Miller v Director of Public Prosecutions

This is the judgment of the court to which both members of the court have contributed.

This is an appeal by way of case stated from a pre-trial ruling of the Black Country Magistrates’ Court sitting at Dudley on 13 October 2016 in respect of an information preferred against the Appellant for failing to provide a specimen of blood in breach of section 7 of the Road Traffic Act 1988, not to exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) to exclude evidence of the drug drive procedure at Oldbury Police Station that led to the charge being made.

On 24 June 2016, the Appellant was stopped by the police on suspicion of driving under the influence of drugs. When arrested and taken into custody, he behaved erratically and aggressively. It appears that he was known to the police as a person who had learning difficulties and autism. This knowledge arose from the Appellant having had previous interactions with them. On earlier occasions when he had been interviewed by the police in connection with their enquiries on other matters, an appropriate adult had been invited to attend to accompany him.

Whilst the Appellant was in custody, he refused to give an evidential specimen of his blood. He was taken first to Oldbury Police Station, but later to Sandwell General Hospital where he was not assessed owing to his perceived aggressive behaviour. Having returned to the police station, he was seen by a forensic medical examiner, but he too was unable to carry out an assessment for the same reasons.

What happened whilst the Appellant was in custody is uncontroversially described in the case stated provided by the justices for the purposes of these proceedings, in the following terms:

“The custody record provided no record of any attempt to contact an appropriate adult being made once Christopher Miller was detained, despite his record and personal request which made it clear one was required. Mr Miller’s behaviour was erratic, described by one officer as foaming from his mouth and attempting to drink water from the toilet in his cell. Mr Miller’s custody record referred to his being a suicide risk, risk of self harm, having mental health issues, having learning difficulties and that Mr Miller had stated himself that he suffered from Asperger’s Syndrome.

At 0636 Mr Miller made a request for solicitors and an appropriate adult ‘as he’s not feeling well in the head’. Code C Police and Criminal Evidence Act 1984 at Para 1.4 states ‘if an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel the suspicion, that person shall be treated as such for the purposes of this Code’. Paragraph 3.15 further states ‘if the detainee is… mentally disordered or otherwise mentally vulnerable, the custody officer must, as soon as it is reasonably practicable’ inform the appropriate adult of the grounds for detention and whereabouts, and ‘ask the adult to come to the police station to see the detainee’. Despite Code C being engaged, no effort was made to contact an appropriate adult at all.”

As a consequence of what happened at the police station, the Appellant was charged with two offences, one of which is not relevant to these proceedings. The offence with which these proceedings are concerned was charged as follows:

“On the 24^th June 2016 in Oldbury in the County of West Midlands when suspected of having driven a vehicle and having been required to provide a specimen of blood for a laboratory test pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether Christopher James Miller had committed an offence under section 3A, 4, 5 or 5A thereof, Christopher James Miller failed without reasonable excuse to do so, contrary to Section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.”

The matter was set down for trial on 13 October 2016, but on that occasion the Appellant was not fit to participate in his trial. However, at that hearing Mr Scott, who also appeared on behalf of the Appellant in these proceedings, made an application under section 8A of the Magistrates Court Act 1980 for the court to make a pre-trial ruling about the admissibility of the prosecution’s evidence in relation to the drug drive procedure which had led to the charge of refusing to provide a specimen. It was contended on behalf of the Appellant that the failure to ensure the attendance of an appropriate adult was a breach of Code C of PACE. The prosecution accepted that an appropriate adult had not been called, but submitted that this was justified in the circumstances and that the justices ought not exercise their discretion under section 78 of PACE to exclude the evidence.

Having referred to the case of R (Director of Public Prosecutions) v BE [2002] EWHC 2976 (Admin), to which we shall return, the justices expressed their conclusions in relation to the application in the following terms:

“6.

We were of the opinion that, clearly, the situation that developed in respect of the Appellant (in the Police Station) was one in which Code C was engaged and hence the requirement to inform and summon an appropriate adult arose. However, in exercising our discretion as to whether or not to include the evidence of the procedure at this preliminary stage we had two lines of reason:

Firstly, the unfolding situation at the station. Putting on one side the fact that no request for the attendance of an appropriate adult had been made at all by the police, the Appellant had been in the Police Custody block for three and one quarter hours, perhaps illustrative of the degree of difficulty being encountered. During this time the natural assumption, given the nature of the procedure, would be that the efficacy of the test would be diminishing over time. The behaviour of the Appellant was such that had an appropriate adult been called then inevitably further delay would be encountered. The view was formed by those present, including the forensic medical examiner (called to assess the Appellant) was that he was behaving too erratically and violently to be assessed (or even to be in the same room as). The only clinical opinion proffered in respect of whether an appropriate adult was required – which no doubt would have operated upon the mind of the custody officers, was that of Nurse Howell. Who, when the Appellant was finally assessed concluded that no appropriate adult was necessary. There were, therefore, in our view, very real issues about the practicality of (and indeed need to) informing and summoning an appropriate adult. We were obliged by section 78 Police and Criminal Evidence Act 1984 to have regard ‘to all the circumstances including the circumstances in which the evidence was obtained’.

Secondly, we were mindful of what we were told of the Appellants defence in respect of the allegation of failure to provide a specimen. It was to be his contention that he had a reasonable excuse for not complying with the request for a specimen. The excuse was based on his learning difficulties and other mental issues affecting his capacity to understand the nature of the procedure. If therefore our decision was to exclude the evidence we would be essentially be deciding the trial issue at the preliminary stage and upon submissions. This in our view was a matter that ought properly to be decided by the trial court and based upon the evidence heard by that tribunal. The fairness of those proceedings would be, in our opinion, adversely effected, were we to exclude the evidence; in that, there would therefore be no evidence upon which the trial court could make a determination.

Accordingly, our decision was therefore not to exercise our exclusionary discretion under s78 Police and Criminal Evidence Act 1984.”

Having made this ruling, the hearing of the trial was then adjourned to 15-16 December 2016. On that occasion, having heard the evidence, the justices convicted the Appellant of the offence. He was sentenced to a £180 fine together with 12 months’ disqualification from driving, and he was ordered to pay £100 costs.

On 5 January 2017, the Appellant filed an application with the magistrates’ court to state a case. The application was accepted. A draft of the case stated was received by the Appellant on 11 May 2017. On 16May and again on 18 June 2017, representations were made on his behalf that the draft should be amended. Apart from some superficial changes, the justices refused to amend the stated case.

One basis for those requests was the contention that the case stated differed from the justices’ oral reasons given at the hearing as recorded in a contemporaneous note taken by Mr Scott. The note was as follows:

“We believe Code C was engaged. An appropriate adult may have been advisable in the cold light of day, but we understand why one was not called, because of Miller’s behaviour and the destruction he caused. We are especially concerned about his behaviour at the hospital.

The timetable of events shows the difficulties had with Miller.

As such, we allow the evidence. The weight that is attributed to it is a matter for the trial bench.”

The debate between the Appellant and the magistrates’ court concerning the possible amendment to the draft case stated continued in correspondence. What is noteworthy is that, in a letter of 5 July 2017, the magistrates’ court’s Legal Advisor positively confirmed that the accuracy of Mr Scott’s note was not in dispute.

Ultimately, on 22 September 2017, the Appellant’s solicitors received the final signed case stated. In it, the magistrates posed the following question for this court:

“The question for the opinion of the High Court is having found that the failure by the police to contact an appropriate adult whilst the Appellant was in custody constituted a breach of Code C of [PACE], in all the circumstances, were the justices wrong in law in not exercising their discretion to exclude the evidence of the drug drive procedure under section 78 [of PACE]”.

On 29 September 2017, the Appellant filed an Appellant’s Notice, together with an application to amend the case stated to reflect the oral reasons given by the magistrates.

The issues that are raised in this case thus fall under three headings, namely:

We will deal with those issues in turn.

Mr Barry submitted that this court has no jurisdiction to hear this appeal.

He referred to section 8A of the Magistrates’ Court Act 1980 which is in the following terms:

“8A Power to make rulings at pre-trial hearing

(1)

For the purposes of this section a hearing is a pre-trial hearing if–

(a)

it relates to an information–

(i)

which is to be tried summarily, and

(ii)

to which the accused has pleaded not guilty, and

(b)

it takes place before the start of the trial.

(2)

For the purposes of subsection (1)(b), the start of a summary trial occurs when the court begins–

(a)

to hear evidence from the prosecution at the trial, or

(b)

to consider whether to exercise its power under section 37(3)  of the Mental Health Act 1983 (power to make hospital order without convicting the accused).

(3)

At a pre-trial hearing, a magistrates' court may make a ruling as to any matter mentioned in subsection (4) if–

(a)

the condition in subsection (5) is met,

(b)

the court has given the parties an opportunity to be heard, and

(c)

it appears to the court that it is in the interests of justice to make the ruling.

(4)

The matters are–

(a)

any question as to the admissibility of evidence;

(b)

any other question of law relating to the case.

(5)

The condition is that, if the accused is not legally represented-

(a)

the court must ask whether he wishes to be provided with representation for the purposes of the proceedings under Part 1  of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and

(b)

if he does, the necessary arrangements must be made for him to apply for it and, where appropriate, obtain it.

(6)

A ruling may be made under this section–

(a)

on an application by a party to the case, or

(b)

of the court's own motion.

(7)

For the purposes of this section and section 8B, references to the prosecutor are to any person acting as prosecutor, whether an individual or body.”

He submits that section 8A makes the ruling of the Magistrates’ Court on an interlocutory application binding, and the effect of this is that it is no longer possible for challenges to such rulings to be undertaken by an appeal by way of case stated. They can only be pursued by way of judicial review. The Appellant was required to bring such a claim as soon as possible, and in any event within three months of the interlocutory ruling. Mr Barry submitted that the application has been brought far too late, and this court should not allow any extension.

If, contrary to his primary submission, the challenge is properly by way of appeal by way of case stated, then Mr Barry submitted that the application for a case stated was made more than 21 days after the interlocutory ruling on 13 October 2016, and is therefore out of time. That time cannot be extended. In the recent case of Mishra v Colchester Magistrates Court [2017] EWHC 2869 (Admin), this court emphasised that the magistrates’ court is not a court of record, and the 21 day time limits for compliance in section 111 of the 1980 Act are absolute and cannot be extended, being proportionate because of a need for a short and clear time limit within which to require a case to be stated bearing in mind that the accuracy of that stated case would be dependent upon the recollection of the justices involved. Mr Barry submitted that this provided further support for the contention that, in the light of section 8A providing for binding rulings and the need for swift resolution of any issues related to those rulings, it made sense now for such rulings to be challenged solely by means of judicial review.

However, we cannot accept the submission that this court has no jurisdiction to hear this appeal, or that the application for a case stated was late.

Section 111(1)-(3) provides as follows:

“(1)

Any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31st December 1879 is final.

(2)

An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.

(3)

For the purpose of subsection (2) above, the day on which the decision of the magistrates’ court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender.

The question of timing of interlocutory decisions in criminal matters before inferior courts was considered by this court in Streames v Copping [1985] 1 QB 920. In that case, the justices rejected a submission that the information upon which a prosecution was based was bad for duplicity. They were invited to state a case under section 111 of the Magistrates Court Act 1980, they did so and the prosecution was adjourned pending the outcome of that process.

In considering the appeal, this court (May LJ and Taylor J) reviewed the relevant authorities (including Atkinson v United States of America [1971] A.C. 197), and concluded that there was no jurisdiction to state a case until the magistrates had reached a final determination of the charges which were before them (see page 928E-F). There was therefore no jurisdiction for the court to hear the appeal at that stage.

May LJ continued (page 929B-E):

“Apart from questions of jurisdiction, where justices are asked to, and do rule on a point of law in the course of a hearing before them – for instance, on a question of the admission of evidence, or the construction of a statute or document – they should not at that stage, with nothing more, accede to an application by the party against whom they have ruled for an adjournment and for them to state what I can describe as an ‘interlocutory’ case. If they purport to do so, then for the reasons I have given I do not think that this court has jurisdiction to hear it. The justices, having made their ruling, should complete the hearing and determination of the matter before them, and then state a case thereafter if they are asked to do so. In a very special instance, if the party aggrieved sought and obtained leave to apply for prohibition, then the justices might be wise to adjourn the matter pending the hearing of the application for judicial review, but they should not state a case under section 111(1) until after their final determination of the information or complaint before them….

In the instant appeal, therefore, I do not think that the justices ought to have stated a case on the defendant's application at the stage at which it was made. In my respectful opinion, having held that the relevant information was not bad for duplicity, they should have continued to hear it and to have reached a final determination upon it. If either party then asked them to state a case under section 111(1), they would have had to consider that request in the usual way.”

The issue was revisited in the case of R v Greater Manchester Justices ex parte Aldi GMBH and Co KG [1995] 159 JP 717. This was again a dispute which arose out of an interlocutory ruling, on this occasion in relation to whether the defendant had been correctly identified in the charges. Having concluded that that the court was bound by the decision in Streames v Copping, Butler-Sloss LJ went on to observe, in relation to the use of judicial review in cases of this kind:

“Consequently, although it was perfectly sensible for this matter to be dealt with by this court in the circumstances of this case, the underlying purpose of Streames v Copping is one with which I would respectfully agree, which is one cannot have justices stating cases on interlocutory points from time to time when what ought to happen in that sort of case is a determination of the summonses and the whole matter to be dealt with by the Divisional Court together. But in this particular case, rather unusually, the issues have arisen because of the adjournment. It is right and proper that the court should deal with it at this stage. I would myself feel that the undesirability of the use of case stated in interlocutory matters would in general apply to the use of judicial review in interlocutory matters, because again we do not want to use that valuable weapon of moving for judicial review on various points that might come up during the hearing before the magistrates. But in this case it appears to be the only avenue by which this Court can deal with the question as to whether the magistrates were wrong to amend the summonses. Consequently, in this case it is right that we should give the relief under the judicial review and that we should quash the summonses.”

Therefore, where there is no other avenue of relief, this court may allow a defendant to move for judicial review to challenge an interlocutory decision; but not otherwise. However, generally, the appropriate course is to allow the case to be finally determined, and then, if necessary, to appeal.

This is an illustration of the principle that judicial review is a remedy of last resort. There would be alternative remedies available in respect of the challenge to an interlocutory ruling. First, there is the alternative remedy presented by the proceedings themselves. As in this case, the Appellant had an alternative remedy by means of the proceedings themselves through which he may have secured his acquittal. Stalling proceedings to pursue judicial review might ultimately prove to be a waste of court resources if, in fact, notwithstanding the interlocutory ruling, the Appellant were to be acquitted. There is also a further potential alternative remedy, albeit not immediately, namely an appeal to the Crown Court.

Those authorities are binding upon us, but in any event we respectfully agree with them. Their effect is that it is generally inappropriate to use either the case stated procedure or judicial review to seek to challenge interlocutory rulings on the basis of an error of law prior to the final determination of the criminal proceedings. The appropriate course is to await the conclusion of the case, and then to appeal.

So far as the timing of applications for a case stated is concerned, as the case of Mishra made clear, the 21 day time limit under section 111(2) is absolute. It begins with “the day on which the decision of the magistrates’ court was given”. Whilst there is a reference to “conviction, order, determination or other proceeding of the court” in section 111(1), section 111(3) provides that, where the court adjourns a matter after conviction for sentence, then “the day on which the decision of the magistrates’ court was given” is the date on which sentence occurs. Thus, despite the terms of section 111(1), where a defendant wishes to appeal against conviction by way of case stated, time does not begin to run at the date of conviction but only when the matter is complete, i.e. at the date of sentence. This is completely inconsistent with Mr Barry’s submission. The wide reference in section 111(1) cannot be indicative of time to challenge an interlocutory determination beginning to run when that determination is made. The explanation for the wide scope of section 111(1) appears to lie in the fact that magistrates’ courts deal with a variety of different kinds of proceedings, over and above simple prosecutions.

In our view, section 8A did not in any way amend or alter section 111 of the 1980 Act, nor did it affect the principles established by the cases to which we have referred. Nothing in section 8A suggests that, where the illegality relied upon by an appellant occurred at an interlocutory stage, he is no longer able to apply for a case stated or that time for appealing does not begin to run until the final determination of the prosecution, i.e. usually, the date of sentence or other disposal.

In the case before us, an application for a case stated was made on 5 January 2017, within 21 days of the final determination of the criminal proceedings on 16 December 2016. For the reasons we have given, that application was in time; and this court has jurisdiction to hear it. Indeed, in our view, by waiting for the final determination of the criminal matter, and then seeking to challenge the admittance of the controversial evidence by way of case stated within 21 days of that disposal, the Appellant adopted the correct procedural course.

As we have indicated, the Appellant has applied for the case stated to be amended, primarily on the basis that it materially differs from the oral reasons provided by the justices. It is submitted that the oral reasons (a note of which is set out above: see paragraph 11) indicate both a failure by the magistrates to understand the relevant law and a failure to scrutinise the application to exclude evidence with appropriate vigour. The case stated should be amended to reflect the reasons given orally.

As will become apparent, we accept that the reasons given by the magistrates, both orally and in their case stated, could have been clearer; but we do not consider there is any merit in the application for an order requiring amendment of the case stated. We do not consider that the brief note of oral reasons is inconsistent with the fuller reasons given in the case stated, from which it is clear that the magistrates concluded that Code C was breached by the failure to inform and call for the attendance of an appropriate adult – they made their finding in that regard expressly clear in paragraph 6 of the case stated: “… the requirement to inform and summon an appropriate adult arose…”) – but nevertheless decided not to exercise their discretion to exclude the evidence obtained.

A case stated may properly amplify magistrates’ oral reasons within fair and reasonable limits (see McKerry v Teasdale and Wear Valley Justices [2000] 164 JP 355 at page 362 per Lord Bingham; and, more recently, Marshall v Crown Prosecution Service [2015] EWHC 2333 (Admin)). We are unpersuaded that, in this case, the case stated went further; and we do not consider that it is necessary for the matter to be remitted for the case stated to be amended. Indeed, Mr Scott did not press the point; although he submitted that the deficiency in the oral reasons was a matter that the court should take into account in considering the merits of the appeal.

It is to those we now turn.

It is, rightly, common ground that the failure to call for the attendance of an appropriate adult was a breach of Code C of PACE. The May 2014 edition of Code C provides (at paragraph 3.15):

“If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, the custody officer must, as soon as practicable:

• inform the appropriate adult, who in the case of a juvenile may or may not be a person responsible for their welfare, as in paragraph 3.13, of:

∼ the grounds for their detention;

∼ their whereabouts.

• ask the adult to come to the police station to see the detainee.”

In paragraph 6 of the case stated (quoted at paragraph 8 above), the magistrates said “the situation that developed in respect of the Appellant (in the Police Station) was one in which Code C was engaged and hence the requirement to inform and summon an appropriate adult arose”. We accept that “engaged” was not the best word to use here; but it is clear from the later part of that sentence that they accepted that, by failing to inform and summon an appropriate adult, Code C had been breached. It clearly was.

Thus, the issue which this court must address is whether, in the light of that breach, the magistrates lawfully exercised their discretion to exclude the evidence of the drug drive procedure that then took place.

In paragraph 6 of the case stated, the magistrates rely upon two “lines of reason” for exercising their discretion not to exclude the evidence of the procedure. The first comprises a number of strands, some of which, in our view, do not support their conclusion that the evidence should not be excluded. For example, they express doubt as to the need for informing and summoning an adult, although they had already concluded that Code C required such steps. For the same reason, their reliance on Nurse Howell’s assessment that no appropriate adult was necessary for the Appellant was also misconceived. The magistrates also expressed doubt as to the practicality of informing and summoning an appropriate adult, although that appears to have been mere speculation as the police made no attempt to inform and seek the attendance of an appropriate adult.

The core reasoning of the magistrates, as it seems to us, is that this case was indistinguishable from BE (cited at paragraph 8 above), in which this court set aside the exercise of discretion by magistrates to exclude evidence of a drink drive procedure where there was a similar breach of Code C.

In BE, the court was concerned with an allegation of drink driving where the defendant was a juvenile. No appropriate adult was called. The defendant was required to give a specimen, and he freely did so. The specimen demonstrated that he had excessive alcohol in his breath. An application was made for the exclusion of the evidence in relation to the breathalyser procedure, on the basis that the failure to obtain the attendance of an appropriate adult in breach of the Code justified its exclusion under section 78 of PACE. The application was allowed. The prosecution appealed by way of case stated.

In giving the judgment of this court refusing the appeal, Maurice Kay J, having observed that the Crown in that case relied upon statements in earlier authorities that the decision as to whether or not to provide a sample was a “quite simple” choice, went on to observe in relation to the substance of the appeal as follows (at [15]):

“In my judgment, there is a consistent theme running through the authorities to which I have referred. It is that in relation to section 7 and section 8, time is of the essence. The reasons for that are obvious. As is well known, alcohol in the body breaks up over a period of time, and the further a procedure is in time from the moment of apprehension, the less reliable and, indeed, the more favourable to the suspect it becomes. It is not, on the authorities, necessary to delay section 7 or section 8 proceedings in order to allow the detainee time to read the Codes or to obtain brief telephone advice, or to await the arrival of a solicitor. In my judgment, it would be contrary to the theme established by those authorities to require the attendance of an appropriate adult prior to proceeding to the section 8 stage in putting the detainee to his election. I have considered whether the specific circumstances of a juvenile require that matters be delayed either generally or in relation to the circumstances of this case. In my judgment they do not. I take the view that whilst the magistrates were correct to identify a breach of section C3.9, they were wrong to exclude the evidence obtained pursuant to the section 7 procedure because of that breach. In my judgment, that was simply not open to them under section 78 of the 1984 Act or otherwise. Whilst they were being asked to exercise a statutory discretion, it was one which, in the circumstances of this case, and having regard to the issues arising, was not reasonably exercisable in favour of the respondent.”

The magistrates here referred to and clearly relied upon that authority, and Mr Barry submits they were right to do so. He draws attention to the need to take a sample promptly, because the procedure become less reliable as time passes; and to the magistrates’ findings in relation to the difficulties encountered in dealing with the Appellant, and in particular the observation of the forensic medical examiner who concluded that the Appellant was behaving too erratically and violently to be assessed or even to be in the same room as. These reasons related to the practicality of informing and summoning an appropriate adult; and they were, he submitted, a proper basis upon which the discretion under section 78 could be exercised, just as they were in BE. The cases are indistinguishable.

We do not agree. We were not persuaded by Mr Scott’s submission that BE is distinguishable from the case before us on the basis that it concerned alcohol as opposed to drugs – both are eliminated from the body over time, so that the sooner a specimen is taken, the more reliable the results of the test will be – but his primary submission, that the cases are distinguishable on the grounds of materiality of the breach of the Code, is far more potent.

In our view, there is a clear distinction to be drawn between the role that an appropriate adult might play in a case resulting in a charge of refusing to provide a sample, and that role in a case where a sample has been found to contain excess alcohol leading to a charge of drink driving.

Amongst the reasons behind Code C requiring the presence of an appropriate adult is that he or she is independent of the police authorities, and is able both to safeguard the welfare of the detained person and to provide him with an independent perspective. The appropriate adult is likely to have a significant role to play in providing a calming influence on a minor or vulnerable adult who may have become, as in the present case, distressed and agitated as a consequence of finding himself confronted with a particularly stressful and pressured situation in custody. As Mr Scott submitted, the essence of the charge of refusing to provide a specimen involves the person under investigation understanding the nature of the request involved in requiring a sample and also, importantly, an insight into the consequences of the failure to allow the police to take an evidential sample. The appropriate adult is likely to play a key role in the process of both explaining the purpose of obtaining the evidential sample, and also the consequences of a failure to permit the police doing so.

That is very different from the role which an appropriate adult might have played in circumstances where a freely given sample demonstrates an alcohol reading in excess of the legal limit giving rise to a drink driving charge, as was the case in BE. In BE, the court understandably found that the breach of the Code was immaterial; because, even if an adult had been informed and had attended, in the absence of any evidence that the course of events would have been different, the result would have been the same, i.e. if the appropriate adult had arrived on time, a sample would have been given which would have shown excess alcohol. Given that the defendant was freely willing to give a sample, and there were no grounds for him not doing so, the delay in summoning an appropriate adult would merely have made the forensic result less reliable. The breach was thus legally immaterial.

The situation here was very different. As Mr Scott submitted, the presence of an appropriate adult (whilst not being able to provide technical, legal or medical advice) would have provided the Appellant with the opportunity not only to have the question as to whether or not to provide a sample explained to him, but also to obtain an appreciation of the consequences of failing to do so. He points out that the offence of failing to provide a blood sample is predicated not only on the person’s comprehension of the requirement to provide a sample, but also of the consequences of failing to do so in terms of criminal liability. The Appellant was clearly very exercised whilst being detained, and there is a very real possibility that the presence of an appropriate adult would have calmed him, and led him to behave differently and make different choices from those he in fact made.

In our view, whilst the justices were entitled to draw from BE the significance of time being of the essence in the process of obtaining an evidential sample, the first strand of their reasoning appears to overlook completely the potential role that the appropriate adult could have played in calming and reassuring the Appellant, and reducing the state of his agitation, so that it may have been that he would have consented to an evidential sample being taken. The circumstances made it more, rather than less, necessary for an appropriate adult to be obtained, and yet, in breach of the Code, no appropriate adult was summoned. The justices’ first strand of reasoning proceeds on the basis that calling an appropriate adult would have merely led to further delay. It does not contemplate the possibility of it making some difference to the Appellant’s behaviour. In our view, this was inconsistent with one of the underlying purposes of the Code requiring an appropriate adult to be present. It is clear from the case stated that on the facts the requirement for an appropriate adult to be called arose as soon as the Appellant was admitted into custody since he was known to be a vulnerable adult from the start.

For the reasons set out above, the presence of an appropriate adult was an important procedural safeguard for the Appellant in circumstances where he could face a charge of refusing to provide a specimen. The failure to inform and summon an appropriate adult in breach of the Code therefore, in our view, had a clear adverse impact on the fairness of permitting the evidence of the drug drive procedure to be admitted.

Mr Barry accepted that the second strand of the magistrates’ reasoning was less than entirely convincing. In our view, it gives no support to their conclusion that the evidence ought to be admitted.

The fact that the evidence might be relevant to the Appellant’s defence was not a good reason for permitting the prosecution to rely upon the evidence of the drug drive procedure. This reasoning appears to proceed on a failure to understand that, if this evidence were to be excluded, then there would be no charge for the Appellant to answer. Whether, therefore, some of this evidence might subsequently be pertinent to the Appellant’s defence was irrelevant to the question of whether or not it could fairly be admitted in evidence as part of the prosecution’s case.

Mr Barry sought to support this line of reasoning by suggesting that what it really meant was that the justices felt that the question on admissibility should be addressed having heard all of the evidence; but unfortunately that is not what the justices said. In any event, if that was what they intended to do, then the proper course would have been for them to adjourn the consideration of this application until the close of the prosecution case. They did not do so, but instead shouldered the burden of determining the application on the basis of the materials before them and prior to evidence being called in the trial. Thus, Mr Barry’s explanation is not only inconsistent with the reasons provided, but, if this had been the magistrates intention, it could have been – and could only properly have been – achieved by an alternative procedure from the one which they in fact adopted.

For those reasons, having found there to have been a breach of Code C in failing to inform and summon an appropriate adult to the police station, we do not consider that the magistrates did properly exercise their discretion under section 78 of PACE not to exclude the evidence of the drug drive procedure. Their reasoning was, unfortunately, fundamentally flawed; and, had they exercised their discretion properly, they would have been bound to have excluded the evidence of the drug drive procedure.

Therefore, in respect of the question posed to this court, our answer is “Yes”: having found that the failure by the police to contact an appropriate adult whilst the Appellant was in custody constituted a breach of Code C of PACE, in all the circumstances, the justices were wrong in law in not exercising their discretion to exclude the evidence of the drug drive procedure under section 78 of PACE.

Accordingly, we allow this appeal, and we quash the conviction. On the basis that the prosecution of the Appellant on the charge with this appeal is concerned turned entirely upon the evidence now excluded, we shall remit the matter to the magistrates’ court with a direction to acquit the Appellant of that charge.