Causey v Director of Public Prosecutions [2004] EWHC 3164 (Admin)

Case No CO/3351/2004[2004] EWHC 3164 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 11th November 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE THOMAS
MR JUSTICE FULFORD
Between
IAN CAUSEYAppellant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR N LEY (instructed by Byrne Frodsham & Co) appeared for APPELLANTMR A VOLLENWEIDER (instructed by CPS Merseyside) appeared for RESPONDENT
J U D G M E N T
[38]The situation, therefore, which prevailed between 11.03pm and 11.10pm was this. The appellant had asked to see the duty solicitor, as had another motorist previously arrested. There was no way of knowing how long it would take to receive a response from the duty solicitor after the call centre had been contacted. Furthermore, when a response did come, another motorist was first in the queue for talking to the duty solicitor. The duty solicitor, in those circumstances, could not be described as immediately available or known to be immediately available.[39]Let me now draw the threads together. In the light of authority, in particular Kennedy v CPS, there was no duty on the police to delay taking a specimen of breath until the appellant had obtained legal advice. The police were fully entitled to commence that procedure at 11.10pm. Furthermore, Sergeant Graham's delay of 7 minutes in telephoning the Duty Solicitor Call Centre was neither a significant delay nor a substantial one.[40]I therefore come to the conclusion that the magistrates' exercise of discretion under section 78 of the Police and Criminal Evidence Act 1984 cannot be faulted. There was indeed a breach of section 58 of the Police and Criminal Evidence Act and of section 6.5 of the Code. However, that breach was of such a nature that it was not appropriate to exclude PC Love's evidence concerning her request for two specimens of breath." In Whitley the appellant was found possibly injured at the scene of a road traffic accident. He refused to provide a specimen and was arrested at 5.30 am. He was taken to hospital and later arrived at the police station at 7.25 am. His detention was authorised at 7.31 and at 7.40 am the appellant asked to see a solicitor. He was told that the breath test would not be delayed for that purpose and, since a police officer had arrived in order to enable this to happen, the breath test procedure was carried out, lasting from between 7.40 to 7.50 am, and on two occasions during it the appellant refused to give a specimen. Thereafter he saw a medical examiner, that examination ending at 7.55 am. At 7.53 a call was made to the duty solicitor, Mr Boddington, who responded at 8 o'clock. Accordingly, in that case there was a delay of 13 minutes between the request to speak to a solicitor and the first attempt at contacting the duty solicitor. "21. In the present case the custody officer had to allow the appellant to consult a solicitor 'as soon as practicable' after he requested legal advice on the pro forma. What was 'practicable' in Islington police station at 7.40am on 4th November 2002 has to be considered from the point of view, and the state of knowledge, of those then present, not from the point of view of those who have now had the opportunity to reflect upon the matter with some care and with the benefit of hindsight.[22]In my judgment, the judge fairly described the situation confronting the custody officer at 7.40am. There had already been a considerable delay because of the need to take the appellant to hospital en route to the police station. Specific arrangements had been made for another officer to come from a different station to conduct the investigation. He was present, and ready to commence the procedure immediately. The appellant's request for legal advice had been expressed in general rather than specific ('I want legal advice before the procedure begins') terms. While we now know that Mr Boddington was able to respond promptly, so that his telephone call to the appellant at 8.00am was made only 7 minutes after the request was made to the Duty Solicitor Call Centre, the custody officer did not have the advantage of hindsight. He could not assume that a solicitor would be immediately available in the sense that PS Barrett was immediately available. It follows that allowing the appellant to obtain legal advice over the telephone would inevitably have imposed further delay in addition to the extensive delay that had already occurred.[23]Each case will turn upon its own individual facts. If there had not already been significant delay, if another officer had not been available to commence the breath test procedure immediately, if the appellant had asked specifically, 'Please may I speak to a solicitor before he [PS Barrett] begins, if the custody officer knew that the duty solicitor was at the police station, and had just finished giving advice to another detained person, then the judge's conclusion might well have been different." In Myles the appellant was seen driving a motorcar at 11.25 pm. He was stopped by police officers and failed a roadside test. At the police station he signed a form to say he did not want a solicitor. An attempt to take a breath specimen was unsatisfactory, and when at 12.25 am, in the presence of a doctor, he was required to give a blood sample, he refused, saying he wanted advice (possibly legal advice). "16. So far as there is a statement of principle of general application ... I see no great distinction between the underlying principle in the Canadian Authority and the approach taken by the English Courts. When it comes to deciding what is and what is not reasonable of course it is to be expected that each jurisdiction will take its own approach and the approach of neither will greatly assist the other. In this last regard therefore very limited assistance is to be derived from the Canadian decisions given the unanimity of English Authority on this issue." Mackay J reached a similar conclusion as regards the relevant New Zealand authorities. Having read all of the Commonwealth material put before this court, those are conclusions with which I wholeheartedly agree. 21. "Mr Ley, for the Appellant, accepts that in the context of this legislation he cannot contend for an unlimited right to delay the procedure in order to obtain advice. The reason for this is obvious and needs no support from evidence; specimens must be taken as close to the time of the alleged offence as possible, and the default position is there should be no delay. Hence he argues for some defined short period – he says 15 minutes – for which it should be permissible to hold up the sample-taking process for the purpose of obtaining advice. This runs counter to the clear views of this Court, that the process should not be delayed 'to any significant extent'. This in my view is a full and sufficient explanation of the position in law, and will also serve as a practical guide to those who have to deal with such matters on the ground." I consider that to be an extremely succinct and accurate explanation of the answer to the main question that has been raised serially on these appeals. The main principles The following propositions are to be derived from those four decisions: (i). There is no general duty on the police to delay taking a specimen at the police station until the detainee has obtained legal advice: Kirkup paragraph39. (ii). Whether in contacting a solicitor, having been requested to do so, the custody sergeant has "acted without delay" and "has permitted the detainee to consult a solicitor as soon as is practicable" will always be a question of fact and degree depending on the circumstances of the case: Kennedy paragraph 31. (iii). Particularly at night time, there is no way for a custody officer to know how long it would take to receive a response from the duty solicitor or public defender service after the scheme or service has been contacted: Kirkup paragraph 38. (iv). If the custody officer knows a solicitor is immediately available, and particularly if there have been no other significant delays in the procedures up to that point, if there is a request from a suspect, he should be allowed to consult with his lawyer before deciding whether or not to provide specimens: Kennedy paragraph 31, Kirkup paragraph 34. However, specimens must be taken as close to the time of the alleged offence as possible, and the default position is there should be no delay. Moreover, that process should not be delayed "to any significant extent": Myles paragraph 22. (v). A short and unwarranted delay in contacting a solicitor when requested may constitute a breach of section 58 of the Police and Criminal Evidence Act and the Code such as not to merit excluding the evidence of the detainee's refusal: Kirkup paragraph40. The application of those principles to this appeal The court below concluded:
"In the present case there was nothing to prevent Sergeant Francis from trying to contact a solicitor between 01.12 and 01.21. A solicitor was therefore not contacted immediately but the police did contact the solicitor at the first reasonable opportunity after the breath test was completed, this being at 01.26. Furthermore Sergeant Francis had made it very clear to the Appellant that he could not delay the breathalyser procedure to seek legal advice ... one of the principle purposes of Article 6 is to guard against self-incrimination in interviews. The taking of the sample is not an interview within the meaning described in PACE. Further the reliability of the sample is unaffected by the compulsion to provide it. Reliability of the evidence is not and could not be affected by the prior consultation with a solicitor. The breathalyser procedure is to tightly regulated and mechanistic in application that the solicitor can have no influence on its operation. In the present case Mr Ley submits that a solicitor here, if one had actually been immediately available, could only have said 'take it or be done for refusal'. Further Mr Ley submits that the Appellant would have agreed to give specimens if the solicitor had been contacted before 01.21 even if he could not have spoken to him immediately. We are satisfied however that the Appellant had a simple choice to make and he well understood it." (I interpolate to note that, by the clearest implication, the court below rejected, in the passage I have just quoted and in a later passage to which I will turn in a moment, the appellant's submission that had the telephone call occurred before 1.21, and if there had been no reply, he would have then immediately agreed to the procedure being carried out. There is no doubt in my mind that the court below dismissed that contention. Accordingly, the "lost opportunity to contact a solicitor", the only real suggested breach identified here, was in any event not causative). Returning to the conclusions of the court below: "
We can do no better than repeat the findings of the Justices in the Kennedy case namely that we accept the Appellant's right to legal advice has been restricted to legal advice only being available after he failed to provide the specimen. We find there is good cause to restrict his right mainly the desire to obtain an accurate reading of the alcohol content of his breath. Taking into account the protection of the public as a whole and to prohibit those who are a danger to other road users from driving, we find this restriction is proportionate. The delay was not significant or substantial." There was a ten minute gap between the request of the appellant to be allowed to speak to a solicitor and the beginning of the second breath test, and four minutes later the first firm of solicitors the applicant asked to be contacted, Quinn Melville, were telephoned. However, I note they did not answer and in all it took some 25 minutes to get through to the second firm of solicitors the appellant had expressly asked to speak to. That, in my view, is the significant period as regards time and delay given the findings of the court below that I have rehearsed. Moreover, I observe for the sake of completeness that, contrary to the submissions of Mr Ley, there is no means of knowing how long it would have taken to contact a solicitor through the public defender service, which is staffed, as I have observed, by solicitors of the Legal Services Commission; it would depend on whether there were other calls on their time at that particular moment. Consistently with the decision of Jackson J in Kirkup, in which the delay was seven minutes before the breath test began and the first call was made, I consider that the sergeant was entitled not to delay the second breath test until legal advice had been received. The 14 minute delay in ringing Quinn Melville was neither a significant delay nor a substantial one on the findings of fact made by the court below. Moreover, I agree with the analysis of the Crown Court that the appellant had a straightforward choice and he had had carefully explained to him the consequences of non-co-operation. This procedure was not an interrogation or an interview, but the application of a simple breath test. As Mr Ley accepted in the Crown Court and before us, in real terms a solicitor could have done no more than repeat what the sergeant had already explained to the appellant, "take it (the test) or be done for the refusal". In those circumstances the court below was right to conclude that the fairness test laid down in section 78 of the Police and Criminal Evidence Act 1984 did not require the exclusion of this evidence. Nothing that occurred was causative of any unfairness in the sense that the appellant had been deprived of a material and operative safeguard. Put otherwise, this was not a case where a protection to which the appellant was entitled and, if afforded, might have made a real difference to the outcome had been denied. Notwithstanding the representations made on his behalf, a solicitor could not have added anything of significance to the information already given to the appellant both orally by the sergeant and in the form he was provided with. Accordingly, there is no substance in the complaint that this evidence was obtained during an unfairly conducted procedure or that there was any material breach of the appellant's Article 6 rights. Conclusions Five questions have been posed by the Crown Court for the consideration of this court. The first of those questions is in these terms:
"Was the Court correct in concluding that the breach of Section 58 of the Police and Criminal Evidence Act 1984 and the Codes of Practice thereto in relation to the appellant's request to see a solicitor immediately after 01.11 am was neither significant nor substantial?"
For the reasons set out above, I would answer that question in the affirmative, and as a consequence the other four questions simply do not arise. It follows, in my judgment, that this evidence was rightly admitted and the appellant was rightly convicted. I would therefore dismiss this appeal. Postscript Notwithstanding the clear exposition of the law in this area by this court in the four authorities referred to above, together with the strong steer from Mackay J in Myles as to the limited assistance provided by the Canadian and New Zealand authorities in determining the main question raised in these appeals, counsel for the appellant nonetheless served on the court yesterday a bundle running to 342 pages, of which just under 300 pages were taken up with authorities, and a number of those were from other Commonwealth countries. When a particular dispute as to the law has been comprehensively and recently resolved by this court, for my part I would deprecate any attempt to re-run in later appeals the arguments and submissions relating to the legal principle or principles that have been conclusively clarified and determined by this court. That observation is not meant to deter a legitimate attempt to distinguish a particular case on its facts, but it is meant to deter counsel from repeating in case after case the arguments and submissions that have already received a clear answer. As regards this issue in relation to these particular breathalyser procedures under the Road Traffic Act, it is clear, and has been clear for some time, what the law is. As Kennedy LJ has observed, in a case of this kind it will always be a question of fact and degree for the primary fact finding tribunal. In those circumstances, access to this court on appeal is inevitably going to be very limited. I would not expect, in the foreseeable future, to see appeals in which the principles to be applied in these particular cases are raised, save in exceptional circumstances. LORD JUSTICE THOMAS: I agree. MR VOLLENWEIDER: Your Lordships, in the circumstances can I ask for costs? LORD JUSTICE THOMAS: What are they? MR VOLLENWEIDER: There has not been a schedule, but I am reliably informed they are in the region of £2,000. LORD JUSTICE THOMAS: Why not? MR VOLLENWEIDER: I do apologise, I will take instructions on that. LORD JUSTICE THOMAS: Could you. The whole point of the procedure of this court is to avoid these disputes. If you cannot be bothered to produce the schedule, why should we give you your costs? MR VOLLENWEIDER: It is not a question of not being bothered, my Lord -- LORD JUSTICE THOMAS: Yes, it is. You are responsible for the provision of the relevant documents to this court. If people will not learn, there is one way to make them remember. What is the answer? MR VOLLENWEIDER: Well, my Lord, in principle I would be asking that your Lordships grant the application for costs, subject, of course, to a proper schedule being drawn up. LORD JUSTICE THOMAS: You know you are meant to provide that ahead of time, we deal with it quickly, it saves a lot of bother, we can take a view of the case, and it is clear. If people do not follow the rules of this court the only way actually to make them remember them for the future is to apply them. If there is no schedule, no costs. Mr Ley, what do you have to say? MR LEY: I do not think I can say anything further than your Lordship has said. MR VOLLENWEIDER: My Lord, it is sometimes difficult for counsel to give an estimate of -- LORD JUSTICE THOMAS: Well, you have a solicitor behind you. This is a case that was estimated for half a day. It was a pretty good estimate, as there are three minutes to go. Therefore, nothing could have taken you by surprise and it really is important people remember to comply with the rules of this court. MR VOLLENWEIDER: I concur with your Lordship in that extent, save to say that, although we knew it was listed for half a day, it was listed for merely, I think, two days in the Crown Court and ended up running to five. LORD JUSTICE THOMAS: We are obviously not disturbing the order below, it is the order in this court. The rules are clear. MR VOLLENWEIDER: But you appreciate where I am coming from, my Lord, and clearly it is difficult sometimes to estimate costs when it is clear from the court below -- LORD JUSTICE THOMAS: You do not seriously think that this court would have allowed this case to go on for more than a day. It could not possibly be right. MR JUSTICE FULFORD: This took five days in the court below? MR VOLLENWEIDER: Four or five days, yes. LORD JUSTICE THOMAS: The court below has no doubt dealt with that, and no doubt a very heavy bill of costs was imposed. In this court our rules are clear, you did not follow them, no order as to costs. MR VOLLENWEIDER: So be it, my Lord.