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Excess Alcohol, Incorrect Procedures and Inadmissible Evidence

  • Michael Hirst

Extract

There is something peculiar, perverse and extravagant about the behaviour of the courts when confronted with drink-driving offences under the Road Traffic Act 1988. Drivers who have manifestly committed such offences all too often escape conviction, or have their convictions overturned on appeal, as a result of trivial, bona fide and otherwise inconsequential procedural errors supposedly made by the police when obtaining specimens of breath or blood for analysis.* This is peculiar, in that trivial or inconsequential procedural errors in the gathering of evidence do not ordinarily lead to acquittals in criminal cases. It is perverse, in that it largely ignores a major redrafting of the drink-driving law, which was specifically intended to prevent such unmeritorious acquittals; and it is extravagant, in that it wastes court time and public money, whilst generating an excessive amount of highly technical case law. Worst of all, it leads to glaring and absurd failures of justice, which can only drag the law into disrepute.

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1 “Supposedly”, because in some instances the supposed errors that led to acquittals have been held in subsequent cases not to have been errors at all.

2 [1993] R.T.R. 209.

3 The Divisional Court were far from happy with the trial court's conclusion that the warning had not been given, but declined to interfere with that conclusion, even though there was no satisfactory evidence on which it could have been based.

4 [1993] R.T.R. 22.

5 [1994] R.T.R. 241; [1995] 1 Cr.App.R. 383.

6 [1991] R.T.R. 119.

7 [1993] AC. 319.

8 [1994] R.T.R. 241; [1995] 1 Cr.App.R. 383. This appeal was heard by the Divisional Court at the same time as Ogburn.

9 As required by section 9 of the Road Traffic Act 1988.

10 [1995] 1 Cr.App.R. 383 at 399. The police officer concerned had in fact said, “I propose that the specimen be of blood unless you state that there is a medical reason why this should not be so.”

11 The Divisional Court has subsequently reconsidered this question, and has quite rightly concluded that there is not, after all, any need for the driver to be told why a specimen of breath cannot be taken at a hospital: R. v. Burtonon Trent Magistrates' Court, exparte Woolley [1995] R.T.R. 139.

12 See for example Wakely v. Hyams [1987] R.T.R. 49; Stokes v. Sayers [1988] R.T.R. 89; Director of Public Prosecutions v.Nesbitt [1995] 1 Cr.App.R. 383.

13 [1986] A.C. 281.

14 The decision in Fox preceded the coming into force of the Police and Criminal Evidence Act 1984, section 78 of which would have enabled the evidence to be excluded at the discretion of the court on grounds of unfair prejudice. The issue of discretionary exclusion is considered at pp. 605–7 infra.

15 [1993] A.C. 319.

16 See for example Professor Diane Birch, who describes it as “an excellent decision” ([1993] Crim. L.R. 966 at p. 967).

17 [1993] Crim. L.R. 966 at p. 968.

18 D.P.P. v. Warren was not such an appeal, because the issue was not raised.

19 [1995] 1 Cr.App.R. 242.

20 [1995] 1 Cr.App.R. 242 at 250. See also R. v.Sang [1980] A.C. 402.

21 Evidence discovered as a result of an inadmissible confession may nevertheless be admissible: see section 76(4).

22 See generally Andrews & Hirst on Criminal Evidence (2nd ed), chapter 14; Blackstone's Criminal Practice 1995, section F2.

23 (1990) 91 Cr.App.R. 161.

24 (1990) 91 Cr.App.R. 161 at 163.

25 See for example Director of Public Prosecutions v. Godwin [1991] R.T.R. 303.

26 Defined in section 11 of the Road Traffic Act 1988 as 35 μg/100 ml breath; 80 mg /100 ml blood; 107 mg /100ml urine.

27 This offence can only be committed if the requirement to provide a specimen is lawfully made.

28 “The inclusion of one is the exclusion of another.”

29 See also section 11 (4) of the Road Traffic Act, under which “A person provides a specimen of blood if and only if he consents to its being taken by a medical practitioner, and it is so taken”.

30 Nor, to take another example, does section 9 of the Act expressly require the exclusion of specimens obtained from hospital patients without the consent of the doctor in immediate charge of the case.

31 [1984] R.T.R. 353.

32 [1984] R.T.R. 353 at 360.

34 [1993] R.T.R. 209 at 221.

35 [1969] 1 Q.B. 659.

36 In the recently reported case of R. v. Burton on Trent Justices, ex parte Woolley [1995] R.T.R. 139, (Buxton J. and Beldam L.J.) the Divisional Court has acknowledged, for the first time, that judicial interpretation of the relevant law is at variance with the clear intention of Parliament (see Buxton, J.'s judgment at pp. 152–3). One senses that their Lordships had little enthusiasm for the current state of the law, but felt constrained to accept its basic tenets.

37 An alternative, if less colourful, analysis of the provision was that offered by Viscount Dilhorne in Spicer v. Holt [1977] A.C. 987, namely that, “it not only defined [the offence], but laid down the only way in which it could be proved.”

38 [1977] A.C. 987.

39 (1979) 70 Cr.App.R. 300.

40 The distinction between specimens obtained in “unfitness” cases and those obtained in “excess alcohol” cases can no longer be maintained, since the same procedures now govern the obtaining of specimens in each case.

41 As previously recommended by the Blennerhassett Committee (Report of the Departmental Committee on Drinking and Driving (1976), para. 8.2).

42 As, for example, where the driver escapes police pursuit and goes into hiding, or where he is taken to hospital in such a dangerous condition that his doctor refuses to approve the taking of a specimen.

43 [1988] A.C. 450.

44 [1989] AC. 281.

45 If only because the expert's calculations are likely to be more straightforward.

46 Supra, p. 603.

47 [1993] A.C. 319 at 322.

48 [1984] JR.T.R. 353 at 360.

49 Ibid, at 361.

50 [1987] R.T.R. 49. This was a case in which the police mistakenly “required” a driver to provide a blood specimen in substitution for a marginally positive breath specimen, instead of offering him th e option of providing one. He was acquitted on the basis that the blood specimen was inadmissible, as having been improperly obtained, whilst the original breath specimen was inadmissible, as having been replaced by the blood specimen. Yet both were positive, and would by ordinary logic have corroborated each other.

51 [1993] Crim.L.R. 968, at p. 970.

52 Notably Ogburn, Duffy and Hayes, supra; but contrast the approach of Buxton J. in R. v. Burton on Trent Justices, ex pane Woolley [1995] R.T.R. 139.

53 [1995] R.T.R. 139.

54 Ibid, at 148.

55 The procedures in question are set out in sections 62–63A of the Police and Criminal Evidence Act J984, as amended or inserted by the Criminal Justice and Public Order Act 1994. As with drink-driving cases, a “careful statutory procedure” is prescribed, but the exclusionary discretion provided by section 78 of the 1984 Act is quite sufficient, in my submission, to deal with any departures from that procedure.

* Senior Lecturer in Law, University of Wales, Aberystwyth

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Excess Alcohol, Incorrect Procedures and Inadmissible Evidence

  • Michael Hirst

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