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
		30 October 2009

1. LORD JUSTICE ELIAS: This is an appeal by way of case stated from the decision of his His Honour Judge O'Malley and two justices sitting as an appeal court in the Crown Court at Taunton. The appellant was convicted before the magistrates of failing to provide a specimen for analysis contrary to Section 7(6) of the Road Traffic Offenders Act 1988. That Section provides that:

i. "A person who without reasonable cause fails to provide a specimen when required to do so pursuant to this Section is guilty of an offence."

2. He appealed to the Crown Court on the basis that the police officers had infringed his right to obtain legal advice as soon as reasonably practicable under Section 58 of the Police and Criminal Evidence Act 1984, and that in the circumstances, the magistrates should in their discretion have excluded the evidence of the breath test procedure under the provisions of Section 78 of that Act. The appeal failed and the appellant requested that the court state a case, which they did.
3. The background was this. The appellant was stopped in his car early one Saturday morning because of a defective headlight. He was found to be smelling of alcohol and was asked to provide a specimen of breath. He complied with the roadside breath test procedure and the test was positive. He was arrested and taken to Yeovil police station and kept in detention. The custody record noted that at 1.35 he confirmed that he required legal advice. The court below found that the call by the police to the duty solicitor was not made for some 20 minutes. In the interval, the police had sought to initiate the breath test procedure. The appellant was asking questions about what his options were, and whether he could have advice. He was, in the view of the police, procrastinating and in practice refusing to take part in the test. It was made plain to him that he would not be allowed to delay the procedure pending obtaining advice. He was told that his solicitor would tell him the same. He still would not provide a sample of breath, and was charged under section 7(6).
4. When the duty solicitor was called, he returned the call to the police station within two minutes. He was informed, wrongly in fact, that the appellant was currently on the intoxilyser machine, and that he should call back to find out the readings in some 20 minutes. At about 4.30 in the morning an officer administered an informal breath test to see whether the appellant was fit to be released. This showed an alcohol level of 45 milligrams of alcohol in 100 millilitres of breath.
6. The statutory provisions
7. Section 58.1 of PACE provides:

i. "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."

Sub-section 4 then states:

ii. "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."

8. Section 58 is supplemented by the code of practice in connection with the conduct of police officers investigating suspected offences. Paragraph 6.5 of the code provides that:

i. "The exercise of the right of access to legal advice may be delayed only as in annexe B whenever legal advice is requested, unless annexe B requires. The custody officer must act without delay to secure the provision of such advice."

9. Section 78 of PACE provides:

i. "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 affect on the fairness of the proceedings that the court ought not to admit it."

10. The authorities
11. Before considering the submissions in the case, I will deal with some of the more important authorities chronologically. In DPP vs Billington [1988]1 WLR 535, Lord Justice Lloyd, with whom Mr Justice Mann agreed, giving judgment in the Divisional court, made it plain that neither the legislation nor the code entitles a defendant to refuse to give a specimen until having received legal advice. That case involved an allegation of a breach of Section 8(7) of the Road Traffic Act 1972, the statutory predecessor of Section 7(6) of the 1988 Act. The submission was that until advice had been obtained, there was a reasonable excuse for not providing the specimen. Lord Justice Lloyd said this:

i. "Under the code, a person who is 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 the specimen under Section 8. It is quite obvious that the Section 8 procedure is not in any sense an interval within the meaning of the code."

12. This case was followed by DPP vs Salter [1992] RTR 386. Again in that case the defendant made it plain that he wished to speak to a solicitor before taking a breath test. He was told that the duty solicitor had been informed, which was what he wanted, but the defendant should take the breath test first. He refused. The issue was whether on these facts he could establish a reasonable excuse in law for not providing a specimen. The court held that he could not. The court recognised there may be circumstances where a defendant's mental state is such that he does not properly appreciate the consequences of his refusal to provides specimens of breath. However, a refusal to do so simply because he wishes to see a doctor or a solicitor first could not as a matter of law afford any reasonable excuse for the failure.
13. In Kennedy vs DPP 2002 EWHC Admin 297, 2004 Road Traffic Reports 77, the court found that Section 58 had been infringed on the facts of that case. There had been a delay of some 21 minutes before attempts were made to contact a solicitor after a request was made. The defendant refused to provide a breath test, and although this was not an explanation given at the time, claimed that he was waiting to speak to his solicitor before doing so. As in this case, the magistrates had been asked to exercise their discretion to exclude the evidence under Section 78 of PACE because of that breach, but they refused. The Divisional court (Lord Justice Kennedy and Mr Justice Pitchers) held that they were right to do so. The court reviewed both English Commonwealth and Strasbourg authorities on the question whether on domestic law there was a right to legal advice before providing a specimen, and if not, whether effect had to be given to that right under Article 6 of the European Convention. Lord Justice Kennedy, giving the judgment of the court, held that it was not a breach of Article 6 to conduct the test before advice was obtained. He then discussed the circumstances in which some small minimal delay, pending obtaining advice, might be permitted, (paragraph 31):

i. "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.

ii. "That, to my mind, means this; if there happens to be a solicitor in the charge office who the suspect says that he wants to consult with for a couple of minutes before deciding whether or not to provide specimens of breath, he must be allowed to do. 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, whereas here the suspect had no more than indicated 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 solicitor's call centre at the first convenient opportunity."

14. I make four observations about this case. First, the exclusion of the evidence under Section 78 necessarily results in an acquittal, since there is nothing to sustain the prosecution thereafter. Second, Lord Justice Kennedy distinguished between the case where a solicitor was immediately available and one where he was not. No accommodation of the request would be required at all in the latter circumstances. Third, the court did not directly engage with the question of whether there was reasonable excuse not to take the test, no doubt because the question framed by the magistrates was in terms of whether the evidence of the procedures should have been excluded under Section 78. Fourth, although Lord Justice Kennedy indicated that suspect should be allowed access to a solicitor in the exceptional circumstances where the solicitor is immediately available, he did not spell out what would be the consequences if that access were not in fact permitted. I do not infer that his Lordship is intending to say that it would be a reasonable excuse to refuse to provide a specimen under the circumstances, nor that the court would be obliged to exclude the evidence under Section 78.
15. The next relevant case is Gearing vs DPP [2008]RTR72. The facts were very similar to those arising here. In that case, a defendant asked on some seven or eight occasions for the police to contact a lawyer, and she declined to take a breath test until she had spoken to the lawyer. She was told that the breath test would not be delayed. No attempt was made to contact the duty solicitor for some 22 minutes, during which time she had declined to provide specimens of breath. Once contacted, the duty solicitor spoke to the appellant some seven minutes later, and subsequently spoke to an officer advising him that the appellant was now willing to provide the sample. No sample was in fact taken, and the appellant was convicted for failing to provide a specimen of breath. Again, the contention advanced before the court below was that the evidence of the breath test should be excluded under Section 78 because the breach of Section 58. This was rejected both on the grounds that there had been no breach of Section 58, and that even if there had been, the evidence should be admitted. On appeal, heavy reliance was placed on the dictum of Lord Justice Kennedy in the Kennedy case. In addition, emphasis was placed on the fact that the solicitor proved to be available within seven minutes of being contacted. Accordingly, it was said that had the call been made at the appropriate time, there would be no undue delay and no offence would have been committed. It was also suggested that the only appropriate remedy was to exclude the evidence, since otherwise there would no effective remedy at all for the Section 58 breach.
16. In the Divisional court, Lord Justice Latham and Mr Justice Nelson held, contrary to the view of the court below, that there had been a breach of Section 58, but that the magistrates were entitled not to exclude the evidence. In the course of giving judgment, Mr Justice Nelson summarised certain relevant factors which should be considered when the court is deciding whether or not to exercise its discretion to exclude evidence in circumstances of this kind under Section 78, (see paragraphs 20 and 21 of the judgment):

As to Mr Madden's points in relation to Kennedy, it does indeed demonstrate that someone who asks for legal advice must be permitted to consult a solicitor as soon as is practicable, and indeed the officer must act under the Code 6.5 without delay in seeking that advice. But having said that, it is also clear that there can be no significant delay because of the important public interest in those who have in fact failed a roadside breath test being tested promptly. Were that not to be so, many who in fact had committed an offence and were above the limit would not be successfully prosecuted, the consequence being a significantly increased likelihood of road accidents and consequent injuries. So there cannot be any significant delay, and it is only in circumstances such as where there is a duty solicitor there and present who can be spoken to for a couple of minutes, or where the individual wishes to speak to his or her own solicitor or the duty solicitor and that solicitor in question is known to be immediately available. What Kennedy LJ is emphasising, is that anything other than a very, very short period will amount to a significant delay, given the public interest in prompt testing. The example he gives is "a couple of minutes" and he uses the words "immediately available" when referring to the availability of the solicitor. That emphasises the need for there to be no more than a very short delay.

When one turns, therefore, as I do on my finding that section 58 is breached, to section 78, one must of course have regard to Mr Madden's submission that once the right has been breached a remedy must be given and that here, had the advice been given, no offence would have been committed because the appellant would simply have followed the legal advice that she was given. That, however, is only one of the factors to be taken into account when considering section 78. The important features are the public interest which I have indicated, the fact that the procedure carries with it its own safeguards, the practicability of obtaining prompt legal advice, the extent of the delay, and whether it is significant; each case must be dealt with on its own facts.

17. . Mr Justice Nelson then applied those principles to the facts and concluded that this appellant knew that she might be over the limit, and did not need legal advice that she had no physical or medical excuse to decline to take the breath test. There was no challenge to the roadside breath test, and she was clearly informed that she would be prosecuted if she refused to take the test.
18. Lord Justice Latham then gave a concurring judgment. He noted that there was a tension between on the one hand the statutory obligation to permit a defendant to consult a solicitor as soon as is practicable, and on the other, the need to assure that the breathalyser procedure is conducted promptly. He then made the following observations (paragraph 27)::

i. "If a solicitor is present, or a specific solicitor is identified, then any delay will be minimal, and in the ordinary case a very short delay in carrying out the procedures, something in the order of a couple of minutes, as Lord Kennedy had put it, should be allowed. If that is not the case, the police can insist on the suspect providing the specimen. Since it is not clear how long it may take to contact the duty solicitor, because the procedure requires contacting the call centre, who then in turn contact the duty solicitor, there is an obligation to carry on with the procedure. In practice, it is not possible to say how long it may be before the duty solicitor is able to contact the police station. It may be very quick, as it was in this case, but it might not. Given the uncertainty, the public interest in carrying out the test speedily outweighs the right to obtain advice."

19. As I read Lord Justice Latham's judgment, he is limiting any argument about whether the evidence should be excluded under Section 78 to the specific case where a solicitor is immediately available, but the police nevertheless insist on carrying on with the breathalyser procedure. Even then it will, of course, be a matter of discretion on the facts of each case whether evidence should be excluded.
20. Finally, in Cowper vs DPP 2009 EWHC 2165 Admin, Gearing was cited, and it was suggested that even where a duty solicitor has been contacted, the court should require a five minute delay against the possibility that advice might be available within that period. Both Mr Justice Dobbs, given the lead judgment in the Divisional court, and Sir Anthony May who gave the concurring judgment, expressly rejected that argument.
21. The decision of the Crown Court
22. I turn to the decision of the court below. After reviewing a number of authorities, the Crown Court found that the delay in contacting the duty solicitor constituted a breach of Section 58. They noted that in Kirkup a delay of seven minutes was conceded by the prosecution to be too long. In Kennedy the delay was 21 minutes, and in Gearing 23 minutes and both were considered to be an unacceptable delay. However, the court also concluded that this did not justify excluding the evidence under Section 78. They accepted that the proper approach was to consider the factors which Mr Justice Nelson had identified as being material to this issue in paragraph 21 of Gearing, which we have set out. The court noted the strong public interest in those who failed the roadside breathalyser being tested promptly to reduce the risk of accidents and injuries. They were satisfied that it was made very clear to the appellant what the consequences of non-compliance were, and they were in no doubt that the continued procrastination amounted to a deliberate refusal to provide a specimen.
23. The grounds of appeal
24. The appellant's submissions can be treated relatively briefly. It is said that the court failed properly to apply the factors identified in Gearing and reached a decision they were not entitled to reach. Too much weight, in particular, had been attached to the fact that the officers conducting the breath test had properly explained the law and the consequences of non-compliance. The rationale behind Section 58 was that the defendant should be given a right to independent legal advice. If that had been done at the appropriate time, then given that the solicitor in fact responded within two minutes of being called, there would have been no significant delay at all. The decision of Lord Justice Kennedy in Kennedy shows that a small delay of that nature should be accommodated. The fact that Mr Chalupa may have sought to delay the procedure was entirely irrelevant; he was entitled to stand on his right to require legal advice. If the evidence cannot be excluded in a case such as this, then it would difficult to envisage circumstances in which it would be appropriate to exclude it. That would make the remedy for breach of Section 58.4 a hollow one.
25. The respondent submits that this was a perfectly proper exercise in discretion by the court below, and not one with which this court should interfere.
26. In my judgment, there are two answers to this appeal. The first is that this is not in my view one of those exceptional cases where a solicitor was immediately available, such that it could be said that any delay would necessarily have been minimal. I do not accept that the exception identified in Kennedy applies here. The appellant submits that it does on the basis that fortuitously, as it happens, the duty solicitor did respond within two minutes of being contacted. That may be true in this case, but there is plainly no guarantee under the duty solicitor scheme that there will always be such a speedy response. Moreover, he would not necessarily have been in a position to respond so promptly had he been contacted earlier. In my judgment, this was not one of those cases therefore which falls within that exceptional category.
27. It follows that we are not in the territory where Section 78 is properly engaged in the sense that there is no arguable basis at all for excluding the evidence. The authorities establish that the right to prompt legal advice and any breach of that right will, in general, have no bearing whatsoever upon the obligation to provide a specimen of breath. It is not a reasonable excuse to refuse to provide a specimen until advice has been received. Indeed, and perhaps more importantly, it is not even a reasonable excuse to refuse to provide the breath specimen when that is in accordance with the lawyer's advice, see Dickenson vs DPP [1989] Crim Law Reports 741. Accordingly, there is nothing unfair or improper with the police insisting on a specimen being provided before advice is obtained. To use the language of Section 78, there is nothing about the particular circumstance in which the evidence is obtained which might even arguably render it unfair to admit the evidence. Nor can the general circumstance that section 58 is infringed as a result of a short albeit unjustified delay in contacting the solicitor, begin to constitute such a justification. It could not possibly be said that to admit this evidence would have an adverse affect on the fairness of the trial. It would simply punish the prosecution in a manner wholly disproportionate to the nature of the wrongdoing, given in particular the public interest in the test being promptly conducted, and the importance of bringing to book those who are suspected of breaking this law.
28. In short, there is in my judgment no evidence at all on which any reasonable court, properly directing itself, could have concluded that fairness required that the evidence should be excluded. The balancing test was not even engaged. Of course, if the breach of Section 58 impacts on later stages of the investigation, that could have very different consequences.
29. As I have said, the only possible qualification where Section 78 may be engaged is as suggested in the Kennedy and Gearing decisions; namely where the police refuse to allow a suspect access to a solicitor who is ready and immediately available. In those very limited circumstances, Section 78 may, in principle, be available to justify excluding the evidence, although even then I would anticipate there would be very powerful arguments why the discretion should not be exercised. This was a case where there was a generalised request to obtain advice, and the duty solicitor was called. Accordingly, in my judgment, the appeal should fail on the ground that we are not in the exceptional situation, and Section 78 is not really in issue at all.
30. The second reason for rejecting the appeal is that even if Section 78 was potentially engaged on the grounds that the response was in fact very speedy from the duty solicitor, then the court below is, in any event, plainly entitled to refuse to exclude the evidence. I note that the argument that is run here is a substantial issue that ran unsuccessfully in the Gearing case. It was for the Crown Court to exercise the section 78 discretion and we are not here to substitute our views. We should only to interfere if the exercise of that discretion was wrong. In my judgment, that test was nowhere near being satisfied here, and the decision of the court below wholly justified. There was, in truth, no prejudice resulting from the breach of Section 58.
31. Disposal
32. The question posed by the court was this:
33. "Having found that there had been a breach of Section 58 of PACE, were the factors outlined by Mr Justice Nelson in Gearing properly applied when this court exercised its discretion to refuse to exclude the evidence of the breath test procedure?"
34. I appreciate that the question was posed in that way because it reflected the argument before the court below. Nevertheless, I do not think that it was appropriate for it to be so formulated. It involves treating the factors outlined by Mr Justice Nelson as if they were a statute. The issue is not whether those factors were properly applied, but more generally whether the discretion was properly exercised. The relevant question is simply whether, notwithstanding the breach of Section 58, the court was entitled to exercise its discretion so as to refuse to exclude the evidence of the breath test procedure. The answer I would give to that question is that they were so entitled. Indeed, as I have indicated, I do not think that there was ever any serious balancing exercise to undertake. Thank you both for your careful submissions and your skeletons.
Post-judgment discussion
35. MR WORSLEY: There is an application for costs. I have shown my learned friend a schedule which is not complete. It involves various factors that are still fluid. Can I invite your Lordships to make an order for costs to be assessed within a week?
36. LORD JUSTICE ELIAS: I am sure that --
37. MR JUSTICE OPENSHAW: You can, yes, you can apply, you can lodge an application in a week, but I don't think it will be assessed within a week.
38. MR WORSLEY: No, I will lodge the bill within a week.
39. LORD JUSTICE ELIAS: You don't resist the application for costs?
40. MR AHUJA: No, your Lordships, I don't think I can, simply to say that Mr Chalupa is legally aided in matters.
41. LORD JUSTICE ELIAS: He is legally aided?
42. MR AHUJA: He is legally aided, then, of course, if costs are granted, then he will have to pay those in due course.
43. LORD JUSTICE ELIAS: Are you still pursuing your application if he is legally aided?
44. MR JUSTICE OPENSHAW: Is he is paying a contribution on his aid?
45. MR AHUJA: I am not too sure about the answer to that, my Lord, unfortunately.
46. MR JUSTICE OPENSHAW: That is pretty important these days, is it not?
47. MR AHUJA: Yes.
48. MR JUSTICE OPENSHAW: Because some pay nothing and some pay a great deal.
49. MR AHUJA: If your Lordships will permit me, I have the certificate of representation here. There is no indication on the certificate, your Lordships, that he has to pay a contribution. It seems to be a full certificate.
50. MR WORSLEY: My Lord, that is right. If he is fully legally aided, there is no point me making an application.
51. LORD JUSTICE ELIAS: There is no point in making an application.
52. MR WORSLEY: Thank you.
53. LORD JUSTICE ELIAS: So we just make no order as to costs?
54. MR AHUJA: Yes, thank you.