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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Russell v. Divine  NICA 37 (4 July 2001)
Cite as:  NICA 37
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Russell v. Divine  NICA 37 (4 July 2001)
Judgment: approved by the Court for handing down
(subject to editorial corrections)
"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."
"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."
" (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."
" 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(2) A requirement under paragraph (1)(a) may be made to provide the specimens of breath –
(b) to provide a specimen of blood or urine for a laboratory test.(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(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 –
(b) at a police station.(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."
"an institution which provides medical or surgical treatment for in-patients or out-patients".
"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."
"? 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?"
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.