Director of Public Prosecutions v Wilson

An unlawful or prohibited arrest does not, by itself, invalidate later breath or blood testing in a drink-driving case. A lawful arrest is not an essential prerequisite to obtaining a specimen. The relevant question is whether the statutory safeguards and procedures governing the tests were complied with. Evidence obtained after an arrest may remain admissible, subject to any separate discretion to exclude it under Police and Criminal Evidence Act 1984, section 78. The prohibition on arresting a hospital patient therefore does not prevent subsequent testing where the other statutory requirements are satisfied.

The Director of Public Prosecutions appealed by way of case stated from the decision of the Plymouth Justices, who acquitted Frank Wilson of driving with excess alcohol. After a road accident, Wilson underwent testing at hospital. A blood sample was taken after he had been unlawfully arrested, contrary to section 6D(3) of the Road Traffic Act 1988. The Justices treated the arrest as invalidating the blood sample and acquitted him.

The appeal concerned whether the unlawful arrest rendered the subsequent blood testing inadmissible, whether section 15(2) of the Road Traffic Offenders Act 1988 affected the result, and the relevance of Fox v Chief Constable of Gwent.

1. Appeal allowed. The Justices were wrong to conclude that the blood sample was unlawfully obtained merely because Wilson had been arrested while a patient in hospital. The case was remitted with a direction to convict.
2. The offence did not require proof of an arrest. Section 6 of the Road Traffic Act 1988 authorised preliminary testing where the statutory trigger existed, including an accident and reasonable grounds for believing that the person had been driving. The later procedures under sections 7 to 9 contained the necessary safeguards.
3. The court followed the principle in R v Fox [1986] AC 281 that a lawful arrest was not an essential prerequisite to a breath test. The fact that section 6D(3) prohibited arrest while a person was a hospital patient did not create a different consequence from an unlawful arrest. There was no statutory or principled basis for invalidating otherwise compliant testing.
4. Finnigan v Sanderford [1981] 1 WLR 837 concerned the former statutory position, when arrest was a prerequisite to requiring a specimen. That position had changed. Russell v Devine [2003] UKHL 24 concerned different statutory provisions and did not assist.
5. Lord Justice Thomas agreed and added that, where sections 7 to 9 had been complied with, the only possible separate argument would be an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence. The remaining questions stated by the Justices therefore did not arise.

• High Court (Administrative Court): Allowed the Director of Public Prosecutions’ appeal by case stated and remitted the case to the Plymouth Justices with a direction to convict.
• Plymouth Justices: On 11 September 2008, acquitted the defendant after ruling that the blood sample was inadmissible because the arrest in hospital contravened section 6D(3) of the Road Traffic Act 1988.