England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th March 2004

Mr Justice Mackay:

1. This is an appeal by way of case stated from a decision of the Liverpool Crown Court on the 26^th February 2002. That decision was in respect of an appeal by the Appellant against his conviction at South Sefton Magistrates Court on the 18^th June 2001 of two offences:

i) Failing to provide a specimen for a breath test contrary to section 6(4) of the Road Traffic Act 1988, in respect of which he had been fined £50 with his licence endorsed. And:

ii) Failing without reasonable excuse to provide a specimen of blood for analysis, contrary to section 7(6) of the same Act, for which he had been fined £200, was ordered to pay £75 costs, was disqualified from driving for 12 months and his driving licence was endorsed.

The appeal against the first of these convictions was abandoned at the Crown Court. This appeal now proceeds in relation to the second offence following the dismissal by the Crown Court of the appeal.

The Facts

2. The facts found by the Crown Court were as follows. At about 11.25 pm on 20^th September 2000 the Appellant was driving a Vauxhall Corsa on Hall Lane in Liverpool. He was driving erratically and accordingly was stopped by the police. He was asked by the arresting officer if he had been drinking and replied that he had had "two pints". A request was made for him to take a roadside breath test which he failed. At the Police Station his legal rights were made known to him both verbally and in writing. The Appellant indicated that he did not require the services of a solicitor and he signed documentation to that effect.
3. An attempt was made to use the Camic Datamaster Breathalyser Equipment for the purpose of taking a specimen of breath. When the Appellant blew into the machine it indicated that mouth alcohol was present and accordingly an unreliable result might be obtained. The Appellant was told that he might have to supply a specimen of blood or urine, but not which.
4. At 12.20 am on the 9^th September 2000 a police surgeon attended at the Police Station. At 12.25 in the presence of the doctor PC Hardy then lawfully required the Appellant to provide a specimen of blood for analysis. The Appellant refused to give a specimen of blood and in the opinion of the doctor he was being obstructive. The Appellant was warned by PC Hardy about the consequences of failure to provide a specimen of blood for analysis (a possible prosecution) on at least two occasions. He persisted in his refusal. He maintained that he required "further advice" according to the police officer (which the latter understood to mean legal advice) and, possibly, "legal advice" according to the doctor. Having failed to provide the required specimen he was ultimately charged with the offence.

The Appeal and the decision appealed against

5. The submissions to the Crown Court on behalf of the Appellant were that by virtue of s.58 of the Police and Criminal Evidence Act 1984, the terms of which I will set out below, there was no case to answer; the evidence of the request for a sample should be disregarded as the Appellant had been denied the right to the services of a solicitor in breach of that section, that Article 6(3)(C) of the European Convention of Human Rights applied and Foreign and Colonial case law should "shape domestic law".
6. In response it was argued that the domestic law applied, that the Appellant had had the opportunity to speak to a solicitor but had declined it and that to allow the taking of a sample to be delayed for further advice would be contrary to decided domestic law. No fewer than 34 authorities were cited to the learned Recorder and his Justices, 24 of them by the Appellant, mainly Commonwealth authorities.
7. The Crown Court was of the opinion that the Appellant had been properly required to give a specimen of blood, that he understood his rights and previously declined the services of a solicitor, but while the Court had to consider the principles of Article 6(3)(C) of the European Convention, domestic law was clear and bound the Crown Court. The Crown Court did not find the Foreign authorities persuasive or such as to require them to ignore the "clear emphatic and repeated domestic law". There was therefore a case to answer and as the Appellant did not wish to give evidence and relied on his submissions the Appeal would be dismissed.
8. The questions formulated for the opinion of this Court by the Crown Court were as follows:

"(1) In interpreting Article 6(3)(C) of the European Convention of Human Rights were we right in finding that the clear, emphatic and repeated domestic law outweighed any persuasive authorities from Foreign jurisdictions?

(2) On the facts found were we right to dismiss the appeal?"

The relevant legislation

9. Road Traffic Act 1988, so far as relevant, provides:-

s.5:

(1) If a person –

(a) drives or attempts to drive a motor vehicle on a road or other public place ….

after consuming so much alcohol that the proportion of it in his blood or urine exceeds the prescribed limit he is guilty of an offence.

S.7:

(1) In the course of an investigation of whether a person has committed an offence under section … 5 of this Act a constable may …. 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. …………………..

(3) a requirement under this section to provide a specimen of blood or urine can only be made at a police station or at an hospital and it cannot be made at a police station unless ……

(bb) a device of the type mentioned in sub-section (1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned.

but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section 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.

(5) 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.

(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.

(7) A constable must on requiring a person to provide a specimen in pursuance of this section warn him that a failure to provide it may render him liable to prosecution.

The Police and Criminal Evidence Act 1984

s.58:

(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.

(5) In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as defined in s.41(2) above.

(6) Delay in compliance with a request is only permitted –

(a) In the case of the person who is in police detention for a serious arrestable offence; and,

(b) If an officer of at least the rank of Superintendent authorises it.

Domestic case law

10. It is common ground between the parties that all relevant decisions of English Courts on this issue are to the effect that both questions posed by the Crown Court ought to be answered affirmatively.
11. Prior to the coming into force of the Human Rights Act 1998, in DPP v Billington [1988] 1 WLR 535, the Divisional Court considered the inter-relationship of s.58 and the then equivalent of s.7 in four appeals. In each it had been argued for the appellants that where a person is subject to the procedures set out in what is now s.7, police had no discretion to refuse access to a solicitor. Even if no duty solicitor was to hand, said the appellants, the police had to wait until a solicitor could be found. Lloyd LJ rejected those arguments in these terms:

"All that the Act of 1984 requires is that the Defendant be permitted to consult a solicitor as soon as practicable. There is nothing in the Act of 1984 which requires the police, whether expressly or by implication, to delay the taking of a specimen …. In the meantime."

12. In Kennedy v CPS [2002] EWHC 2297 (Admin) this Court revisited the question. Having considered Billington and other decided cases Kennedy LJ described the position thus:-

"All that was said in Billington was that, in the public interest, [rights under s.58] cannot delay the operation of the procedures envisaged by the 1988 Act, a position which ….. can easily be understood because, not only do specimens for obvious reasons need to be obtained as soon as possible, but also decisions which a driver has to make during the implementation of the procedures to obtain specimens involve simple choices, fully explained, in relation to which it is not immediately easy to see why anyone who is competent to drive should actually need legal advice"

Kennedy LJ proceeded to deal with certain Commonwealth authorities and the impact of the European Convention, which had been advanced in favour of the Appellant in terms similar to those used by Mr. Ley for the Appellant in the present case. He also considered an earlier decision of the Administrative Court by Goldring J in Campbell v DPP [2002 EWHC (Admin) 1314 in which the Article 6 argument had been advanced but not the Commonwealth authorities. Goldring J had held that Article 6(3) did not impose a "blanket requirement" that each time a person is detained legal advice must be obtained for him before he can be asked to do or say anything. The interests of the individual could be curtailed but only to the extent necessary to pursue the community's legitimate aims, which interests were self-evidently the suppression of drink driving to save lives and prevent serious injuries.

13. Kennedy LJ concluded that the right to a fair trial enshrined in Article 6 could be said to be in play from the outset of a police investigation but it did not spell out a right to legal advice at any particular stage. He considered that the relevant domestic legislation fully satisfied the requirements of Article 6. In practical terms that legislation had these consequences (paragraph 31):

"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 s.5 of the Road Traffic Act 1988 it is really conceded by [the Appellant's counsel], 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 obtain a suspect to take legal advice. That to my mind means this – that if there happens to be a solicitor in the charge office who 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."(emphases added)

Two other decisions of the Divisional Court, namely Kirkup v DPP [2003] EWHC 2354 (Admin) and Whitley v DPP [2003] EWHC 2512 (Admin), have followed the views of Kennedy LJ expressed above. In the light of this body of authority it is unsurprising that the first question posed for this Court's opinion describes the domestic law as "clear, emphatic and repeated". Those epithets are fully justifiable in my opinion, even though the Recorder did not have the benefit of the last 2 authorities cited above.

Commonwealth Authorities

14. The Canadian Charter of Rights and Freedoms s.10(b) is to a very similar effect as is s.58 of PACE. It enacts that:

"Everybody has the right on arrest or detention ……

(b) to retain and instruct counsel without delay and to be informed of that right."

A later provision of the Charter gives a similar power to that contained in s.78 of PACE to exclude evidence obtained in breach of that right. In Prosper v R 118 DLR, the Supreme Court of Canada considered the impact of that right on the Canadian equivalent legislation dealing with drink driving. An impecunious accused had been advised of his right to counsel without delay under a Canadian equivalent of the duty solicitor scheme and expressed a wish to avail himself of that right. He made 15 calls without success because all the local counsel scheduled to be on duty that day were on strike over their pay. He was then given a telephone book but could not afford to instruct a private lawyer. The sampling procedure therefore continued in the absence of any legal advice for him.

15. The focus of the Supreme Court's decision appears to have been on whether the accused had acted with due diligence to exercise his right to counsel. At 182C Lamer CJC, giving the leading judgment of the Court, summarised the principles involved, reiterating what he had said in an earlier case sitting in an identically constituted Supreme Court – see Bartle v R [1994] 118 DLR (4^th) 83. Having stated that the Charter did not impose a substantive obligation on Governments to ensure that duty counsel was available or to provide a guaranteed right to free and immediate legal advice on demand he continued:

"However in jurisdictions where a duty counsel service does exist but is unavailable at the precise time of detention s.10(b) does impose an obligation on state authorities to hold off from eliciting evidence from a detainee provided that the detainee asserts his or her right to counsel and is reasonably diligent in exercising it. In other words the police must provide the detainee with what, in the circumstances, is a reasonable opportunity to contact duty counsel."

16. So far as there is a statement of principle of general application in that case, as opposed to a response to the particular facts of it, I see no great distinction between the underlying principle in the Canadian Authority and the approach taken by the English Courts. When it comes to deciding what is and what is not reasonable of course it is to be expected that each jurisdiction will take its own approach and the approach of neither will greatly assist the other. In this last regard therefore very limited assistance is to be derived from the Canadian decisions given the unanimity of English Authority on this issue.
17. The New Zealand Authorities for their part address s.22 of that country's Bill of Rights, conferring a right in similar terms of that found in the Canadian Charter. They reach no very different conclusion.
18. In Minister of Transport v Noort, Police v Curran [1992] 3 NZLR 260 the Court of Appeal considered the right of persons detained to "consult and instruct a lawyer without delay and to be informed of that right" enshrined in the Bill of Rights in the context of two drink driving appeals. One of them was a conviction; one of them was a refusal to allow a blood specimen.
19. As to any statement of principle to be found in this decision, at 208 Cook P, seeking to answer the question of what practical effect should be given to the Bill of Rights in this context said:

"What is practical effect can only be a question of fact dependant on the particular circumstances. As in innumerable situations with which the law has to deal, a test of reasonableness naturally falls to be applied. A person arrested or detained is not entitled to abuse his or her right. Anyone who deliberately delays will forfeit Bill of Rights' protection….. no more in New Zealand than in anywhere else in the world can detailed rules be laid down in advance. That would be contrary to the spirit of the Bill of Rights. "

This passage leads me to suspect that for his part Cook P would have had little time for Mr. Ley's 15 minutes delay suggestion advanced in this case.

20. Later in his judgment turning to the particular problem before the Court Cook P said at 274:

"The opportunity [to consult counsel] is to be limited but reasonable. It is not necessarily restricted to one call, but there must be no unreasonable delay. A driver who cannot immediately contact his or her lawyer should normally be allowed to try one or two others. If, despite reasonable opportunity no lawyer can be contacted (perhaps because of the hour of night) the test need not be delayed further. …… Hard and fast rules cannot be laid down for all circumstances. Ultimately it must always be a question of fact and commonsense whether a reasonable opportunity has been given."

21. Again therefore considering the approach of the Courts in the New Zealand jurisdiction in terms of principle I see no clear distinction to be drawn with the English line of authorities which I have referred above.
22. Mr. Ley, for the Appellant, accepts that in the context of this legislation he cannot contend for an unlimited right to delay the procedure in order to obtain advice. The reason for this is obvious and needs no support from evidence; specimens must be taken as close to the time of the alleged offence as possible, and the default position is there should be no delay. Hence he argues for some defined short period – he says 15 minutes – for which it should be permissible to hold up the sample-taking process for the purpose of obtaining advice. This runs counter to the clear views of this Court, that the process should not be delayed "to any significant extent". This in my view is a full and sufficient explanation of the position in law, and will also serve as a practical guide to those who have to deal with such matters on the ground.
23. The law is therefore clear. The questions asked should both be answered in the affirmative.

Delay

24. Mr. Ley has prepared a helpful chronology of events following the hearing at the Crown Court. There is no doubt that very considerable delay outside the control of the Appellant has taken place. It took over 6 months for the Recorder to prepare his draft case. The Appellant's comments on that were promptly returned, whereupon a further 10 months went by while the Recorder considered the parties' comments. At the end of that the Appellant's solicitors were required by the Court to type out the final case. At all times the Appellant and his solicitors acted with commendable speed. Mr. Ley's analysis shows that at least one year eight months of unnecessary delay has been injected into this appeal, which it seems to me it is not possible to explain or justify.
25. Mr. Ley's argument is that this amounts to a breach of the Appellant's rights under Article 6(1) to "a ……. hearing within a reasonable time". Correctly, in my view, the Respondents do not challenge this proposition or that the breach of his rights should be reflected in the sentence upon him; they point to the financial consequences of his conviction as an area where such "just satisfaction" can be achieved.
26. The problem lies with the term of disqualification, the imposition of which, and the minimum length of which, is mandatory under the terms of the 1988 Act. Absent "special reasons" that part of the sentence cannot be expunged or reduced below the minimum period.
27. In R v Wickens [1958] 42 Cr. App. R 236 special reasons were defined as extenuating circumstances which mitigated the offence, not amounting to a defence in law, but directly connected with the commission of the offence, and being matters which the Court ought properly to take into consideration when imposing punishment. They do not include any circumstances particular to the offender, such as for example that he is a professional driver who will suffer hardship through disqualification. They would encompass such circumstances as a doctor speeding in response to an emergency call. In R v Anderson [1972] RTR 113, on very unusual facts, the court of Appeal allowed events occurring after the offence to be treated as special reasons relating to the offence
28. Mr. Ley says in the light of the Human Rights Act 1998 special reasons as traditionally defined should be widened so as to include and permit the granting of just satisfaction where that is required in response to an Article 6 breach. The Respondent argues that to do that would be to contravene the clear terms of the statute which lay down the sentence appropriate on such a conviction, and would not be permissible. The delay here complained of is, it should be noted, unrelated to the commission of the offence itself. It is subsequent to it and is the product of tardy progress of the appeal outside the control of both the Appellant and Respondent. In effect the Appellant is arguing that the 12 months disqualification will have a harsher impact upon him than upon the average offender because he has been obliged to wait so long to begin it, it having been stayed pending appeal. Put this way, the consequences of the delay are close to a species of hardship peculiar to this Appellant, or at least closer to that than to a feature of or adjunct to the offence itself.
29. In my judgment the step the Court is invited to take by Mr. Ley is neither warranted nor justifiable. In simple terms it requires the Court to defy the clear words of the statute. I would however reflect the delay to this extent, by quashing the financial penalty imposed by the magistrates and upheld by the Crown Court. The conviction and costs Orders below should remain untouched. To this extent only this appeal is allowed.
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LORD JUSTICE KENNEDY: For the reasons set out in the judgment which has been handed down, this appeal will be allowed only to the extent that the financial penalty will be set aside.

MR LEY: My Lord, solely in relation to the question of delay, I have handed to the usher if you would be prepared to certify a point of general public importance: "Can just satisfaction for breach of the European Convention of Human Rights amount to special reasons?" My Lord, as this is probably not the only case and it may arise in other ways where there is an allegation of a breach of human rights involving cases where there is obligatory disqualification unless there are special reasons. The House of Lords never seems to have actually ruled on what "special reasons" means. I would ask your Lordship to certify a point of general public importance.

LORD JUSTICE KENNEDY: Thank you very much. Is there anything you want to say about this?

MISS CONNOR: My Lord, I have no observations to make.

LORD JUSTICE KENNEDY: Mr Ley, we are not prepared to certify. We will give you this degree of comfort. It seems to us that there may be another case which would be an appropriate vehicle for this sort of issue to be raised, but this is not it.

MR LEY: As your Lordships please.

LORD JUSTICE KENNEDY: Thank you very much.