Christopher James Miller v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWHC 262 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4533/2017,CO/4533/2017 |
| Date | 15 February 2018 |
[2018] EWHC 262 (Admin)
Court and Reference: Administrative Court
Judges: Hickinbottom LJ, Dove J
CO/4533/2017
Appearances: Mr Scott (instructed by England, Stickland and Neale Solicitors) for CJM; Mr Barry (instructed by the CPS) for the DPP.
Facts: CJM was arrested on suspicion of driving whilst under the influence of drugs. Although he was known to police in light of previous dealings, and recognised as having learning difficulties and autism, no steps were made to involve an appropriate adult, even though CJM requested one; this was in contrast to what had happened on previous occasions. As a result of CJM's behaviour, he was taken to a general hospital, but staff declined to assess him because of his aggression; a forensic medical examiner also declined to assess him at the police station for similar reasons. Subsequently, a nurse assessed that an appropriate adult was not needed. By then, CJM had been in custody for 31/4 hours and it was believed by police that the efficacy of the drug-driving procedure would be diminished by further delay. He declined to give a blood sample, and was then charged with failing to provide a specimen without reasonable excuse. A pre-trial application was made to exclude this evidence under s78 Police and Criminal Evidence Act 1984. The magistrates found that, although Code C of the Codes of Practice issued under the 1984 Act was “engaged” and so required that an appropriate adult be called, that would have caused additional delay in the context of a process in which time was of the essence and in which there were some doubts as to the need to call an appropriate adult. After the trial, at which CJM was convicted, he appealed by way of case stated.
Hickinbottom LJ:
1. This is the judgment of the court to which both members of the court have contributed.
2. This is an appeal by way of case stated from a pre-trial ruling of the Black Country Magistrates' Court sitting at Dudley on 13 October 2016 in respect of an information preferred against the Appellant for failing to provide a specimen of blood in breach of s7 of the Road Traffic Act 1988, not to exercise its discretion under s78 of the Police and Criminal Evidence Act 1984 (“PACE”) to exclude evidence of the drug drive procedure at Oldbury Police Station that led to the charge being made.
3. On 24 June 2016, the Appellant was stopped by the police on suspicion of driving under the influence of drugs. When arrested and taken into custody, he behaved erratically and aggressively. It appears that he was known to the police as a person who had learning difficulties and autism. This knowledge arose from the Appellant having had previous interactions with them. On earlier occasions when he had been interviewed by the police in connection with their enquiries on other matters, an appropriate adult had been invited to attend to accompany him.
4. Whilst the Appellant was in custody, he refused to give an evidential specimen of his blood. He was taken first to Oldbury Police Station, but later to Sandwell General Hospital where he was not assessed owing to his perceived aggressive behaviour. Having returned to the police station, he was seen by a forensic medical examiner, but he too was unable to carry out an assessment for the same reasons.
5. What happened whilst the Appellant was in custody is uncontroversially described in the case stated provided by the justices for the purposes of these proceedings, in the following terms:
“The custody record provided no record of any attempt to contact an appropriate adult being made once Christopher Miller was detained, despite his record and personal request which made it clear one was required. Mr Miller's behaviour was erratic, described by one officer as foaming from his mouth and attempting to drink water from the toilet in his cell. Mr Miller's custody record referred to his being a suicide risk, risk of self harm, having mental health issues, having learning difficulties and that Mr Miller had stated himself that he suffered from Asperger's Syndrome.
At 0636 Mr Miller made a request for solicitors and an appropriate adult ‘as he's not feeling well in the head’. Code C Police and Criminal Evidence Act 1984 at Para 1.4 states ‘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 the suspicion, that person shall be treated as such for the purposes of this Code’. Paragraph 3.15 further states ‘if the detainee is … mentally disordered or otherwise mentally vulnerable, the custody officer must, as soon as it is reasonably practicable’ inform the appropriate adult of the grounds for detention and whereabouts, and ‘ask the adult to come to the police station to see the detainee’. Despite Code C being engaged, no effort was made to contact an appropriate adult at all.”
6. As a consequence of what happened at the police station, the Appellant was charged with 2 offences, one of which is not relevant to these proceedings. The offence with which these proceedings are concerned was charged as follows:
“On 24 June 2016 in Oldbury in the County of West Midlands when suspected of having driven a vehicle and having been required to provide a specimen of blood for a laboratory test pursuant to s7 of the Road Traffic Act 1988 in the course of an investigation into whether Christopher James Miller had committed an offence under s3A, 4, 5 or 5A thereof, Christopher James Miller failed without reasonable excuse to do so, contrary to s7(6) of the Road Traffic Act 1988 and Sched 2 of the Road Traffic Offenders Act 1988.”
7. The matter was set down for trial on 13 October 2016, but on that occasion the Appellant was not fit to participate in his trial. However, at that hearing Mr Scott, who also appeared on behalf of the Appellant in these proceedings, made an application under s8A of the Magistrates Court Act 1980 for the court to make a pre-trial ruling about the admissibility of the prosecution's evidence in relation to the drug drive procedure which had led to the charge of refusing to provide a specimen. It was contended on behalf of the Appellant that the failure to ensure the attendance of an appropriate adult was a breach of Code C of PACE. The prosecution accepted that an appropriate adult had not been called, but submitted that this was justified in the circumstances and that the justices ought not exercise their discretion under s78 of PACE to exclude the evidence.
8. Having referred to the case of R (DPP) v BEUNK[2002] EWHC 2976 (Admin), to which we shall return, the justices expressed their conclusions in relation to the application in the following terms:
“6. We were of the opinion that, clearly, the situation that developed in respect of the Appellant (in the Police Station) was one in which Code C was engaged and hence the requirement to inform and summon an appropriate adult arose. However, in exercising our discretion as to whether or not to include the evidence of the procedure at this preliminary stage we had 2 lines of reason:
Firstly, the unfolding situation at the station. Putting on one side the fact that no request for the attendance of an appropriate adult had been made at all by the police, the Appellant had been in the Police Custody block for 31/4 hours, perhaps illustrative of the degree of difficulty being encountered. During this time the natural assumption, given the nature of the procedure, would be that the efficacy of the test would be diminishing over time. The behaviour of the Appellant was such that had an appropriate adult been called then inevitably further delay would be encountered. The view was formed by those present, including the forensic medical examiner (called to assess the Appellant) was that he was behaving too erratically and violently to be assessed (or even to be in the same room as). The only clinical opinion proffered in respect of whether an appropriate adult was required – which no doubt would have operated upon the mind of the custody officers, was that of Nurse Howell, who, when the Appellant was finally assessed, concluded that no appropriate adult was necessary. There were, therefore, in our view, very real issues about the practicality of (and indeed need to) informing and summoning an appropriate adult. We were obliged by s78 Police and Criminal Evidence Act 1984 to have regard ‘to all the circumstances including the circumstances in which the evidence was obtained’.
Secondly, we were mindful of what we were told of the Appellant's defence in respect of the allegation of failure to provide a specimen. It was to be his contention that he had a reasonable excuse for not complying with the request for a specimen. The excuse was based on his learning difficulties and other mental issues affecting his capacity to understand the nature of the procedure. If therefore our decision was to exclude the evidence we would be essentially be deciding the trial issue at the preliminary stage and upon submissions. This in our view was a matter...
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