Gearing v Director of Public Prosecutions

A person who requests legal advice in police custody must be permitted to consult a solicitor as soon as practicable, and the police must act without delay to secure that advice. In breath-test cases, however, the public interest requires prompt testing. The police need not impose a significant delay, although a very short delay is appropriate where a solicitor is immediately available. A breach of the right to legal advice does not automatically require exclusion of the evidence under Police and Criminal Evidence Act 1984, section 78. The court must consider all the circumstances, including the public interest, procedural safeguards, the practicability of obtaining prompt advice and the length and significance of any delay.

The claimant was convicted by the Staines Magistrates’ Court of failing to provide a breath specimen. Her appeal to His Honour Judge Addison, sitting with two Justices, was dismissed on 7 June 2006. She sought an extension of time to bring the present appeal and challenged the conclusion that there had been no breach of section 58 of the Police and Criminal Evidence Act 1984, alternatively the refusal to exclude the breath-test evidence under section 78. The central issues were whether the police had acted sufficiently promptly after she requested legal advice, and whether any breach required exclusion of the evidence.

1. Extension of time. The delay was very substantial and was explained only by loss of contact between solicitor and client, without any adequate explanation for that loss of contact. The extension was refused.
2. Right to legal advice. Section 58 required the police to take appropriate steps to secure legal advice once requested. The failure to contact the duty solicitor call centre when the request was first made amounted to a breach, although the issue was marginal because the request might have been treated as no more than a general desire for advice. The judge below was therefore wrong to conclude that there had been no breach.
3. Prompt breath testing. The right to advice had to be reconciled with the public interest in prompt testing after a failed roadside breath test. The police should contact an identified solicitor, notify a solicitor present at the station, or call the duty solicitor centre where no solicitor was identified. That obligation did not itself require the breath-test procedure to be delayed. A short delay could be appropriate where advice was immediately available, but anything more than a very short period would be significant.
4. Section 78 discretion. Exclusion was not automatic. Relevant factors included the public interest in effective enforcement, the safeguards inherent in the testing procedure, the practicability of obtaining prompt advice, the extent of the delay and whether it was significant. On the facts, the 23-minute period between contacting the call centre and the solicitor’s advice was significant. The evidence was properly admitted and the appeal would have been dismissed on its merits.

• High Court (Administrative Court): The claimant’s appeal from the decision of His Honour Judge Addison, sitting with two Justices, was considered. The extension of time was refused; the court held that there had been a breach of section 58 but upheld the refusal to exclude the evidence under section 78.
• Staines Magistrates’ Court: The claimant was convicted on 7 November 2005 of failing to provide a breath specimen.