Forde, R (on the application of) v Director of Public Prosecutions

A person suspected of drink-driving cannot insist on delaying the statutory specimen procedure until legal advice has been obtained. The right to consult a solicitor remains relevant, but its exercise must accommodate the public interest in obtaining specimens promptly.

Where a solicitor is immediately available and a brief consultation would not cause significant delay, access should be permitted. A general request for legal advice does not require the officer to interrupt the procedure. Any breach of the statutory right or Code of Practice will justify exclusion under Police and Criminal Evidence Act 1984, section 78, only where it is significant or substantial and admission would make the proceedings unfair.

The claimant appealed by way of case stated from his conviction by Stevenage Magistrates' Court for failing, without reasonable excuse, to provide a blood specimen for laboratory analysis, contrary to section 7(6) of the Road Traffic Act 1988.

During the specimen procedure he said that he did not want to provide blood until he had spoken to a solicitor. The police officer did not immediately enquire about legal advice, and the request was relayed to the custody sergeant approximately 20 minutes later. The magistrates admitted the evidence under section 78 of the Police and Criminal Evidence Act 1984 and convicted him. The central issue was whether the failure to facilitate legal advice required exclusion of the evidence.

1. The appeal was dismissed. The magistrates were correct in law to refuse to exclude the evidence.
2. The right under section 58 of the Police and Criminal Evidence Act 1984 to consult a solicitor as soon as practicable is continuing. It is, however, subject to the statutory requirement that drink-driving specimens be obtained promptly. A suspect cannot impose a condition that a specimen will not be provided until legal advice has been received, and that condition does not constitute a reasonable excuse under section 7(6) of the Road Traffic Act 1988.
3. Following Kennedy v DPP [2002] EWHC Admin 2297, where a suspect merely expresses a general desire for legal advice, the officer may continue taking details and alert the solicitors' call centre at the first convenient opportunity. A short consultation should be permitted where a solicitor is readily available and the delay would not frustrate the public interest in obtaining the specimen.
4. The failure to provide an immediate opportunity to contact a solicitor during the procedure did not infringe section 58 or the Code of Practice. The request was general, no particular solicitor was identified, and there was no evidence that a solicitor was immediately available.
5. The approximately 20-minute delay before contacting the duty solicitor might have been a breach of section 58, but it was neither significant nor substantial and caused no prejudice. Under section 78, the magistrates were entitled to conclude that fairness did not require exclusion of the evidence.

• High Court (Administrative Court): On appeal by case stated, the court dismissed the appeal and upheld the magistrates' decision to admit the evidence and convict.
• Stevenage Magistrates' Court: The claimant was convicted of failing, without reasonable excuse, to provide a blood specimen contrary to section 7(6) of the Road Traffic Act 1988.