Forde, R (on the application of) v Director of Public Prosecutions

MR JUSTICE ELIAS: 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.

Subsection 1 of section 7 of the same Act provides:

Subsection 6 of section 7 provides:

Section 58 of the Police and Criminal Evidence Act 1984 is as follows:

Section 78 of the 1984 Act provides:

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:

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:

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:

In the light of the fact that the appellant accepted the evidence of PC Emmerson as an accurate account of what happened, the justices then concluded that the appellant did not have a reasonable excuse for failing to provide a specimen of blood for analysis. He fully understood the likely consequences of such a refusal, having been given numerous warnings, and there was no good reason for refusing to provide the specimen. The appellant was therefore, in the view of the justices, guilty of the offence. More specifically, the justices expressly noted that the appellant had given no specific reason for wanting to speak to a solicitor and that PC Emmerson was entitled to conclude that there was no good reason to delay the procedure by making enquiries with regard to access to a solicitor.

The relevant question now stated by the justices for the opinion of this court is as follows: were the justices correct in law to refuse the application to exclude the evidence of a blood test procedure, given the appellant's failure to provide a specific reason to the officer at the time, and thereafter would the officer's failure to consider or enquire as to whether a consultation with a solicitor be feasible within a timescale that did not cause unnecessary delay to the procedure?

I have been referred to numerous cases where the courts have had to consider the position of motorists who have refused to give relevant specimens until they have received legal advice. These included the authorities that were drawn to the attention of the Magistrates, to which I have referred, and also the recent decision of the divisional court in Miles v DPP [2004] EWHC 5494 (Admin). I shall not deal with each of these authorities at length because the fundamental legal principle is now well established. Indeed, in the Miles case McKay J, giving a judgment in the divisional court, with which Kennedy LJ agreed, said that the legal principles were "clear and emphatic" (paragraph 13), having been summarised by Kennedy LJ himself in Kennedy v CPS.

The Kennedy decision is valuable not merely for the statement of principle enunciated by Kennedy LJ, but also because it briefly sets out the history of the case law in this area, and moreover it refers to Commonwealth authorities, one of which was relied upon by the appellant in this case. As Kennedy LJ noted, it has never been considered a reasonable excuse to refuse to provide a blood sample if a defendant has been denied access to a solicitor.

In the Billington case it was submitted that whatever the earlier position, the situation had changed following the passing of section 58 and the code of practice relating to the rights of access to a solicitor. The argument was, however, decisively rejected. Lloyd LJ said this at page 551:

He then referred to the code and said this:

Accordingly, it is well established that the defendant cannot impose a condition that he will not give a specimen until he has seen a solicitor, and it will not constitute a reasonable excuse for refusing to co-operate with the police. However, that case did not deal with the issue of whether, in appropriate circumstances, a court ought to refuse to admit certain evidence because it has been obtained in circumstances which involve the infringement of section 58 or of the Code.

That point arose in the Kennedy case. There it was argued that the dictum of Lloyd LJ to the effect that section 58 did not require the police to delay taking a specimen pending a suspect contacting his solicitor could no longer be relied upon in view of the incorporation of Article 6 by the Human Rights Act. In that case the justices found that the police had not sought the assistance of a solicitor without delay, as they ought to have done. The facts, in essence, were that the defendant had said that he wanted to contact his solicitor but the Custody Sergeant did not take steps to do that for some 20 minutes. Meanwhile another officer charged with carrying out the procedures did so, and after the defendant refused to co-operate with a breath test, he was charged with the relevant offence. He claimed before the justices that the reason he had refused to co-operate was that he was waiting to receive advice from his solicitor.

In the course of his judgment, Kennedy LJ considered the case of Ministry of Transport v Noort [1992] 3 NZLR 260, a decision of the Court of Appeal in New Zealand. That raised a very similar argument in relation to section 23 of the New Zealand Bill of Rights Act, which provides that rights of persons arrested or detained include the right to consult and instruct a lawyer without delay and to be informed of that right. At page 274, Cooke P said this:

He added that:

The defence in that case submitted that the same principle should be followed in England, and that since the right to legal advice was a fundamental constitutional human right, and the defendant had been deprived of the right to make an informed choice as to whether or not he should co-operate with the police, the evidence should be excluded under section 78. That, I note, was in substance the argument advanced before me. Kennedy LJ expressed his conclusions in paragraph 31 of the decision in the following terms:

It is clear from that passage that this involves some, albeit a relatively minor, modification of the more rigid position that had been adopted in the Billington case, but a suspect is not, I think, given the same opportunity to contact a lawyer as was considered appropriate in New Zealand.

It is pertinent to note that in Miles, where Kennedy was followed and applied, it was suggested by counsel for the appellant that there should be a delay for some short defined period of 15 minutes while the suspect is given the opportunity to obtain advice. McKay J rejected that submission, commenting that it would run counter to the principle that the process should not be delayed to any significant extent. It is plain that Kennedy LJ merely had in mind that where a solicitor was readily available to be contacted and the delay would be so brief that it would not risk frustrating the legitimate public interest in obtaining the sample as soon as possible, then the opportunity to contact the lawyer should be given.

The judgment of Kennedy LJ also makes it plain that even if there is a breach, it will not justify the courts' excluding the evidence under section 78 if the breach is neither significant nor substantial. This dictum of Kennedy LJ has been followed and applied not only in Miles but also in Kirkup v DPP [2003] EWHC 2354 (Admin) and also Whitley v DPP [2003] EWHC 2512 (Admin). In Whitley, Sullivan J, with whose judgment Brooke LJ agreed, observed that because the issue is one of fact and degree:

He added that, likewise, the question of whether any breach was "significant and substantial" was also pre-eminently a question of fact and degree to which similar principles applied.

I turn to consider the way in which Mr Fortt puts the case for the appellant. He submitted, and I accept, that there was a right to legal advice without delay and that this was a continuing right which was not removed by the failure of the appellant to seek advice at the first opportunity given to him. The qualification was necessary because the appellant was offered legal advice when he was originally booked in by the custody sergeant, but at that time he refused it. Mr Fortt observed that there is no requirement in law for the sample to be taken immediately or within a specified time, but he realistically recognised that it must be taken speedily, as these cases have regularly commented.

He submitted that the crucial question here is one of proportionality. The right to take legal advice may be limited, but only by imposing such restrictions as are proportionate to the objective to be achieved: in this case, the expeditious taking of a specimen. It should not readily be assumed that such a fundamental constitutional right, such as the right of access to a lawyer, can be infringed even accepting, as of course he must, the approach of the court in Kennedy. This was, he submitted, a clear infringement of that fundamental legal right, because PC Emmerson did not even consider whether a short break could be allowed for the appellant to seek to obtain legal advice without frustrating the important policy objective. Moreover, unlike previous cases, here the request had been made whilst the procedures were in the course of being carried out.

He specifically dealt with the notion that there was little or no point in obtaining the advice of a lawyer because there was nothing the lawyer could give advice about. This was in response to an observation in the justices' reasoning itself that since the procedures are statutory and the suspect is obliged to comply with them, there is no impact that a lawyer can have.

Mr Fortt referred to a judgment of Richards J in the case of MOT v Noort, to which I have already made reference, where that judge in turn referred to a short passage of Wilson J in the case of R v DeBOT [1989] 52 CCC (3d) 193 211. There Wilson J emphasised:

Similarly here, Mr Fortt submits that the value of a solicitor is that he or she will be able to give an assurance to the suspect that the police do have the authority that they are asserting and can thereby reassure the suspect. In substance, he is contending that the breach was a failure to give a limited opportunity at least for the appellant to try to contact the solicitor before the procedure had been completed.

Mr Fortt submits that the ruling of the justices is plainly defective. He says that in paragraph 9(b) they appear to have acted on the assumption that the right to consult a solicitor as soon as practicable is never required if it involves some delay in the police taking a specimen. The justices there make reference to the Billington case which, as Mr Fortt submits, has been qualified in Kennedy. Moreover, he submits that the reliability of the evidence, which was plainly a factor influencing the justices, is not to the point. The question is whether it was fair for the evidence to be admitted in circumstances where there was a breach of a fundamental constitutional principle, not whether the evidence itself would have been reliable. The justices had also been influenced by the fact that the solicitors could have no effect on the outcome, but, as I have indicated, he submitted that this was not the only role that a solicitor could play in the circumstances.

Mr Fields for the Crown contended that there was no evidence on which the justices could properly conclude that there was a breach of section 58 in any event. He asserted that in the light of the facts set out in the case stated by the justices, it is plain that by the time the appellant indicated that he wished to see a solicitor, the statutory procedure was complete. Moreover, there was no particularity in the request. In any event, he contended, and I would accept, that a suspect who asks to be allowed to contact a solicitor before the procedure is begun cannot be in any worse position than someone who makes that request, either expressly or by inference, during the course of the carrying out of the procedures. Indeed, it will generally be more justifiable to complete procedures which are already under way than to begin procedures which are not yet started. He also submitted that if there had been a breach, then in the circumstances the justices were plainly entitled to admit the evidence under their discretion.

This particular submission of Mr Fields only meets one potential breach of section 58. It focuses upon the way in which the matter was advanced by the appellant and seeks to meet the case by saying that the officer did not refuse to consider the possibility of access to a solicitor during the course of the statutory procedures because they had already been completed. But there is a second possible breach in these circumstances. The solicitor was not called until some 20 minutes after the appellant indicated that he wished to have access to one. I confess that in my judgment it is likely that that delay, without any explanation at least, would constitute a breach of section 58, because it does not suggest that the police were permitting the appellant to consult a solicitor as soon as was practicable.

One difficulty with this case is that it is not entirely clear whether the justices did find that there was a breach, and if so, what the nature of that breach was. Mr Fields suggests that they did, otherwise there would have been no need for them to have formulated paragraph 9 in the way in which they did; it seems to be premised on the fact that they had a discretion under section 78 to exercise. That may be correct. In any event, what I think is plain is that the justices took the view that breach or not, the exercise of their discretion under section 78 justified them in admitting this evidence.

Notwithstanding the attractive and concise way in which Mr Fortt puts his argument, I reject it. I think that the submission is really covered by paragraph 31 of Kennedy LJ's dictum in the case of Kennedy. It will be remembered that there Kennedy LJ indicated that if the suspect asked to speak on the telephone to his own solicitor or the duty solicitor and the solicitor in question is immediately available, then he should be allowed to do so. But he added this:

That seems to me to be essentially what occurred here. The appellant simply said "I do not want to take a blood test before I have spoken to a solicitor" and that appears to have been said after a number of refusals. There is no evidence that there was a solicitor present in the police station and there is no reason to believe that the duty solicitor, having been called, would have been immediately available. Indeed, I note that in paragraph 35 of the decision in Kirkup, Jackson J explained the procedure which is commonly employed when calling the duty solicitor. There he notes that participating solicitors are expected to contact the client within 45 minutes of receiving a call from the duty solicitor call centre, although obviously it sometimes takes longer.

In this case, the appellant did not identify any particular solicitor whom he wished to contact and indeed there was no express request, although I think there was one by inference. I think it is putting too great an onus on the policeman who is in the course of carrying out these procedures, even assuming that they had not been completed, to be expected to infer from comments such as those made by the appellant in this case that he ought to give the suspect an immediate opportunity to contact a solicitor in order to comply with the section 58 rules.

It follows that the failure at that stage to provide an opportunity to enable the appellant to contact a solicitor did not, in my view, involve any infringement of section 58 or indeed of the code of practice. I appreciate that here the failure was even to consider the matter, but since the officer would plainly have been entitled, in the light of the decision in Kennedy, to have refused access at that stage I do not think it assists the appellant, even if it were the case that the policeman gave no express consideration to the matter.

There is the additional point that the justices may have taken the view that there was a breach of section 58 by the failure to contact the solicitor for some 20 minutes after the request had initially been made by the appellant. As far as that is concerned, however, it seems to me that it cannot possibly be said that the justices would have been required to reject the evidence on that ground. That delay was a very limited one and it caused no prejudice to the appellant. It was not, to use the language of the authorities, either a significant or substantial failure and it could not be said to have impinged in any way on the attitude of the appellant to the statutory procedures.

Accordingly, to the extent that it is necessary to look at the exercise of discretion under section 78, I am satisfied that the justices were fully entitled in this case, assuming there to have been were a breach of either section 58 or the Code, to have concluded that fairness did not require them to exclude this evidence, but entitled them to admit it.

It follows that the answer to the question posed in the case is that the justices were correct in law to refuse the application to exclude the evidence. In these circumstances I dismiss the appeal.

MR FORTT: My Lord, it is my client's intention to appeal this matter. I have drafted short points which, I would submit, argue that this is a point of general importance. I have shown that to the respondent in this case. I wonder if I could hand that up. It is in fairly broad terms. (Handed).

MR JUSTICE ELIAS: I should know this and I have forgotten. Because this is a criminal matter, there is no appeal to the Court of Appeal, is that right?

MR FORTT: It is the House of Lords. My Lord, the reason that I say it is a point of public importance is that it is clear that there is a greater restriction certainly in this jurisdiction than in Commonwealth jurisdictions generally on what is a very important right. The authorities so far tend to be sufficiently narrow that, as I put it, the right itself may to a great extent be illusory. I do not know also whether your Lordship has had the opportunity of looking at the exchange that followed the judgment in Whitley?

MR JUSTICE ELIAS: No, I have not.

MR FORTT: That is at tab 11 of the bundle.

MR JUSTICE ELIAS: Yes.

MR FORTT: In that case no such certification was forthcoming, but I refer your Lordship to paragraph 42, which is page 141 of the bundle. It is clear from there that in that case the court was minded due to the facts.

MR JUSTICE ELIAS: I am sympathetic to the idea that it is, in principle, a matter of public importance. That would have to be for the House of Lords to decide if they wanted to hear it. I am not sure, if I may say so, that this is quite the best way of formulating the question, not least because I have to say I am not sure that the reference to delay at the beginning is necessarily consistent with what you are saying. The delay at the beginning, depending on the length of it, might be a factor but it is not, as it were, an exclusion in principle. Have you shown this to Mr Fields? Have you seen this, Mr Fields?

MR FIELDS: My Lord, I have. It is clearly a gallant attempt by my learned friend to anticipate the decision of this court and necessarily therefore, because it was in anticipation, perhaps covered all bases. It is clearly a matter for this court, when there is a matter of general public importance which should go to the House of Lords.

Going back to the exchange at the end of Whitley to which my learned friend has referred, it is interesting there that the court took the view that there may be something lurking out there in the ether which requires the House to at least consider it, but with Whitley they took the view that that perhaps was not the best case to choose. It may well be that this court may want to reflect upon whether or not this case is similarly the right vehicle for such an appeal, even though it may be something which needs to be clarified in due course.

My Lord, it is not something which has to be decided this afternoon. My learned friend could have the opportunity to reflect upon the precise wording of any question which he would ask this court to certify, bearing in mind now the detailed reasons of this court.

MR JUSTICE ELIAS: Yes. I am sympathetic to that. I see some force in what you say and there certainly is, I think, some conflict between New Zealand authorities, which go wider it seems to me than the English authorities, so I do see some force in the observation. This may well be, in principle, an issue on which I could at least grant the certificate. I would like the opportunity myself just to look at my powers in relation to that, how significant a matter of public importance it ought to be before I think it is proper to refer it and to what extent the facts of the particular case might impinge on that issue. I have to tell you I have not looked at that for a long time and I cannot really remember. But I would be very happy for you to send in a submission and I will try to deal with it as speedily as I can in writing. You will have to send it fairly quickly, although I am not sure of the timescale. As I say, with no disrespect, I think you may want to slightly re-think the question so that it perhaps brings out more clearly what you are saying here, which is that on any view they should always consider whether or not to facilitate approach to a solicitor.

MR FORTT: Yes.

MR JUSTICE ELIAS: Presumably they have to consider it, even if there has been a delay? The delay may be a reason for not granting it, if you see what I mean. Can I leave it with you and you can give some thought as to whether you do want to pursue it further, and if so I will try and deal with it quickly, but I am not quite happy with that question as it is. I am not giving any promises, I will have to look carefully, but I have some sympathy, let us say that. But that is a long way from saying that -- I mean I am not going to give leave because that would be inappropriate. It would have to be for the House of Lords to do that. Whether they will be interested, I cannot say.

MR FIELDS: My Lord, I think on this case we have had the benefit of the representation order, it would be fatuous for me to seek any preliminary costs in connection with this case. I do not know if this court wants to know what the penalty imposed by the lower court was, but of course that would now take effect.

MR JUSTICE ELIAS: Yes.

MR FORTT: Your Lordship may be aware that the penalty imposed by the lower court was 16 months' disqualification, a fine of £250 and £50 costs. All of that has been hanging on the outcome of this appeal. It was directed that he pay the financial penalties at a rate of £10 per week.

MR JUSTICE ELIAS: I was not aware of what it was.

MR FIELDS: My Lord, finally, on the housekeeping front, I will leave my folder here, but if I can have my learned friend's skeleton argument from it?

MR JUSTICE ELIAS: Yes, of course. Can I thank both of you for your submissions. I am pleased we got over it in a day and I thank the staff for staying a bit late. Thank you.