William Morgan Thomas v Director of Public Prosecutions

A breach of the entitlement to legal advice under section 58 of the Police and Criminal Evidence Act 1984 does not automatically require exclusion of breath-test evidence under section 78. The court must assess whether admission would adversely affect the fairness of the proceedings, having regard to all the circumstances.

In breath-specimen cases, the strong public interest in prompt testing is material. A request for legal advice, or reliance on legal advice, will ordinarily not constitute a reasonable excuse for failing to provide a specimen. Exclusion will therefore be rare, particularly where the defendant was warned of the consequences and made an informed decision not to provide the specimen.

The appellant was convicted in the Merthyr Tydfil Magistrates’ Court of failing, without reasonable excuse, to provide a breath specimen contrary to section 7(6) of the Road Traffic Act 1988. He had repeatedly requested access to his chosen solicitor before the Intoxilyser procedure, but the police did not contact a solicitor until after the procedure had ended.

The District Judge accepted that section 58 of the Police and Criminal Evidence Act 1984 had been breached, but admitted the evidence under section 78. The appeal by case stated concerned whether the denial of legal advice made admission unfair and whether the police should have made enquiries about the solicitor’s availability as soon as reasonably practicable.

1. The appeal was dismissed. The High Court answered the first question no and the second question yes, adding that the failure to make prompt enquiries did not alter the answer to the first question.
2. Section 7 of the Road Traffic Act 1988 creates an obligation to provide a specimen when required, subject to reasonable excuse. Section 58 of the Police and Criminal Evidence Act 1984 entitles a detained person who requests it to consult a solicitor as soon as practicable, but the two statutory regimes may create tension because legal advice can cause delay.
3. The governing question under section 78 of the Police and Criminal Evidence Act 1984 is whether, having regard to all the circumstances, admission would have such an adverse effect on the fairness of the proceedings that the evidence ought not to be admitted. On an appeal by case stated, where the trial court has concluded that admission would not affect fairness, the issue is whether that conclusion was Wednesbury irrational, applying R v Dures [1997] 2 Cr App R 247.
4. The authorities establish a strong public interest in prompt breath testing. In the absence of confusion, anxiety, incomprehension or mental stress, neither requesting legal advice nor relying on a solicitor’s advice ordinarily provides a reasonable excuse for failing to provide the specimen. The possibility of a solicitor being immediately available for a very short consultation concerns the application of section 58; it does not mean that a breach necessarily requires exclusion under section 78.
5. The police had breached section 58 by failing to contact a solicitor promptly. Nevertheless, the District Judge applied the correct test and was entitled to conclude that the breach did not materially affect the fairness of the proceedings. The appellant had been warned of the consequences and his failure was an informed decision. The dicta in Kennedy v DPP [2002] EWHC 2297 (Admin) and Gearing v DPP [2008] EWHC 1695 (Admin) concerning an immediately available solicitor had to be treated with considerable caution.

• Merthyr Tydfil Magistrates’ Court: The appellant was convicted on 2 February 2023. The District Judge admitted the Intoxilyser evidence under section 78 of the Police and Criminal Evidence Act 1984.
• High Court (Administrative Court): On appeal by case stated, the court dismissed the appeal and answered the two questions for its opinion no and yes respectively.