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Re McGuigan’s application for judicial review [2019] NICA 46  - The ‘hooded men’: State authorised torture on home ground
Appeal against Sentence – England and Wales
Hong Kong Case Summaries
Appeals against conviction – England and Wales
Appeals against conviction – England and Wales

 

Whether a blood sample not taken in accordance with s. 7 of the RTA 1988 is automatically inadmissible in evidence - Murray v DPP-  s.78 PACE.

 

R v Twigg

 

[2019] EWCA Crim 1553

 

By Farrhat Arshad

 

 

T had been convicted of causing death by careless driving whilst over the specified limit for a drug, contrary to section 3A(1) Road Traffic Act 1988 ("the RTA 1988") and sentenced to five years’ imprisonment.  Whilst driving, he had collided with a 14 year old boy who was riding his scooter in the road.  T had not been using his headlights and had not stopped at the scene.  He had called the police shortly afterwards. Whilst at his home address, police had smelt cannabis and asked if he had been using any illegal drugs.  He had replied, “Not recently”.  At the police station,a blood sample was taken by a healthcare professional and subsequently analysed. Traces of cannabis were found which placed T in excess of the specified limit for that drug.

 

T sought to appeal against that conviction on the basis that the trial judge had erred in allowing into evidence the result of the blood test, which had not been taken in accordance with s. 7 RTA 1988, as the healthcare professional had not advised the constable that the suspect’s condition may be due to drugs, rather the constable had requested the blood sample be taken.  It was argued: (i) That the blood sample had not been lawfully obtained and was therefore automatically inadmissible as a matter of law; (ii) In the alternative, the judge should have exercised her discretion pursuant to section 78 PACE and excluded the evidence arising from the blood sample.

 

As to (i), the CACD (Singh LJ, Julian Knowles J. and Sir John Royce) held that the decision in Murray v DPP [1993] RTR 209 was not authority for the proposition that any breach of any of the procedures associated with the obtaining of specimens under s.7 RTA 1988 meant that a specimen is automatically rendered inadmissible in evidence in criminal proceedings.  In coming to this view, the CACD relied on Bodhaniya v Crown Prosecution Service [2013] EWHC 1743 (Admin); 178 JP 1TR 224, where Burnett J. (as he then was) stated:

 

"Section 7 of the Road Traffic Act 1988 does not in terms provide that a failure to comply with section 7(3) has the consequence that the results of the analysis of a blood sample cannot be given in evidence. That is why the appellant's advocate at trial and the district judge approached the matter through section 78 of the Police and Criminal Evidence Act 1984.  That is in contrast, for example, with the provisions of section 15(4) of the Road Traffic Offenders Act 1988.  That provides that the specimen of blood should be disregarded, unless it was taken with the consent of an accused and was taken by a medical practitioner or registered healthcare professional.

 

The general position in English law is that evidence obtained illegally remains admissible, even in criminal cases. That is why its exclusion is argued by reference to section 78 of the 1984 Act. In the overwhelming majority of cases it may be that a failure to comply with s.7(3) RTA 1988, before requiring an accused to provide a specimen of blood, will have the result that all evidence of that specimen will be excluded. But it is not necessarily so. The facts that this case, where on any view the constable concerned bent over backwards to try to assist the appellant in difficult circumstances, provides an example where exclusion under section 78 would not have been appropriate."

 

As to (ii), the CACD concluded that the trial judge’s approach to s.78 could not be criticised.  She was entitled to exercise the judgement which she did under s.78 PACE and to refuse to exclude the evidence of the blood sample for the reason that she gave, namely that the Appellant lied to the healthcare professional about whether he had been taking drugs. If he had not lied it was likely that the healthcare professional would have altered the opinion which she formed as to whether his condition might have been due to drugs.

 

 

Armed forces; Administration of justice; Criminal procedure

 

Gunn v Service Prosecuting Authority

 

[2019] EWCA Crim 1470

 

By Paul Mason

 

 

A Court Martial trying an RAF officer is properly constituted even if none of the Board of lay members were RAF personnel. 

 

An RAF officer appealed against his conviction for battery by a Board containing Army personnel only. The Appellant relied upon the Queens Regulations for the RAF (“the QR”). This delegated legislation set out that an RAF defendant would “ordinarily be tried by lay members of wholly his own service”.  Consequently, it was argued an Army-only Board was a breach of the QR, akin to a breach of the Criminal Procedure Rules.

 

However, the CACD concluded that “ordinarily” meant what it said. “Ordinarily” did not mean “invariably”, nor did it amount to a mandatory rule to be followed in all cases.  Consequently,  a Board not comprised from the same Service as the defendant was not invalidly constituted, nor did it lack jurisdiction.  In dismissing the appeal, the CACD made it clear that their decision was not intended to undermine the usual practice of a Service defendant being tried by lay members drawn from his own Service.

 

The Court did not deal with the more complex question of whether in multi-service cases, the Board should comprise “a mixture of Service personnel from different Services”, as provided in the QR. Further, whether a single service Board in such case would be invalidly constituted and lacked jurisdiction.

 

 

If you would like to speak to Farrhat Arshad or Paul Mason about these cases, please email here for Farrhat and here for Paul.