Twigg v R.

A breach of a procedural condition in Road Traffic Act 1988 section 7 does not, without more, make a consensual blood specimen inadmissible. Automatic exclusion arises only where the statutory scheme expressly so provides, such as the requirement in Road Traffic Offenders Act 1988 section 15(4) to disregard a specimen in specified circumstances.

Otherwise, the court must determine under Police and Criminal Evidence Act 1984 section 78 whether admission would adversely affect trial fairness so that the evidence ought not be admitted. That assessment is not a free discretion to admit evidence which would make the trial unfair.

The appellant was convicted at Derby Crown Court of causing the death of a 14-year-old scooter rider by careless driving while over the specified limit for cannabis. A blood sample taken at the police station showed a concentration above the specified limit. The healthcare professional had not advised the police, as required by Road Traffic Act 1988 section 7(3)(c), that the appellant’s condition might be due to a drug.

At trial, the judge held that the procedural breach did not make admission unfair under Police and Criminal Evidence Act 1984 section 78. On appeal, the appellant contended that the sample was instead inadmissible as a matter of law. The central issue was whether non-compliance with section 7(3)(c) automatically excluded the blood evidence.

1. Appeal dismissed. The blood sample was not automatically inadmissible merely because the healthcare professional had not given the advice required by Road Traffic Act 1988 section 7(3)(c).

2. The ordinary rule is that relevant evidence is not excluded solely because it was unlawfully obtained. Parliament modified that rule through Police and Criminal Evidence Act 1984 section 78, but did not create an automatic exclusion for every procedural breach in obtaining a specimen under section 7. The manner in which the evidence was obtained remains relevant to the fairness assessment.

3. Murray v DPP [1993] RTR 209 did not establish that every breach of section 7 makes a specimen inadmissible. It concerned the compulsory warning in section 7(7), a safeguard connected with the statutory exception to the privilege against self-incrimination. The failure there was treated as vitiating consent, whereas Road Traffic Offenders Act 1988 section 15(4) expressly requires a blood specimen to be disregarded if the statutory consent requirement is absent.

4. Section 78 is sometimes described as discretionary because it provides that the court may refuse admission. In substance, however, a court cannot lawfully admit evidence if doing so would make the proceedings unfair. That follows both from the terms of section 78 and from the fair-trial guarantee in Article 6 of the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998.

5. The trial judge was entitled to admit the sample. The appellant had lied when asked by the healthcare professional whether he had taken drugs. Had he answered honestly, it was likely that the professional would have reconsidered whether his condition might have been due to drugs. The procedural breach therefore did not have an adverse effect on fairness requiring exclusion.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2019] EWCA Crim 1553.
• Crown Court at Derby — on 25 October 2018, convicted the appellant of causing death by careless driving while over the specified drug limit and sentenced him to five years’ imprisonment.