Cowper v DPP
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE DOBBS,SIR ANTHONY MAY |
| Judgment Date | 18 March 2009 |
| Neutral Citation | [2009] EWHC 2165 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2009 |
| Docket Number | CO/10248/08 |
[2009] EWHC 2165 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Anthony May Pqbd
Mrs Justice Dobbs Dbe
CO/10248/08
Mr M Gray (instructed by Oliver and Co, Chester CH1 2LA) appeared on behalf of the Claimant
Mr S ap Mihangel (instructed by the DPP) appeared on behalf of the Defendant
: 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.
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.
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
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.
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
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.”
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.”
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
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.”
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.”
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.”
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.”
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.
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.
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.”
In Kennedy v DPP [2002] EWHC Admin 2297, the Divisional Court reconsidered this area of law in light of the Human Rights...
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