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
		18 March 2009

1. MRS JUSTICE DOBBS: Introduction: This is an appeal by way of case stated against a decision of the Justices for the County of Cheshire sitting at Chester Magistrates' Court on 9 June 2008. The issue is one which has been raised in many previous appeals, namely whether the evidence of the refusal by a driver suspected of drink-driving to take a breath test at the police station is inadmissible, because the suspect has requested to speak to a solicitor, and that request was not granted before the test was administered.
2. The background facts are that at 1.55 on 10 November 2007 the appellant was driving his motor vehicle when he was stopped by uniformed police officers. He was arrested on suspicion of drink-driving and conveyed to the police station. When the appellant was brought to the custody sergeant he requested to speak to a solicitor. This was about 2.31. At 2.34, the custody sergeant phoned the Defence Solicitor Call Centre which, in turn, referred the case to the Criminal Defence Service Direct telephone advice service. At 2.35, the appellant was taken into the Intoximeter room. The breath test procedure commenced at 2.36. The appellant was asked to provide a specimen. He was initially minded to provide one but then refused, requesting to speak to the solicitor on the phone first. The police officer explained that the procedure could not be stopped once it was underway.
3. The CDS solicitor phoned the police station at some time between 2.36 and 2.38. He was told that he could not speak to the appellant at that time as the appellant was going through the breath test procedure. The solicitor rang back on a number of occasions but the lines were engaged. He finally got through at 3.19 and gave the appellant advice. The appellant was subsequently charged with an offence of failing to provide a specimen or specimens of breath for analysis without reasonable excuse, contrary to section 7(6) of the Road Traffic Act 1988.

The Trial Before the Magistrates

4. The trial was heard on 9 June 2008. The appellant argued that the evidence of failure to provide a specimen should be excluded under section 78 of the Police and Criminal Evidence Act 1984, on the basis that the police had failed to comply with section 58(1) and (4) of the Act and Code C6. The submission was that the custody sergeant phoned the Duty Solicitor Call Centre whilst the appellant was at the custody desk, knowing that there was likely to be a return call from the service within 30 minutes or possibly sooner. There was a breach of the section, because the appellant was not permitted to speak with the solicitor at the custody desk. It was submitted that waiting for the return call should not cause a significant delay, and thus the appellant was not afforded access to a solicitor as soon as practicable.
5. The magistrates found no breach of section 58. The appellant declined to give evidence and was convicted. He was fined £200, disqualified from driving for 24 months and an order for costs was made and a victim surcharge of £15 was imposed.

The Magistrates' Findings of Fact

6. The background facts, which have been taken from the summary of evidence in the case statement, have been rehearsed, but the magistrates' findings of fact for the purposes of the case stated are as follows:

"(a) The appellant was arrested on 10 November 2007 and conveyed to Blacon Custody Suite.

(b) The appellant requested a solicitor at approximately 02:31 hours.

(c) The custody sergeant calls the Duty Solicitor Call Centre as soon as the request was made (at approximately 2:34).

(d) The appellant was conveyed to the intoximeter room and the procedure was commenced at approximately 02:36 hours.

(e) The incoming call from the duty solicitor was received after the appellant had entered the intoximeter room and the procedure had been commenced by the officer completing the MGDD/A form. It was not practicable to delay or interrupt the procedure at this time.

(f) The appellant received advice as soon as practicable. From the log of Andrew Vickers, the case was deemed closed and the advice given within 44 minutes of the DSCC being notified by Police Sergeant Colligan."

7. From those facts the magistrates found that there was no breach of section 58 or paragraph 6.5 of Code C. Their reasoning was as follows:

"We were of the opinion that there had been no breach of section 58 of the Police and Criminal Evidence Act as the custody sergeant had acted promptly in notifying the DSCC of the appellant's request for a solicitor. The custody sergeant cannot second guess how long the return call from a duty solicitor will take. He acted entirely properly and in accordance with case law and legislation in proceeding with the breath test procedure.

We were satisfied that it was not practicable to delay or interrupt the procedure. The law is clear, that obtaining breath specimens should not be delayed to any significant extent to enable legal advice to be taken. Further, it cannot be in the public interest for the procedure to be interrupted for legal advice.

Further, the appellant received legal advice as soon as practicable and the duty solicitor had given advice and closed their case within 44 minutes of the first notification."

8. The question posed for the opinion of this court is: "Were the justices correct in concluding that there had been no breach of section 58 of the Police and Criminal Evidence Act 1984 and the Codes of Practice thereto following the appellant's request to see a solicitor prior to undergoing the breath test procedure in the light of the commencement of the Criminal Defence Service Direct Telephone Advice Service?"

The Statutory Provisions

9. The relevant statutory provisions for this appeal are as follows. Section 5 of the Road Traffic Act 1988 reads:

(1) If a person—

...

(b) is in charge of a motor vehicle on a road or other public place,

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

Section 7 of the same Act reads:

"(1) In the course of an investigation into whether a person has committed an offence under ... section 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."

10. Section 58 of the Police and Criminal Evidence Act 1984 provides at subsection (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 the delay is permitted by this section."

11. Section 78 of the Police and Criminal Evidence Act 1984 provides in subsection (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."

12. Paragraph 6 of Code C provides:

"6.1. Unless annexe B applies all detainees must be informed that they may at any time consult and communicate privately with a solicitor whether in person, or 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 annexe B. Whenever legal advice is requested, and unless annexe B applies, the custody officer must act without delay to secure the provision of such advice."

13. The court's attention has been drawn to several authorities, the details of which it is not necessary to rehearse. They all relate to the issue of access to legal advice in circumstances when the breath test at the police station is being carried out. We set out the principles which apply in such cases.
14. In DPP v Billington [1998] 1 WLR 435, the Divisional Court considered the argument that, in the light of the new legislation and the new version of the Code, which had by then come into force, the defendant must be afforded access to a solicitor if he requires it before he could be said to have failed or refused to provide a specimen without reasonable excuse.
15. This argument was rejected. At page 551 Lloyd LJ, with whom Mann J, agreed said:

"All that the Act requires is that the defendant is to be permitted to consult a solicitor as soon as practicable. There is nothing in the Act which requires the police, whether expressly or by implication, to delay the taking of a specimen under section 8 of the Act in the meantime."

16. In Kennedy v DPP [2002] EWHC Admin 2297, the Divisional Court reconsidered this area of law in light of the Human Rights Act 1998. As well as national case law, the court reviewed ECHR and Commonwealth authorities. The conclusions of Kennedy LJ, with whom Pitchers J agreed, are set out in paragraph 22. The relevant parts of which read as follows:

"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."

17. His Lordship then set out the provisions of section 58 of the Police and Criminal Evidence Act and the provisions of Code 6.5 and continued:

"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."

18. That is the authoritative statement of principle in relation to cases of this kind. That fact was recognised in the recent case of Gearing v DPP [2008] EWHC 1695 Admin, in which Latham LJ, agreeing with Nelson J, said at paragraph 26:

"There is a clear tension between the two statutory requirements in play in this particular case. The Police and Criminal Evidence Act 1984 requires under section 58 a person who makes a request for a consultation with a solicitor to be permitted to consult "as soon as is practicable". On the other hand, there is an obligation upon the police pursuant to the provisions in the Road Traffic Act 1988 to ensure that the breathalyser procedure is conducted in such a way as to meet the public interest, which was identified in Billington and in Kennedy."

At paragraph 27 he went on to say this:

"27. How are the two to be reconciled? It seems to me, as it has done to Nelson J, that the clue really comes in the passages in the judgment of Kennedy LJ to which my Lord has already referred. The police, on the one hand, should, once a request for consultation with a solicitor is made, take appropriate steps to enable that to happen. If there is a solicitor present in the police station, that will involve notifying that solicitor. If an identified solicitor is indicated by the defendant, they should make contact with that identified solicitor. If there is no identified solicitor then they should make the appropriate call to the call centre. But that should not delay, in itself, the obligation of the police to carry on with the procedure. If it is apparent that the advice can be readily made available, as indicated by Kennedy LJ, in a couple of minutes or so then clearly it would be appropriate to balance the rights and the obligations in question by requiring the police to delay the breath test at least for that short time. If it is anything greater than that, it does not seem to me that it is a requirement that the police should delay the giving of the breath test simply for that reason. The exercise required by section 78 of the Police and Criminal Evidence Act seems to me to be one which can be encapsulated in that approach."

The application of the legal principles to this case

19. The first question which needs to be considered is whether there was any delay between the request by the appellant and the police acting on that request. It seems from the evidence that the timing was in the region of three minutes and there is no dispute, and it is conceded by Mr Gray, that the police acted promptly on receiving the request for a solicitor. In other words, the custody officer acted without delay to secure the provision of legal advice.
20. What is the period of delay? It is said by the appellant to be 44 minutes. Thus, it is submitted, that access to the solicitor was not soon as practicable.
21. The appellant's case seems to be that because of the advent of the new Criminal Defence Service Direct Line Telephone Advice Scheme, the custody officer should have waited for the return call, as under the new system waiting for the return call should not cause a significant delay because it is a dedicated computerised legal advice service.
22. The evidence before the magistrates was that the call back from the duty solicitor system was on average within 30 minutes, but could be quicker. It is also pointed out by Mr Gray on behalf of the appellant, that in this case, the appellant would only have to have waited for two minutes, because there was a prompt response from the service and thus the appellant could have received advice before entering the intoximeter procedure.
23. The alternative submission before this court, although it was not raised in the court below, is that when the solicitor did phone some two minutes later, that the custody officer should have interrupted the intoximeter procedure because of the short period of time that had elapsed, therefore there has been breach.
24. So far as section 78 is concerned, although it was not a matter that the magistrates got to, it is submitted that the evidence should have been excluded on the basis, that had the police officer waited, the appellant would have received legal advice and he would have taken the test and not faced the charge he faces now. He distinguishes the other cases that have been drawn to our attention in which the courts found that the magistrates did not err in declining to render the evidence inadmissible, by virtue of the fact that in this case, only two minutes had elapsed from the time of the request and the solicitor phoning and also that the delay was one of 44 minutes.
25. As has been made clear in the case of Kennedy and the other authorities, the public interest requires that the obtaining of breath specimens shall not be delayed to any significant extent in order to enable a suspect to take legal advice. Indeed, it is clear from the evidence, that the notice handed out to the appellant, that is the notice of entitlement, explains that the breath test procedure will not be delayed for a detained person to speak to a solicitor. Moreover, the evidence in this case also shows that the police officer conducting the test had also advised the appellant to this effect.

What are the facts?

26. It is a fact, and it is accepted, that there was no solicitor in the charge office that night when the appellant made his request. There was no solicitor named by the appellant. There was a general request for access to a solicitor. That meant using the duty solicitor scheme. Whilst it may be true that the new phone advice system is more efficient than the previous system, at the time of the request to that service, it was not known how long it would take for a solicitor to be available, and there was no way of the officer knowing how much time would elapse before the solicitor was available. The police officer was not in a position to say it would only take a few minutes, or, indeed, would only take two minutes, and thus say to himself, it is reasonable to wait.
27. The submission has been made to this court, that the court should direct that officers should wait for a period of five minutes, before conducting suspects to the Intoximeter room, and that the notice to suspects should, accordingly, be changed. There is no evidential basis for the submission that is made by Mr Gray. Indeed, the evidence before the magistrates was that the average waiting time was 30 minutes. Therefore, five minutes is an arbitrary figure.
28. As is clear from the authorities, there is no duty on the police to delay the taking of a specimen of breath pending a suspect receiving legal advice. The police officer was entitled, therefore, to begin the procedure when he did. It is conceded that the breath test specimen was lawfully required and that the refusal was unlawful.
29. The justices found that it was (a) not practicable to delay or interrupt the procedure at the time when the duty solicitor phoned and (b) not in the public interest for the procedure to be interrupted for legal advice.
30. In the light of the authorities, and on the facts, they were, in my judgment, entitled to reach those conclusions. There is no requirement anywhere for the police to stop the procedure. It is to be noted that the breath test procedure is designed for the provision of specimens which the law requires a suspect to provide and is not an "interview" for the purposes of the Police and Criminal Evidence Act and the Codes of Practice.
31. I have come to the conclusion, therefore, that the magistrates were correct when they found that there had been no breach of section 58 of the Police and Criminal Evidence Act or the Code of Conduct. Section 78 of the Police and Criminal Evidence Act does not come into play therefore. It follows from the following that the question posed by the magistrates should be in the affirmative.
32. SIR ANTHONY MAY: I agree. Dobbs J has set out the facts and I will not repeat them.
33. The appellant asked for advice from a solicitor and the custody sergeant promptly and properly phoned the call centre in the expectation on the evidence that the call might be returned within about 30 minutes. Meanwhile, the police proceeded to attempt at least to administer a police station breath test. There was no breach of section 58 of the Police and Criminal Evidence Act 1984 in them proceeding in this way: see, among other cases, Billington, Kennedy and Gearing to which my Lady has referred.
34. In fact, the duty solicitor telephoned back very shortly while the breath test procedure was being undergone. The police did not stop the procedure. Contrary to Mr Gray's submission, I do not see any proper basis on which they should have been obliged to do so if his main argument on this appeal fails.
35. It follows that the appellant was lawfully required to take a breath test and refused. He had been correctly told that the right to consult a solicitor did not mean that he could refuse to give a breath sample before he had spoken to the solicitor. He was not, after all, being questioned but was being lawfully required to undergo a non-invasive mechanical or scientific process. Mr Gray submits that with revised call centre arrangements for calling a duty solicitor, and since those arrangements are designed to speed up the procedure for getting a solicitor, administering a police station breath test should always be delayed -- Mr Gray says for five minutes -- against the possibility that legal advice would be available within that period. Just as formerly waiting for a solicitor was not generally regarded as a reason for delaying the breath test, so, in my view, there is no ground for modifying that under fairly recent new administrative arrangements.
36. Accordingly, in my judgment there was no breach of section 58 of the 1984 Act and the justices were correct to reach the conclusion that they did. Even if there had been, in my judgment the justices would have been right to have refused to exclude the relevant evidence under section 78 of the 1984 Act. For these reasons the appeal is dismissed.
37. MR AP MIHANGEL: There is the issue of costs. I know no schedule has been formally served but the public purse is funding this so far as the Crown is concerned. I have provided my learned friend with a breakdown of the costs. No issue is taken as to the amount to be claimed. So I make the application at this stage and the application is in the sum of £1,300.
38. SIR ANTHONY MAY: £1,300 as to the amount of which there is no quarrel, is that right?
39. MR GRAY: No objection, my Lord.
40. SIR ANTHONY MAY: Do you want to say anything about whether it should be ordered?
41. MR GRAY: My Lord, the first point to make is that the appellant has the benefit of a representation order therefore in terms of costs if one could ask that those are to be assessed. In relation to the order that has been made, because application has been made already by my learned friend, Mr Cowper was ordered by the lower court to pay costs.
42. SIR ANTHONY MAY: Was or was not?
43. MR GRAY: Was ordered. So I am not going to -- I can't take any objection to that amount being put forward by my learned friend and endorsed. Unless I can assist.
44. SIR ANTHONY MAY: So you have nothing to say whether or not costs should be made against him but you want a legal aid assessment?
45. MR GRAY: Yes.

(Pause)

46. SIR ANTHONY MAY: Yes. In those circumstances there will be legal aid assessment of the appellant's costs but he is ordered to pay £1,300 for the prosecution costs. Do you want a period in which he is to pay it?
47. MR GRAY: I am afraid I have no instructions in relation to a period of time.
48. SIR ANTHONY MAY: 28 days?
49. MR GRAY: 28 days.
50. SIR ANTHONY MAY: Thank you very much. We are very grateful. Thank you. I am sorry we kept you waiting this morning.