The Requirement to Provide Specimens
| Author | Pauline M Callow |
| Pages | 1-106 |
The Arrest
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, 7 and 7A, Road Traffic Act 1988.
1. The Arrest
See also the cases under the heading “Bad Faith” in Chapter 8; and DPP v Godwin, page 338, where the justices’ decision to exclude evidence following an unlawful arrest was upheld; and Harper v DPP, page 349, where the unlawfulness of the arrest was a matter of form rather than substance.
R v Fox, Fox v Chief Constable of Gwent
[1986] AC 281, [1985] 1 WLR 1126, [1985] 3 All ER 392, [1985] RTR 337, [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
CHAPTER 1: THE REQUIREMENT TO PROVIDE SPECIMENS
for an offence under section 6(1) will be invalid if the evidence by which it is proved has been obtained 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.
Gull v Scarborough
[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 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
2
The Arrest
requirement of a previous valid arrest. Accordingly … the defendant was in breach of section 8(7) …”
Appeal allowed.
Hartland v Alden
[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 that section. That seems to me to be wholly illogical and the submission to that effect cannot … be sustained.”
The answers to the questions were “yes”. Appeal dismissed.
CHAPTER 1: THE REQUIREMENT TO PROVIDE SPECIMENS
DPP v Kay (John)
[1999] RTR 109, 4 March 1998, QBD (DC)
The officer at the roadside is under no duty to ask when the motorist last drank or smoked. On the facts of this case (the motorist’s appearance, his slurred speech, his breath smelling of alcohol), the officer had ample reason to suspect the motorist had alcohol in his body. The magistrates were in error to exclude the officer’s evidence under s 78, PACE. See also Grant v DPP, page 16, where the court was entitled to find that the motorist had not had a drink within the 20 minutes preceding the requirement; and DPP v Carey, page 63, where the officer’s failure to follow manufacturer’s instructions for roadside breath testing device did not vitiate the procedure.
A motorist had been charged with failing without reasonable excuse to provide two specimens of breath for analysis, contrary to s 7(6), Road Traffic Act 1988. A roadside breath test had been administered, but the constable did not ask the motorist when he had last taken alcoholic drink; he was unaware of the manufacturers’ instruction that there should be an interval of at least twenty minutes between the defendant’s last drink and the administration of the test; in fact the interval was only five minutes. The test was positive; the motorist was arrested and, at the police station, failed to provide specimens of breath for analysis.
The magistrates found that the constable’s failure to comply with the manufacturer’s instructions rendered the result of the breath test so unreliable that it would not have been fair to allow the CPS to rely on it; the constable had acted negligently and, at worst, in bad faith. They exercised...
To continue reading
Request your trial