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Cite as: [2001] NICA 37
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    Russell v. Divine [2001] NICA 37 (4 July 2001)

    Judgment: approved by the Court for handing down

    (subject to editorial corrections)

    IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
    _____

    BETWEEN

    SUPERINTENDENT RA RUSSELL

    (Complainant) Respondent

    and

    MICHAEL DEVINE

    (Defendant) Appellant

    _____

    CARSWELL LCJ

  1. This is an appeal by way of case stated from a decision of a resident magistrate Mr Brian P McElholm, sitting in Strabane Magistrates' Court on 3 March 2000. On that date the appellant appeared to answer a complaint that he had on 27 October 1998 driven a mechanically propelled vehicle on a road or other public place when unfit to drive through drink or drugs, contrary to Article 15(1) of the Road Traffic (Northern Ireland) Order 1995 (the 1995 Order). The magistrate found the case proved and convicted the appellant. He disqualified him from driving for twelve months, but gave him an absolute discharge on account of his long clear driving record. The appellant requested the magistrate to state a case for the opinion of this court, which the magistrate stated on questions of law, to which we shall refer later.

  2. In paragraph 2 of the case stated the magistrate set out the facts found by him as follows:

    "2 No witnesses were called by either party and I was referred to the tendered evidence. I found the following facts which in any event were not in dispute:-

    (a) At approximately 1.30 am on the morning of Tuesday 27th day of October 1998 the Defendant was arrested by Constable Brian Reid on suspicion of 'Driving whilst unfit through drink' contrary to Article 15(1) of the Road Traffic (Northern Ireland) Order 1995. He was conveyed to Strabane RUC Station where the custody procedure was initiated and the Custody Officer, Sergeant Carey authorised his detention for the purpose of obtaining an evidential sample at 0140 hours.
    (b) Sergeant Carey complied with all requirements of the 'Codes of Practice' and these were not in issue. The Defendant did not request the presence of a solicitor nor did he ask to consult with a solicitor.
    (c) At 0156 hours Sergeant Carey handed the Defendant back into the custody of Constable Brian Reid.
    (d) At 0159 hours Constable Reid informed the Defendant that he would not be required to provide evidential breath specimens as there was no trained officer available at that time to operate the Evidential Breath Testing Device.
    (e) At 0200 hours Constable Reid put to the Defendant the requirement under Article 18(1)(b) of the Road Traffic (Northern Ireland) Order 1995 to provide a specimen of blood. The Defendant consented to do so, and does not now challenge the correctness of the procedure up to this point.
    (f) At 0200 hours Sergeant Carey contacted Strabane Health Centre on Constable Reid's behalf and requested that a doctor attend the station to take a blood sample from the Defendant. At 0205 hours Doctor Thompson returned this call and informed Sergeant Carey that he would take a blood sample but requested that the Defendant be brought to the Health Centre for that purpose. This request by Doctor Thompson was solely to convenience himself as he was the only doctor on duty at the time. There were no medical reasons which necessitated the Defendant's attendance at the Health Centre.
    (g) Constable Reid then transported the Defendant to Strabane Health Centre. In the presence of Doctor Peter Thompson Constable Reid again put the requirement to the Defendant to provide a specimen of blood for a laboratory test. Again the Defendant consented.
    (h) At 0215 hours a specimen of blood was provided to Doctor Thompson. The Defendant was transported back to Strabane RUC Station and released from custody at 0232 hours.
    (i) On the 27th day of October 1998 the specimen of blood was forwarded to the FSANI for analysis. The certificate of analysis was produced to the Court. The proportion of alcohol in the blood was stated to be 156mg in 100 millilitres of blood which was 76 in excess of the limit. There was no dispute about this reading."

  3. Article 15(1) of the 1995 Order, under which the prosecution was brought, provides:

    "A person who, when driving or attempting to drive a mechanically propelled vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence."

  4. Article 17 makes provision for the provision of a specimen of breath for a preliminary breath test. For present purposes the only material portion is paragraph (5):

    " (5) A constable may arrest a person without warrant if - 
    (a) as a result of a preliminary breath test he has reasonable cause to suspect that the proportion of alcohol in that person's breath or blood exceeds the prescribed limit, or

    (b) that person has failed to provide a specimen of breath for a preliminary breath test when required to do so in pursuance of this Article and the constable has reasonable cause to suspect that he has alcohol in his body, but a person shall not be arrested by virtue of this paragraph when he is at a hospital as a patient."

  5. Article 18, which we shall quote in full, then goes on to provide:

    " 18.-(1) In the course of an investigation into whether a person has committed an offence under Article 14, 15 or 16 a constable may, subject to the following provisions of this Article and Article 20, require him –

    (a) to provide 2 specimens of breath for analysis by means of a device of a type approved by the Head of the Department, or

    (b) to provide a specimen of blood or urine for a laboratory test.

    (2) A requirement under paragraph (1)(a) may be made to provide the specimens of breath –

    (a) at or in the vicinity of the place where the requirement is made if facilities for the specimens to be taken are available and it is practicable to take them there, or

    (b) at a police station.

    (3) A requirement under paragraph (1)(a) may be made only by a constable who is especially authorised by the Chief Constable to make such requirements.

    (4) A requirement under paragraph (1)(b) to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless –

    (a) the constable making the requirement has reasonable cause to believe that a specimen of breath cannot be provided or should not be required, or

    (b) at the time the requirement is made a device or a reliable device of the type mentioned in paragraph (1)(a) is not available at the police station or it is then for any other reason not practicable to use such a device there, or

    (c) the suspected offence is one under Article 14 or 15 and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug, but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide 2 specimens of breath.
    (5) If the provision of a specimen other than a specimen of breath may be required in pursuance of this Article the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.

    (6) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.

    (7) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this Article is guilty of an offence.
    (8) A constable must, on requiring any person to provide a specimen in pursuance of this Article, warn him that a failure to provide it may render him liable to prosecution.
    (9) For the purposes of paragraph (1)(a) a device shall be treated as of a type approved by the Head of the Department where a statement that the Head of the Department has approved a device of that type is included in the Belfast Gazette."

  6. A hospital is defined in Article 13(2) as –

    "an institution which provides medical or surgical treatment for in-patients or out-patients".

  7. The main submission made to the magistrate was that the health centre was not a hospital within the meaning of Article 13(2) of the 1995 Order, and that accordingly the specimen had not been properly taken and the appellant should not be convicted. The appellant's solicitor advanced a subsidiary argument, which the magistrate rejected, and which was not pursued before this court. The magistrate held that the health centre was a hospital and found in consequence that the specimen had been properly taken in accordance with the requirements of Article 18.

  8. There is no definition of a health centre in the 1995 Order nor, as far as our researches or those of counsel extended, does there appear to be one in any other legislative provision. There was no description of the Strabane Health Centre in the case stated. We do, however, understand the general concept of a health centre to be a place in which a number of general practitioners carry on practice from one building or complex of buildings, in such a manner that their practices are run in conjunction, with shared administration and nursing and other ancillary provision for their patients.

  9. A hospital, on the other hand, ordinarily is an institution staffed by a number of doctors and nurses who provide in-patient as well as out-patient care and varying types of specialist medical and surgical services. It has to be observed, however, that the variations between institutions regarded as hospitals are considerable, as the breadth of the statutory definition recognises. Some day hospitals do not provide in-patient care, but treat all their patients as out-patients. Others, such as some of the older cottage hospitals, may have no specialist medical or surgical staff, but may be staffed by a rota of general practitioners. For these reason we do not consider that it is essential, in order to satisfy the definition of a hospital, that the institution should provide both in-patient and out-patient care or that it should have resident medical or surgical staff or consultant or specialist staff in regular attendance. It will ordinarily be an institution, in the sense that it is a unitary organisation set up to provide patient care. It seems to us inescapable, however, that if an institution lacks all of these characteristics it is not possible to class it as a hospital. We do not propose to attempt to formulate a canonical definition of a hospital, since the variants between hospitals are so considerable. We can, however, state with some confidence from judicial notice that a health centre which is the place from which a group of general practitioners carries on practice does not satisfy the definition in Article 13(2) of the 1995 Order. It has no in-patient facility, no specialist medical or surgical staff; it is not open to all comers but its facilities are available only to patients registered with one of the doctors in the practice; and it was not set up as a unitary institution for the treatment of patients, but is a coalition of a group of general practitioners each with his or her own list of patients. Accordingly, when the sample of blood was taken from the appellant at the Strabane Health Centre it was not in our judgment taken from him at a hospital within the meaning of Article 13(2) of the 1995 Order.

  10. This interpretation is reinforced by consideration of the object of the legislature in enacting Article 18(4). A requirement to provide a specimen of blood or urine is ordinarily to be made at a police station, because it is a serious demand and failure to comply may involve adverse consequences. A hospital is also included because a drunken motorist may be taken there after a road accident. If he is in hospital, he may not be fit to be moved, and so the provision in article 18(4) was included that the requirement to provide a specimen may be made in that place. If he is not there, he is to be taken to a police station and there required to provide a specimen. This in our view supports the conclusion that Article 18(4) envisages a place fitting the description of a location to which an injured driver might be taken following an accident and which he might not be fit to leave, which is appropriate for a hospital in the ordinary sense and not a health centre.

  11. It was no doubt envisaged by the legislature that the specimen would ordinarily be taken at the place where the requirement is made, the police station or the hospital. It is not so provided in Article 18, however, and it is not in our opinion an essential condition of validity that it should be taken in such a place, unless it is a necessary implication from the terms of Article 18. In the case of a sample of breath it appears from Article 18(2)(a) that the sample is to be taken at the place where the requirement is made. But in that paragraph the focus is on the place where the breath sample is to be taken, whereas in paragraph (4) it is on the place where the requirement is to be made. The requirement can only be made at a police station if one of the conditions set out in Article 18(4) is satisfied. It does not seem to us to follow necessarily from that provision that the specimen is to be taken there, once the matter has progressed as far as the making of the requirement. Unlike the making of the requirement, the actual taking of the specimen might sensibly be done anywhere, and there is not in our view any compelling reason why it should have to be done in a police station or hospital. In Pascoe v Nicholson [1981] 2 All ER 769 the House of Lords held that it was not necessary that the specimen be taken at the same police station as that in which the requirement was made. Lord Roskill said at page 774:

    "I see no logical reason why in the absence of express statutory provision the motorist should not, after being required to supply the specimen for a laboratory test immediately following any second breath test, be taken to another police station where a doctor is more easily available in order to take from him the specimen of blood. It is not difficult to visualise many parts of the United Kingdom where it might be extremely difficult to obtain the services of a doctor at some isolated police station."
  12. The House of Lords did not have to consider whether the specimen could be taken at a place other than a police station or hospital, but there is nothing in their decision to indicate the contrary. We accordingly consider that the specimen of blood was properly taken in accordance with the statutory requirements, the test result was properly admissible in evidence and the conviction of the appellant was correct.

  13. It was argued in the alternative that if there is a breach of the requirements of Article 18, the court still has power to admit the evidence notwithstanding the irregularity of procedure. This is contrary to the conclusions reached by Robert Goff LJ in the Queen's Bench Division in Howard v Hallett [1984] RTR 353. The basis of his reasoning was that the substituted section 10(2) of the Road Traffic Act 1972 (which is in the same terms as Article 18(2) of the Road Traffic Offenders (Northern Ireland) Order 1996) provides that evidence of the proportion of alcohol in a specimen of breath, blood or urine shall in all cases "be taken into account". Robert Goff LJ held that it was necessary to imply that the specimen had been taken "pursuant to the provisions of the Act." Where the irregularity in procedure involves a failure to comply with the statutory requirements, a specimen which was not taken in compliance with those requirements cannot be admitted in evidence. It is otherwise where the irregularity consists of something like an unlawful entry into premises, as in Fox v Chief Constable of Gwent [1985] 3 All ER 392, if the lawfulness of the arrest was not a statutory prerequisite of a valid breath test. This reasoning was approved by Lord Bridge in Fox v Chief Constable of Gwent at page 401 and followed in Murray v DPP [1993] RTR 209. It is accordingly dependent on the construction of the legislation governing breath and blood tests and there is not any room for the application of the principle contained in R v Sang [1980] AC 402, as was done in Fox's case. We consider that we must follow this line of authority. If, contrary to our view, there had been a breach of Article 18(4) of the 1994 Order, the magistrate would have had to rule out the blood test results.

  14. The questions of law posed in the case stated were the following:

    "? Whether the Court was correct in ruling that the requirement put to the Defendant under Article 18(1)(b) of the Road Traffic (NI) Order 1995 to provide a specimen of blood was put within the terms of the said Order, insofar as it was put to him at a Health Centre?

    ? Whether the Court was correct in ruling that a Health Centre was a 'hospital' as defined by Article 152A of the Road Traffic (NI) Order 1981, as amended?"

  15. We consider that they should be reformulated in the following form:

    1. Whether I was correct in law in holding that a health centre was a "hospital" within the meaning of Article 13(2) of the Road Traffic (Northern Ireland) Order 1995.

    2. Whether it is necessary, if the requirement to provide a specimen of blood or urine has been duly made under Article 18 of the said Order at a police station or a hospital, that the specimen be taken at a police station or a hospital.

  16. We answer both questions in the negative. For the reasons which we have set out in this judgment we uphold the decision of the resident magistrate, although on a different ground, and dismiss the appeal.


 
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
_____

BETWEEN

SUPERINTENDENT RA RUSSELL

(Complainant) Respondent

and

MICHAEL DEVINE

(Defendant) Appellant

_____
JUDGMENT
OF
CARSWELL LCJ
_____

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