Russell v. Devine [2003] UKHL 24

House of Lords
Case No SESSION 2002-03
Between
RussellAppellantDevineRespondent
Before
Lord Bingham of CornhillLord Nicholls of BirkenheadLord HoffmannLord HuttonLord MillettDate 8 May 2003
[1]The question of general public importance certified by the Court of Appeal in Northern Ireland (see [2001] NI 385, 392) as appropriate to be considered by the House in this case is: My noble and learned friend Lord Hutton has outlined the facts giving rise to this question and referred to the relevant legislation. He has also summarised the reasons given by the Court of Appeal for answering the question in the negative. I gratefully adopt and need not repeat this introduction to the problem.[2]On reading article 18(4) of the Order on its own, the view could well be taken that the specimen, whether of blood or urine, must be provided at the same place, whether a police station or a hospital, where the requirement to provide a specimen is (and must under article 18(4)) be made. In the ordinary course it would be natural to take the specimen, after such interval as is necessary to make arrangements for the taking of the specimen, and to do so in the same place. The paragraph does not expressly contemplate the making of the requirement in one place and the provision of the specimen in another. Paragraph (6) imposes a time limit of one hour on the provision of the second (qualifying) specimen of urine after the requirement is made, so no long interval of time is in any event permissible.[3]There is, however, an argument of construction which points the other way, as the Court of Appeal recognised. Whereas article 18(2) expressly regulates the place where the specimen is to be provided (as, in relation to preliminary breath tests, does article 17(3)), article 18(4) regulates the place where the requirement is to be made but does not expressly regulate where the sample is to be provided. The draftsman may have seen this as a matter of little moment, since a specimen of urine could be given at any private and convenient place and a medical practitioner could reasonably be relied on to take blood only in a place judged suitable for doing so.[4]The matter does not end there. In Butler v Easton [1970] RTR 109 a strong Queen's Bench Divisional Court (Lord Parker CJ, Ashworth and Cantley JJ), construing section 3(1) of the Road Safety Act 1967 (broadly similar in effect to article 18(4) of the Order), concluded that the requirement must be made and the specimen provided at the same police station. In that case the initial formalities, including the requirement to provide a specimen of blood, took place at one police station, but no doctor was available there and the suspect was taken to another police station where a specimen was given. He challenged his conviction on the ground that evidence of the specimen analysis was inadmissible because the specimen had been provided at a police station different from that at which the requirement had been made. The prosecutor contended that the place for the requirement was specified by the subsection but the place for provision of the specimen was wholly and entirely within the discretion of the police. The court recognised it as implicit in his argument that the specimen could be provided at a doctor's surgery, provided the requirement had been duly made at a police station or hospital. The court rejected the prosecutor's argument, held that evidence of the specimen analysis had been inadmissible for want of compliance with the statutory procedure and quashed the conviction. Shortly thereafter, on materially indistinguishable facts, the same issue arose in Scotland. The Sheriff-substitute followed Butler v Easton and acquitted. The High Court of Justiciary allowed an appeal by the prosecutor: Milne v M'Donald 1971 JC 40. Giving judgment the Lord Justice-General (Clyde) said (at page 42):[5]In Pascoe v Nicholson [1981] 1 WLR 1061, again on materially indistinguishable facts, although now with reference to section 9 of the Road Traffic Act 1972, the House was called upon to resolve this conflict of authority. It did so by holding that Butler v Easton had been wrongly decided and that Milne v M'Donald was to be preferred. Although Pascoe v Nicholson , like Butler v Easton and Milne v M'Donald , involved two police stations, the ratio of the decision cannot rest on that fact: if the relevant section does not regulate where the specimen (duly required) is to be provided, there is no ground for holding that it must be provided at a police station.[6]In the 20 years since Pascoe v Nicholson was decided, Parliament has had opportunities to reverse the effect of the decision had it wished. It has not done so. This may indicate that the problem which arose in that trio of cases and in the present case very rarely arises in practice. Or it may indicate parliamentary approval or acceptance of that decision. The latter inference perhaps gains some strength from section 57(3) of the Police Reform Act 2002, which amends section 15(4) of the English Road Traffic Offenders Act 1988 (matched by article 18(4) of the Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996/1320)) so as to provide that a specimen of blood shall be disregarded unless The Explanatory Notes issued to accompany the Act suggest that the change of law intended was a widening of the class of those authorised to take blood specimens, not a widening of the places at which specimens might be taken. This amendment has not as yet been extended to Northern Ireland, but I think that "elsewhere by a medical practitioner" represents the law in both jurisdictions.[7]The Court of Appeal were in my view right to conclude that article 18(4) of the Order does not stipulate that a specimen, duly required at a police station, must be provided at the same police station or any police station. Like them, I would answer the certified question in the negative.[8]Before the House, Mr Dermot Fee QC for the appellant contended that the operative requirement for a specimen of blood, that to which the appellant responded, was made at the health centre, and so failed to comply with the statutory stipulation that the requirement be made at a police station or a hospital, the health centre being neither. I do not understand this point to have been raised before the Resident Magistrate, when no witnesses were called by either party. Nor does it appear to have been raised on appeal, where the judgment did not mention it and it formed no part of a certified question. I am for my part very reluctant to entertain it for the first time in the House.[9]The appellant does however have an agreed finding of fact that at the health centre to which he was transported the constable put to him the statutory requirement (which he had already put to him at the police station). This finding distinguishes the case from Butler v Easton, Milne v M'Donald and Pascoe v Nicholson , in each of which the constable put the requirement to the suspect at the first police station but is not reported to have repeated the requirement at the second. I have no doubt that a case could arise in which, because of a lapse of time or other circumstances, it could be argued that an earlier requirement had become spent or perhaps superseded by later events. But this could not plausibly be argued in this case. It appears from the evidence tendered to the Resident Magistrate that the constable put the requirement to the appellant shortly after 0200. The appellant having been wholly compliant, he was conveyed to the health centre, the requirement was repeated in the presence of the doctor and he again agreed to provide a specimen. The specimen was provided at 0215. This overall delay of 15 minutes was less than would often ensue if a doctor has to be summoned from his bed to attend a suspect at the police station, and I cannot accept either that a requirement so recently made at the police station should be held to have lost its potency or that the appellant should reap an adventitious advantage because the constable chose, unnecessarily but no doubt conscientiously, to repeat the requirement. I would accordingly reject this argument.[10]On the points which the Court of Appeal did not certify (as to whether the health centre was a hospital and whether, if the statutory procedure was not complied with, evidence of the specimen analysis was admissible) I am in complete agreement with the reasons and conclusion of Lord Hutton.[11]For these reasons the appeal must in my opinion be dismissed. LORD NICHOLLS OF BIRKENHEAD My Lords,[12]I have had the opportunity of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hutton. I agree that for the reasons they give, with which I agree, this appeal should be dismissed. LORD HOFFMANN My Lords,[13]For the reasons given by the Lord Chief Justice, upon which I cannot improve, I would dismiss the appeal. LORD HUTTON My Lords,[14]The appellant, Michael Devine, was arrested by Constable Reid about 1.30 am on 27 October 1998 near Strabane, County Tyrone, on suspicion of having committed the offence of driving a motor car whilst unfit to drive through drink contrary to Article 15(1) of the Road Traffic (Northern Ireland) Order 1995 (SI 1995/2994). After his arrest the appellant was brought to Strabane police station where the proper custody procedure was initiated and the custody officer, Sergeant Carey, authorised his detention for the purpose of obtaining an evidential sample at 1.40 am.[15]Article 18 of the 1995 Order states the procedures to be followed by a constable in order to obtain a specimen of breath for analysis or a specimen of blood or urine for a laboratory test. The relevant paragraphs of Article 18 are the following:[16]The principal issue which arises on this appeal is whether pursuant to Article 18(4) the specimen of blood must be provided at a police station or at a hospital, or whether there is compliance with paragraph (4) if the requirement to provide a specimen of blood is made by a constable at a police station or at a hospital but the specimen is provided at some other place.[17]What took place after the appellant had been detained in the police station is set out in the following paragraphs of the case stated by the Resident Magistrate for the opinion of the Court of Appeal:[18]On 3 March 2000 the appellant appeared before the Resident Magistrate, Mr Brian McElholm, sitting in Strabane Magistrates' Court, to answer a complaint that on 27 October 1998 he drove a mechanically propelled vehicle on a road or other public place when unfit to drive through drink or drugs, contrary to Article 15(1) of the Road Traffic (Northern Ireland) Order 1995. A certificate of analysis of the appellant's specimen of blood from the Forensic Science Agency was put in evidence by the prosecution. The certificate stated that the proportion of alcohol in the appellant's blood was found on analysis to be 156mg in 100 millilitres of blood which was 76mg in excess of the prescribed limit stated in Article 13 of the 1995 Order. The submission was advanced to the magistrate on behalf of the appellant that the Strabane Health Centre was not a hospital within the meaning of Article 13(2) of the 1995 Order, and that accordingly the specimen had not been properly taken, the certificate of analysis was not admissible in evidence and the appellant should not be convicted. The magistrate rejected this submission and held that the health centre was a hospital and ruled that the specimen had been properly taken in accordance with the requirements of Article 18(4). He found the case proved and convicted the appellant. He disqualified him from driving for 12 months, but gave him an absolute discharge on account of his clear driving record over many years.[19]The appellant appealed to the Court of Appeal and the questions of law stated for the opinion of the Court of Appeal were as follows:[20]In their judgment delivered by Sir Robert Carswell LCJ the Court of Appeal held, contrary to the ruling of the magistrate, that the Strabane Health Centre was not a hospital within the meaning of Article 13(2) of the 1995 Order which defines a hospital as "an institution which provides medical or surgical treatment for in-patients or out-patients": see [2001] NI 385. Therefore the Court of Appeal thought it necessary to reformulate the questions of law set out in the case stated in the following terms: The Court of Appeal answered both questions in the negative, and the second question is the question certified by the court for the opinion of this House.[21]In holding that the Strabane Health Centre was not a hospital the Court of Appeal observed that there was no definition of a health centre in the 1995 Order and that there was no description of the Strabane Health Centre in the case stated. The court then stated, at p 390: I consider that the court were clearly right so to hold and I would respectfully adopt their reasoning as my own.[22]The Court of Appeal stated their reasons for answering the second question in the negative, at pp 390-391:[23]The court also referred to the decision of this House in Pascoe v Nicholson [1981] 1 WLR 1061 where it was held, under similar English legislation, that the requirement for a blood specimen can be made in one police station and the specimen provided at another. Lord Roskill, with whose speech the other members of the House agreed, stated, at p1067 A-B: However, as in that case the requirement was made in a police station and the specimen was provided in a police station I think that Lord Roskill's speech does not give guidance on the present issue.[24]My Lords,[24]I consider that the words of Article 18(4), which are virtually identical to section 7(3) of the Road Traffic Act 1988, are open to two interpretations. There is the interpretation placed upon them by the Court of Appeal and there is the interpretation which is advanced by Mr Fee QC on behalf of the appellant. The latter interpretation is that it is a necessary implication from the words of Article 18(4) that when the requirement for a specimen of blood is made at a police station, the specimen must be provided in a police station or a hospital. At the close of the submissions I considered that there was considerable force in the appellant's argument. The taking of a specimen of blood is a more intrusive step than the making of the requirement for a specimen by a constable, and it appeared to me that Parliament, in approving the 1995 Order, would not have intended that the requirement must be made at a police station or at a hospital, without also intending that the specimen would be provided in such a place. In addition it appears to be clear from the wording of Article 18(2)(b) and (4)(b) that where the requirement is made at a police station for specimens of breath to be provided, the specimens must be provided at a police station, and I thought it probable that when Parliament required that the specimens of breath must be provided at a police station it intended that the more intrusive procedure of providing a specimen of blood would also be carried out in a police station or a hospital.[25]However, it is necessary to take into consideration section 57(3) of the Police Reform Act 2002 which has amended section 15(4) of the Road Traffic Offenders Act 1988, the wording of which was identical to the wording of Article 18(4) of the Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996/1320) and which subsection provided:
"A specimen of blood shall be disregarded unless it was taken from the accused with his consent by a medical practitioner."
Section 15(4) of the 1988 Act as amended by section 57(3) of the 2002 Act now reads:
"A specimen of blood shall be disregarded unless— (a) it was taken from the accused with his consent and either— (i) in a police station by a medical practitioner or a registered health care professional; or (ii) elsewhere by a medical practitioner; or (b) it was taken from the accused by a medical practitioner under section 7A of the Road Traffic Act 1988 and the accused subsequently gave his permission for a laboratory test of the specimen."
[26]Section 15(4)(a)(ii) states, in effect, that a specimen of blood may be taken by a doctor at a place other than a police station or a hospital. In my opinion section 57(3) was not intended to change the law and to remove a restriction as to where a doctor could take a specimen of blood but, rather, was enacted on the basis that under the existing section 7(3) of the Road Traffic Act 1988 a doctor could properly take a specimen of blood at a place other than a police station or a hospital. Therefore section 57(3) recognises that section 7(3) of the 1988 Act permits a specimen to be taken elsewhere than at a police station or a hospital, and as section 7(3) of the Road Traffic Act 1988, like Article 18(4) of the 1995 Order, is open to two interpretations it is permissible to consider section 57(3) of the subsequent enactment in pari materia to arrive at the proper construction of that earlier provision. In Northern Ireland the road traffic legislation is based on, and is virtually identical to, the equivalent English legislation. Therefore in the light of section 57(3) I consider that the Court of Appeal were right to hold that after a requirement for a specimen of blood had been made in the police station, the specimen might be taken elsewhere by a medical practitioner.[27]There then arises a point which was advanced to the House on behalf of the appellant by Mr Fee and which does not appear to have been raised before the magistrate or the Court of Appeal. Counsel's submission was that the requirement which resulted in the specimen of blood being provided was not made at the police station or at a hospital but was made at the health centre, and therefore there had not been compliance with Article 18(4). I am unable to accept this submission. In my opinion the requirement made by Constable Reid in the police station about 2 am was not superseded by the requirement made by him in the health centre about 2.15 am. When the appellant was taken to the health centre I think it was to give effect to the requirement made in the police station and his consent given there, and I consider that the specimen was provided in consequence of this requirement and that the repetition of the requirement within such a short period of time did not deprive the first requirement of its operative effect. Moreover, if, as I would hold, Article 18(4) provides that the requirement must be made at a police station or a hospital but permits the specimen to be taken elsewhere, it appears improbable that Parliament intended that a second requirement would have to be made at the other place before the specimen was taken.[28]An argument was addressed to the Court of Appeal as to whether the evidence of the analysis was admissible in evidence before the magistrate if there had been a breach of the requirements of Article 18(4). Although the court considered that there had been no breach they stated their opinion on the point, and the point was also argued before the House. The view of the Court of Appeal was that if the requirements of Article 18(4) had not been complied with, they should follow the judgment of Robert Goff LJ in the Divisional Court in Howard v Hallett [1984] RTR 353.[29]In Howard v Hallett the police adduced in evidence against the defendant the analysis of a specimen of breath which was not the specimen required by section 8(6) of the Road Traffic Act 1972. The Divisional Court held that the evidence of the analysis of the specimen relied on by the police was inadmissible in evidence. Robert Goff LJ stated, at p 360:
"It would, it seems to me, be a most extraordinary consequence if, where the Act of 1972 lays down a careful and statutory procedure for requiring a suspected motorist to provide specimens of breath and for analysing them and presenting them before a court, it is possible to disregard that procedure altogether. I cannot believe that that was the intention of the legislature."
And at p 361:
"In my judgment, it is plain that section 10(2) is referring to specimens taken in accordance with the statutory procedure laid down under section 8 of the Act. There must be read into the section as implicit in it, after the words 'specimen of breath, blood or urine provided by the accused', the words 'pursuant to the provisions of this Act.' That must include a reference in particular, to the procedure laid down under section 8 of the Act. So read, in my judgment, section 10 of the Act takes effect in a sensible manner and precludes any of the startling consequences which flow from Mr Lofthouse's argument."
In Fox v Chief Constable of Gwent [1986] AC 281 , 298 Lord Bridge stated:
"For my part, I see no reason to doubt the decision of the Divisional Court in Howard v Hallett [1984] RTR 353 that on the true construction of the new section 10(2) the admissibility of a specimen of breath, blood or urine in proceedings for an offence under sections 5 or 6 depends on the procedure prescribed by the new section 8 for obtaining such a specimen having been correctly followed. On the contrary, I find the reasoning of Robert Goff LJ in that case wholly convincing."
The speech of Lord Fraser of Tullybelton, at p 293B, also gave implicit approval to the reasoning of Robert Goff LJ.[30]Mr McCloskey QC, for the respondent, submitted that the authorities subsequent to Howard v Hallett have taken a different approach to the exclusion of evidence obtained in breach of a statutory provision and that the principle which should now be applied is that if, as in this case, the defendant has not suffered prejudice, relevant evidence should be admitted against him, notwithstanding such a breach. Counsel cited the speech of Lord Steyn in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91 , 118 where he stated:[31]Counsel submitted that the decision whether or not to exclude relevant evidence obtained in breach of a statutory requirement should be governed by Article 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) under which the court has a discretion to exclude evidence if its admission would operate unfairly against the defendant.[32]I am unable to accept these submissions. In his speech Lord Steyn stated a general principle in relation to serious crimes involving harm to person and property, whereas the judgment of Robert Goff LJ in Howard v Hallett related to the special statutory procedure laid down by the Road Traffic Acts. The judgment was approved in this House in Fox v Chief Constable of Gwent and it has been followed in many cases. The reason why the judgment should be applied even if there has been no prejudice to the defendant was stated as follows by Watkins LJ in Murray v Director of Public Prosecutions [1993] RTR 209, 220: Therefore, in agreement with the Court of Appeal, I am of opinion that there should be no departure from the approach laid down in Howard v Hallett .[33]For the reasons which I have given I would answer the certified question in the negative and would dismiss the appeal. LORD MILLETT My Lords,[34]I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Hutton. I agree with them, and for the reasons they give I too would dismiss the appeal.

Cited in 2 later judgments