QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SULLIVAN
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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MISS P WILSON (instructed by CROWN PROSECUTION SERVICE) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(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...
(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 to the person concerned".
"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 in access to a solicitor is permitted. In such circumstances it may be necessary to consider, in 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 a 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 1988 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".
"PD entered custody suite i/c PC 346 GD complained of injuries caused stating he had just been in an accident. Cuffs removed on my authority... PD complained of cuff injuries, minor marks only caused. PD appeared extremely intoxicated, asked to sit down, kept almost passing out. Speech slurred, no ability to concentrate. Unresponsive to questions which I had to keep repeating... Facts by 346 GD that PD found sitting at scene of D/O RTA. Admitted being driver of one of the vehicles. Refused roadside breath test. Detention authorised, form 57M completed, PD stated he had internal pain from accident no other health concerns. Stated he needed help due to learning difficulties but due to apparent intoxication this can be confirmed later. Rights served. Copies of rights and entitlements provided. Requested a duty solicitor. PD not searched at this stage. Drink drive procedure commenced by PS 9 GD."
"By the time that the appellant was presented to the custody officer at Islington Police Station at 7.25am he had already been detained for 1 hour 55 minutes because of the need for him to be seen by a doctor at Homerton Hospital. A specific arrangement had been made for a police sergeant to travel from Shoreditch Police Station to Islington Police Station to conduct the enquiry into whether an offence pursuant to 3A, 4 or 5 Road Traffic Act 1988 had been committed. At the time that the appellant signified his wish to consult with a solicitor that officer was there, present and able to undertake the procedure for the formal requirement for evidential breath specimens without delay. It was unreasonable to expect that contact with a solicitor could be made immediately and the police were immediately ready to undertake the formal procedure. Due to the accused's need for hospital attention the procedure had already been seriously delayed and the police were right to have made arrangements to ensure that the evidential breath specimens could be recorded as soon as possible. There was little purpose in contacting a solicitor whilst that procedure was in train and thereafter once the procedure was concluded on the refusal of the appellant to provide the evidential breath specimens and for good reason the appellant went directly to be examined by a doctor. To see a doctor in those circumstances was likely to be of greater benefit to him than speaking to a solicitor at a time when he had already refused to provide the evidential breath specimens and it was right that this consultation was not interrupted. It was therefore not practicable for him to consult a solicitor until 07.50am at the earliest and within 10 minutes of that time he had spoken to a duty solicitor and the consultation had concluded.
Accordingly I found that there was no breach of section 58 [of the 1984 Act], specifically no breach of section 58(4)... I found that he was permitted in all of the circumstances to consult privately with a solicitor as soon as was reasonably practicable.
I did find that there was a breach of Code C6.5 in that the custody officer did not act without delay to secure the provision of the advice of a solicitor in that the initial request was made by 07.40 and the custody officer had completed the booking-in procedure at 07.43 or thereabouts. The duty solicitor call centre logged the police request for a solicitor to advise the appellant at 07.53. I characterised that breach as an insignificant and insubstantial breach. The reality is that by 07.43 the appellant was already undertaking the evidential breath specimen procedure and in all likelihood would have refused the breath specimen by the time any solicitor could possibly have spoken to him. That few minutes did not affect the inevitable progress of this case at all.
I was not therefore persuaded that the admission of the evidence of the breath test procedure and the evidence of the refusal by the appellant to provide two specimens of breath as required by the prosecution having regard to all of the circumstances, including the circumstances in which the evidence was obtained would have such an adverse effect upon the fairness of the proceedings that I ought not to admit it.
Other circumstances which I took into account were that the appellant had only made one request to consult a solicitor when initially booked in, he made no complaint about the failure of the police to arrange that consultation prior to the evidential breath test procedure. The appellant did not explain his situation to the police or request any delay in the evidential breath test procedure. The appellant did not give any explanation in evidence as to how contacting a solicitor before embarking upon the evidential breath test might have assisted him even though the application that I should refuse to admit the evidence was delayed on the application of the defendant and by consent until the conclusion of the defendant's evidence."
"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".
"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."
"The procedure had already been seriously delayed and the police were right to have made arrangements to ensure that the evidential breath specimens could be recorded as soon as possible."