Gearing v Director of Public Prosecutions

MR JUSTICE NELSON: The appellant appeals against the decision of His Honour Judge Addison sitting with two Justices on 7th June 2006 when her appeal against conviction for failing to supply a specimen of breath contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988 was dismissed.

The first matter that needs to be considered by this court is the fact that the appellant seeks an extension of time for the filing of her notice. The delay has been very substantial indeed. It is a delay of many, many, many months and it was candidly accepted during the course of his helpful submissions by Mr Madden that the only reason put forward was loss of contact between the solicitor and the client and vice versa. It is established that such an excuse or explanation is normally thought to be insufficient to give grounds for granting such an extension. It is the case here that there is no explanation for that lack of contact. We are told that the solicitor attempted to establish contact with the client but was in fact unable to do so.

Speaking for myself, that length of time and the reasons given for it are not such as to persuade me that it is a proper case for granting such a long extension of time. The excuse is simply insufficient. The time limits are there to be kept. Having said that, however, we have considered the merits of the situation and Mr Madden's helpful submissions. I therefore turn to those.

The facts are that the appellant was observed at about 12.30 in the morning on 15th March 2005 driving erratically. She was stopped by the police and failed a roadside breath test. The transcript of the video and the video itself, as appears from the case stated, shows that the roadside breath test revealed a figure of 53, whereas the limit was 35. The appellant was arrested. She was taken to Staines Police Station and she arrived at the police station at 1.15 am.

Following a discussion with the custody officer, she indicated at 1.31 am that she wished to speak to a solicitor and that she wished the police to contact one for her. She declined to sign the custody record pending speaking to a solicitor. At the same time she indicated that she wanted to wait until she had spoken to a solicitor before taking a breath test. The officer, however, made it clear that the breath test would not be delayed. In response to the appellant's further request to delay the test until she had spoken to a solicitor, the custody officer pointed out that the notice of legal rights that she had previously been given advised that the breath test would not be delayed. The appellant, having looked at the form, said "I have never done this before so if you are going to do it, do it, and just get it out of the way".

Before that test procedure which then followed took place it is said that she asked for advice, legal or otherwise, on some seven or eight occasions; sometimes expressly for legal advice, others asking advice of the police officers in a manner which indicated that it was legal advice which she was seeking.

At approximately 1.46 am the appellant indicated that she did not wish to take the test and was informed that, as the form that she had been given to read indicated, if she did not take the test she would be liable for prosecution for failing to provide a specimen, as failure to provide it was an offence. At 1.49 the appellant declined to provide two specimens of breath for analysis and, subsequent to that refusal, some moments later at 1.53 am, an attempt was made to contact the duty solicitor. This was the first time that the duty solicitor call centre had in fact been called. Some seven minutes later at 2 am the duty solicitor spoke to the appellant on the telephone and at 2.16 am, some 23 minutes after the attempt was made to contact him, the duty solicitor spoke to an officer and advised that the appellant was willing to provide a sample. No sample was in fact taken.

On 24th March 2005 the appellant was charged with the offence of failing to provide a specimen of breath and she was convicted of that offence on 7th November 2005 by the Staines Magistrates' Court.

The submissions are made to the court upon the basis of both a detailed skeleton argument and helpful submissions today by Mr Madden on behalf of the appellant and Mr Bendall for the respondent. It was submitted that there had been a breach of the rights to legal advice under section 58(4) of the Police and Criminal Evidence Act 1984 and the Codes of Practice and the evidence of the breath test procedure should be consequently excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984.

The case which has been stated by His Honour Judge Addison came, in summary, to the following conclusions, having set out the facts. When the matter was before him it was submitted to him that there had been a breach of section 58(4) and the evidence should be excluded under section 78. During the course of those submissions it was then conceded on behalf of the Crown that there had in fact been a breach of section 58 but submitted that, nevertheless, the evidence should not be excluded. During the course of argument, the judge made it clear that he did not accept that the respondent's concession had been properly made. When he made his findings he concluded, as the case stated shows, as follows:

The case of Kennedy v DPP [2004] RTR 77 qualified the case of Billington to some extent but did not overrule it, nor did it say that it was wrongly decided. The judge held that there were special reasons for saying that in cases of this sort it was not practicable to hold up proceedings for a solicitor to be obtained unless there may be some exceptional circumstances such as those referred to in Kennedy which was not the case here. Consequently, Judge Addison found that there was no breach of section 58. Alternatively, even if there had been a breach, it was perfectly fair to admit the evidence as it would not have such an adverse effect on the fairness of the proceedings that it should not be admissible. Consequently, the evidence was considered and the appeal was dismissed.

The questions on which the opinion of this court is sought are as follows:

As I have indicated, before this court we have had written submissions by way of skeleton arguments and indeed oral submissions from both parties. The nature of the appellant's submission is that the judge has erred in his reading of the case of Kennedy, that it is in fact the case of Kennedy which provides the current law, post human rights, and that that case establishes that section 58 must be complied with. But even when the balance has been struck between the interests of the public in having the prompt taking of a breath test to ensure that those who have in fact broken the law are apprehended and accidents avoided, and individual rights, it still remains appropriate, provided there is not going to be any substantial delay, for legal advice, where sought, to be provided. At least in the sense that contact, Mr Madden submits, must be made by the police to the duty solicitor if no specific solicitor is sought so as to ascertain the extent to which that advice can be obtained promptly before the test is carried out.

Mr Madden's reliance upon the case of Kennedy is substantial and he submits that paragraph 31 of that decision sets out the decision in all its important respects. It is under the heading "Conclusion" where Kennedy LJ says that the right to a fair trial enshrined in Article 6 of the Convention can be said to be in play from the outset of a police investigation, but that right does not spell out a right to legal advice at any particular stage. He concluded that the domestic legislation fully satisfied the requirement of Article 6 and he then continued as follows:

It is submitted that that gives the guidance which this court should now follow, and effectively binds this court. The call could have been made here at any time after it had been requested and events that shortly afterwards transpired demonstrated that that advice, at least in the sense of the solicitor responding to it, was available within some seven minutes. The police should ask if the solicitor is in the charge room or find out whether there is one at the end of a telephone. Had the appellant been given the advice which she wished to seek, she would in fact not have committed the offence because she would have done what she subsequently did, namely follow the advice that she was given and then in fact agree to undergo a test. There has, therefore, as a result of her requests and the failure to contact the call centre, been a breach of section 58.

There was no evidence before the Magistrates' Court nor before His Honour Judge Addison and the Justices of any factors which could have caused delay by the custody officer or anyone else at the police station in making the telephone call. The delay, Mr Madden said, in making the call was only from 1.53 to 2.00, although he accepted, as pointed out to him, that inevitably it also involves the seeking and gaining of advice which involves the individual relaying what has happened in the circumstances and that that period -- namely the time gap between 1.53 am and 2.16 am -- before the solicitor sought to speak to the custody sergeant and said what the appellant was prepared to do (namely take the test) was a time lapse of some 23 minutes.

Nevertheless, that is not a significant delay and under section 78 where there has been a breach there must in fact be a remedy, Mr Madden submitted. The rights to seek legal advice which are provided by section 58 must either be rendered possible by the call being made, or if they are not then the remedy for the failure to supply the rights must be given. On the facts of a case like this, under section 78, that can only be the exclusion of the evidence. The suggestion that the police should not delay the giving of the test in order to obtain legal advice for the appellant, was too restrictive a view of the law as the decision in Kennedy demonstrates, and that was an error. Nor was His Honour Judge Addison right to say that it was only in exceptional circumstances that the right to advice would arise. Here, all that was needed was in fact one call. Mr Madden submitted that it followed, therefore, that the appeal should succeed.

Mr Bendall, on behalf of the respondent, submitted that it is absolutely known by everyone that if there are grounds to suspect that an individual has taken drink when driving, that that person is likely to be tested at the roadside and, if he fails, is then likely to be taken to the police station and required to use the machine at the police station in order to be tested again. The facts here make it quite clear that the appellant was told that she would in fact be prosecuted. In reality there was no substantial delay here whatsoever and the officer was entitled to take the course that he did. It did in fact take 23 minutes to get advice. It takes only three minutes to complete the procedure and it is important that the testing of individuals who have failed the roadside breath test is carried out promptly. If that is not the case then obvious problems arise in relation to those driving on the road. The distinctions which are drawn with Kennedy are apparent, Mr Bendall submits.

We have considered those submissions. It seems to me that it can be argued, as was conceded in the Magistrates' Court, that the failure to make a call when first requested does amount to a breach of section 58. Such an argument is, however, in my view, marginal, because it seems to me that this case could, on one view, come within what Kennedy LJ said in the case of Kennedy, namely that this was no more than a general desire to seek legal advice, not a specific one, and there would therefore, using Kennedy LJ's words, be no reason why the custody officer should not simply continue to take details and alert the call centre at the first convenient opportunity. For my part, however, I have come to the conclusion that there is a breach of section 58 here by the failure to deal with the matter as soon as was practicable once the request had been made at 1.31, when the procedure then continued without the call being made.

As to Mr Madden's points in relation to Kennedy, it does indeed demonstrate that someone who asks for legal advice must be permitted to consult a solicitor as soon as is practicable, and indeed the officer must act under the Code 6.5 without delay in seeking that advice. But having said that, it is also clear that there can be no significant delay because of the important public interest in those who have in fact failed a roadside breath test being tested promptly. Were that not to be so, many who in fact had committed an offence and were above the limit would not be successfully prosecuted, the consequence being a significantly increased likelihood of road accidents and consequent injuries. So there cannot be any significant delay, and it is only in circumstances such as where there is a duty solicitor there and present who can be spoken to for a couple of minutes, or where the individual wishes to speak to his or her own solicitor or the duty solicitor and that solicitor in question is known to be immediately available. What Kennedy LJ is emphasising, is that anything other than a very, very short period will amount to a significant delay, given the public interest in prompt testing. The example he gives is "a couple of minutes" and he uses the words "immediately available" when referring to the availability of the solicitor. That emphasises the need for there to be no more than a very short delay.

When one turns, therefore, as I do on my finding that section 58 is breached, to section 78, one must of course have regard to Mr Madden's submission that once the right has been breached a remedy must be given and that here, had the advice been given, no offence would have been committed because the appellant would simply have followed the legal advice that she was given. That, however, is only one of the factors to be taken into account when considering section 78. The important features are the public interest which I have indicated, the fact that the procedure carries with it its own safeguards, the practicability of obtaining prompt legal advice, the extent of the delay, and whether it is significant; each case must be dealt with on its own facts.

Looking at those facts here, one asks the question: what did this appellant know? This appellant knew that she had been drinking. The transcript shows that she knew she might be over the limit. She made specific reference to the fact that she had not eaten. She knew she had failed the roadside breath test, and the video demonstrates that she knew because it was said in her presence, audible to all there, that the failure was 53 over 35, that is 51 per cent beyond the legal limit. She knew, as subsequently transpired, and did not need legal advice as to the fact, that she had no physical or medical excuse for declining to breathe into the machine at the police station. There was no challenge by her, as events subsequently showed, to anything that had transpired at the roadside breath test; no legal or other factual challenge to it. She knew, because she was informed, that if she refused she would be prosecuted because she had committed an offence in refusing to take the test.

It is also the fact -- and an important fact weighing in the balance -- that the delay here between first seeking a solicitor at the call centre and the receiving and giving of advice on the decision made was some 23 minutes. That, it seems to me, is a significant delay. It is a substantial period when set against the need for prompt testing in the public interest, and one which on these particular facts in the circumstance would certainly persuade me that it was the correct decision to say that the evidence of the breath test conclusion taken at the police station should not have been excluded. In so far as that part of the decision is concerned, my conclusion would be that the judge was right in coming to that conclusion.

In answering the two questions which Judge Addison posed in the case stated, namely:

As I indicated at the outset, I refuse the extension of time for the reasons I have given and would, on the merits, also have dismissed the appeal had that actually arisen.

LORD JUSTICE LATHAM: I entirely agree. There is a clear tension between the two statutory requirements in play in this particular case. The Police and Criminal Evidence Act 1984 requires under section 58 a person who makes a request for a consultation with a solicitor to be permitted to consult "as soon as is practicable". On the other hand, there is an obligation upon the police pursuant to the provisions in the Road Traffic Act 1988 to ensure that the breathalyser procedure is conducted in such a way as to meet the public interest, which was identified in Billington and in Kennedy.

How are the two to be reconciled? It seems to me, as it has done to Nelson J, that the clue really comes in the passages in the judgment of Kennedy LJ to which my Lord has already referred. The police, on the one hand, should, once a request for consultation with a solicitor is made, take appropriate steps to enable that to happen. If there is a solicitor present in the police station, that will involve notifying that solicitor. If an identified solicitor is indicated by the defendant, they should make contact with that identified solicitor. If there is no identified solicitor then they should make the appropriate call to the call centre. But that should not delay, in itself, the obligation of the police to carry on with the procedure. If it is apparent that the advice can be readily made available, as indicated by Kennedy LJ, in a couple of minutes or so then clearly it would be appropriate to balance the rights and the obligations in question by requiring the police to delay the breath test at least for that short time. If it is anything greater than that, it does not seem to me that it is a requirement that the police should delay the giving of the breath test simply for that reason. The exercise required by section 78 of the Police and Criminal Evidence Act seems to me to be one which can be encapsulated in that approach.

In the present case I agree with my Lord that the police accordingly should have notified the call centre when the claimant first made her request. That would not have interrupted to any significant extent the process leading to the breath test. But it is inevitable from the material that we have as to what happened thereafter that there was going to be significant delay. That delay, in my judgment, was a delay which was unacceptable in the context of the taking of a breath test. It follows that the police would have been entitled to continue with the procedures, and in those circumstances the result would have been the same as was the case in the event. It follows that I too would answer the questions posed in the case stated in the same way with the consequence that, had we been dealing with the merits of the appeal, I too would have dismissed the appeal. But in view of the delay, it is not necessary to come to that conclusion, but I would refuse to extend time for this appeal for the reasons that I have given.

Thank you both very much indeed.

MR BENDALL: Does your Lordship have a costs schedule?

LORD JUSTICE LATHAM: I have not seen one. Have you seen one, Mr Madden?

MR MADDEN: My Lord, it was handed to me this morning, although I understand those who instruct me had sight of it last week.

MR BENDALL: My Lord, it is an application for the sum of £1,327.75.

LORD JUSTICE LATHAM: Yes. Mr Madden?

MR MADDEN: I have no submissions in relation to that. In fairness to Miss Gearing who is sitting behind me, an explanation has been given to me concerning the delay but given your Lordship's clear judgment on the merits I see no reason to raise that before your Lordships. I have no submissions in relation to the costs here.

LORD JUSTICE LATHAM: Then we accordingly order that the appellant should pay the respondent's costs in the sum of £1,327.75. Thank you both very much indeed.