Kohler v Director of Public Prosecutions

A breach of the hospital-patient safeguards in section 9 of the Road Traffic Act 1988 does not ordinarily make later, properly obtained section 7 breath specimens inadmissible. Section 7 is read with section 9 so that the additional protections apply when the requirement is made at hospital; they do not impose a general precondition that every earlier preliminary test complied with section 9. A preliminary breath test is not a necessary prerequisite to an admissible evidential breath test at a police station. Relevant evidence obtained unlawfully remains admissible unless misconduct, oppression, trickery, unfairness or abuse of power justifies exclusion. On the facts, the later police-station specimens were admissible.

The claimant was convicted by magistrates of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988. At hospital, a police officer required a preliminary breath test without notifying or obtaining the objection of a medical practitioner under section 9. The claimant was then arrested and taken to a police station, where two evidential breath specimens were obtained in compliance with section 7. The case stated asked whether those specimens and their analysis were admissible despite the earlier non-compliance with section 9.

1. Appeal dismissed. The question stated by the magistrates was answered in the affirmative. The specimens obtained at the police station were admissible.
2. Section 7(1) makes a requirement for specimens subject to section 9 because section 9 supplies additional protection where the requirement is made at hospital. It does not require every aspect of section 9 to have been observed before any later section 7 evidence can be admitted. The section 9 safeguards do not sensibly apply to a requirement made at a police station.
3. The preliminary hospital breath test was not a legal prerequisite to the later evidential breath specimens. The claimant accepted that the police could have proceeded to arrest and obtain admissible section 7 specimens without administering a preliminary test.
4. The general common-law rule is that relevant evidence is not rendered inadmissible merely because it was obtained unlawfully: R v Sang [1980] AC 402. The same approach applies in breathalyser cases under R v Fox [1986] AC 281. A prohibited or unlawful arrest does not invalidate later procedures properly carried out under section 7, as illustrated by DPP v Wilson [2009] EWHC 1988 (Admin).
5. Lord Justice Munby added that exceptional oppression, unfairness or trickery might permit exclusion at common law or under PACE. He did not decide whether section 9 non-compliance could ever have that consequence where the prosecution relied on later police-station specimens. The issue did not arise because the officer had acted in complete good faith.

• Magistrates’ court: The claimant was convicted at Alnwick Magistrates’ Court on 12 February 2010.
• High Court (Administrative Court): The appeal by way of case stated was dismissed, and the magistrates’ question was answered affirmatively.