Pilots accused of being drunk win appeal and have charges dropped after blood samples were destroyed

Jean-Francois Perreault and Imran Syed challenged the admissibility of the evidence of the proportion of alcohol in their blood after samples which should have been supplied to them for independent testing were destroyed by prison staff while they were remanded in custody.

A sheriff had rejected the appellants’ challenge but the High Court of Justiciary Appeal Court allowed their appeal after ruling that the sheriff had erred, following which the Crown instructed that there should be “no further proceedings”.

Admissible evidence

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Pentland, heard that the appellant were each indicted inter for a contravention of section 93(1) of the Railways and Transport Safety Act 2003 in respect that on 18 July 2016 at Glasgow Airport, they performed an activity ancillary to an aviation function at a time when the proportion of alcohol in their blood was in excess of the prescribed limit.

But section 15(5) of the Road Traffic Offenders Act 1988, which relates to the taking and use of blood or urine samples, provides that where a specimen has been provided by an accused who subsequently asks to be provided with a sample, “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 court was told that following the giving of positive breath samples the appellants were both arrested and arrangements made for them to provide specimens of blood.

In each case the specimen was divided in two parts, marked “A” and “B”; in each case the appellant asked to be supplied with one part; and in each case they selected the phial marked “B”; and in each case that phial was placed within the appellant’s property held by the police.

On July 19 the appellants were remanded in custody and transferred to HM Prison Low Moss and their property, in sealed bags and including the relevant phials, was transferred with them.

A week later the appellants were fully committed and released on bail, but the relevant phial “B” was not in the property returned to either of them.

‘Unfair and oppressive’

A preliminary issue was raised by each appellant objecting to the admissibility of evidence relating to sample “A” on the basis that sample “B” had not been supplied to them in terms of the 1988 Act; and that esto such supply had taken place, it would be “unfair and oppressive” at common law to admit it.

Evidence was led to the effect that there was, within the prison generally, or within the health centre in the prison, no protocol in place in respect of the reception and storage of such samples.

At the time of the appellants’ reception into the prison, the security manager, who in 20 years’ service had never had experience dealing with such items, suggested that they be destroyed.

The appellants did not agree to this, and the first appellant asked that the samples be stored in a fridge pending arrangements for their analysis.

Instead, the security manager removed the items from the appellants’ property and instructed a nurse to destroy them.

She initially put them in her desk drawer, but on learning that the appellants had been released from custody, she destroyed the samples.

Meanwhile, on the day the appellants were remanded the agent for the first appellant e-mailed the Crown, and again the following day on behalf of both appellants, asking for the sealed phial “B” to be provided for testing, but to no avail.

The agents, on August 2 and 3, again asked the Crown for access to the samples for testing, but the request, and further correspondence, was not responded to until February 2017, when it was wrongly stated that the samples had been destroyed at the prison with the appellants’ consent.

The sheriff held that the placing of the specimen within their property constituted “supply” in the sense required by section 15(5) of the Act and therefore concluded that the evidence relating to sample “A” was admissible, despite acknowledging that at no time was either accused handed the specimen.

Sheriff erred

But the appeal judges ruled that the facts demonstrated that the appellants were never in possession or control of the samples and that the sheriff should have sustained the objection.

Delivering the opinion of the court the Lord Justice Clerk said: “In our view, the sheriff failed to take sufficient account of the factual circumstances in which the sample had been placed in the appellant’s property; failed to take sufficient account of the appellants’ lack of effective control over the samples, or to recognise that this was a factor which distinguished some of the cases upon which he relied from the present; and did not give due and adequate consideration to the purpose of the section.

“As has repeatedly been pointed out, the question of whether there has been supply for the purpose of the section is one which depends on the circumstances of each case.”

The court rejected the advocate depute’s argument that to allow the appeal would be to hold Crown responsible for the acts of other, observing that, rather it was “to hold the Crown responsible for considering whether the circumstances are such as would reasonably enable the purpose of the section to be effected”.

The Advocate Depute also submitted that there were “public policy considerations” in play and that the court should not adopt an approach which might “encourage technical points” about compliance with the requirement to supply to be taken on “unmeritorious grounds”.

However, the judges observed that the “predominant public policy consideration” was the “need to ensure that accused persons are not unfairly denied the right given to them by statute to obtain an independent analysis of a blood sample where this is a step that they wish to take”.

Lady Dorrian concluded: “In the circumstances of the present case there was no effective supply of the ‘B’ samples to the appellants in terms of section 15(5) of the 1988 Act. For this reason we were satisfied that the appeal must be allowed on the basis that the sheriff erred in repelling the objection taken in relation to the Crown’s compliance with the requirements of section 15(5). We accordingly remitted the case to the sheriff with a direction that he should sustain the objection to the admissibility of the evidence of the proportion of alcohol found in the appellants’ blood specimens.”

The court added: “In conclusion we note that it seems likely that the absence of any protocol or procedures for dealing with the supply of the samples to the appellants played a part in the unfortunate circumstances which are likely to have serious consequences…It is to be hoped that lessons have been learned by the Crown, Police Scotland, and the Scottish Prison Service.”