Defend a fail to provide charge using a phobia of needles
By MAJ Law on 15 November 2022
Failing to provide the police with a sample of blood in the police station or the hospital can be considered more serious than the original drug driving allegation.
Drug driving generally carries a 12 month driving disqualification. Failure to provide carries a disqualification period of around 18 months, and there is also an increased risk of a community order or a prison sentence.
It is always worth considering the defences that are available to an allegation of failing to provide because the penalties can be serious.
Reasonable excuse - a phobia of needles
If you are charged with failing to provide a specimen of blood, you may have a defence without realising it. If you suffer with a phobia of needles, you can raise this as a medical reason for not providing a sample of blood in police custody. This is known as a 'reasonable excuse'. If you told the police at the time that you had a fear or phobia of needles, this can help strengthen your argument. Telling the police at the earliest opportunity that you suffer with a fear or phobia of needles can increase the chance of successfully defending the allegation at court. The police will often charge someone with fail to provide because they do not realise that a phobia of needles is medical reason for not providing a sample. Do not worry if you did not tell the police about your phobia, this will not prevent you from arguing that point at a later date.
Evidence of your phobia
One of the most effective ways to establish a phobia of needles is with your medical records. If the medical records pre-date the incident and they show that you have a phobia of needles then your defence is strong. The records may also show that you explained to your GP that you have a phobia of needles, or they may also show that you have previously turned down treatment for an illness because it involved having a syringe, needle or a blood sample taken from you. It could be that you refused your COVID vaccinations because of your phobia of needles. If the phobia is pre-existing, your argument is more credible, believable and it is more likely that you would win the case on that basis. However, you can still rely on your needle phobia as a defence even if you have not raised it with you GP or doctor previously. It may have been the case that you did not go to your doctor in the first place because of your phobia of needles. The court will often accept that a phobia isn't always logged with a doctor. So, there is nothing preventing you from raising needle phobia as a defence after the incident.
Another effective way to demonstrate that you suffer with a needle phobia is with a written statement from a family member, friend or anyone that knows you. This allows for someone who knows you personally to explain to the court that your needle phobia is pre-existing and explain what impact your phobia has had on your decision making previously. They could also outline previous instances where you have fallen ill upon seeing a needle or instances in the past where you have refused a needle, syringe or vaccination. If that person is willing to attend court to explain that point, your argument becomes stronger.
Expert reports
One way of strengthening your defence of needle phobia is to instruct an expert witness to prepare a medical report. An expert is a psychotherapist who will have expertise in needle phobia diagnoses and the impact it can have on someone's decision making. We work very closely with a psychotherapist who regularly produces reports in fail to provide cases. The expert would usually conduct a short assessment with you face to face. They would ask you various questions about the needle phobia and where you think it stemmed from. They will also ask how it could impact your decision making and how it makes you feel when you see a needle. The expert can then use the information you provide to prepare a very detailed report which can be used in court.
If the report is favourable, and it confirms in the psychotherapists view that you do suffer with a phobia of needles, you can rely on the report as medical evidence to establish that point. It does not matter that you did not raise your needle phobia with the police at the time that they asked for a specimen of blood. You are still able to rely on the defence after the incident.
Burden of proof
It is also important to consider the burden of proof in fail to provide cases. Firstly, the prosecution service are required to prove the case against you and this has to be proven beyond all reasonable doubt. With a fail to provide reasonable excuse argument, there is no evidential burden on you as the defendant.
As long as you can establish an evidential basis for your needle phobia, (medical records, expert report, statements from family or friends) it then becomes the role of the prosecution to provide beyond all reasonable doubt that you do not have a phobia of needles. This becomes impossible for the prosecution service because they won't have expert evidence to rely on or psychologists or psychotherapists in these types of cases.
You can view our latest YouTube video below. Our senior solicitor Conor Johnstone explains in detail the defence of a reasonable excuse involving a needle phobia.
You may know by now that a fail to provide charge carries a mandatory driving disqualification. This means that you will be banned if you are convicted of the offence. The minimum driving disqualification is 12 months. The court can also impose a fine, community service or custodial sentence. Take a look at the guidelines below.
Failing To Provide Sentencing Guidelines
| Level of seriousness | Starting point | Range | Disqualification | Disqualification if 2nd offence within 10 years |
| Category 1 | 12 weeks' custody | High level community order - 26 weeks' custody | 29 - 36 months (extend if imposing immediate custody) | 36 - 60 months (extend if imposing immediate custody) |
| Category 2 | Medium level community order | Low level community order - High level community order | 17 - 28 months | 36 - 52 months |
| Category 3 | Band C fine | Band B fine - Low level community order | 12 - 16 months | 36 - 40 months |
If you have a previous drink or drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.
FAQ - Sentencing Guidelines
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Can I pay a higher fine to avoid a ban?
No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income. If you plead guilty at the first opportunity you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification. -
I'm a carer for a family member. Will the court let me keep my licence?
No. There are no provisions allowing someone convicted of fail to provide to keep hold of their licence as a carer. Failure to provide has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing. -
Will I go to prison?
There is always an increased risk of a custodial sentence in fail to provide cases. In the most serious cases, the starting point for the court is a 12 week prison sentence. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors.
How to get off a fail to provide (blood) charge
Defend the charge
Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Fail to provide cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a fail to provide case, evidence might include;
- Witness statements
- An MGDDB document
Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with failing to provide a blood sample, they are usually released and bailed to attend the Magistrates' Court.
Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes what becomes known of the defence case, any further reasonable lines of inquiry that should be pursued, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that charges should be altered or discontinued or the prosecution should not proceed. If a case is to be stopped, care should be taken when choosing the method of termination, as this can affect the victim’s position under the Victims' Right to Review scheme. Wherever possible, prosecutors should consult the investigator when considering changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the CPS. [CPS Code for Crown Prosecutors]
In almost all cases involving a refusal, the police will charge the suspect. A date will then be set for the suspect to attend court for a first appearance. If you have been given a date to attend court you will no doubt be extremely worried. We have produced a detailed booklet about first hearings in the Magistrates' Court. You can access this here.
Every person has the right to challenge an allegation made by the police and to check the evidence against them. Not only can you continue to drive for 2 - 6 months, you will also see the full case file held by the CPS, including any witness statements and the MGDDB document. It is only by checking the evidence can you find fault with it.
Thinking of pleading guilty?
Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.
A Summary of Recent Cases – Marcus A Johnstone
How to win the 'unwinnable' cases...
Drink Driving – Your First Court Hearing
This booklet discusses a drink driving first court hearing - Is a solicitor necessary?
Will you go to prison?
This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving
Prosecution Disclosure
If you read our blogs regularly you will know that we speak often about the affect of prosecution disclosure (or lack of) in criminal cases. Under the Criminal Procedure and Investigations Act 1988 the CPS have a duty to provide you with;
- The evidence is wants to use against you
- A schedule of unused material
This disclosure should be served as soon as possible following a not guilty plea in the Magistrates' Court and usually within 28 days of the first hearing. But what happens if the CPS fail to provide disclosure within the permitted timeframe?
A failure by the CPS to provide disclosure is one of the most common ways that we win fail to provide cases. This is because rules of evidence require the CPS to serve its evidence prior to trial. Often due to staff shortages and administration problems the CPS miss deadlines and make silly mistakes. This is a common occurrence in Magistrates' Court cases, usually because drink driving cases are less serious than other offences in higher courts.
Unfortunately it's not as simple as sitting back and letting the CPS slip up. The defence are required to be proactive in contacting the CPS and in some circumstances are required to call the case back to court for a pretrial review. As an experienced team of specialist defence solicitors, we can advise you on all of these issues. We know how to best safeguard your position in order to give you the best chance of winning your fail to provide case.
Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series.
0151 422 8020
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