf of the defence.  But the sample, after it had been received and examined on behalf of the prosecution in the early part of 2000, was kept in the basement but not in a refrigerator or freezer. When, for example in late August 2000, the defence solicitors were writing to enquire if the blood sample still existed and requesting it for examination, it was not until very much later that it emerged that there was no sample fit to be tested by the defence.
15.	The submission which is made by Mr Bolton, on behalf of the appellant, is that, in these circumstances, not only should the judge have excluded the evidence of the prosecution test of the sample, but he should also have stayed the proceedings as an abuse of process.  It is not said that the prosecution behaved maliciously in relation to this matter. What is said is that they behaved with complete incompetence so far as the preservation of the blood sample is concerned.  The consequence is that the defence were deprived of the opportunity of having expert evidence, following examination of the blood sample, which might have shown that, at the relevant time, the defendant was not affected by heroin at all or, further, may have shown that she was not so affected that her ability to drive properly was impaired.  In other words, the submission is made that, because of the conduct of the prosecution, the defence were deprived of the opportunity of establishing what might have been a complete defence to the charge.
16.	Both Mr Bolton, on behalf of the appellant, and Mr Shorrock, on behalf of the prosecution, have invited the Court's attention to R v (Ebrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293 which helpfully reviews the principles to be applied in Magistrates' Courts, when submissions are made in relation to abuse of process.  It is to be noted that the evidence of which, in that case, the defence had been deprived was videotape evidence of what had occurred.
17.	Mr Bolton submits that there is abundant authority, in relation to prosecutions under the Road Traffic Act, for the proposition that a defendant, who is deprived of the opportunity of conducting his own examination of samples taken from him, should have proceedings against him halted. The provisions of the Road Traffic Acts in relation to taking of samples are designed for the protection of accused as well as for the proper prosecution of defendants(see for example Perry v McGovern 1986 RTR and Nicholas 1973 RTR 208.
18.	For the Crown, Mr Shorrock submits that it was within the proper ambit of the judge's discretion to refuse to grant a stay, having concluded that the evidence in relation to the sample should not be admitted before the jury.  It is to be noted that the judge's ruling was on the basis that it was impossible to know what the result of a further test would have been; and, because the blood sample might have had a prejudicial effect on the defence, and had been excluded, there was nothing to make the trial fundamentally unfair if, having regard to all the other evidence which was available, the trial proceeded.
19.	As it seems to us, the learned judge fell into error.  The evidence of Mr Hiscutt demonstrated that, in the first place, the conclusion reached on behalf of the prosecution in interpreting the sample tested by them was open to challenge.  His view was that what was revealed by the test was no more than a borderline positive and, therefore, should be regarded as negative from the defendant's point of view.  Furthermore, had another sample been examined by the defence, it may have established, as the short passage from the voir dire which we have read shows, that there was no heroin materially affecting the defendant at the time she drove.  That being so, as it seems to us, the defence was deprived by the prosecution of the opportunity of establishing a defence which might have been open to them.  The situation where the scientific examination of samples is concerned, although subject to the same sort of principles as those enunciated by the divisional court in Ebrahim, is very different from that where, as in that case, a video‑tape is not available but other lay witnesses may be able to speak of the events which occurred.
20.	It would, as it seems to us, be unsatisfactory if, (as Mr Shorrock concedes), it were impossible for the prosecution to proceed for offences under the Road Traffic Act because of the want of opportunity for the defence to examine the sample, yet in the present case, it were nonetheless open to the prosecution to proceed.  Accordingly, in our judgment, the judge, having excluded the blood sample, ought, in the circumstances of the present case, to have taken the further step of ordering that the proceedings should be stayed. The fairness of the trial required that this be done. Accordingly this appeal is allowed and the appellant's conviction is quashed.