Gearing v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NELSON,LORD JUSTICE LATHAM |
| Judgment Date | 16 June 2008 |
| Neutral Citation | [2008] EWHC 1695 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2408/2008 |
| Date | 16 June 2008 |
[2008] EWHC 1695 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Latham
Mr Justice Nelson
CO/2408/2008
Mr J Madden (instructed by Owen White & Catlin) appeared on behalf of the Claimant
Mr R Bendall (instructed by CPS Guildhall) appeared on behalf of the Defendant
The appellant appeals against the decision of His Honour Judge Addison sitting with two Justices on 7th June 2006 when her appeal against conviction for failing to supply a specimen of breath contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988 was dismissed.
The first matter that needs to be considered by this court is the fact that the appellant seeks an extension of time for the filing of her notice. The delay has been very substantial indeed. It is a delay of many, many, many months and it was candidly accepted during the course of his helpful submissions by Mr Madden that the only reason put forward was loss of contact between the solicitor and the client and vice versa. It is established that such an excuse or explanation is normally thought to be insufficient to give grounds for granting such an extension. It is the case here that there is no explanation for that lack of contact. We are told that the solicitor attempted to establish contact with the client but was in fact unable to do so.
Speaking for myself, that length of time and the reasons given for it are not such as to persuade me that it is a proper case for granting such a long extension of time. The excuse is simply insufficient. The time limits are there to be kept. Having said that, however, we have considered the merits of the situation and Mr Madden's helpful submissions. I therefore turn to those.
The facts are that the appellant was observed at about 12.30 in the morning on 15th March 2005 driving erratically. She was stopped by the police and failed a roadside breath test. The transcript of the video and the video itself, as appears from the case stated, shows that the roadside breath test revealed a figure of 53, whereas the limit was 35. The appellant was arrested. She was taken to Staines Police Station and she arrived at the police station at 1.15 am.
Following a discussion with the custody officer, she indicated at 1.31 am that she wished to speak to a solicitor and that she wished the police to contact one for her. She declined to sign the custody record pending speaking to a solicitor. At the same time she indicated that she wanted to wait until she had spoken to a solicitor before taking a breath test. The officer, however, made it clear that the breath test would not be delayed. In response to the appellant's further request to delay the test until she had spoken to a solicitor, the custody officer pointed out that the notice of legal rights that she had previously been given advised that the breath test would not be delayed. The appellant, having looked at the form, said “I have never done this before so if you are going to do it, do it, and just get it out of the way”.
Before that test procedure which then followed took place it is said that she asked for advice, legal or otherwise, on some seven or eight occasions; sometimes expressly for legal advice, others asking advice of the police officers in a manner which indicated that it was legal advice which she was seeking.
At approximately 1.46 am the appellant indicated that she did not wish to take the test and was informed that, as the form that she had been given to read indicated, if she did not take the test she would be liable for prosecution for failing to provide a specimen, as failure to provide it was an offence. At 1.49 the appellant declined to provide two specimens of breath for analysis and, subsequent to that refusal, some moments later at 1.53 am, an attempt was made to contact the duty solicitor. This was the first time that the duty solicitor call centre had in fact been called. Some seven minutes later at 2 am the duty solicitor spoke to the appellant on the telephone and at 2.16 am, some 23 minutes after the attempt was made to contact him, the duty solicitor spoke to an officer and advised that the appellant was willing to provide a sample. No sample was in fact taken.
On 24th March 2005 the appellant was charged with the offence of failing to provide a specimen of breath and she was convicted of that offence on 7th November 2005 by the Staines Magistrates' Court.
The submissions are made to the court upon the basis of both a detailed skeleton argument and helpful submissions today by Mr Madden on behalf of the appellant and Mr Bendall for the respondent. It was submitted that there had been a breach of the rights to legal advice under section 58(4) of the Police and Criminal Evidence Act 1984 and the Codes of Practice and the evidence of the breath test procedure should be consequently excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984.
The case which has been stated by His Honour Judge Addison came, in summary, to the following conclusions, having set out the facts. When the matter was before him it was submitted to him that there had been a breach of section 58(4) and the evidence should be excluded under section 78. During the course of those submissions it was then conceded on behalf of the Crown that there had in fact been a breach of section 58 but submitted that, nevertheless, the evidence should not be excluded. During the course of argument, the judge made it clear that he did not accept that the respondent's concession had been properly made. When he made his findings he concluded, as the case stated shows, as follows:
“It was established in DPP v Billington [1988] 1 WLR 535 that there was nothing in section 58 or Code C that required the police to delay the taking of a specimen, and, that the failure to accord the defendant a right of consulting a solicitor as soon as practicable under section 58 did not thereby furnish the defendant with a reasonable excuse for failing to provide a specimen.
That remains good law and accords with common sense. The breath test procedure is a special situation, quite different from other types of arrest, because any delay might vitiate the whole procedure.”
The case of Kennedy v DPP [2004] RTR 77 qualified the case of Billington to some extent but did not overrule it, nor did it say that it was wrongly decided. The judge held that there were special reasons for saying that in cases of this sort it was not practicable to hold up proceedings for a solicitor to be obtained unless there may be some exceptional circumstances such as those referred to in Kennedy which was not the case here. Consequently, Judge Addison found that there was no breach of section 58. Alternatively, even if there had been a breach, it was perfectly fair to admit the evidence as it would not have such an adverse effect on the fairness of the proceedings that it should not be admissible. Consequently, the evidence was considered and the appeal was dismissed.
The questions on which the opinion of this court is sought are as follows:
“(1) Was I entitled to conclude that there had been no breach of the applicant's rights under section 58 of the Police and Criminal Evidence Act 1984?
(2) Was I entitled to exercise my discretion to refuse to exclude the evidence of the breath test procedure pursuant to section 78 of the Act?”
As I have indicated, before this court we have had written submissions by way of skeleton arguments and indeed oral submissions from both parties. The nature of the appellant's submission is that the judge has erred in his reading of the case of Kennedy, that it is in fact the case of Kennedy which provides the current law, post human rights, and that that case establishes that section 58 must be complied with. But even when the balance has been struck between the interests of the public in having the prompt taking of a breath test to ensure that those who have in fact broken the law are apprehended and accidents avoided, and individual rights, it still remains appropriate, provided there is not going to be any substantial delay, for legal advice, where sought, to be provided. At least in the sense that contact, Mr Madden submits, must be made by the police to the duty solicitor if no specific solicitor is sought so as to ascertain the extent to which that advice can be obtained promptly before the test is carried out.
Mr Madden's reliance upon the case of Kennedy is substantial and he submits that paragraph 31 of that decision sets out the decision in all its important respects. It is under the heading “Conclusion” where Kennedy LJ says that the right to a fair trial enshrined in Article 6 of the Convention can be said to be in play from the outset of a police investigation, but that right does not spell out a right to legal advice at any particular stage. He concluded that the domestic legislation fully satisfied the requirement of Article 6 and he then continued as follows:
“Section 58(1) of the 1984 Act entitles a person arrested and held in custody at a police station to consult a solicitor if he asks to do so, and where a request...
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...under the circumstances, nor that the court would be obliged to exclude the evidence under Section 78. 1.15 The next relevant case is Gearing vs DPP [2008]RTR72. The facts were very similar to those arising here. In that case, a defendant asked on some seven or eight occasions for the polic......
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Table of Cases
...Garrety, DPP v, unreported, CO3546/00, DC! 594 ........................ Gearing v DPP [2008] EWHC 1695 (Admin), [2009] RTR 7, DC! 372 ...................................................................... George v DPP [1989] RTR 217, DC! 559 . Gibbons (Stuart Michael), DPP v [2001] EWHC 385......