QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SILBER
|JOHN MATHEW KIRKUP||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR ADAM PEARSON (instructed by CPS Lincolnshire LN1 3DF) appeared on behalf of the DEFENDANT
Crown Copyright ©
Part 1: introduction.
Part 2: the facts.
Part 3: the appeal by way of case stated.
Part 4: the relevant legal principles.
Part 5: application of those principles to the present case.
Part 6: conclusion.
Part 1: Introduction
Section 5 of the Road Traffic Act 1988:
"(1) If a person . . .
(b) is in charge of a motor vehicle on a road or other public place after consuming so many alcohol that a proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
Section 7 of the Road Traffic Act 1988:
"(1) In the course of an investigation into whether a person has committed an offence under [section 3A, 4] or 5 of this Act, a constable may, subject to the following provisions of this section and section 9 of this Act, require him --
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test . . .
(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence."
"(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time . . .
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section."
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
"6.1. Unless Annex B applies, all detainees must be informed that they may, at any time, consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available from the duty solicitor . . .
"6.5. The exercise of the right of access to legal advice may be delayed only as in Annex B. Whenever legal advice is requested, and unless Annex B applies, the custody officer must act without delay to secure the provision of such advice . . ."
"6.1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . .
"6.3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; . . . "
Part 2: The Facts
Part 3: The Appeal by Way of Case Stated
"We were of the opinion that there was a breach of Section 58 of the Police and Criminal Evidence Act 1984 and Code C:6.5 of the Codes of Practice in that a solicitor was not contacted by the police immediately. We did not however consider the breach to be either significant or substantial. Mr Kirkup had indicated a desire to speak to a duty solicitor but given the circumstances prevailing in the custody suite that night we considered that the custody officer telephoned the duty solicitor call centre at the first opportunity available to her -- ie at 23.10 hours. We were satisfied that it was a busy night, that there was another person waiting to see the duty solicitor before Mr Kirkup and that no solicitor, duty or otherwise, was on the premises. It would not have been possible for the custody officer to predict the availability, immediate or otherwise, of the duty solicitor and therefore the procedure should not have been delayed. We were satisfied that the appellant had understood the procedure and the reasons for it.
"We therefore exercised our discretion not to exclude the evidence of the request for specimens of breath and accordingly we convicted the appellant."
"(i) If, having found there was a breach of Section 58 of the Police and Criminal Evidence Act 1984 and the Codes of Practice with regard to the appellant's request to see a solicitor at the police station, were we correct in refusing to exercise our discretion to exclude the evidence of the request for a specimen of breath for analysis?
"(ii) Were we correct in convicting the appellant for failing to provide specimens of breath for analysis by means of an approved device when required to do so pursuant to Section 7 of the Road Traffic Act 1988?"
Part 4: The Relevant Legal Principles
"Under the Code a person who has asked to consult a solicitor in order to obtain his advice may not be interviewed until he has received that advice, save in certain circumstances. But there is nothing in the Code, just as there is nothing in the Act, to prohibit the taking of a specimen under section 8. Indeed, note 6C of the Notes of Guidance makes it clear beyond a peradventure that the section 8 procedure is not to be regarded as an interview for the purposes of paragraph 6.3 of the Code. But since the Notes for Guidance are not to be regarded as part of the Code, I put that consideration on one side. It is quite obvious merely from looking at paragraph 6 of the Code that the section 8 procedure is not in any sense an interview within the meaning of the Code. Indeed I do not understand counsel to have argued the contrary.
"I would hold that there is nothing in the Act itself, nor in the Code, to change or affect in any way the section 8 procedure as considered in the line of cases to which I have referred.
I am glad to have reached that conclusion for two reasons, both of which were put before us by counsel for the Crown. First, it is, for obvious reasons, important that the procedure under section 8 in the police station should be gone through as quickly as possible. . . . "
It is not necessary for present purposes to read out the second reason why Lloyd LJ was glad to reach the particular conclusion in that case.
"I accept that the right to a fair trial enshrined in Article 6 of the Convention can be said to be in play from the outset of a police investigation, but that right does not spell out a right to legal advice at any particular stage. For that it is necessary to go to domestic legislation which, to my mind, fully satisfies the requirements of Article 6. Section 58(1) of the 1984 Act entitles a person arrested and held in custody at a police station to consult a solicitor if he asks to do so, and where a request is made (as it was in this case, albeit in response to an invitation) he must be permitted to consult a solicitor as soon as is practicable (section 58(4)). The custody officer, it is said in the Code at C:6.5 'must act without delay' to secure the provision of legal advice. For present purposes I can ignore the special circumstances provided for by section 58 when delay and access to a solicitor is permitted. In such circumstances it may be necessary to consider the terms of Article 6. Whether there is good cause to restrict the right and whether the restriction is proportionate. But in the ordinary case how are the statutory requirements to be interpreted in reality? Having asked the question on the charge sheet in relation to legal advice is the custody officer entitled to go on with the remaining questions, or must he at once, as soon as the suspect indicates that he would like to have legal advice, pick up the telephone and ring the call centre. Plainly, as it seems to me, it is a question of fact and degree in any given case whether the custody officer has acted without delay to secure the provision of legal advice, and whether the person held in custody has been permitted to consult a solicitor as soon as is practicable. Where the matter under investigation is a suspected offence contrary to section 5 of the Road Traffic Act 1988, it is really conceded by Mr Jennings, and in my view rightly conceded, that in this jurisdiction the public interest requires that the obtaining of breath specimens part of the investigation cannot be delayed to any significant extent in order to enable a suspect to take legal advice. That, to my mind, means this -- that if there happens to be a solicitor in the charge office whom the suspect says that he wants to consult for a couple of minutes before deciding whether or not to provide specimens of breath, he must be allowed to do so. Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor in question is immediately available. But where, as here, the suspect does no more than indicate a general desire to have legal advice, I see no reason why the custody officer should not simply continue to take details and alert the solicitors' call centre at the first convenient opportunity. That will probably mean that, as the justices in this case found, the call centre should be alerted before the next stage of the investigation, but in this case if a call had been made at 3.30am it is inconceivable that the appellant would have received any legal advice prior to committing the offence contrary to section 7(6) of the 1998 Act. The breach of the statutory requirement was, as the justices found, neither significant nor substantial, and could not properly lead to any exclusion of evidence pursuant to section 78 of the 1984 Act."
Part: 5 Application of Those Principles to the Present Case
"Thus we think that the provisions of section 56 and section 58 are intended to apply where a custody officer, or, in a police station which is not designated, the appropriate officer, has authorised the accused's detention in custody. Thereafter he would ordinarily be regarded as being 'held in custody', and it would practicable to comply with the requirements laid down."
"If there happens to be a solicitor in the charge office whom the suspect says that he wants to consult for a couple of minutes before deciding whether or not to provide specimens of breath, he must be allowed to do so."
That sentence does not apply in the present case. There was no solicitor present in the police station.
"Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor in question is immediately available".
There has been considerable debate during the hearing yesterday as to whether this sentence is applicable to the facts of the instant appeal. In support of his submissions that this sentence does apply, Mr Wise, with the consent of the respondent, has explained to this court, on instructions, how the duty solicitor scheme now works. He has also helpfully produced a copy of the agreement or arrangement made between participating solicitors and the Legal Services Commission. In outline the procedure is this. When a suspect requires the duty solicitor, a police officer rings the Duty Solicitor Call Centre. This is a national call centre set up by the Legal Services Commission. The call centre then telephones a duty solicitor in the relevant area and asks him or her to contact the police station where the suspect is held. If the first solicitor whom the call centre contacts is unavailable, then the call centre will approach other solicitors who hold themselves available. Participating solicitors are expected to contact the client within 45 minutes of receiving a call from the Duty Solicitor Call Centre. Solicitors are expected to meet this target in at least 80 per cent of cases.
Part 6: Conclusion