Kennedy v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pitchers,Lord Justice Kennedy,LORD JUSTICE KENNEDY |
| Judgment Date | 06 November 2002 |
| Neutral Citation | [2002] EWHC 2297 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2720/2002 |
| Date | 06 November 2002 |
[2002] EWHC 2297 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Kennedy &
Mr Justice Pitchers
Case No: CO/2720/2002
Anthony Jennings QC (instructed by Freeman & Co., Manchester) for the appellant Steven Everett (instructed by CPS)
This is an appeal by way of case stated from the decision of justices sitting at Northwich who on 1 st February 2002, after a contested hearing, found that the appellant on 9 th September 2001 at Wilmslow, having been required to provide two specimens of breath for analysis in the course of an investigation into whether he had committed an offence under section 3A or section 5 of the Road Traffic Act 1988, failed without reasonable excuse to provide the specimen.
Facts.
At 2.40 am on 9 th September 2001 PC Worthington was in a police vehicle when he saw a vehicle driven by the appellant. He followed it, caused it to stop and spoke to the appellant. The appellant was then arrested and taken to Wilmslow police station, arriving there at 3 am. The custody sergeant was dealing with another detainee so the appellant was placed in a holding room. Whilst there he attempted to use his mobile telephone, but was told not to do so. At about 3.20 am the appellant was brought to the custody desk and the custody sergeant, Police Sergeant McGeoghan booked in the appellant and explained to him his rights. The appellant refused to give any details or sign any documents, and was generally uncooperative. Whilst the appellant was at the custody desk he asked for a solicitor. The magistrates rejected his evidence that he had made an earlier request on arrival at the police station, and according to the appellant's own evidence he was asked if he required a solicitor and said "yes". He was given a Notice to Detained Persons which stated that the right to legal advice does not entitle a person in his position to delay procedures under the Road Traffic Act 1988. He chose not to read that Notice.
At 3.30 a.m. Sergeant McGeoghan began the standard procedure to obtain two specimens of breath. On two separate occasions the appellant was asked to provide a specimen of breath, each time being warned that failure to provide a specimen would render him liable to prosecution, and on each occasion he said "I refuse", answering all other questions "no comment". The procedure was completed at 3.40 a.m.
At 3.41 a.m. the duty solicitor call centre was contacted by the police, and at 3.55 a.m. Mr McDade, a solicitor, contacted the police station. At 4.40 a.m. Mr Silver attended the police station as the representative of Mr McDade, and he spoke to the appellant. The appellant then at 5.06 a.m. gave his personal details.
In evidence the appellant said that he expected the custody sergeant to telephone a solicitor (soon after he indicated that he would like to have the assistance of a solicitor), and that he would then be allowed to speak to that solicitor, but it does not seem that the appellant said anything to inform the police sergeant of his expectations. He said that he was obstructive because he was waiting to see a solicitor, and that he refused to provide specimens because he was waiting to speak to a solicitor for advice on what he should do. Again there is nothing to suggest that at the police station he gave any explanation for his behaviour. The appellant also said in evidence that had he been advised he could not delay the breath test procedure in order to speak to a solicitor he would have provided the specimens when asked, but it seems that he did not ask if the procedure could be delayed, and the information was available to him on the Notice which he chose not to read.
Sergeant McGeoghan accepted in evidence that after the appellant indicated his wish to see a solicitor at 3.20 a.m. (the time found by the justices, although the evidence which they record suggests that it could have been at any time between 3.20 and 3.30 a.m.) there was nothing to prevent one of his colleagues contacting a solicitor prior to 3.41 a.m.
Findings.
For present purposes it is not necessary to set out the submissions addressed to the justices. It is sufficient to say that the justices found as a fact that each time the appellant refused to provide a specimen he was fully aware of the consequences, and had no reasonable excuse for failing to provide a specimen.
Reliance having been placed on section 58 of the Police and Criminal Evidence Act 1984, and on the Codes of Practice which came into existence under that Act, the justices found that –
(1) There was a breach of the statutory requirements in that a solicitor was not contacted immediately, but —
(2) the breath test procedure cannot be delayed while waiting for a solicitor, and –
(3) the police contacted the solicitor at the first reasonable opportunity after the breath test procedure was completed.
(4) The delay was not significant or substantial and in consequence the evidence as to the consequences of the administration of the breath test procedure was not to be excluded pursuant to section 78 of the 1984 Act.
The justices also considered the effect of Article 6 of the European Convention on Human Rights and said –
"We accept the appellant's right to legal advice has been restricted to legal advice only being available after he failed to provide a specimen. We find there is good cause to restrict his right namely the desire to obtain an accurate reading of the alcohol content of his breath. Taking into account the protection of the public as a whole and to prohibit those who are a danger to other road users from driving, we find this restriction is proportionate."
The attention of the justices was drawn to legislation in Canada and New Zealand, but the wording was found to be more restrictive than section 58 of the 1984 Act, and so in the result the justices found no breach of Article 6 of the European Convention.
Questions.
The justices posed the following questions for the consideration of this court –
(1) Were the justices correct in concluding that the breach of section 58 of the Police and Criminal Evidence Act 1984 and the Codes of Practice thereto in relation to the defendant's request to see a solicitor upon his arrival at the police station was neither significant nor substantial?
(2) Should the custody sergeant have informed the defendant that he could not delay the procedure to seek legal advice?
(3) Were the justices correct in refusing to exercise their discretion to exclude the evidence of Sergeant McGeoghan as to the carrying out the request for specimens of breath having regard to the fact that the defendant stated upon his arrival at the police station that he wished to see a solicitor?
(4) Were the justices correct in concluding that the police had good cause to restrict the defendant's rights to have access to a solicitor as conferred by Article 6 of the European Convention on Human Rights?
(5) Were the justices correct to convict the defendant for an offence of failing to provide two specimens of breath for analysis by means of an approved device when required to do so in pursuance of section 7 of the Road Traffic Act 1988, contrary to section 7(6) of the Road Traffic Act 1988 and Schedule II of the Road Traffic Offenders Act 1988?"
Having regard to the findings of fact question 3 is not well worded. The words "upon his arrival" should be replaced by "at 3.20 a.m".
Domestic Law.
Initially, under the Road Safety Act 1967 a person in the position of the present appellant, brought to a police station under suspicion of having driven a motor vehicle with alcohol in his blood in excess of the prescribed limit, committed an offence if "without reasonable excuse" he failed to provide a specimen of blood or urine for a laboratory test. In R v Lennard [1973] RTR 252 it was made clear by Lawton LJ at 255 that –
"No excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health."
On more than one occasion it was contended unsuccessfully that the desire to speak first with a lawyer might amount to a reasonable excuse, and an agreement to provide specimens when a lawyer arrived was treated as a refusal.
In 1984 Parliament enacted the Police and Criminal Evidence Act, section 58 of which, so far as relevant, reads —
"(1) a person arrested and held in custody in a police station … 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 ….."
Under the 1984 Act is a Code of Practice which deals with the Detention, Treatment and Questioning of Persons by Police Officers, and in the current version C:6 deals with Rights to Legal Advice. It begins –
"C:6.1. Subject to the provisos in Annex B (which for present purposes is not relevant) all people in police detention must be informed that they may at any time consult and communicate privately, whether in person, in writing or by telephone with a solicitor, and that independent legal advice is available free of charge from the duty solicitor."
In the present case it is not suggested that there was any failure to comply with C:6.1, so I can go to C:6.5 which, so far as material, provides –
"The exercise of the right of access to legal advice may be delayed only in accordance with Annex B to this Code. When legal advice is requested (and unless Annex B applies) the...
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