The requirement to provide specimens
| Pages | 1-120 |
| Author | Pauline M. Callow |
Chapter 1
The Requirement to Provide Specimens
For the powers of the police to administer preliminary tests and to require
specimens for analysis, see ss 6–7A, Road Traffic Act 1988.
1. THE ARREST
See also the cases in Chapter 8 under the heading “Bad Faith”, page 394;
and DPP v Godwin, page 347, where the justices’ decision to exclude
evidence following an unlawful arrest was upheld; and Harper v DPP,
page 358, where the unlawfulness of the arrest was a matter of form rather
than substance.
R v Fox, Fox v Chief Constable of Gwent
[1986] Crim LR 59, 17 October 1985, HL
Lawful arrest is not a prerequisite for requiring a breath specimen.
A motorist had been convicted of, inter alia, driving with excess alcohol, contrary
to s 6(1), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act
1981. He appealed to the Divisional Court, which upheld the conviction on the
ground that the fact that the motorist had been at the police station because of a
wrongful arrest did not bear on the question of whether the breath specimen, the
basis for the conviction, had been unfairly obtained. The motorist further appealed.
CERTIFIED QUESTION: “Were the justices correct in convicting the appellant
… on the basis of the proportion of alcohol in a specimen of breath which he had
been required to provide at a police station when the appellant was present at that
police station because he had been wrongly arrested?”
HELD: “… the statutory provisions have been amended [by the Transport Act
1981] in two respects which are important for present purposes … the substituted
section 6(1) … is not now dependent upon the accused having been validly
arrested. Secondly, and more important for present purposes, the substituted
section 8(1) … does not contain the words ‘A person who has been arrested under
section 5(5) or 8 …’. Accordingly a lawful arrest is not now specified as an
essential prerequisite of a breath test … there is nothing in Morris v Beardmore
[page 18] which supports a general principle that conviction for an offence under
section 6(1) will be invalid if the evidence by which it is proved has been obtained
2 1. The Requirement to Provide Specimens
unlawfully … any evidence which is relevant is admissible even if it has been
obtained illegally … Accordingly the Divisional Court … was … right in treating
the fact that the appellant was in the police station because he had been unlawfully
arrested merely as a historical fact, with which the court was not concerned … Of
course, if the appellant had been lured to the police station by some trick or
deception, or if the police officers had behaved oppressively towards the
appellant, the justices’ jurisdiction to exclude otherwise admissible evidence
recognised in R v Sang[[1980] AC 402, [1979] 3 WLR 263, [1979] 2 All ER
1222, [1979] Crim LR 655 (HL)] might have come into play. But there is nothing
of that sort suggested here.”
Appeal dismissed.
[1987] RTR 261, 12 November 1985, QBD (DC)
Lawful arrest is not a prerequisite for requiring a blood or urine specimen.
A motorist had been charged with failing without reasonable excuse to provide a
specimen for a breath test, contrary to s 7(4), Road Traffic Act 1972 as substituted
by s 25 and Sch 8, Transport Act 1981; and with failing without reasonable excuse
to provide a specimen of blood for a laboratory test, contrary to s 8(7), Road
Traffic Act 1972 as likewise substituted. He refused to take a roadside screening
test; at the police station, the evidential breath machine was not operating and the
police officer therefore required a specimen of blood; the defendant refused. The
magistrate found that the police officer had had no reasonable cause to suspect
that the motorist had been driving the car in question with an excess of alcohol;
the arrest had therefore been unlawful and there had been no proper request for a
specimen of blood. The magistrate dismissed both informations.
The prosecutor appealed against the dismissal of the information under s 8(7).
QUESTION(S) FOR THE COURT: Having dismissed the information under s 7(4)
because the magistrate was not satisfied that the constable requiring the specimen
of breath had reasonable cause to suspect that the defendant had alcohol in his
body when driving, whether the magistrate was correct in law in deciding that the
prosecutor had no power to require the defendant to provide a specimen of blood
for a laboratory test and to find there was no case for the defendant to answer
under s 8(7).
HELD: “… The defendant in the present case was never asked to provide a
specimen of breath and therefore did not refuse to provide such a specimen. …
Nor did he give a specimen of breath so the case is different on the facts from
Fox v Chief Constable of Gwent [above] … Nevertheless, it appears to me
quite plain that the reasoning … applies just as much to the present facts … The
essence of the decision [in Fox] is that ‘a lawful arrest is not now specified as
an essential prerequisite of a breath test’. That being so, in circumstances where
the machine for testing the breath is not available it must follow that the
requirement under section 8(1)(b) [to provide a blood or urine specimen] read
The Arrest 3
with section 8(3)(b) [reliable device not available] and section 8(4) [constable to
decide whether specimen to be of blood or urine] is also not qualified by any
requirement of a previous valid arrest. Accordingly … the defendant was in
breach of section 8(7) … .”
Appeal allowed.
[1987] RTR 253, 30 April 1986, QBD (DC)
Not only does an unlawful arrest not invalidate the requirement to provide
specimens, but neither is it a reasonable excuse for failing to provide a specimen.
A motorist had been charged with, inter alia, failing without reasonable excuse
to provide a specimen of breath for analysis, contrary to s 8(7), Road Traffic Act
1972 as substituted by s 25 and Sch 8, Transport Act 1981. He had been driving
erratically and police officers followed him home. They went into his home, and
asked for a breath sample for a test. The defendant made clear that he did not
consent to their being there, saying, either before they made the request or at the
time they made it, “No, in my house you can’t do me, so there”. They arrested
him and took him to the police station where he was required, under s 8(1), Road
Traffic Act 1972 as likewise substituted (power to require specimens), to provide
breath specimens for analysis. He refused.
At the hearing the defendant argued that, although the police had acted in good
faith, the arrest was wrongful, therefore all subsequent proceedings had been
vitiated and could not be used in evidence; or that the unlawful arrest constituted
a reasonable excuse.
The justices convicted him. He appealed.
QUESTION(S) FOR THE COURT: (1) The defendant having been unlawfully
arrested and being unlawfully held at a police station, whether he could be
lawfully required to provide a specimen under s 8(1), Road Traffic Act 1972 as
substituted; (2) if so, whether the justices were right in law in holding that he did
not have a reasonable excuse for refusal.
HELD: “… It is the law, unpalatable though it may appear, that Parliament has
provided that what has brought a motorist to a police station is of no account. All
that matters is that the proceedings at the police station are conducted by a police
officer strictly in accordance with the provisions of section 8. What happened
beforehand is in effect merely a matter of history. Consequently, … there was
unquestionably a right in the officer conducting the proceedings under section 8
to put the question he did to the defendant and an obligation on the defendant to
reply affirmatively to that question, otherwise be prosecuted for the offence of
which he was convicted …
“… We are invited to say that an unlawful arrest on which the defendant is, on
the one hand, not entitled to rely under section 8 can, on the other, be used as a
reasonable excuse for not complying with a request properly made of him under
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