Director of Public Prosecutions v Carless

Section 15(2) of the Road Traffic Offenders Act 1988 permits evidence of alcohol in a specimen even where the specimen was not provided or taken in connection with the alleged driving offence. The 1991 amendment created a new category of admissible samples outside the strict statutory procedure. Where a specimen is provided in connection with the alleged offence, however, the procedural requirements of the 1988 Act must still be strictly complied with. The court may also exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 where its admission would adversely affect the fairness of proceedings.

This was a prosecutor’s appeal by way of case stated from the West Kent Magistrates’ Court. The respondent had been acquitted of driving with excess alcohol after the magistrates excluded a blood sample taken with his consent while he was being treated as a possible victim of abduction, rather than as a suspect in a driving offence.

The sample later showed an alcohol concentration above the prescribed limit. The statutory procedure for obtaining specimens in connection with a driving offence had not been followed. The central questions were whether section 15 of the Road Traffic Offenders Act 1988 permitted reliance on such a sample and whether the magistrates had been correct to exclude it.

1. Appeal allowed. The first question was answered affirmatively and the second negatively.
2. Section 15(2) of the Road Traffic Offenders Act 1988, as amended by the Road Traffic Act 1991, expressly covers cases where a specimen was not provided or taken in connection with the alleged offence. Those added words permit reliance on a specimen obtained otherwise than under the statutory procedure in section 7 of the Road Traffic Act 1988.
3. Howard v Hallett [1984] RTR 353 remains applicable where the specimen was provided in connection with the alleged offence. In that situation, the statutory procedural requirements must be strictly complied with. The present case fell within the new statutory category because the sample had been obtained for an investigation into an alleged abduction.
4. The court recognised that the amended provision could leave uncertainty about the circumstances in which samples obtained outside the driving-offence procedure may later be used. Any unfairness can be addressed by the vigilant application of section 78 of the Police and Criminal Evidence Act 1984.
5. The court did not determine whether section 15(4) applied to a specimen falling within the amended parenthesis in section 15(2). The factual circumstances relevant to that issue had not been sufficiently considered by the magistrates.
6. The matter was remitted to the same bench of magistrates to continue hearing the information in light of the judgment. No order for costs was made.

• High Court (Administrative Court): The prosecutor’s appeal by way of case stated was allowed. The magistrates’ ruling excluding the blood-sample evidence was set aside, and the matter was remitted to the same bench to continue hearing the information.
• West Kent Magistrates’ Court: The respondent was acquitted after the court excluded the blood-sample evidence as inadmissible.