England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 May 2012

1. MR JUSTICE MITTING: On 26 December 2008 the appellant was stopped by police officers while driving his Mercedes motor car along the A515 in Ashbourne in Derbyshire. Police officers thought they smelt intoxicants on his breath. His words were slurred and he repeated them. They administered a roadside breath test which was positive. He was taken to the police station at Buxton. On arrival, he appeared to be coherent.
2. What occurred at the police station was recorded on the station CCTV, which was made available to the Crown Court. The court recorded that the appellant appeared to understand and respond coherently to questions about his personal details, telephone numbers, job and medication and the reason for a small cut on his nose.
3. The evidence of the custody sergeant, Sergeant Blackshaw, which the court accepted, was that he was satisfied that the appellant was coherent and understood what he was being asked.
4. He did, however, tell Sergeant Blackshaw that he was taking medication for depression. Depression is a mental illness, and that statement triggered the application of Code C:1.4 of the Code of Practice for the detention, treatment and questioning of persons by police officers:

"If an officer has any suspicion, or is told in good faith, that a person of any age may be.

mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to.

dispel that suspicion, the person shall be treated as such for the purposes of this Code."

5. It was conceded by the prosecution below and here that Code C:1.4 applied, and that accordingly the appellant should have been treated as a person who was mentally disordered or otherwise mentally vulnerable. That triggered the requirement to summon an appropriate adult. The function of the appropriate adult, as set out in Code C:3.17 and 3.18, was to ensure that the provisions of paragraphs 3.1 to 3.5 of Code C were complied with, and to give advice and assistance to the detained person, and to advise them that they could consult privately with them (the appropriate adult) at any time.
6. The requirements of paragraphs 3.1 to 3.5 can be summarised as follows. A detained person must be told of his right to inform someone about his arrest, of his right to consult privately with a solicitor and of his right to consult the Code of Practice. He must also be given a written notice setting out those rights and the arrangements for obtaining legal advice and a copy of the custody record. There are obligations on the custody officer to make records of occurrences during the period in detention, and again reiterated, to ensure that the detained person is entitled to seek legal advice.
7. Those rights are of particular significance when a detained individual is being subjected to a process that he may not understand or when he is being interviewed. The case law contains examples of the exclusion of evidence of such a nature in those circumstances.
8. The findings of the Crown Court were, as I have indicated, that Sergeant Blackshaw's evidence was truthful, that he acted in good faith, and that he was satisfied, as was the Crown Court, that the appellant was coherent and understood what he was being asked. The Crown Court went on to say that it accepted the evidence of a Mr Holmes, who administered the breath test procedure at the police station, that the appellant appeared to understand the requirements made of him and the questions asked of him. The appellant himself confirmed in evidence that he understood the requirements and the questions.
9. When the breath test was administered the lowest recording was 52 micrograms of alcohol per 100 millilitres of breath.
10. Mr Shrimpton, who appeared for the appellant in the Crown Court, submitted to the court that the evidence of the breath sample should be excluded under section 78 of the Police and Criminal Evidence Act 1984, which, as everyone knows, provides:

"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."

11. Mr Shrimpton's fundamental submission is that any breach of the code which was not, as he would put it, merely technical should lead to the exclusion of evidence obtained in breach of the Code. It is trite law that whether or not evidence obtained in breach of a Code of Practice can be adduced in evidence is fact-specific. Each case must be determined on its facts. If authority for that point is required, it is to be found in R v Gill and others [2004] EWCA Crim 3245.
12. The conclusion of the Crown Court on that submission was that no unfairness resulted from the breach of Code C:1.4 having regard to the findings of the court set out in paragraphs (7) and (8). They read follows:

"(7) The evidence of Sgt Blackshaw (which we accepted) was that he was satisfied that the appellant was coherent and understood what he was being asked. He had no concerns about the appellant's mental stability.

(8) The appellant was immediately handed over to Mr Holmes, who helped conduct the breath test procedure. He accepted Mr Holmes' account that the appellant appeared to understand the requirements made of him and the questions asked of him. The appellant blew into the machine and provided the two specimens required, the lower reading being 52. The appellant confirmed in evidence that he understood the questions and the requirements, and, after an unsuccessful attempt, was able to provide the samples."

13. What the court there was finding was that the breath test procedure was properly administered by persons acting in good faith to somebody who appeared to, and did in fact, understand what was being required of him, and fulfilled those requirements.
14. In those circumstances, the court concluded:

"Even if an appropriate adult had attended, no comfort or advice provided by such a person could have involved any justifiable interference with the breath test procedure undertaken. Accordingly, we declined to exclude the evidence."

15. That was a conclusion which the court was entitled to reach. Furthermore, given the facts which it found, it was one which was clearly right. This was a case in which the breach of the Code made no difference. Accordingly, in those circumstances the court was right to conclude under section 78 that the admission of the result of the breath test procedure would not have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
16. For those reasons this appeal is dismissed.
17. MR SHRIMPTON: My Lord, I am instructed respectfully to seek permission to appeal to the Supreme Court and to apply for a certificate. The two points of law of public importance and general application that I say arise are: (1) once a substantive breach of PACE Code C has been found or admitted, is there a rebuttable presumption in favour of the evidence obtained in breach being excluded under PACE section 78? That is the first question. I say that applies to all section 78 cases. They are clearly of general application. And (2) applying to all breathalyser cases, is time any longer of the essence in breathalyser cases having regard to the scientific principle of back calculation?
18. I would respectfully invite your Lordship to grant permission and to certify those two questions in accordance with the Act.
19. MR JUSTICE MITTING: I decline to certify the question or to grant permission. As regards the second question, it formed no part of my judgment and does not arise, and, in any event, is not of general public importance. As regards the first, it covers well-trodden ground and there is no need for the Supreme Court to revisit it.
20. MR SHRIMPTON: So be it.
21. MR JUSTICE MITTING: Any further applications?
22. MR WICKS: No, my Lord.