Myles v DPP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mackay,LORD JUSTICE KENNEDY |
| Judgment Date | 24 March 2004 |
| Neutral Citation | [2004] EWHC 594 (Admin) |
| Docket Number | Case No: CO/5789/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 March 2004 |
[2004] EWHC 594 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Kennedy
The Honourable Mr Justice Mackay
Case No: CO/5789/2003
Mr. N. Ley (instructed by Byrne Frodsham & Co) for the Appellant
Mr. S. Everett (instructed by CPS Cheshire) for the Respondent
This is an appeal by way of case stated from a decision of the Liverpool Crown Court on the 26 th February 2002. That decision was in respect of an appeal by the Appellant against his conviction at South Sefton Magistrates Court on the 18 th June 2001 of two offences:
i) Failing to provide a specimen for a breath test contrary to section 6(4) of the Road Traffic Act 1988, in respect of which he had been fined £50 with his licence endorsed. And:
ii) Failing without reasonable excuse to provide a specimen of blood for analysis, contrary to section 7(6) of the same Act, for which he had been fined £200, was ordered to pay £75 costs, was disqualified from driving for 12 months and his driving licence was endorsed.
The appeal against the first of these convictions was abandoned at the Crown Court. This appeal now proceeds in relation to the second offence following the dismissal by the Crown Court of the appeal.
The Facts
The facts found by the Crown Court were as follows. At about 11.25 pm on 20 th September 2000 the Appellant was driving a Vauxhall Corsa on Hall Lane in Liverpool. He was driving erratically and accordingly was stopped by the police. He was asked by the arresting officer if he had been drinking and replied that he had had "two pints". A request was made for him to take a roadside breath test which he failed. At the Police Station his legal rights were made known to him both verbally and in writing. The Appellant indicated that he did not require the services of a solicitor and he signed documentation to that effect.
An attempt was made to use the Camic Datamaster Breathalyser Equipment for the purpose of taking a specimen of breath. When the Appellant blew into the machine it indicated that mouth alcohol was present and accordingly an unreliable result might be obtained. The Appellant was told that he might have to supply a specimen of blood or urine, but not which.
At 12.20 am on the 9 th September 2000 a police surgeon attended at the Police Station. At 12.25 in the presence of the doctor PC Hardy then lawfully required the Appellant to provide a specimen of blood for analysis. The Appellant refused to give a specimen of blood and in the opinion of the doctor he was being obstructive. The Appellant was warned by PC Hardy about the consequences of failure to provide a specimen of blood for analysis (a possible prosecution) on at least two occasions. He persisted in his refusal. He maintained that he required "further advice" according to the police officer (which the latter understood to mean legal advice) and, possibly, "legal advice" according to the doctor. Having failed to provide the required specimen he was ultimately charged with the offence.
The Appeal and the decision appealed against
The submissions to the Crown Court on behalf of the Appellant were that by virtue of s.58 of the Police and Criminal Evidence Act 1984, the terms of which I will set out below, there was no case to answer; the evidence of the request for a sample should be disregarded as the Appellant had been denied the right to the services of a solicitor in breach of that section, that Article 6(3)(C) of the European Convention of Human Rights applied and Foreign and Colonial case law should "shape domestic law".
In response it was argued that the domestic law applied, that the Appellant had had the opportunity to speak to a solicitor but had declined it and that to allow the taking of a sample to be delayed for further advice would be contrary to decided domestic law. No fewer than 34 authorities were cited to the learned Recorder and his Justices, 24 of them by the Appellant, mainly Commonwealth authorities.
The Crown Court was of the opinion that the Appellant had been properly required to give a specimen of blood, that he understood his rights and previously declined the services of a solicitor, but while the Court had to consider the principles of Article 6(3)(C) of the European Convention, domestic law was clear and bound the Crown Court. The Crown Court did not find the Foreign authorities persuasive or such as to require them to ignore the "clear emphatic and repeated domestic law". There was therefore a case to answer and as the Appellant did not wish to give evidence and relied on his submissions the Appeal would be dismissed.
The questions formulated for the opinion of this Court by the Crown Court were as follows:
"(1) In interpreting Article 6(3)(C) of the European Convention of Human Rights were we right in finding that the clear, emphatic and repeated domestic law outweighed any persuasive authorities from Foreign jurisdictions?
(2) On the facts found were we right to dismiss the appeal?"
The relevant legislation
Road Traffic Act 1988 , so far as relevant, provides:-
s.5:
(1) If a person –
(a) drives or attempts to drive a motor vehicle on a road or other public place ….
after consuming so much alcohol that the proportion of it in his blood or urine exceeds the prescribed limit he is guilty of an offence.
S.7:
(1) In the course of an investigation of whether a person has committed an offence under section … 5 of this Act a constable may …. 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. …………………..
(3) a requirement under this section to provide a specimen of blood or urine can only be made at a police station or at an hospital and it cannot be made at a police station unless ……
(bb) a device of the type mentioned in sub-section (1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned.
but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.
(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question, whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.
(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.
(7) A constable must on requiring a person to provide a specimen in pursuance of this section warn him that a failure to provide it may render him liable to prosecution.
The Police and Criminal Evidence Act 1984
s.58:
(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.
(5) In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as defined in s.41(2) above.
(6) Delay in compliance with a request is only permitted –
(a) In the case of the person who is in police detention for a serious arrestable offence; and,
(b) If an officer of at least the rank of Superintendent authorises it.
Domestic case law
It is common ground between the parties that all relevant decisions of English Courts on this issue are to the effect that both questions posed by the Crown Court ought to be answered affirmatively.
Prior to the coming into force of the Human Rights Act 1998, in DPP v Billington [1988] 1 WLR 535, the Divisional Court considered the inter-relationship of s.58 and the then equivalent of s.7 in four appeals. In each it had been argued for the appellants that where a person is subject to the procedures set out in what is now s.7, police had no discretion to refuse access to a solicitor. Even if no duty solicitor was to hand, said the appellants, the police had to wait until a solicitor could be found. Lloyd LJ rejected those arguments in these terms:
"All that the Act of 1984 requires is that the Defendant be permitted to consult a solicitor as soon as practicable. There is nothing in the Act of 1984 which requires the police, whether expressly or by implication, to delay the taking of a specimen …. In the meantime."
In Kennedy v CPS [2002] EWHC 2297 (Admin) this Court revisited the question. Having considered Billington and other decided cases Kennedy LJ described the position thus:-
"All that was said in Billington was that, in the public interest, [rights under s.58] cannot delay the operation of the procedures envisaged by the 1988 Act, a position which ….. can easily be understood because, not only do specimens for obvious reasons need to be obtained as soon as possible, but also decisions which a driver has...
To continue reading
Request your trial
-
Evidence
...yes; (2) he did so by the notice to detained persons, and that was sufficient; (3) yes. Appeal dismissed. Legal Advice Myles v DPP [2004] EWHC 594 (Admin), [2004] 2 All ER 902, [2005] RTR 1, 24 March 2003, QBD (DC) That the process for breath-testing should not be delayed “to any signific......
-
Table of Cases
...EWHC Admin 848, DC! 531 .................................... Murray v DPP [1993] RTR 209, [1993] Crim LR 968, DC! 64 Myles v DPP [2004] EWHC 594 (Admin), [2004] 2 All ER 902, .................................................................................. ! [2005] RTR 1, DC! 367 , 371 .........
-
Critique BibliographiqueIAN McLEOD, Principles of Legislative and Regulatory Drafting, Hart Publishing (2009)
...reference to decisions and judgments of the European Court of Human Rights in such cases as Myles v Director of Public Prosecution [2004] EWHC 594 (Admin), [2004] 2 All ER 902. This is an outstanding contribution in the field of legislative drafting considering that other textbooks such as ......