Russell v. Devine

The House considered the construction of article 18(4) of the Road Traffic (Northern Ireland) Order 1995 concerning where a requirement to provide a specimen of blood or urine must be made and where the specimen must be provided. The court held that article 18(4) requires that the requirement to provide a specimen be made at a police station or hospital, but does not in terms mandate that the specimen itself must be provided at the same place; a properly required specimen of blood may be taken elsewhere by a medical practitioner. The court followed the reasoning in Pascoe v Nicholson and related authorities and treated the later Police Reform Act 2002, section 57(3), as confirming rather than changing that construction. The court also upheld the established principle that evidence of specimen analysis must be obtained in accordance with the statutory procedure (following Howard v Hallett and Fox v Chief Constable of Gwent) and rejected arguments for admitting results where statutory procedure was not complied with even if the defendant suffered no prejudice.

The appellant, Michael Devine, was arrested on suspicion of driving while unfit through drink and detained at Strabane police station. A constable authorised detention to obtain an evidential specimen. As no trained breath-testing officer was available, the constable required a specimen of blood under article 18(1)(b) and subsequently arranged for a doctor to take the blood at a local health centre. The doctor asked that the appellant be brought to the health centre; the constable repeated the requirement there and the blood specimen was taken.

The appellant was convicted in the magistrates' court on the basis of a forensic certificate. On appeal the Court of Appeal (Northern Ireland) held the health centre was not a 'hospital' within article 13(2) and certified the question whether a specimen duly required at a police station or hospital must also be provided at a police station or hospital.

The House was asked to resolve that question and to consider related points about the admissibility of the analysis if statutory procedure had not been complied with. The issues framed were (i) the construction of article 18(4) — whether it demands that the specimen be provided at the place the requirement is made, and (ii) whether evidence of analysis remains admissible if article 18(4) has not been complied with.

The House concluded:

• On construction, article 18(4) does not stipulate that a specimen must be provided at the same police station or hospital where the requirement is made; Parliament contemplated that a medical practitioner could properly take blood elsewhere. The House relied on Pascoe v Nicholson and related authorities and treated section 57(3) of the Police Reform Act 2002 as consistent with that construction.
• The Court refused to admit a novel late argument that the operative requirement had been made at the health centre rather than the police station, concluding the earlier requirement remained operative and the brief repetition at the health centre did not supersede it.
• On admissibility, the House reaffirmed the established line of authority (Howard v Hallett, Fox v Chief Constable of Gwent) that statutory procedures for obtaining specimens must be followed and that evidence obtained otherwise is inadmissible; the court rejected the submission that the general discretion under Article 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989 should permit admission where no prejudice had resulted.

Appeal dismissed. The House held that article 18(4) of the Road Traffic (Northern Ireland) Order 1995 does not require that a specimen of blood, duly required at a police station or hospital, must itself be provided at that same place; a medical practitioner may take the specimen elsewhere. The House also reaffirmed that evidence of specimen analysis is admissible only if the statutory procedure has been followed, in line with Howard v Hallett and Fox v Chief Constable of Gwent. A late argument that the operative requirement had been made at the health centre was rejected as the earlier police-station requirement remained operative.

Conviction by Resident Magistrate, Strabane Magistrates' Court (case stated to Court of Appeal). Appeal to the Court of Appeal (Northern Ireland) [2001] NICA 37 which held the health centre was not a 'hospital' and certified the question whether a specimen must be provided where the requirement is made. Appeal to the House of Lords allowed consideration of the certified question; judgment delivered [2003] UKHL 24.