CO/2349/2003 
Neutral Citation Number: [2003] EWHC 2512 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 13th October 2003
 
B E F O R E:

LORD JUSTICE BROOKE 

MR JUSTICE SULLIVAN 

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DAVID WHITLEY 
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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MR D SONN (instructed by SONN MACMILLAN) appeared on behalf of the CLAIMANT
MISS P WILSON (instructed by CROWN PROSECUTION SERVICE) appeared on behalf of the DEFENDANT
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J U D G M E N T 
Monday, 13th October 2003 
1.	MR JUSTICE SULLIVAN:  Introduction: 
2.	This is an appeal by way of case stated against a decision of District Judge McPhee sitting at Highbury Corner Magistrates' Court on 30th January 2003, when he convicted the appellant of failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988.  
3.	Legal Framework:  
4.	The relevant provisions of section 7 are as follows: 
"(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."
5.	Section 58 of the Police and Criminal Evidence Act 1984 provides: 
"(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."
6.	Section 78 of the Police and Criminal Evidence Act provides:
"(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".
7.	Pursuant to section 66 of the 1984 Act, the Secretary of State issued Codes of Practice in connection with the conduct of police officers investigating suspected offences.  Paragraph 6 of Code C provides: 
"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".
8.	The interrelationship between these provisions now has to be considered in the context of the rights conferred by Article 6 of the European Convention on Human Rights.  The impact of Article 6 upon the earlier authorities which dealt with this area of the law was considered by the Divisional Court in Kennedy v CPS, 6th November 2002, [2002] EWHC 2297 (Admin).  Having reviewed the authorities, Kennedy LJ, with whom Pitchers J agreed, said this in paragraph 31 of his judgment under the heading "Conclusion":
"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".
9.	The reference to 3.30am should be understood in the context of the facts of that case where the appellant had been brought to the custody desk at about 3.20am.  During the course of the booking in process, whilst at the custody desk, he asked for a solicitor.  The standard breath test procedure was commenced at 3.30 and completed by 3.40.  The duty solicitor call centre was contacted a minute later at 3.41.  
10.	The facts:
11.	The case stated contains a meticulously detailed account of the judge's findings of fact which may be summarised as follows.  On 4th November 2002 the appellant was found at the scene of a traffic accident.  He appeared possibly to have been injured.  He failed to provide a roadside specimen of breath and was arrested at 5.30am.  He was taken to hospital by ambulance, but since the doctor could see no serious injury he was taken on to Islington police station and arrived there at 7.25.
12.	The custody officer, Police Sergeant Wilkins, authorised his detention at 7.31 and began the booking-in procedure.  During that procedure at 7.40, the appellant signed under the pro forma entry Legal Advice Requested, "I want to speak to a solicitor as soon as practicable."  By that time, 7.40, Police Sergeant Barrett had arrived from another police station and was ready to carry out the standard breath test procedure.  Police Sergeant Wilkins told the appellant that the breath test procedure would not be delayed to wait for legal advice, so Police Sergeant Barrett thereupon began the procedure which lasted from 7.40 to 7.50.  On two occasions the appellant refused to provide a specimen of breath.  Police Sergeant Wilkins made an entry in the custody record timed at 7.43:
"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."
13.	Immediately after the breath test procedure concluded the appellant was medically examined by the forensic medical examiner who timed his examination as ending at 7.55.  At 7.53 the duty solicitor call centre logged a request for a duty solicitor for the appellant.  The duty solicitor, Mr Boddington, was commendably prompt.  He accepted the case at 7.55 and made a telephone call to the appellant at 8 o'clock.
14.	It was submitted on the appellant's behalf, before the judge, that applying the dicta in Kennedy (above) evidence of the breath test procedure should be excluded in its entirety under section 78 of the 1984 Act because the call to the duty solicitor could have been made before the appellant was required to provide two specimens of breath.  The judge rejected that submission.  The appellant's solicitor then closed his case making no submissions.  In consequence no representations were made that the appellant did have a reasonable excuse for failing to comply with the requirement under section 7.
15.	In paragraph 6 of the case stated the judge records his opinion that:
"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." 
16.	Submissions and conclusions: 
17.	Since this is one of a number of similar challenges which are being brought before the Divisional Court (Jackson J and Silber J considered another such challenge Kirkup v DPP on the 3rd October) it may be helpful to begin with an elementary proposition that should be well understood.  As the court said in Kennedy:
 "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".
18.	Since it is a question of fact and degree this court will not lightly interfere with the judgment of the court below which has heard the evidence.  On such an issue it is not enough that this court might have reached a different conclusion.  An appellant against conviction must be able to demonstrate that any reasonable court would have concluded that there was delay and/or that the person held in custody was not permitted to consult a solicitor as soon as practicable.  
19.	If there has been delay, or a consultation has not been arranged as soon as practicable, the further question whether the breach of the code and/or the Act was "significant and substantial" is pre-eminently a question of fact and degree to which similar considerations will apply.  
20.	In his skeleton argument on behalf of the appellant, Mr Sonn broke down the judge's reasoning in paragraph 6 of the case stated (above) into a number of discrete propositions and then proceeded to analyse those propositions, in some cases in considerable detail.  Much of this analysis amounted, in reality, to no more than a comment upon, or a suggestion that a different emphasis might be given to, or a disagreement with, the particular proposition.  Moreover, the approach of splitting up the judge's reasoning into a number of propositions and separately analysing each one ignores the fact that the judge had to consider the overall picture presented by the whole of the evidence.  Once this is done it is plain that the appellant's complaint boils down to this: that the appellant, having signed the custody record at 7.40, saying that he wanted to speak to a solicitor as soon as possible, the custody officer should thereupon have telephoned the duty solicitor call centre so that the appellant could have had the opportunity of a telephone consultation with a duty solicitor, before allowing Police Sergeant Barrett to commence the breath test procedure.  It is accepted that once the procedure had been commenced any contact with a solicitor would have been too late to assist the appellant. 
21.	Mr Sonn submitted that there was no evidence to justify the judge's conclusion that, "It was unreasonable to expect that contact with a solicitor could be made immediately".  He submitted that one could only establish whether a solicitor was immediately available if one tried to contact him and then waited for a reply.  The practical consequence of his submission would be that in each and every case the custody officer would have to telephone the duty solicitor service, or a solicitor nominated by the detained person, to see whether or not a solicitor was immediately available before the breath test procedure could be embarked upon.  But as was pointed out in Kirkup, telephoning the duty solicitor call centre will not necessarily result in an instant answer to the question: is a solicitor immediately available?  
22.	An outline of the procedure is set out in the judgment of Jackson J in Kirkup: 
"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."
23.	As Jackson J observed it was "by no means inevitable" that a duty solicitor would respond promptly.  Mr Sonn makes the point that there is a variation of this procedure in certain areas where a particular solicitor will be on call for a particular police station or police stations.  Thus he will be available to be contacted by the call centre.  But he fairly concedes that the solicitor on call might not be immediately available to speak to a particular detained person on the telephone for a variety of reasons.  He might, for example, be on his way to the police station to have a consultation with another detained person.
24.	The words "immediately available" are taken from paragraph 31 of the Kennedy LJ's judgment (see above).  Mr Sonn laid much emphasis upon them and sought to analyse other expressions in the judgment such as "significant delay".  He submitted that guidance from this court was required as to what was a reasonable time within which a custody officer should make a telephone call to the duty solicitor service.  Such guidance was required in the interests both of the police and of defendants.  Although Jackson J accurately described Kennedy LJ's dicta as an "authoritative statement of the law" the judgment should not be interpreted as though it was an enactment.  The court was merely giving its response to the circumstances of the particular case before it.  
25.	In the present case the custody officer had to allow the appellant to consult a solicitor "as soon as practicable" after he requested legal advice on the pro forma.  What was "practicable" in Islington police station at 7.40am on 4th November 2002 has to be considered from the point of view, and the state of knowledge, of those then present, not from the point of view of those who have now had the opportunity to reflect upon the matter with some care and with the benefit of hindsight.  
26.	In my judgment, the judge fairly described the situation confronting the custody officer at 7.40am.  There had already been a considerable delay because of the need to take the appellant to hospital en route to the police station.  Specific arrangements had been made for another officer to come from a different station to conduct the investigation.  He was present, and ready to commence the procedure immediately.  The appellant's request for legal advice had been expressed in general rather than specific ("I want legal advice before the procedure begins") terms.  While we now know that Mr Boddington was able to respond promptly, so that his telephone call to the appellant at 8.00am was made only 7 minutes after the request was made to the Duty Solicitor Call Centre, the custody officer did not have the advantage of hindsight.  He could not assume that a solicitor would be immediately available in the sense that PS Barrett was immediately available.  It follows that allowing the appellant to obtain legal advice over the telephone would inevitably have imposed further delay in addition to the extensive delay that had already occurred. 
27.	Each case will turn upon its own individual facts.  If there had not already been significant delay, if another officer had not been available to commence the breath test procedure immediately, if the appellant had asked specifically, "Please may I speak to a solicitor before he [PS Barrett] begins", if the custody officer knew that the duty solicitor was at the police station, and had just finished giving advice to another detained person, then the judge's conclusion might well have been different.  
28.	Mr Sonn submits that certainty is required.  Custody officers ought to know, as a matter of principle, whether, if they are asked by a suspect for legal advice they should contact the Duty Solicitor Call Centre before the breath test procedure is initiated.  He submits that it is invidious for the custody sergeant to have to form a judgment in any particular case.
29.	I would reject that submission, it is important, given the enormous variety of circumstances which may confront a custody officer, that he should be given the flexibility to respond to the demands of the particular case.  Given the particular circumstances of this case the judge was entitled to conclude, on the evidence before him that:
"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."
30.	For the same reasons he was entitled to conclude that the breach of Code C6.5 was insignificant and insubstantial.  If the custody officer was right, in all the circumstances described by the judge, to ensure that the procedure began as soon as possible, any delay thereafter was rightly described as not significant.  
31.	For the sake of completeness I should mention that Mr Sonn also criticised the judge's reference to the appellant not giving any explanation in evidence as to how contacting a solicitor before embarking upon the evidential breath test might have assisted him.  Mr Sonn submitted that it was not for the appellant to prove that he would have acted any differently.  I agree.  But the judge was not placing any such onus upon the appellant.  The passage complained of appears in that part of the judge's reasoning where he is merely setting out the other circumstances that he took into account, having already set out his principal reasons for reaching a conclusion adverse to the appellant.
32.	The matter criticised is but one of a number of factors which are merely noted by the judge.  It is a matter of record that, no evidence being called on behalf of the defendant, he did not choose to give any explanation as to how he might have been assisted.  The judge was perfectly entitled to mention that as part of the background.  He was not thereby imposing any burden of proof upon the appellant.
33.	For all of these reasons I would dismiss this appeal and answer yes to the question posed by the judge.
34.	LORD JUSTICE BROOKE:  I agree.
35.	MR SONN:  I am grateful, my Lords.  I wonder if I might ask this court for leave to appeal to the House of Lords, and ask this court to certify a point of law of general public importance as follows:  He is a suspect who is being investigated for an offence contrary to section 3A, 4 or 5 of the 1988 Road Traffic Act, entitled to legal advice before the commencement of the evidential breath test procedure.  I ask your Lordship to do that simply because there have already been a number of authorities on this point over the years.  There was Kirkup last Friday, this appeal today, and at least one other I know in the wings, and doubtless there will be others, in the fullness of time, on questioning whether or not a particular custody sergeant was right or wrong on a given set of facts to have declined a suspect the right to legal advice.  So, for that reason I seek for the leave and ask the court to certify the point that I have set out. 
36.	LORD JUSTICE BROOKE:  Have you got it in writing? 
37.	MR SONN:  I have.  It is not in my best joined up handwriting, but I can certainly hand that up to you. 
38.	LORD JUSTICE BROOKE:  Do you have anything to say about this, Miss Wilson? 
39.	MISS WILSON:  I have not actually seen it, your Lordship.
40.	LORD JUSTICE BROOKE:  We certainly would not be disposed to certify in these terms in any event.  We might conceivably be disposed to certify, although we are not at all sure, on the facts, that this is the appropriate case for the Lords to look at the matter.  This is just altogether too bold: is he entitled to legal advice? 
41.	MR SONN:  If your Lordships would like me to perhaps reduce the ambit of that? 
42.	LORD JUSTICE BROOKE:  If you do a little bit of drafting, show it to the Crown, and then produce, between you, unless the Crown wants to make no observations at all, what you think might be the appropriate case, then you might have a fair wind so far as a certificate is concerned.  But you certainly will not get leave from this court, and I am very, very doubtful if this, on the facts, in the light of the huge delay before your client came to the police station, that this is the appropriate vehicle for a test appeal.
43.	MR SONN:  Indeed.  Do your Lordships have in mind that my learned friend and I perhaps compose something immediately? 
44.	LORD JUSTICE BROOKE:  Send it to us through the post over the next week or so.
45.	MR SONN:  I am grateful, my Lord.
46.	LORD JUSTICE BROOKE:  Very well.  Now have you a representation order? 
47.	MR SONN:  I do have a representation order.
48.	LORD JUSTICE BROOKE:  What is the financial position? 
49.	MR SONN:  The appellant is on Income Support.
50.	LORD JUSTICE BROOKE:  He is on what? 
51.	MR SONN:  Income Support.
52.	LORD JUSTICE BROOKE:  There is no order we need make, is there? 
53.	MR SONN:  Theoretically under the recovery of defence costs orders, but in the circumstances -- 
54.	LORD JUSTICE BROOKE:  No, I was just asking if there was anything else you needed.
55.	MR SONN:  I do not need any other order, I do not believe.
56.	LORD JUSTICE BROOKE:  Thank you very much.