Crown Prosecution Service v Amanda Rice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE EADY,LORD JUSTICE LAWS |
| Judgment Date | 08 March 2004 |
| Neutral Citation | [2004] EWHC 508 (Admin) |
| Date | 08 March 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/62/2004 |
[2004] EWHC 508 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Laws
Mr Justice Eady
CO/62/2004
MR THOMAS MORAN (instructed by CPS Northumbria) appeared on behalf of the CLAIMANT
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
The appellant appeals by way of case stated against the decision of the Tyne and Wear justices sitting at South Shields Magistrates' Court on 1st October last year, dismissing, on a submission of no case to answer, a charge brought by the appellant against the respondent, Amanda Rice, that she had driven a motor vehicle having consumed excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.
Other relevant statutory provisions are to be found in, first of all, section 58 of the Police and Criminal Evidence Act 1984:
"(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 delay is permitted by this section."
Secondly, it is necessary also to refer to section 78 of the statute, which provides:
"(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."
Pursuant to section 66 of the Act, the Secretary of State issued Codes of Practice relating to the conduct of police officers investigating suspected offences. It is provided in paragraph 6 of Code C that:
"Unless Annex B applies all detainees must be informed that they may at any time consult or communicate privately with a solicitor, whether in person, 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 Annex B. Whenever legal advice is request (and unless Annex B applies) the custody officer must act without delay to secure the provision of such advice to the person concerned."
I should also refer to section 8(2) of the 1988 Act, which is to this effect:
"If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen shall be used."
That of course refers to the Camic procedure which was used in this case. Section 7(4) deals with the question of whether blood or urine should be provided.
The factual background may be taken from the case itself for present purposes, and the findings of the justices were as follows:
"a) On 29th March 2003 at 1.28am the defendant made a prompt request for legal advice when she was brought to the police station after being arrested on suspicion of drink driving. She was told her solicitor would be contacted as soon as possible.
(b) The Camic procedure commenced at 1.32am and was completed at 1.40am. The whole procedure was finished by 2am.
(c) Having failed the Camic procedure and having declined to have her breath reading substituted for one of blood or urine, the defendant was placed in her cell at 2.05am. Her solicitor was contacted at 2.59am;
(d) After consultation a request was made to substitute the breath specimen with one of blood or urine. The custody sergeant refused this request.
(e) The defendant understood the Camic procedure and that she was not confused or misled.
(f) It was a busy Saturday night, the situation being as the custody sergeant described. We noted that a telephone call was received by the custody sergeant at 2.10am from the respondent's boyfriend, and we accept that the respondent's situation was explained to him then."
The justices went on to conclude that on the evidence and, in the circumstances of the case, following the request for legal advice and before starting the Camic procedure, it was practicable for the police to have contacted the solicitor requested for the purpose of consultation regarding legal advice over the telephone. In failing to facilitate legal advice as soon as was reasonable practicable, the justices found that there was a breach of section 58. They also concluded that that breach was of sufficient gravity in the circumstances to justify excluding the evidence of the breath test procedure under section 78 of PACE.
It is necessary, having regard to that concise catalogue of findings, also to record from an earlier paragraph in the case, namely paragraph 5(i), that the respondent had accepted in all the circumstances of the case that it was not practicable for the police to have afforded the respondent telephonic access to her solicitor before the completion of the Camic procedure at 2am.
The respondent had argued that the police should have facilitated the obtaining of telephonic legal advice by the respondent shortly after such time (ie. after 2am), and not only have allowed the respondent to speak to her solicitor by telephone an hour later.
There is clearly a tension there between the concession and the justices' conclusion. We are told this morning by counsel representing the CPS, Mr Moran, that there was no suggestion at the hearing that that concession had been wrongly made, and it was therefore not a matter which was the subject of argument; nor was the actual finding which the justices made as to the time when it would have been practicable to contact the solicitor.
Before the justices the submissions made on the respondent's behalf were as follows. The delay in contacting the solicitor went beyond what could reasonably be justified in the circumstances of the case and, as such, constituted a breach of section 58(4) of PACE. The result of not contacting a solicitor was that the substitution of the breath test result for one of blood or urine was not made, and if legal advice had been taken the substitution would have been requested. The breach of section 58, it was submitted, was of sufficient gravity to justify excluding the evidence, and without such evidence there would be no case to answer.
I should at this point set out the two questions which were identified for the opinion of the...
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Table of Cases
...Reid (Sheena) v DPP [1999] RTR 357, DC! 298 , 300 .................................... Rice, CPS v [2004] EWHC 508 (Admin), unreported, DC! 370 Richards, R v [1975] 1 WLR 131, [1974] 3 All ER 696, [1974] RTR 520, ........................................................................... ! ......
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Evidence
...as possible, any delay thereafter was rightly described as not significant.” Appeal dismissed. 369 CHAPTER 8: EVIDENCE CPS v Rice [2004] EWHC 508 (Admin), unreported, 8 March 2004, QBD (DC) Magistrates were wrong to find that a suspect’s solicitor should have been contacted in the four mi......