Twigg [2019] EWCA Crim 1553

The appellant was convicted of causing death by dangerous driving whilst over the prescribed limit. The case raised a potentially important point of principle in relation to the admissibility as evidence of blood samples unlawfully obtained by the police in breach of statutory duties imposed by s7 of the RTA 1988.

The judge treated the question of admissibility as one under s78 of PACE and ruled that the breach of procedure had not had such an adverse impact on the fairness of the trial that it would be unfair for it to be admitted. At the Court of Appeal, the issue was whether the logically prior question to be determined was whether the evidence was inadmissible as a matter of law.

The appellant had driven off after colliding with a teenager on a scooter. The police attended his home address and having smelled cannabis they asked him if he had taken illicit drugs, he replied: “not recently, no.” He was later to say that he had smoked that morning. He was arrested, and a blood swipe was taken, no specified drug was detected. He was taken to the police station, a healthcare professional examined him, and a blood sample was taken. When analysed, the sample revealed traces of cannabis placing him in excess of the specified limit for that drug.

At the trial, it was argued that the evidence of the blood sample was inadmissible as the healthcare professional reported no alcohol or drug issues and found the appellant to be alert and coherent. She said that she took the specimen as the police asked for it. The officer said that he did not recall the procedure but would not have asked for a specimen unless the professional said it was required. It was conceded that neither the police nor the healthcare professional had been acting in bad faith.

The judge said that while the appellant appeared alert and coherent, there had been a delay caused by him. He lied and said he had not taken drugs; if he had told the truth, it was highly likely the healthcare professional would have reviewed her opinion about whether he was affected by cannabis.

It was submitted on appeal that the judge should have exercised her discretion under s78 to exclude the evidence.

It was argued there was no alternative as the statutory procedure had not been followed. He had also been asked to consent to the taking of the sample with the warning he would be prosecuted if he failed to agree. The consent, arguably, was vitiated by the breach. Without the healthcare professional’s opinion, the police were not lawfully allowed to make the request. The prosecution response was that in light of the failure to answer truthfully when asked if he had smoked anything, it would have been unfair to exclude the evidence.

In this case, it was s3(c) of the RTA 1988 that was not complied with as the healthcare professional did not advise the police that the appellant’s condition may be due to some drug.

Held: there is no principle of law under the ECHR that unlawfully obtained evidence is not admissible. The general approach of English law is to regard the manner in which evidence was obtained as not leading to its automatic exclusion. The manner in which it was obtained will be a relevant factor to be taken into account when performing the exercise under s78 and Article 6 of the ECHR, but ultimately the question is for the court.

Murray v DPP [1993] RTR 209 was the mainstay of the defence argument. The case concerned s7(7) of the RTA 1988 and the warning required that a failure to provide a specimen may render a person liable to prosecution. The Divisional Court held that it was clear that s7(7) did not confer any discretion on the trial court to admit evidence of test results where no prejudice had been caused. Once it was accepted that the admission of the test results was dependent on the statutory procedures having been carried out it was impossible to carve out an exception to cater for cases where the breach of procedure caused no prejudice.

The Court of Appeal held the decision in Murray was not authority for the proposition that any breach of any of the procedures associated with the obtaining of specimens under s7 meant that a specimen was automatically rendered inadmissible.

The Court rejected the more fundamental submission that the evidence was automatically inadmissible as a matter of law before even reaching the question of s78. The judge was entitled to refuse to exclude the evidence for the reason that the appellant lied to the healthcare professional. If he had not lied, she would likely have altered her opinion as to whether his condition might have been due to drugs.

The appeal was dismissed.