R FORDE v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 06 May 2004 |
| Neutral Citation | [2004] EWHC 1156 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5643/2003 |
| Date | 06 May 2004 |
[2004] EWHC 1156 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
MR JUSTICE ELIAS
CO/5643/2003
MR RUSSELL FORTT appeared on behalf of the CLAIMANT
MR PATRICK FIELDS (instructed by CPS Hertfordshire) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated from the decision of the Stevenage Magistrates' Court. The defendant was convicted of failing, without reasonable excuse, to provide a blood specimen for a laboratory test, contrary to section 7(6) of the Road Traffic Act 1988. In reaching their determination, the justices refused an application by the appellant that evidence of a blood test procedure should be excluded from their consideration under section 78 of the Police and Criminal Evidence Act 1984. It was contended that the evidence should have been excluded on the grounds that the police officer carrying out the specimen procedures had not even considered whether it was feasible for the defendant to speak to a solicitor, as was required by section 58 of the Police and Criminal Evidence Act 1984 when read with Article 6 of the European Convention of Human Rights.
The relevant legislation
The material legislation bearing on this case is as follows. Section 5 of the Road Traffic Act 1988 provides that:
"If a person —
"(a) drives or attempts to drive a motor vehicle on a road or other public place, or
"(b) is in charge of a motor vehicle on a road or other public place
"after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."
Subsection 1 of section 7 of the same Act provides:
"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."
Subsection 6 of section 7 provides:
"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 is as follows:
"(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.
"(6) Delay in compliance with a request is only permitted —
"(a) in the case of a 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."
Section 78 of the 1984 Act provides:
"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."
The Secretary of State has issued codes of practice pursuant to section 66 of the 1984 Act. These deal, amongst other matters, with the conduct of police officers investigating suspected offences. Paragraph 6 of Code C provides:
"C: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. See paragraph 3.1, Note 6B and Note 6J.
"C: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."
The facts
The relevant facts as found by the justices are set out in the stated case. On 28th March 2003 the appellant was driving a transit van in Stevenage when he was stopped by the police. He was asked to provide a roadside breath test, which he did, and it proved positive. He was arrested and taken to Stevenage Police Station. After being booked in by the Custody Sergeant he was subjected to another breath test procedure, using the standard procedures, by a PC Emmerson. The justices found that at the commencement of the procedure the appellant smelled strongly of drink, his eyes appeared slightly glazed and his speech was slurred. Although the appellant co-operated with the statutory procedures, he failed on two occasions either to blow hard enough or long enough for any test result to be obtained. On the third occasion the machine indicated the presence of mouth alcohol, rendering any reading from the device unreliable.
PC Emmerson concluded that the Intoximeter could not be relied upon and he requested an alternative specimen for laboratory analysis as envisaged by section 7(1)(b) of the 1988 Road Traffic Act. This involves the taking of a specimen of blood or urine. The officer complied fully with the relevant procedures and warned the appellant that a failure to provide a specimen would render him liable to prosecution.
The appellant was asked if there were any medical reasons why a blood specimen could not be provided and he said no. He signed the relevant part of the form to that effect. The officer decided that the specimen should be a blood specimen. At this stage, the appellant refused to provide it. The appellant was again given the warning, but again he refused to give his consent to provide the relevant blood specimen. This refusal continued a third and a fourth time. The reasons given by the appellant as recorded by the police officer were:
"I do not want to take a blood test before I've spoken to a solicitor and I'm now afraid of needles."
No reason was given as to why he wished to speak to a solicitor, nor did he identify any particular solicitor with whom he wished to communicate. PC Emmerson did not consider that this request was a good reason for delaying the procedure and he did not make enquiries regarding the availability of the solicitor at that stage. He charged the appellant with failure to provide a specimen of blood for analysis. Some 20 minutes after that procedure had finished, PC Emmerson relayed the appellant's request to speak with a solicitor to the Custody Sergeant, who immediately contacted the duty solicitor.
When it came for the case to be heard before the Magistrates, it was submitted that there was no case to answer. The appellant said that the evidence for the Crown dealing with the request for the specimen for analysis and the appellant's various refusals ought to be excluded because of the failure of the police to enquire whether a consultation between the appellant and a solicitor was feasible without unduly delaying the procedure. The appellant relied in particular upon section 58 of the Police and Criminal Evidence Act set out above. It was alleged that there was no proper compliance with that provision, that this amounted to a significant and substantial breach and that particularly having regard to the appellant's right to a fair trial under Article 6 of the Convention, it required that the Magistrates use their discretion to exclude this evidence under section 78 of the 1984 Act.
The respondents, for their part, contended that the police officer had acted perfectly properly and that, in any event, it would be wrong to exclude the evidence as it would not have any adverse effect on the fairness of the proceedings. The court was referred to a number of authorities, including Kennedy v DPP [2003] Crim LR 120, [2002] EWHC Admin 2297, and DPP v Billington [1988] 1 All ER 435, [1988] 1 WLR 535.
The justices refused the application to exclude the evidence under section 78 and they gave their reasons in paragraph 9 of their ruling:
"We refused the application to exclude the evidence under Section 78 of the Police and Criminal Evidence Act 1984 for the following reasons:
"(a) There was a general entitlement to legal advice.
"(b) Following DPP v Billington—the right to consult a solicitor as soon as practicable did not require the police to delay taking a specimen of breath, blood or urine under Section 7(1) of the Road Traffic Act, 1988.
"(c) In this case the Appellant asked for legal advice for imprecise reasons part way through the specimen procedure.
"(d) Having heard how the procedure was conducted using form MGDDA and MGDDB, the reliability of the evidence could not have been affected by prior consultation with a legal advisor.
"(e) The breath/blood test procedure is so tightly regulated and mechanistic in application that the solicitor can have no influence on its operation.
"(f) A balancing exercise had to be carried out to determine whether the temporary restriction on the Appellant's entitlement was proportionate to the aim sought to be achieved.
"(g) In adopting this balancing approach to Article 6, the public interest in detecting and preventing drink driving inevitably and properly outweighed the Appellant's objection.
"(h) The restriction in this case was proportionate. The inclusion of the evidence was fair and the Appellant was not...
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Evidence
...arrest; that was all there was. … .” The answers to both questions were no; appeal allowed. R on the Application of Forde v DPP [2004] EWHC 1156 (Admin), unreported, 6 May 2004, QBD (Admin) Where a police officer did not relay the suspect’s request to speak to a solicitor until 20 minutes ......
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Table of Cases
...Filmer v DPP [2006] EWHC 3450 (Admin), [2007] RTR 28, DC! 541 ..................... Forde, R on the application of, v DPP [2004] EWHC 1156 (Admin)! 357 ...................................................... Foster v Bentley, unreported, CO/211/85, DC! 249 .........................................