Cowper v DPP

A person arrested on suspicion of drink-driving must be permitted to consult a solicitor as soon as practicable. That obligation does not generally require the police to delay or interrupt the taking of a breath specimen while legal advice is obtained. The question is one of fact and degree. A short delay may be appropriate where an identified solicitor is immediately available, but there is no general duty to await a duty solicitor’s return call. A police-station breath test is not an interview under the Police and Criminal Evidence Act 1984 and the police may continue the procedure where delay is not practicable or in the public interest. In the absence of a breach of section 58, section 78 does not arise.

The claimant appealed by way of case stated against his conviction by Chester Magistrates’ Court for failing, without reasonable excuse, to provide a specimen of breath under section 7(6) of the Road Traffic Act 1988. He had requested legal advice after arrest. The custody sergeant promptly contacted the duty solicitor call centre, but the breath-test procedure began before the solicitor returned the call. The solicitor later telephoned while the procedure was continuing, and the police did not interrupt it.

The magistrates found no breach of section 58 of the Police and Criminal Evidence Act 1984 or Code C. The central issue was whether the introduction of the Criminal Defence Service Direct Telephone Advice Service required the police to wait for, or interrupt the procedure to receive, a solicitor’s call.

1. The appeal was dismissed. The magistrates were entitled to find that there had been no breach of section 58 of the Police and Criminal Evidence Act 1984 or Code C.

2. Following DPP v Billington [1998] 1 WLR 435, the statutory right to consult a solicitor as soon as practicable does not require the police to delay taking a specimen under the Road Traffic Act 1988 while legal advice is awaited. The public interest requires that the obtaining of breath specimens should not be delayed to any significant extent.

3. The guidance in Kennedy v DPP [2002] EWHC Admin 2297 is a question of fact and degree. The police must act without delay to secure legal advice. Where a solicitor is present, or an identified solicitor is immediately available by telephone, a short delay may be appropriate. A general request for legal advice does not require the custody officer to await an unknown return time from a call centre.

4. Gearing v DPP [2008] EWHC 1695 (Admin) confirms that contacting a solicitor should not itself delay the breath-test procedure. On the facts, the officer could not know that advice would be available within a few minutes. There was no duty to wait five minutes, or to interrupt the procedure when the solicitor called.

5. The specimen was lawfully required and the refusal was unlawful. The breath-test procedure was a non-invasive mechanical or scientific process, not an interview for the purposes of the Act and the Codes. Section 78 therefore did not arise. Sir Anthony May additionally held that, even if there had been a breach, the magistrates would have been entitled to refuse to exclude the evidence under section 78.

The claimant was ordered to pay £1,300 prosecution costs within 28 days. His own costs were subject to legal-aid assessment.

• High Court (Administrative Court) — The Divisional Court dismissed the appeal by way of case stated from the decision of Chester Magistrates’ Court.
• Chester Magistrates’ Court — The claimant was convicted and fined for failing, without reasonable excuse, to provide a breath specimen under section 7(6) of the Road Traffic Act 1988.