Causey v Director of Public Prosecutions

There is no general duty to delay a police-station breath test until a detainee has obtained legal advice. The police must act without delay to secure advice and permit consultation as soon as practicable, assessed as a question of fact and degree. A request should be accommodated before testing where a solicitor is immediately available and no significant procedural delay has occurred. The statutory purpose of obtaining specimens close to the alleged offence means that testing should not ordinarily be delayed to any significant extent. A short delay in contacting a solicitor may breach Police and Criminal Evidence Act 1984, s 58 and the Code, but does not necessarily require exclusion of refusal evidence under s 78. Exclusion depends on whether admission would adversely affect the fairness of the proceedings, including whether the denied safeguard could have made a material difference.

The appellant appealed by way of case stated against the Liverpool Crown Court’s dismissal of his appeal from conviction by Liverpool City Justices for failing, without reasonable excuse, to provide specimens for analysis under s 7(6) of the Road Traffic Act 1988. After a positive roadside breath test, he requested legal advice shortly before the police-station breath test began. The police did not contact his first nominated firm until four minutes after the test had started, and the firm did not answer. He later refused the test, then indicated that he would participate after contact with another firm had been attempted. The central issues were whether the delay breached s 58 of the Police and Criminal Evidence Act 1984 and the Code, and whether the refusal evidence should therefore be excluded under s 78.

Appeal dismissed. Fulford J, with whom Thomas LJ agreed, held that the relevant principles had already been established in the recent authorities.

1. There is no general duty to postpone the police-station specimen procedure until legal advice has been obtained. Whether the custody officer acted without delay and permitted consultation as soon as practicable is always a question of fact and degree.
2. The availability of a solicitor must be assessed realistically. If the officer knows that a solicitor is immediately available, a detainee should generally be allowed to consult before deciding whether to provide specimens. Otherwise, particularly at night, the officer cannot know how long the duty solicitor or public defender service will take to respond. Specimens must be obtained as close as possible to the alleged offence, and the procedure should not be delayed to any significant extent.
3. The 14-minute period before the first telephone call to the appellant’s nominated firm was neither significant nor substantial on the findings below. The officer was entitled to proceed with the breath test. The later delay in reaching a second firm did not alter that conclusion.
4. The breath test was a tightly regulated and mechanistic procedure, not an interrogation or interview. The appellant had been clearly told that he had a choice between providing the specimen and committing the refusal offence. Legal advice could have added nothing material to the information already given.
5. Although there may have been a breach of s 58 and the Code, admission of the refusal evidence did not make the proceedings unfair under s 78. No denied protection was causative of unfairness or constituted a material and operative safeguard that might have changed the outcome. The first question posed by the Crown Court was answered affirmatively; the remaining questions did not arise. The conviction and admission of the evidence were upheld.

The court also deprecated repeated attempts to re-argue principles already conclusively clarified in this area, while recognising that a genuine factual distinction may justify an appeal.

1. High Court (Administrative Court): dismissed the appeal by way of case stated and upheld the decision of the Liverpool Crown Court dismissing the appellant’s appeal against conviction by Liverpool City Justices.