Kirkup v Director of Public Prosecutions

A detainee’s right to legal advice under Police and Criminal Evidence Act 1984, section 58, arises when detention is formally authorised by the custody officer. In a drink-driving investigation, the police need not delay obtaining a breath specimen until legal advice has been received. A general request for legal advice permits the custody officer to contact the duty solicitor at the first convenient opportunity, subject to any solicitor being immediately available for a short consultation. A short delay may constitute a technical breach but does not necessarily justify exclusion of evidence under section 78. The court must assess the significance and effect of the breach in all the circumstances.

The claimant was convicted by Grantham Magistrates’ Court of failing to provide breath specimens contrary to section 7(6) of the Road Traffic Act 1988. The magistrates found that the police had breached section 58 of the Police and Criminal Evidence Act 1984 and paragraph 6.5 of Code C by delaying contact with the duty solicitor for seven minutes. They nevertheless admitted the evidence and convicted the claimant.

The appeal by way of case stated concerned whether the magistrates had correctly exercised their discretion under section 78 of the 1984 Act, and whether the conviction was sound. The central issues were when the duty to secure legal advice arose and whether the breath-test procedure had to be delayed.

1. Appeal dismissed. The magistrates correctly answered both questions in the stated case. The breath-test evidence was properly admitted and the conviction was upheld.
2. Following Kerawalla, the duty under section 58 of the Police and Criminal Evidence Act 1984 to secure legal advice arose after the custody officer had formally authorised detention. The police officer’s failure to seek a solicitor before that authorisation therefore did not constitute a breach.
3. The court applied the guidance in Kennedy v DPP. The public interest in obtaining breath specimens meant that the procedure could not be delayed to any significant extent merely to enable legal advice. If a solicitor was present, or immediately available by telephone, a short consultation had to be permitted. A general request for legal advice did not prevent the police from proceeding with the specimen procedure while contacting the duty solicitor at the first convenient opportunity.
4. The seven-minute delay after the custody sergeant received the request was accepted as a breach because the prosecution was bound by its concession and the magistrates’ finding. It was, however, so brief that it only just constituted a breach. Its brevity was highly material to the section 78 assessment. In the circumstances, the breach was neither significant nor substantial and did not make admission of the evidence unfair.
5. Sanusi did not assist the claimant because the issues apparent from the report were materially different. The court also noted the comparable approach in Campbell v DPP concerning a seven-minute delay.
6. The court refused to issue a certificate or grant leave for a leapfrog appeal, holding that the law on the timing of the right to legal advice was clear.

• High Court (Administrative Court): dismissed the appeal by way of case stated against the conviction and refused a certificate and leave for a leapfrog appeal.
• Grantham Magistrates’ Court: convicted the claimant of failing to provide breath specimens contrary to section 7(6) of the Road Traffic Act 1988, imposed a £400 fine and endorsed his licence with 10 penalty points.