The Act Schedule 6: Specific offences which are arrestable offences Section 53: Persons suspected of offences connected with transport systems
293.A second technical amendment to PACE addresses some loopholes in respect of Part II of the Transport and Works Act 1992 and sections 34 and 62 of PACE, which could cause problems with the processing of a drunken train or tram driver at the police station and potentially may impact on a subsequent prosecution.
294.Chapter 1 of Part II of the TWA 1992 deals with offences involving drink or drugs on particular transport systems. Section 29 gives the police power to require breath tests; section 30 gives the police powers of entry and arrest. The provisions are analogous to those that apply under road traffic legislation to driving with excess alcohol. In particular, the power to arrest without warrant contained in section 30(2) of the TWA 1992 uses identical wording to that in section 6(5) of the Road Traffic Act 1988:
“A constable may arrest a person without warrant if–(a)as a result of a 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 when required to do so… and the constable has reasonable cause to suspect that he has alcohol in his body.”
295.A person arrested under either section 30(2) of the TWA 1992 or section 6(5) of the RTA 1988 is not necessarily being arrested ‘for an offence’. This is significant in respect of the provisions of PACE dealing with detention. For example, section 34(1) of PACE provides that ‘a person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.’
296.Section 34(6) of PACE provides that a person arrested under section 6(5) of the RTA 1988 is to be treated under PACE as if he had been arrested for an offence. That ensures that all the normal PACE provisions in regard to treatment in custody apply. It also ensures that where a positive breath test is provided, the person can then be charged and detained or bailed under PACE.
297.There is no similar provision in relation to persons being breath tested under the TWA 1992. This has led to doubt as to whether there is power to charge a person under PACE and then use the relevant PACE powers to detain or bail him.
298.Subsection (1) of this section simply inserts into section 34(6) of PACE a reference to section 30(2) of the TWA 1992. This ensures that all the normal PACE provisions will apply to someone arrested under that Act too, either for failure to provide a specimen of breath when required to do so or where a constable has reasonable grounds to suspect that the proportion of alcohol in that person’s breath or blood exceeds the prescribed limit.
299.Another anomaly applies in relation to blood or urine samples which may be required if a suspected offender refuses to supply a breath test. Blood and urine samples are intimate samples the taking of which, under section 62(1)(a) of PACE, must be authorised by an officer of at least superintendent rank (this will be lowered to officer of at least inspector rank on implementation of section 80(1) of the Criminal Justice and Police Act 2001) and with the consent of the suspect. Road traffic cases under sections 4 to 11 of the RTA 1988 are exempt from the normal requirement to obtain the authority of a superintendent to take an intimate sample from a person in custody by virtue of section 62(11) of PACE. However, this exemption does not currently apply under the TWA 1992. That would mean that if a blood or urine specimen were required from a suspected offender without prior authorisation by a superintendent, the sample could be treated as inadmissible. This could lead to the failure of attempts to prosecute successfully persons suspected of driving particular modes of transport while under the influence of alcohol or drugs.
300.Subsection (2) of this section therefore amends section 62(11) of PACE to include a reference to sections 26 to 38 of the TWA 1992 so that the taking of specimens under the 1992 Act is similarly unaffected by the PACE requirement to obtain the authorisation of an officer of at least superintendent rank.