Whitley v Director of Public Prosecutions

Whether a detained suspect must be allowed legal advice before an evidential breath-test procedure is commenced is a question of fact and degree. The custody officer must act without delay to secure advice and must permit consultation as soon as practicable, but the requirements are assessed in the circumstances known at the time. The court should allow flexibility for the urgent and time-sensitive nature of breath testing. A reviewing court should not interfere merely because it might have reached a different conclusion. Any breach of the statutory right or Code of Practice must separately be assessed for whether it was significant and substantial and, consequently, whether exclusion under the Police and Criminal Evidence Act 1984 is justified.

David Whitley appealed by way of case stated against his conviction at Highbury Corner Magistrates’ Court for failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988. After being arrested following a road accident, he requested legal advice during booking-in. The police commenced the evidential breath-test procedure immediately, before contacting the duty solicitor service. The magistrates’ court found no breach of section 58 of the Police and Criminal Evidence Act 1984, although it found an insignificant and insubstantial breach of Code C6.5. The central issue was whether the breath-test evidence should have been excluded under section 78 of the 1984 Act.

1. The appeal was dismissed. The Divisional Court answered the stated question in the affirmative.
2. The question whether the custody officer acted without delay to secure legal advice, and whether the detainee was permitted to consult a solicitor as soon as practicable, is one of fact and degree. The same approach applies to deciding whether any breach was significant and substantial. An appellate court should not interfere merely because it might have reached a different conclusion. The appellant had to show that any reasonable court would have reached the contrary conclusion.
3. The expression “as soon as practicable” must be assessed from the standpoint and state of knowledge of those present at the time, without hindsight. The custody officer was entitled to consider the substantial delay already caused by the hospital visit, the presence of an officer ready to conduct the evidential procedure, and the general rather than specific nature of the request for legal advice.
4. The court rejected a rigid rule requiring the duty solicitor call centre to be contacted before every evidential breath test. The circumstances might produce a different result where there had been no significant prior delay, no officer was immediately available, the suspect specifically requested advice before the test, or the custody officer knew that a solicitor was immediately available.
5. In those circumstances the magistrates’ court was entitled to find that the delay in contacting the duty solicitor service was insignificant and insubstantial. The reference to the appellant’s failure to explain how earlier advice might have assisted him did not impose a burden of proof; it was merely one background circumstance among several. The evidence was therefore properly admitted under section 78 of the 1984 Act.

• High Court (Administrative Court): the Divisional Court dismissed the appeal by way of case stated from the conviction at Highbury Corner Magistrates’ Court.