Russell (Respondent) v. Devine (AP) (Appellant) (On appeal from the Court of Appeal Northern Ireland) (Northern Ireland)
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 In my opinion the requirement made by Constable Reid in the police station about 2 am was not superseded by the requirement made by him in the health centre about 2.15 am.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  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:
And at p 361:
In Fox v Chief Constable of Gwent  AC 281, 298 Lord Bridge stated:
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)  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  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.
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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