Judgments - Russell (Respondent) v. Devine (AP) (Appellant) (On appeal from the Court of Appeal Northern Ireland) (Northern Ireland)

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    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 In my opinion the requirement made by Constable Reid in the police station about 2 am was not superseded by the requirement made by him in the health centre about 2.15 am.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:

    "The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public. In my view the austere interpretation which the Court of Appeal adopted is not only in conflict with the plain words of the statute but also produces results which are contrary to good sense. A consideration of the public interest reinforces the interpretation which I have adopted."

    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:

    "There remains the question whether this court should hold as a matter of principle that, where no prejudice to a defendant is occasioned by a failure to warn because he has in any event given the specimen required of him, the decision in Howard v Hallett [1984] RTR 353 has no application and the results of the consequent test can be admitted despite the breach of procedure. We are unable to arrive at such a conclusion. Once it is accepted - what as a general proposition is not contested - that the admission in evidence of the results of tests is, on the proper construction of section 15(2) the Road Traffic Offenders Act 1988, dependant on the statutory procedures having been carried out - see again the concluding part of the passage cited from Lord Fraser's speech in Fox v Chief Constable of Gwent [1985] RTR 337 - it is impossible to carve out an exception to cater for the cases where the breach of procedure causes no prejudice, unless section 15(2) is to mean one thing in some instances and something else in others. This is an impossible view of section 15(2): nothing in the statutory language suggests that it is capable of such a differential application."

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.


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.

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