Please do not publish Nigel’s roadside drug-testing report in its current form.

Subject: Nigel’s roadside drug-testing report — please do not publish

Dear all,

Please do not publish Nigel’s roadside drug-testing report in its current form.

Andrew has raised a valid concern about the practical legal effect of parts of the report, particularly the suggestion that a driver can use an alternative “spoon” method when providing an oral-fluid sample. Whatever the intention behind that suggestion, it risks being treated as non-compliance with the statutory testing procedure and should not be presented as a legally safe method.

There is also an important distinction between questioning the lawfulness and integrity of the system itself and advising people to frustrate a roadside testing process. The first is legitimate and is where our work should remain focused. The second could expose an individual driver to unnecessary enforcement consequences.

We have therefore taken this issue further through the proper evidential route.

An Official Information Act request has now been sent to the Ministry of Transport concerning the decision record behind the approval of PHF Science for oral-fluid laboratory testing. We have asked for the underlying ministerial and administrative material, including the recommendation, scientific and accreditation material, decision criteria, any consideration of institutional or commercial interests, alternatives considered, and the material actually placed before the decision-maker.

The purpose is to establish the evidence before making any allegation.

The present position is therefore:

• Nigel has identified some legitimate questions about the roadside drug-testing regime and the relationship between ESR/PHF Science, scientific advice, laboratory testing and the wider programme.
• We should not publish advice that could be interpreted as encouraging motorists to interfere with the prescribed roadside procedure.
• We are now obtaining the underlying government decision record.
• Once that information is received and audited against the legislation and existing public records, we can determine whether there is a proper evidential basis for a judicial review of the relevant administrative decision or decisions.

The judicial review has not been filed. We are presently doing the evidence and decision-record work required before deciding whether proceedings are justified.

Please preserve Nigel’s material as research material, but do not publish the present report or the roadside “spoon” advice.

Kind regards,

Tracy
not a lawyer