Defences your Consent to Giving a Blood Sample


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The starting point is to look at the historical context of these allegations. The basic position in our law is that you do not have to provide evidence against yourself, which, of course, is exactly what you are doing when you provide a blood sample. This has been the position in our law for many centuries; having been eroded in more recent times as a consequence primarily of road traffic legal legislation, and the desire by the authorities to ensure that those under the influence do not get into a car and drive. Thus if the police believe that you are under the influence of drugs then, having perhaps carried out a roadside test, which went against you, you will be arrested, taken to the nearest available police station and required to provide a sample of blood to be taken by a “registered health care professional” (NOTE – this cannot be a police officer). The sanction, of course, is that if you fail to provide such sample “without reasonable excuse” (and those three words require emphasis) then you will be charged with the separate offence of failing to provide, the section 7(6) offence.

 

That then is the present parliament made law. However, as this is such an inroad into our basic legal rights as citizens, the courts have asserted their authority to ensure that the police follow the law to the letter. Therefore, if there should be a mistake in procedure, which fundamentally denies you your rights and protection under the law, then “judge-made” law intervenes to ensure your acquittal. One is not talking here about minor mistakes in police procedures, but major mistakes which have, as a consequence, the erosion of your legal rights.

One such right which you enjoy is that your consent to giving blood must be given without fear and unconditionally. In other words the police cannot force you to give blood, though, if you fail “without reasonable excuse” to so provide, then you will be charged with that separate offence (the section 7(6) offence): unless, of course, the court finds that that the prosecution cannot prove the negative – cannot prove that you did not have a “reasonable excuse”.

It follows that an officer cannot pressurise you into giving blood as any form of pressure would be improper and likely to lead to an acquittal. Moreover, the prosecution must, if required by you and your legal team, prove that your consent was given voluntarily. One of the ways they may attempt to do this is by completing and serving (that is giving to you or your legal team), a copy of a form called the HO RT/5 certificate. This document should be prepared by the “registered health care professional” who took your blood, confirming that you consented to giving blood. This is a crucial piece of prosecution evidence, a copy of which must be served no later than seven days before any trial. If it is not served upon you or your legal team, then it is a document without meaning and the prosecution are in grave difficulty unless they can get the person who took your blood to court. In addition, if you choose to reject the HO RT/5 Form no less than three days before the trial then again it cannot be relied upon. The result is that if there is no admissible HO RT/5 Form or direct sworn testimony form the “registered health care professional” concerned, then there should be no case for you to answer! Again, it is vital that you have good professional help if you are going to take this point.

 

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