Crown Prosecution Service v Chalupa

A breach of the right to prompt legal advice does not ordinarily provide a reasonable excuse for refusing to provide a breath specimen. Nor does it generally make the evidence unfairly obtained under Police and Criminal Evidence Act 1984, section 78. The police may require the specimen procedure to continue before legal advice is obtained.

The exceptional case is where a solicitor is ready and immediately available but the police nevertheless refuse a very short delay. Even then, exclusion remains discretionary. An appellate court should ask whether the discretion was properly exercised, rather than treat previously identified factors as a statutory checklist.

The defendant was convicted by magistrates of failing to provide a specimen for analysis under section 7(6) of the Road Traffic Offenders Act 1988. The Crown Court dismissed his appeal and stated a case for the opinion of the Divisional Court.

The police had delayed for about 20 minutes before contacting the duty solicitor after the defendant requested legal advice. During that period, the defendant refused to provide a breath specimen. The duty solicitor returned the call within two minutes, but was incorrectly told that the defendant was already using the intoxilyser.

The issue was whether, despite the breach of section 58 of the Police and Criminal Evidence Act 1984, the Crown Court was entitled to refuse to exclude the breath-test evidence under section 78.

1. The appeal was dismissed. The Crown Court was entitled to refuse to exclude the evidence.

2. The right to consult a solicitor as soon as practicable does not suspend the statutory obligation to provide a breath specimen. A person cannot rely on the request for legal advice, or on the fact that legal advice would have told him to provide the specimen, as a reasonable excuse for refusal. The authorities, including DPP v Billington, [1988] 1 WLR 535, DPP v Salter, [1992] RTR 386, and Dickenson v DPP, [1989] Crim Law Reports 741, supported that conclusion.

3. A short and unjustified delay in contacting a solicitor does not, without more, make admission of the breath-test evidence unfair under section 78. The public interest in prompt testing is important, and the breach caused no relevant prejudice here.

4. The possible exception identified in Kennedy v DPP, 2002 EWHC Admin 297, is limited to a case where a solicitor is ready and immediately available but the police refuse access. Even then, exclusion is discretionary and depends on the circumstances. This case did not fall within that exceptional category.

5. The question was whether the Crown Court had properly exercised its discretion, not whether it had mechanically applied the factors identified in Gearing v DPP, [2008] RTR 72. The Crown Court’s decision was plainly within the permissible exercise of that discretion.

6. The court recognised that a breach of the right to legal advice might have different consequences if it affected a later stage of the investigation. No order for costs was made.

• High Court (Administrative Court): The Divisional Court dismissed the appeal by way of case stated and held that the Crown Court was entitled to refuse to exclude the evidence.
• Crown Court at Taunton: The defendant’s appeal against conviction was dismissed. The Crown Court found a breach of section 58 of the Police and Criminal Evidence Act 1984, but declined to exclude the evidence under section 78.
• Magistrates’ court: The defendant was convicted under section 7(6) of the Road Traffic Offenders Act 1988.