Director of Public Prosecutions v Wilson [2009] EWHC 1988 (Admin)

Case No CO/12345/2008[2009] EWHC 1988 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 21 July 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE SILBER
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimantv
Between
FRANK WILSONDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr K Barker (instructed by CPS Bristol BS1 2QJ) appeared for ClaimantMr K Hopper (instructed by Phoenix, London WC2A 2LL) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SILBER: The Director of Public Prosecutions appeals by way of case stated against the decision of the Plymouth Justices, given on 11 September 2008, by which they found Frank Wilson, the respondent, not guilty of having driven a motorcar on 16 February 2008 on a road after having consumed so much alcohol that the proportion of alcohol in his blood exceeded the prescribed limit, contrary to section 5(1)(A) of the Road Traffic Act 1988 ("The 1988 Act") and the schedule 1 to the Road Traffic Offenders Act 1988.[2]The facts, which are either agreed or found by the magistrates, were that on 16 February 2008 the respondent was driving his BMW motorcar, which was involved in a road traffic accident, after which he was taken to Torbay Hospital. Whilst at the hospital, the respondent's treating doctors gave permission to the police constable and obtained the respondent's permission to undertake the breath test screening procedures. This was done and it showed a figure in excess of the legal limit.[3]Police Constable Cassidy then arrested the respondent whilst he was at hospital and cautioned him. The police officer then consulted with the doctor again to establish what treatment was going to be administered, and whether the respondent was going to be detained overnight. The answer was that doctors were uncertain as to whether the respondent would be detained overnight. Police Constable Cassidy contacted the police surgeon, who duly arrived at the hospital. The doctors treating the respondent were content for the respondent to be spoken to by the officers and for a sample of blood to be taken. The sample of blood was duly taken and an analysis of the respondent's blood showing a reading of 133 milligrams for 100 millilitres of blood, which was in excess of the limit.[4]Later Police Constable Cassidy took the respondent back to the police station after he had been discharged from the hospital. Whilst at the police station, the respondent was detained and he was interviewed. Police Constable Cassidy was not aware that somebody who had been treated at hospital could not be arrested. It is common ground that section 6D(3) of the 1988 Act states that:
"A person may not be arrested under this section while at hospital as a patient"
. It is therefore common ground that the arrest of the respondent was both unlawful and prohibited and it is that fact which has given rise to the appeal.[5]At the hearing in front of the magistrates, the respondents did not give evidence. It was contended on his behalf that the starting point was the provision in section 6D of the 1988 Act which prevented him from being arrested whilst he was undergoing treatment. It is therefore said that the subsequent taking of the respondent's blood sample was illegal and it should be disregarded. The magistrates stated that their attention had been drawn to various provisions of the Road Traffic Legislation. They pointed out that the respondent was not taken to the police station after his arrest, but, indeed, he was arrested while undergoing medical tests.[6]The reasoning of the magistrates was, having referred to section 6D(3) of the 1988 Act, they said that:
"It is plain English, not only was Mr Wilson's arrest unlawful, it was prohibited. In our view, if PC Cassidy had simply gone on to request the blood sample after the positive breath screening test, with the consent of the doctor in immediate charge of Mr Wilson's case, then there would have been no legal issue in this case. Therefore in our opinion the blood sample taken after Mr Wilson's arrest cannot and should not be admitted as it was taken outside the terms and the spirit of the Road Traffic Act 1988, the arrest was not only unlawful, it was prohibited by the Act. Accordingly we found Mr Wilson not guilty of the first charge."
The questions for the opinion of this court are:
"(1) Were the Justices wrong in deciding that the blood samples were taken unlawfully because the Respondent had been arrested whilst at hospital, contrary to section 6D of the Road Traffic Act 1988, even though the Respondent was not removed from hospital, but remained until his treatment was concluded. (2) If the Justices were correct in deciding that the blood samples were taken unlawfully, could the samples nevertheless have been taken into account under section 15(2) of the Road Traffic Offenders' Act 1988, which states that "evidence of the proportion of alcohol ... in a specimen of ... blood ... provided by the accused shall, in all cases ... be taken into account. (3) Does the case of Fox - v - Chief Constable of Gwent (1986) AC 281 allow a court to take account of blood specimens obtained after an unlawful arrest where there is no suggestion that the officer was acting with mala fides, in the circumstances which existed in the present case."
[7]Before dealing with the submissions it is appropriate to mention briefly the statutory landscape, which is applicable and relevant to this case. The offence, with which the respondent was charged, is very much in the form of the summons. It does not refer to any requirement at all for the driver to have been arrested. The procedures that have to be set out are set out in section 6 of The 1988 Act, which explains in 6(1) that. "If any of subsections (2) to (5) applies a constable may require a person to co-operate with any one or more preliminary tests administered to the person by that constable or another constable." It is not in dispute that one of the triggering provisions apply, because under section 6(5) of The 1988 Act it applies if:
"(a) an accident occurs owing to the presence of a motor vehicle on a road or other public place, and (b) a constable reasonably believes that the person was driving or attempting to drive or in charge of the vehicle at the time of the accident."
The remainder of sections 6, 7 and 9 of The 1988 Act deal with the procedures that have to be adopted. There is no dispute in this case that the proper procedures were adopted and the only issue relates to the consequence of the statutory provision, which states that a person may not be arrested whilst a patient is in hospital. The issue in this case is what the effect is in relation to subsequent blood tests. The view of the magistrates, as I indicated, was that this provision means that any subsequent procedures carried out are not valid. That is a view which has been supported in submissions today by Mr Hopper, who appears on behalf of the respondent.[8]The case for the appellant is that the fact that there is a prohibition against arresting a driver does not invalidate the subsequent procedures. It is worthwhile remembering that the original drink-driving legislation, when first introduced, had a serious loophole because a valid arrest was a prerequisite for a requirement to provide a specimen under section 9 of the Road Traffic Act 1972. This was a loophole which led to cases such as Finnigan v Sanderford [1981] 1 WLR 837 in which it was held that the fact that the initial arrest had been unlawful invalidated all procedures that followed, including a conviction under the equivalent of, or the predecessor of, section 5(1) of the 1988 Act.[9]Matters have now changed because it is no longer necessary for a person to have been arrested, as was explained by Lord Fraser of Tullybelton in the case of R v Fox [1986] AC 281 in a speech, with which the other members of the Appellate Committee Committee agreed, when he said at page 290 that:
"Accordingly, a lawful arrest is not now specified as an essential prerequisite of a breath test."
Indeed in that case there had not been a lawful arrest, but it was held that that did not, in the circumstances of that case, mean that the subsequent procedures were invalid.[10]The answer to that decision put forward by Mr Hopper is that there is a crucial difference between an unlawful arrest and a prohibited arrest. His case is the fact that the arrest was prohibited means that all procedures subsequent to the arrest are not valid. In my view this is not correct. There is nothing in the statutory provisions which requires there to be a valid arrest for subsequent procedures to be so valid. Furthermore, there is no logical reason or any principled reason as to why evidence obtained after an unfair or an unlawful arrest should be admissable, but not that obtained after a prohibited arrest. The fact that an arrest is prohibited does not have the effect of invalidating subsequent procedures provided they are carried out in accordance with the other statutory requirements. Our attention was drawn by Mr Hopper to a number of cases such as Russell v Devine [2003] UKHL 24 in which the Appellate Committee was dealing with provisions in relation to providing specimens of blood, and whether they had indeed been come complied with. The present case is very different from it and those cases do not assist.[11]In my view the very fact that an arrest is prohibited is not a prerequisite for administering the breath and blood test is sufficient to show that the procedures that were followed in this case were indeed valid. That means first, that the only defence open to the respondent ought to have been rejected and, second, that in consequence I would answer in the affirmative the first question raised by the magistrates, which was:
"Were the Justices wrong in deciding that the blood samples were taken unlawfully because the Respondent had been arrested whilst at hospital, contrary to section 6D ..., even though the Respondent was not removed from the hospital, but remained until his treatment was concluded,"
The other questions are no longer relevant. It has been accepted by Mr Hopper that it follows that the case should therefore be remitted to the magistrates with a direction to convict.

LORD JUSTICE THOMAS: I agree. I only add a few words because of the submission made by Mr Hopper.

[13]It is clear, in my view, that the procedures under sections 7 through to 9 were complied with. Those sections set out all the necessary safeguards. It was conceded that in the case of unlawful arrest there could be no complaint about the admissibility of any evidence obtained through compliance with sections 7 through to 9. The only argument that could then be raised was to make an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence. I cannot see that it makes any difference whatsoever that a different section of the Act prohibits the arrest. There is no infringement of the safeguards in relation to the tests which were relied upon.[14]For those reasons, in addition to the reasons given by my Lord, I would allow this appeal and answer the question in the way suggested by my Lord.[15]MR BARKER: My Lords, I have given my learned friend a handwritten schedule of the costs obtained, I am afraid, only today, but the costs which the director claims are £1,293.50.[16]MR HOPPER: Can I oppose the application? I do say it for this reason: notwithstanding the fine work that Mr Barker has done in his submissions, and obviously your findings, this case goes back to February 2008. It was, for all intents and purposes, a pretty straightforward case. Skeleton arguments and the authorities had been served on the Crown Prosecution Service at least two weeks prior to the trial taking place. No skeleton argument was provided by the prosecution as to the point. No authorities were relied on. You will have seen in the case stated from the magistrates that effectively they put forward to you that in relation to the points that have been raised today this argument was not raised before the magistrates.

LORD JUSTICE THOMAS: The CPS did not do a proper job below (I can probably put it more bluntly than can be put by your opponent) and therefore as it was not properly argued by the CPS below they should not have their costs, or certainly not all of their costs here?

[18]MR HOPPER: Exactly.[19]MR BARKER: My Lord, the magistrates acted upon the arguments put by my learned friend below. We would not be here had he not put those arguments.

LORD JUSTICE THOMAS: What do you say, if we are against you, about the sums that are asked for: £200 for CPS costs and £1,150 for counsel's brief fee and the VAT? Do you quibble with any of those figures?

[21]MR HOPPER: Looking at the costs that I would have claimed if I had been successful, I would not seek to deprive Mr Barker. I would just say, my Lords, it is a case which perhaps would not have been here if the job was done properly.

LORD JUSTICE THOMAS: We think the position is that although it is submitted before us today that the CPS had not dealt with the case properly below, nonetheless the argument was made. It was successful before the Justices. The CPS have had to incur the costs of coming here. They are a modest amount and we see no reason why they should not be awarded in full. Thank you both very much.

[23]Mr Hopper, we would like to commend the way you dealt with this case. You might have noticed the observations of one of our colleagues in another case which deprecates the way these cases are dealt with. Such a remark could not possibly apply to you. You dealt with it very nicely. Thank you very much.

Cited in 1 later judgment