The High Court has refused an application to prohibit a criminal trial over a blood sample that was not retained, ruling that the challenge was brought too late and that the evidence issue could be addressed in the District Court.
Mary Kennealy faces charges of refusing to permit a designated medical practitioner to take a blood sample, contrary to section 13(3) of the Road Traffic Act 1994, and criminal damage, contrary to section 2 of the Criminal Damage Act 1990. The charges relate to events on 24 May 2008. The judgment does not determine either charge.
Kennealy sought judicial review to stop the refusal charge proceeding. She argued that the absence of the blood sample prevented scientific measurement of how much had been taken, creating a risk of an unfair trial. Her proposed argument was that the amount extracted was enough for analysis under Medical Bureau of Road Safety guidance, and therefore did not amount to a refusal.
The judgment records that Kennealy and Dr Lone both described the syringe as about half full when the attempt ended, which the judge estimated at roughly 5ml. The guidance referred to in the judgment suggested that 2ml could be sufficient for analysis and that 4ml would be needed for two specimens where a full 10ml sample could not be obtained. The doctor considered the sample inadequate. The judge said the competing interpretations and any clarification of the doctor’s evidence were matters for the District Court, with any appropriate applications for directions and a ruling.
The court held that the application failed the requirement to be brought within three months of the grounds arising and to be made promptly. Kennealy had learned by 28 May 2009 at the latest that the sample had not been retained, but applied for leave on 15 September 2009, two days before the scheduled hearing. The judge said no explanation had been provided for the delay.
The judge also said the application’s central premise was misconceived because Dr Lone’s evidence could address the quantity taken. The court dismissed the application. It did not decide whether the sample was legally sufficient or whether Kennealy was guilty; those issues remained for the criminal proceedings. The judgment noted that a conviction could be appealed to the Circuit Court, where a hearing would be de novo.