Twigg [2019] EWCA Crim 1553
On 25 October 2018 in the Crown Court at Derby before Her Honour Judge Shant the appellant Mr Twigg was convicted of causing death by careless driving whilst over the specified limit for a drug. He was sentenced to five years’ imprisonment. The offence arose out of a fatal collision on the evening of 20 February 2017 on Fordbridge Lane in Derbyshire. The appellant’s vehicle struck a fourteen‐year‐old boy riding his scooter in the dark on an unlit road. The appellant was not using full‐beam headlights, the deceased was not wearing reflective clothing, and the appellant drove off after the collision. He was arrested at home shortly afterwards. Officers smelled cannabis at the address. When asked whether he had used illegal drugs he replied “not recently, no”.
A blood sample was taken from Mr Twigg at 11:15 p.m. following an examination by a healthcare professional at the police station. Analysis revealed Delta 9 THC (cannabis) in excess of the specified limit. At trial the prosecution case was that the appellant drove too fast, paid insufficient attention and was over the drug limit. The defence contended that his driving had not fallen below the required standard, that he had not been speeding, was not under the influence of drugs, and had not smoked cannabis since the morning of the incident. The appellant admitted in evidence that he had lied during his police interview: his friend had been in the car at the time of the collision and he had falsely told police he had not smoked cannabis for months. He said he was a regular cannabis user who smoked a joint in the mornings after night shifts but did not smoke in the afternoons. He maintained he was not rushing, adhered to the speed limit and did not see the deceased before the collision. He panicked, drove home and waited with his family for the police.
Before trial the defence applied under section 78 of the Police and Criminal Evidence Act 1984 to exclude the blood evidence on the ground that the healthcare professional had reported no alcohol or drug issues and found the appellant alert and coherent. The statutory procedure under section 7(3)(c) of the Road Traffic Act 1988 required that a constable could make a requirement for a blood specimen only if he had been advised by a medical practitioner or registered healthcare professional that the person’s condition might be due to some drug. That condition was not satisfied. In a voir dire PC Taylor gave evidence that he could not recall the procedure but would not have asked for a specimen unless the healthcare professional had said it was required. The healthcare professional stated that she took the specimen because police asked for it. The judge found there was no suggestion of bad faith and noted that there had been a basis for suspecting that the appellant’s driving was affected by drugs. She observed that the healthcare professional’s examination took place after nearly an hour’s delay caused by the appellant absconding, and that he had lied when asked if he had taken drugs. She concluded that had the appellant answered honestly the healthcare professional would highly likely have revised her opinion. The judge ruled that although there had been a breach of procedure admission of the blood evidence would not have such an adverse effect on the fairness of the trial that it ought to be excluded. The appellant was convicted and appealed on the basis that the judge should have exercised her discretion under section 78 to exclude the unlawfully obtained blood sample.
The Court of Appeal reviewed the leading authorities on unlawfully obtained evidence. It began with the Privy Council decision in Kuruma v The Queen [1955] AC 197, in which Lord Goddard stated that the test of admissibility is relevance and the court is not concerned with how evidence was obtained. It considered the decision of the House of Lords in R v Sang [1980] AC 402, in which Lord Diplock held that outside the limited field of confessions unfairly induced the function of the judge is to ensure a fair trial according to law and not to impose sanctions on the prosecution for improper conduct before proceedings. The court noted that the general principle remains good that there is no automatic rule requiring exclusion of evidence because of how it was obtained, and that this accords with the European Convention on Human Rights as confirmed in Schenk v Switzerland (1988) 13 EHRR 242 and El Haski v Belgium (2013) 56 EHRR 31.
The court held that section 78 of PACE does not strictly confer a discretion because if a court decides that admission would have such an adverse effect on fairness that it ought not to admit the evidence then it cannot logically exercise any discretion to admit it. That position is reinforced by the Human Rights Act 1998, under which section 6(1) makes it unlawful for a public authority including a court to act incompatibly with the right to a fair trial guaranteed by Article 6 of the Convention.
The court turned to the specific submission that even before reaching section 78 the blood sample was inadmissible as a matter of law because of the breach of the statutory procedure. The appellant relied principally on Murray v DPP [1993] RTR 209, a decision of the Divisional Court holding that the results of a breath test were inadmissible where the statutory warning required by section 7(7) of the Road Traffic Act 1988 had not been proved to have been given. The court analysed Murray in the light of the earlier decision in Howard v Hallett [1984] RTR 353, in which Robert Goff LJ held that the predecessor provision to section 15(2) of the Road Traffic Offenders Act 1988 referred impliedly to specimens taken pursuant to the provisions of the Act. The court noted that the House of Lords in R v Fox [1986] AC 281 had left that point open without finally determining it. Lord Fraser had rejected a submission that evidence obtained by means not authorised by the Act was inadmissible, stating that the well‐established rule is that relevant evidence is admissible even if obtained illegally. The court concluded that it was not authoritatively decided by the House of Lords that section 15(2) renders evidence inadmissible as a matter of law where the statutory procedure has not been followed.
The court held that Murray was distinguishable because it concerned section 7(7), which is in substance a statutory exception to the normal principle against self‐incrimination. The Divisional Court in Murray had emphasised that the legislation compels a suspected person to provide evidence against himself and that a strict code and set of pre‐conditions must be fulfilled. The decision was not authority for the proposition that any breach of any procedure under section 7 automatically renders a specimen inadmissible. The court emphasised that section 15(4) of the Road Traffic Offenders Act 1988 makes clear that a sample is to be disregarded if not obtained by consent, and that the Divisional Court in Murray considered that failure to give the warning vitiated consent. The analysis in Murray was entirely couched in terms of the particular statutory scheme and did not concern section 78 of PACE at all.
The court also distinguished Cole v DPP [1988] RTR 224, another Divisional Court decision, on the ground that it turned on its own facts. In that case there were two possible causes for the defendant’s condition, only one of which was drug influence, whereas in the present case the circumstances in which the healthcare professional expressed her view were that the appellant himself had lied about whether he had taken drugs that day. The court referred with approval to the obiter observations of Burnett J in Bodhaniya v Crown Prosecution Service [2013] EWHC 1743 (Admin). Burnett J noted that section 7 of the Road Traffic Act 1988 does not in terms provide that failure to comply with section 7(3) has the consequence that analysis results cannot be given in evidence, in contrast to section 15(4) of the Road Traffic Offenders Act 1988. He stated that the general position in English law is that evidence obtained illegally remains admissible and is argued for exclusion by reference to section 78. He observed that in the overwhelming majority of cases failure to comply with section 7(3) may result in exclusion but it is not necessarily so.
The court rejected the submission that the blood sample was automatically inadmissible as a matter of law. It held that the trial judge was entitled to exercise the judgment she did under section 78 of PACE and to refuse to exclude the blood evidence. The decisive factor was 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 she formed as to whether his condition might have been due to drugs.
In short, the appeal was dismissed because the trial judge properly exercised her judgment under section 78 of PACE to admit the blood sample evidence, taking account of the appellant’s own dishonesty to the healthcare professional, and there is no rule of law requiring automatic exclusion of a blood sample taken in breach of section 7(3)(c) of the Road Traffic Act 1988.
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.