Case No: CO/5174/2010
Neutral Citation Number: [2010] EWHC 2886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date: Friday, 9 July 2010

Before:

LORD JUSTICE MUNBY
and
MR JUSTICE LANGSTAFF
- - - - - - - - - - - - - - - - - - - - -

Between:

	HELEN MARY KOHLER	Claimant	
	- and –		
	THE DIRECTOR OF PUBLIC PROSECUTIONS	Defendant	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr Corre (instructed by Motoring Lawyers) appeared on behalf of the Claimant.

Mr Knox (instructed by The Crown Prosecution Service) appeared on behalf of the Defendant.

- - - - - - - - - - - - - - - - - - - - -
Judgment

Mr Justice Langstaff:   

1.	On 12 February 2010 magistrates at Alnwick convicted the appellant, Mrs Kohler, of an offence, contrary to section 5.1(a) of the Road Traffic Act 1988, in that she drove a motor vehicle on a road after consuming so much alcohol that the proportion of it in her breath exceeded the prescribed limit.  Against that conviction she appeals by way of case stated.
 
2.	The question posed for the consideration of the court indicates the central evidential features.  It is:
 
"Having found that:

• the Appellant was a patient in a hospital at which there were no medical practitioners on duty;
• the Appellant was not under the charge of a medical practitioner;
• a police officer had required her to provide a breath specimen without first establishing whether a medical practitioner had any objection either to the making of that requirement or to the provision of such a specimen as required by section 9 of the Road Traffic Act 1988; 

were we right to decide that evidence of analysis and specimens of breath later provided by the Appellant at a police station under section 7 of the Road Traffic Act was admissible in evidence against her?" 
 
3.	The burden of the submissions made on her behalf by Mr Corrie was that, given what had happened, evidence of the results of otherwise relevant breath tests was inadmissible, because public policy in effect required that they be so.
 
4.	The facts taken in more detail from the Case are as follows:

“(i) On 21st day of June, 2009, PC 323 Woodhouse received a call on his radio at 6.55am when he came on duty of a possible drink driver who had driven from Glanton, Northumberland to Alnwick Infirmary, South Road, Alnwick, Northumberland.

(ii)  PC Woodhouse attended at Alnwick Infirmary and saw the motor vehicle which fitted the description he had been given, a Peugeot motor car, registration number S7 HMK, parked in the car park at a peculiar angle.

(iii)  PC Woodhouse gained entry into the infirmary by ringing the doorbell and being allowed in by the security guard.  There he met with Nurse Deborah Mary Tait who took him to the treatment room where the Appellant Helen Mary Kohler was seated.

(iv) There was no doctor present at Alnwick Infirmary and no x-ray facility because of the time of day.  Generally, there are no doctors at Alnwick Infirmary between midnight and 8.00am unless a ‘roving’ doctor is called in.  If more complex treatment is required between midnight and 8am the patient is usually transferred to Wansbeck Hospital in Ashington some twenty plus miles away.  Before PC Woodhouse had arrived the Appellant had been waiting for the ambulance to arrive.

(v) Prior to PC Woodhouse's arrival at the infirmary, Nurse Tait had examined the Appellant and described her as having a haematoma to the left side at the back of her head, a slight graze to the left temple and tender bones to the neck.  The Appellant was unable to move her head to the left or up and down.  Nurse Tait had advised her that she needed a ‘collar and block’ put on but the Appellant had refused.  The Appellant was given some Paracetamol and the graze was cleaned up. Nurse Tait felt unable to take the treatment any further so she telephoned for an ambulance to take the Appellant to Wansbeck Hospital in Hospital in Ashlington, Northumberland, for an X-ray.  

(vi) PC Woodhouse had a conversation with the Appellant in Nurse Tait's presence.  PC Woodhouse asked the Appellant whether she had been driving the Peugeot motor vehicle registration number S7 HMK and whether she had been drinking alcohol.  The Appellant confirmed that she had driven the vehicle and that she had been drinking alcohol.  There was some dispute regarding what happened next.  PC Woodhouse said he asked Nurse Tait about the Appellant's medical condition prior to administering the breast test.  Nurse Tait said she could not recall whether he had or not but that he had not asked her views or permission before he breathalysed the Appellant.

(vii)  The Appellant had consented to the breath test procedure and she provided a positive breath specimen.  The Appellant asked if she was going to be arrested.  PC Woodhouse then cautioned and arrested the Appellant.

[…] 

(ix)  PC Woodhouse conveyed the Appellant to Bedlington Police Station where the Custody Sergeant was informed of the circumstances of her arrest and authorised her detention for the Camic breath analysis procedure to be conducted.

(x) The Camic procedure was carried out in compliance with section 7 of the Road Traffic Act 1988 and the Appellant provided two specimens of breath for analysis.  The lower reading of the Camic printout being 82 microgrammes of alcohol in 100 millilitres of breath.  Section 11(2) Road Traffic Act 1988 states that the prescribed limit of alcohol in breath is 35 microgrammes in 100 millilitres.

(xi)  The Appellant was not cautioned and charged until 13.55 hours because of her degree of intoxication.”
 
5.	It is submitted that that account demonstrates that there was a failure to comply with the requirements of the Road Traffic Act and specifically with section 9 of that statute.  I therefore turn to the relevant legislation.

The Statutes
6.	Section 5 of the Road Traffic Act 1988 provides for the offence of driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit.  It reads:
 
"(1) If a person (a) drives or attempts to drive a motor vehicle on a road or other public place [...] after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."
 
The rest of the section is not material.

7.	Section 6 relates to the power to administer preliminary tests and provides that “a constable may require a person to co-operate with any one or more preliminary tests administered to the person by that constable or another constable”.  It was accepted in argument by Mr Corrie that the failure of a preliminary test, or indeed the administration of a preliminary test, was not a necessary prerequisite to the administration of a test, the results of which might be admissible in evidence under section 7.

8.	Section 6D, headed "Arrest", provides:
 
"(1) A constable may arrest a person without warrant if as a result of a preliminary breath test the constable reasonably suspects that the proportion of alcohol in the person's breath or blood exceeds the prescribed limit."

9.	The other sections, save subsection (3), are not material.  That subsection reads: 

"A person may not be arrested under this section while at a hospital as a patient."
 
10.	Section 7 is headed "Provision of specimens for analysis".  It reads:
 
"(1) In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him --
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State […]

(2)A requirement under this section to provide specimens of breath can only be made --
(a) at a police station,
(b) at a hospital, or
(c) at or near a place where a relevant breath test has been administered to the person concerned or would have been so administered but for his failure to co-operate with it.”

11.	In the light of the arguments that have been addressed to us as to the specific meaning of the words “subject to the following provisions of this section and section 9 of this Act” it is necessary to deal further with some of the provisions of section 7.  

12.	By subsection (3) it is provided that a requirement under section 7 to provide a specimen of blood or urine: 
“…can only be made at a police station or at a hospital; and it cannot be made at a police station unless 
(a)	the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or... [words which are immaterial for present purposes follow]…. ..
but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.” .

13.	 It is not material to consider the remaining provisions of section 7 for the present purposes.
 
14.	Section 9 is headed "Protection of hospital patients."  It provides:
 
"(1) While a person is at a hospital as a patient he shall not be required to co-operate with a preliminary test or to provide a specimen under section 7 of this Act unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement; and
(a) if the requirement is then made, it shall be for co-operation with a test administered, or for the provision of a specimen, at the hospital, but
(b) if the medical practitioner objects on the ground specified in subsection (2) below, the requirement shall not be made.

(1A) While a person is at a hospital as a patient, no specimen of blood shall be taken from him under section 7A of this Act and he shall not be required to give his permission for a laboratory test of a specimen taken under that section unless the medical practitioner in immediate charge of his case
(a) has been notified of the proposal to take the specimen or to make the requirement; and
(b) has not objected on the ground specified in subsection (2).

(2) The ground on which the medical practitioner may object is
(a) in a case falling within subsection (1), that the requirement or the provision of the specimen or (if one is required) the warning required by section 7(7) of this Act would be prejudicial to the proper care and treatment of the patient; and
(b) in a case falling within subsection (1A), that the taking of the specimen, the requirement or the warning required by section 7A(5) of this Act would be so prejudicial."
 
15.	Section 11 of the Act is the definition section.  By subsection (2) an hospital  is defined as meaning “an institution which provides medical or surgical treatment for inpatients or outpatients”.

16.	 Section 15(2) of the Road Traffic Offenders Act 1988 provides for the putting in evidence of specimens which have been obtained by the procedure to which the Road Traffic Act 1988 refers, as outlined above.  It provides:
 
"Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided in connection with the alleged offence), be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen."

Subsection (3) is not material for present purposes.

17.	Finally, I should note that section 30 of the Police and Criminal Evidence Act 1984, headed "Arrest elsewhere than at a police station", provides in effect that someone so arrested should be taken to a police station as soon as practicable after the arrest: see subsection (1)(a).  Thus Mrs Kohler, having been arrested by the constable at the Alnwick hospital, had to be taken as soon as practicable to a police station, that being at Bedlington.

18.	The issues to which the Case gave rise were said in the skeleton argument on behalf of the appellant to be whether the police were entitled to require a person to cooperate with a preliminary test in accordance with section 6 of the 1988 Act and to require an evidential breath test in accordance with section 7 from a hospital patient without notifying the patient's medical practitioner and giving that practitioner an opportunity to object to it on medical grounds; and, secondly, whether the good faith of a police officer when breaching section 9 of the Act should be taken into account.  

19.	This does not seem to me to represent the issues in the case. The question posed by the magistrates relates to the admissibility of evidence.  

20.	There is no dispute by Mr Corrie that the test under section 7 and its results were relevant as evidence in the prosecution of Mrs Kohler.  He accepted in argument that they were prima facie admissible.,.  His contention was that as a matter of public policy they should not be admitted and should therefore be excluded.  The ground, and the only ground upon which that could be based, was that there was an admitted failure, as the magistrates found, of the Police Constable to do that which section 9 required of him, in that he had not, prior to requiring Mrs Kohler to provide a preliminary specimen of breath, sought to see if the medical practitioner in immediate charge of her case objected.  On the facts of this particular case there may have been a very good reason for that in that there was no medical practitioner in immediate charge of her case, a nurse not being a registered medical practitioner.

21.	However, the evidence, which it is said should be rendered inadmissible by public policy, was obtained under section 7.  No dispute arose that the requirements of section 7 as to the provision of specimens for analysis had been properly performed save in one respect.  That was the submission by Mr Corrie that the opening words of section 7(1) made the procedure specifically subject to the provisions of section 9 of the Act.  He sought to read that as requiring a court to be satisfied before it could admit any results of any analysis of specimens under section 7 that the requirements of section 9 had been fully and faithfully observed.

22.	It seems to me that the purpose and meaning of the reference to section 9 in section 7 is not to require that every aspect of section 9, as a matter of procedure, should be faithfully observed as a precondition of admissibility.  Rather, it is this: section 9 permits a constable, as its terms make clear, to require a person to provide specimens of breath or, as it may be, blood or urine.  It specifically notes that that requirement may be made in any one of three places, one being a police station, another being a hospital.  Section 7 within its own terms does not qualify the request where it is to be made at hospital unless the opening words, making it subject to the provisions of section 9, import those qualifications.

23.	Section 9 deals in part with the taking of breath, blood and urine samples in hospital.  It seems to me plain that section 7 read with section 9 provides that a requirement under section 7 for breath at a hospital is necessarily subject to the additional requirements of section 9 specifically for the protection of hospital patients.  Section 9 by definition relates to a person only while they are at hospital as a patient.  Therefore section 7, where it deals with a suspect at a police station, cannot sensibly be made subject to the additional requirements of section 9.  The interaction is thus to ensure that those who are in hospital have the protections provided by section 9 as part and parcel of the section 7 procedure.  It does not, in my view, require a court to be satisfied in addition that, for instance, if a preliminary breath test is sought that it has been sought in compliance with the requirements of section 9.

24.	I am fortified in this conclusion by the acceptance by Mr Corrie that if no preliminary breath test at all had been administered, nonetheless it would have been open to the police officer to arrest Mrs Kohler and to have the subsequent samples provided at the police station admitted in evidence.  It is not a necessary prerequisite of an admissible section 7 sample that there be a preliminary breath test.

25.	I then turn to the other grounds upon which it has been argued by Mr Corrie that we should hold that evidence in circumstances such as these is inadmissible.  His argument is that the requirements of section 9 are mandatory.  The word is "shall" followed by "not be required".  The purpose is to protect a purpose who is vulnerable and may well be in need of careful medical protection.  He should not be put at risk.  There is a danger that if breach of those provisions has no consequence by rendering inadmissible any subsequent breath test they will simply be ignored in practice.  

26.	I accept entirely that section 7 is mandatory in its terms.  I accept that, as with any section of the statute, it should be complied with.  But I accept too the respondent's case that evidence which is said to be illegally obtained, as, for instance, by breach of a mandatory statutory procedure, is nonetheless admissible.  That has been the common law position in this jurisdiction for many years, if not longer.  The exception is that such as misconduct, oppression or abuse of power, where any exists, may make the evidence inadmissible or confer a discretion upon the court as to whether it should be admitted.  But, subject to that, the mere fact that evidence has been unlawfully obtained does not render it inadmissible: see R v Sang [1980] AC 402.
 
27.	The particular position of breathalyzer cases was subject to the decision of their Lordships in the case of R v Fox [1986] AC 281.  It is sufficient for present purposes to read only the headnote which encapsulates the decision of their Lordship's house:

"...a lawful arrest was no longer an essential prerequisite of a breath test, and there was no general principle that there could be no conviction under section 6(1) if the evidence by which it was sought to prove the offence had been obtained unlawfully; that it was well established that in general relevant evidence was admissible even though obtained illegally, though there might be a discretionary jurisdiction to exclude it if it had been obtained oppressively or by a trick; and that, accordingly, the fact that the defendant had been unlawfully arrested before giving the specimen of breath had been irrelevant in considering whether he was guilty of the offence of driving with excess alcohol contrary to section 6(1)(a) and he had been rightly convicted."

28.	The arrest of an offender at hospital is not merely unlawful but prohibited.  Nonetheless, in DPP v Wilson [2009] EWHC 1988 (Admin), a decision of the Divisional Court presided over by Thomas LJ and judgment in which was given by Silber J, it was held that there was no distinction between an unlawful arrest and prohibited arrest such as was there contended for.  As Silber J says (see paragraph 10):

"There is nothing in the statutory provisions which requires there to be a valid arrest for subsequent procedures to be so valid.  Furthermore, there is no logical reason or any principled reason as to why evidence obtained after an unfair or an unlawful arrest should be admissible, but not that obtained after a prohibited arrest.  The fact that an arrest is prohibited does not have the effect of invalidating subsequent procedures provided they are carried out in accordance with the other statutory requirements [...]
 
11. In my view the very fact that an arrest is prohibited is not a prerequisite for administering the breath and blood test is sufficient to show that the procedures that were followed in this case were indeed valid (sic).  That means, first, that the only defence open to the respondent ought to have been rejected…”

29.	Although Mr Corrie accepted that evidence obtained after an unlawful arrest or prohibited arrest was admissible, he argued that nonetheless a breach of section 9 was of a different category.  The protection of the integrity of the physical body or mental state of a patient was of such importance that it would render, as a matter of public policy, inadmissible that which would otherwise (though obtained unlawfully) be admissible.  

30.	I cannot accept that submission.

31.	In this case, as it happens, there was a prohibited arrest at a hospital.  It was contrary to statute.  The arrest followed the administration of a breath test without first obtaining the consent of a registered medical practitioner. Leaving aside for the moment the fact that that was an impossibility in practical terms on the facts of this case, it means that the effect of the breath test, which was not, I emphasise, a necessary prerequisite for an admissible section 7 specimen result, fed into an arrest. If, on the authorities, it is plain that a prohibited or unlawful arrest does not invalidate a specimen of breath or urine thereafter obtained in accordance with section 7, it seems to me impossible to see any good reason why public policy should provide that the antecedent failure to comply with section 9 should have that effect.

32.	Accordingly, it seems to me that the question posed by the magistrates must be answered in the affirmative.  I should add only this.  We have in the course of argument been referred to the cases of Howard v Hallett [1984] RTR 353, a decision of the Divisional Court presided over by Robert Goff LJ, the judgment in which was given by Mann J;  the case of Murray v DPP [1993] RTR 209, a Divisional Court consisting of Watkins LJ and Laws J (as he then was), and the case of R v Dennis James Crowley [1977] 64 CAR 225.  The purpose of reference to the first two was to emphasise the importance of procedure.  There has been no question here of there being any defect in the procedures under section 7 by which the relevant samples were obtained. Accordingly, it does not seem to me that either Howard v Hallett or Murray are of any assistance.  As for Crowley, it was a case in which the issue as posed (see page 227 at the foot) is not the issue we have to face.  And, in any event, the legislation which was then relevant was later replaced by other statutory provisions, with the effect that in R v Fox their Lordships noted that the change in statute had resulted in such cases no longer being of any direct relevance to those cases which, like this, have followed it.

33.	Deriving no assistance therefore from those cases, I have remained unpersuaded by the appellant's case.

Lord Justice Munby:  

34.	I agree.  The essential fact here is that the breath tests which were the evidential foundation for the prosecution were those conducted at the police station and did not include the test previously conducted at the hospital.  The preliminary test undertaken at the hospital, as Mr Corrie accepts, was not on any view a legal prerequisite for the proper and lawful administration of the tests subsequently undertaken at the police station.  As Mr Knox on behalf of the Crown correctly submits, there is and could be no challenge to the complete propriety of the process in so far as it took place within the police station.
 
35.	The defect, if defect there was, in relation to non‑compliance with section 9 in respect of the preliminary breath test is not, as a matter of principle and authority, something which invalidates the process.

36.	The earlier learning characterised by the more elderly of the cases to which my Lord has referred has been swept away by legislative changes, the effects of which are spelt out (so far as is necessary to refer to authorities in the present case) by the decisions of the House of Lords in R v Fox [1986] AC 281 and subsequently in Russell v Devine [2003] UKHL 24, [2003] 1 WLR 1187, and, more recently, by the decision of this court in Wilson v DPP [2009] EWCA 1988 (Admin).

37.	If an unlawful arrest, as part of the preceding events in the process, does not invalidate the breath test (and that is the law), even in circumstances where the alleged arrest is not merely unlawful but prohibited by statute, why then should the defect in the present case, namely non‑compliance with the section 9 requirements in relation to the permissible, but not legally essential, preliminary breath test, have a different effect?

38.	Mr Corrie's argument is founded in part upon the reference in section 7(1) of the Act to section 9, and in part, as my Lord has described, to the important public policy which, he submits, is represented by section 9.  Neither of those arguments is, in my judgment, and essentially for the reasons my Lord has described, capable of carrying the weight which Mr Corrie would seek to attach to it.

39.	It may be, despite the general principle that irregularity or non‑compliance with the statutory procedure in some preliminary aspect of the proceedings does not invalidate the subsequent crucial taking of a specimen, that there will be circumstances in which there is such oppression, unfairness or trickery as might nonetheless entitle the court as a matter of discretion, either at common law or pursuant to PACE, to rule inadmissible evidence which would otherwise be admissible.  Assuming, but not deciding, that non‑compliance with section 9 in relation to a preliminary breath test could ever be capable of having that consequence in a case where the breath tests founding prosecution are not those taken at the hospital but those subsequently taken at the police station, the point does not in fact arise in the present case because of the finding of the magistrates, a finding which Mr Corrie does not and cannot challenge, that the officer in the unusual circumstances with which he was unexpectedly faced acted in complete good faith.

40.	For those reasons, which are merely additional to the reasons given by my Lord, and with which I find myself in full agreement, I too, like my Lord, would answer the question posed in the Case in the affirmative, with the consequence that this appeal must be dismissed.                       

Order:  Appeal dismissed