Magistrate entitled to exclude blood test evidence despite cocaine reading, Supreme Court rules

The Stipendiary Magistrate was entitled to exclude evidence in a drug driving case because it had been unlawfully obtained, the Supreme Court has ruled, even though it showed the driver had traces of cocaine in his blood.

The case dates back to May 8, 2024, when the defendant was arrested on an unrelated matter and was later found to be in possession of cannabis on arrival in New Mole House police station.

He was then further arrested for being unfit to drive through drink or drugs and a preliminary test gave a positive indication for two types of drugs.

On the basis of that result, the defendant was then required to provide a blood sample which, when analysed, showed traces of cocaine in his body above the specified limit.

But when he appeared before the Magistrates Court, the defendant argued that the preliminary test had been carried out using a device which, at the time, had not been approved by the Government of Gibraltar as required by traffic legislation.

The device was not approved until August 22, 2024, over three months after the incident.

The defendant accepted that the evidence of the blood sample was admissible but argued the court should nonetheless exclude it using discretionary powers.

The Magistrate accepted that submission and excluded the evidence, leading to the dismissal of the charge.

Last year, the Crown questioned the Magistrate’s decision and appealed it before the Supreme Court, which handed down its judgement earlier this month.

In his ruling, Puisne Judge Liam Yeats noted that while the device used for the preliminary test had not yet been approved at the time of the incident in question, this did not suggest that police were knowingly using it nonetheless.

“The inference to be drawn from the way in which the case was dealt with in the Magistrates’ Court is that this fact was not known to the officer that administered the preliminary test,” he said.

“In other words, it is not said that the preliminary test was administered other than in good faith.”

“Notwithstanding, the Magistrate excluded the evidence having considered this technical breach together with the lack of any specific circumstance which would militate against exclusion.”

Lawyers for the defendant had argued that admitting the blood test as evidence would result in a prosecution that would not have otherwise taken place.

They stressed that there was no evidence that the defendant’s driving was in any way impaired and he was even allowed to drive himself to the police station after his initial arrest on the unrelated matter.

It was only when police found a small piece of cannabis that the drug driving procedure commenced, leading to the use of a testing device that had yet to be approved by the Government in accordance with the Traffic Act.

After considering submissions in the appeal, Mr Justice Yeats concluded that while the blood test evidence could have been admitted, the Stipendiary Magistrate was also entitled to exclude it if he saw fit because of the specific circumstances of the case.

He noted “the fact that the breach of the framework in the Traffic Act was such a technical one; that there was no suggestion that the reliability of the sample was affected by the device not having been approved; that the exact same device was approved by the Government; and that the defendant was in no different a position to anyone who was required to provide a sample after the approval.”

“In my judgment, the Magistrate would have been perfectly entitled to decide that he could admit the evidence of the blood sample.”

But Mr Justice Yeats said the threshold was whether the Magistrate’s decision to exclude the sample was “so unreasonable that no reasonable judge could have taken it”, what is known in law as the Wednesbury test.

He decided it was not.

“I conclude that it does not cross the high threshold,” Mr Justice Yeats said in the judgement.

“In effect, the Magistrate based his decision on the unlawfulness of the request, his view that there were no factors which amounted to special circumstances, and the particular facts of the case (which must have included the fact that there was no concern over the defendant’s actual manner of driving).”

“He considered that this militated towards the exclusion of the evidence. This was within his purview.”

Prosecutor Kerrin Drago appeared for the Crown in the appeal and Leigh Debono for the defendant.