John Mathew Kirkup v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON,MR JUSTICE SILBER |
| Judgment Date | 03 October 2003 |
| Neutral Citation | [2003] EWHC 2354 (Admin) |
| Docket Number | CO/3007/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 October 2003 |
[2003] EWHC 2354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Jackson
Mr Justice Silber
CO/3007/2003
MR IAN WISE (instructed by Bird & Co, Lincolnshire NG31 6SE) appeared on behalf of the CLAIMANT
MR ADAM PEARSON (instructed by CPS Lincolnshire LN1 3DF) appeared on behalf of the DEFENDANT
This judgment is in six parts, namely:
Part 1: introduction.
Part 2: the facts.
Part 3: the appeal by way of case stated.
Part 4: the relevant legal principles.
Part 5: application of those principles to the present case.
Part 6: conclusion.
Part 1: Introduction
This is an appeal by way of case stated against a decision of Grantham Magistrates' Court convicting the appellant of failing to provide a specimen of breath, contrary to section 7 of the Road Traffic Act 1988.
The statutory provisions relevant to this appeal are as follows.
Section 5 of the Road Traffic Act 1988 :
"(1) If a person …
(b) is in charge of a motor vehicle on a road or other public place after consuming so many alcohol that a proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
Section 7 of the Road Traffic Act 1988 :
"(1) In the course of an investigation into whether a person has committed an offence under [section 3A, 4] or 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:
"(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."
Section 78 of the Police and Criminal Evidence Act 1984 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 Police and Criminal Evidence Act 1984, the Secretary of State issued Codes of Practice in connection with the conduct of police officers investigating suspected offences. Paragraph 6 of Code C provides:
"6.1. Unless Annex B applies, all detainees must be informed that they may, at any time, consult and 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 requested, and unless Annex B applies, the custody officer must act without delay to secure the provision of such advice …"
Paragraph 6.6 of Code C provides that, subject to specified exceptions, a detainee who wants legal advice may not be interviewed until he has received such advice.
Article 6 of the European Convention on Human Rights, set out in schedule 1 to the Human Rights Act 1998, provides:
"6.1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …
"6.3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; …"
Having set out the various provisions which are relevant to the issues of law arising, I can now turn to the facts of the present case.
Part 2: The Facts
At 10.10pm on 7 July 2002, a police officer, namely Section Officer Cox, saw the appellant in the driver's seat of a BMW car which was parked in a car park in Grantham. After a brief conversation, Section Officer Cox arrested the appellant for being in charge of a vehicle whilst unfit through drink. Section Officer Cox then escorted the appellant to Grantham Police Station, arriving at 10.30pm. The custody suite was busy that night. Section Officer Cox and the appellant had to wait in the holding area of the police station for about half an hour before seeing the Custody Sergeant. Whilst they were in the holding area the appellant told Section Officer Cox that he wished to have legal advice.
In due course, Sergeant Graham, the Custody Sergeant, became available to deal with the appellant's case. She was given the relevant details. At 11pm she authorised the appellant's detention. Sergeant Graham then read out the appellant's rights to him, including his right to consult a solicitor at no cost. In response to this information, at 11.03pm, the appellant asked to consult the duty solicitor. By 11.05pm all procedures for booking the appellant into police custody were complete. The intoxilyser room at the police station became vacant at 11.07pm, when another suspect motorist had been dealt with. At 11.10pm two different things happened. First, PC Love, the operator of the Lion Intoximeter, took the appellant into the intoxilyser room. Secondly, Sergeant Graham telephoned the Duty Solicitor Call Centre both about the appellant and about the other suspect motorist.
The procedures in the intoxilyser room took only a few minutes. PC Love explained the procedure to the appellant. She then required the appellant to provide two specimens of breath. The appellant refused to do so. When asked if he had any medical reason for failing to provide a specimen, he said "no". At 11.20pm the appellant's refusal to provide two breath specimens was recorded on the custody record.
In the meantime, Mr Allen, the duty solicitor, responded to Sergeant Graham's call. He telephoned the police station at 11.15pm. He spoke to the other suspected motorist at 11.17pm. At 11.29pm, Mr Allen spoke to the appellant.
In the early hours of 8 July 2002, the appellant was charged with failing to provide a specimen contrary to section 7 of the Road Traffic Act 1988.
The appellant contested the charge. The matter was tried at the Grantham Magistrates' Court on 13 March 2003. The magistrates heard evidence from the police officers involved and from the appellant. They made findings of fact, as summarised above. On the basis of those facts the magistrates concluded (as was conceded by the prosecution) that the police had been in breach of section 58 of the Police and Criminal Evidence Act 1984 and paragraph 6.5 of Code C, in that there had been a delay in securing legal advice for the appellant. The magistrates considered that that breach was neither significant nor substantial. Accordingly, in the exercise of their discretion, the magistrates declined to exclude PC Love's evidence concerning her request for specimens of breath.
The magistrates convicted the appellant of failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988. They imposed a fine of £400 and ordered that the appellant's driving licence be endorsed with 10 penalty points.
The appellant was aggrieved by his conviction and now appeals to this court by way of case stated.
Part 3: The Appeal by Way of Case Stated
The appellant requested the magistrates to state a case and they duly did so on 19 June 2003. The findings of fact made by the magistrates, so far as material to the issues in this appeal, have been set out in part 2 of this judgment. The magistrates recorded that, during legal argument, they had been referred to the decision of the Divisional Court in Kennedy v Crown Prosecution Service [2002] EWHC Admin 2297; 167 JP 267.
In paragraph 7 of the stated case the magistrates set out their conclusions on the crucial issue as follows:
"We were of the opinion that there was a breach of Section 58 of the Police and Criminal Evidence Act 1984 and Code C:6.5 of the Codes of Practice in that a solicitor was not contacted by the police immediately. We did not however consider the breach to be either significant or substantial. Mr Kirkup had indicated a desire to speak to a duty solicitor but given the circumstances prevailing in the custody suite that night we considered that the custody officer telephoned the duty solicitor call centre at the first opportunity available to her —ie at 23.10 hours. We were satisfied that it was a busy night, that there was another person waiting to see the duty solicitor before Mr Kirkup and that no solicitor, duty or otherwise, was on the premises. It would not have been possible for the custody officer to predict the availability, immediate or...
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Table of Cases
...86 ..................................................... Kirk, DPP v The Times 2 December 1992, DC! 225 ............ Kirkup v DPP [2003] EWHC 2354 (Admin), (2004) 168 JP 255, DC! 368 , 371 ..................................................... Kneale v DPP, unreported, CO/1986/1999, DC! 52 .......