Chalupa v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ELIAS,MR JUSTICE OPENSHAW |
| Judgment Date | 30 October 2009 |
| Neutral Citation | [2009] EWHC 3082 (Admin) |
| Date | 30 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2210/2009 |
[2009] EWHC 3082 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Elias
Mr Justice Openshaw
CO/2210/2009
MR M WORSLEY (instructed by the CPS) appeared on behalf of the Claimant
MR H AHUJA (instructed by Morton Law) appeared on behalf of the Defendant
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:
“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.”
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.
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).
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.
The statutory provisions
Section 58.1 of PACE provides:
“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:
“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.”
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:
“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.”
Section 78 of PACE 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 affect on the fairness of the proceedings that the court ought not to admit it.”
The authorities
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:
“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.”
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.
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):
“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; 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.”
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.
The next relevant case is Gearing vs DPP [2008]RTR72. The facts were very similar to those arising here. In that case, a defendant...
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Table of Cases
...! [2013] Crim LR 603, DC! 604 ............................................... Chalupa, CPS v [2009] EWHC 3082 (Admin), DC! 373 ..................... Chambers, DPP v [2003] EWHC 2142 (Admin), (2004) 168 JP 231! 319 .......... Chand v DPP; DPP v Chand, unreported, CO/321/98; CO/320/98, DC! 20......
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Evidence
...procedure to be interrupted for legal advice. … they were … entitled to reach those conclusions.” Appeal dismissed. CPS v Chalupa [2009] EWHC 3082 (Admin), unreported, 30 October 2009, QBD (DC) On the facts (twenty minute delay in contacting duty solicitor, duty solicitor replying within tw......