Russell (RUC Superintendent) v Devine
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD HUTTON,LORD MILLETT,or |
| Judgment Date | 08 May 2003 |
| Neutral Citation | [2003] UKHL 24 |
| Court | House of Lords |
| Date | 08 May 2003 |
[2003] UKHL 24
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hutton
Lord Millett
My Lords,
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:
"Whether it is necessary, if the requirement to provide a specimen of blood or urine has been duly made under article 18 of the [Road Traffic (Northern Ireland) Order 1995 (SI 1995/2994)] at a police station or a hospital, that the specimen be taken at a police station or hospital."
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.
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.
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.
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):
"In our opinion the requirement to provide a specimen for a laboratory test is something different from the actual providing of the specimen. Subsection (1) of section 3 deals with the former only, and not with the latter."
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.
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
"(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 …"
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.
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.
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.
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.
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.
For these reasons the appeal must in my opinion be dismissed.
My Lords,
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.
My Lords,
For the reasons given by the Lord Chief Justice, upon which I cannot improve, I would dismiss the...
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