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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kennedy v CPS [2002] EWHC 2297 (Admin) (06 November 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2297.html Cite as: [2002] EWHC 2297 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th November 2002

Lord Justice Kennedy :

1. This is an appeal by way of case stated from the decision of justices sitting at Northwich who on 1^st February 2002, after a contested hearing, found that the appellant on 9^th September 2001 at Wilmslow, having been required to provide two specimens of breath for analysis in the course of an investigation into whether he had committed an offence under section 3A or section 5 of the Road Traffic Act 1988, failed without reasonable excuse to provide the specimen.

Facts.

2. At 2.40 am on 9^th September 2001 PC Worthington was in a police vehicle when he saw a vehicle driven by the appellant. He followed it, caused it to stop and spoke to the appellant. The appellant was then arrested and taken to Wilmslow police station, arriving there at 3 am. The custody sergeant was dealing with another detainee so the appellant was placed in a holding room. Whilst there he attempted to use his mobile telephone, but was told not to do so. At about 3.20 am the appellant was brought to the custody desk and the custody sergeant, Police Sergeant McGeoghan booked in the appellant and explained to him his rights. The appellant refused to give any details or sign any documents, and was generally uncooperative. Whilst the appellant was at the custody desk he asked for a solicitor. The magistrates rejected his evidence that he had made an earlier request on arrival at the police station, and according to the appellant’s own evidence he was asked if he required a solicitor and said “yes”. He was given a Notice to Detained Persons which stated that the right to legal advice does not entitle a person in his position to delay procedures under the Road Traffic Act 1988. He chose not to read that Notice.
3. At 3.30 a.m. Sergeant McGeoghan began the standard procedure to obtain two specimens of breath. On two separate occasions the appellant was asked to provide a specimen of breath, each time being warned that failure to provide a specimen would render him liable to prosecution, and on each occasion he said “I refuse”, answering all other questions “no comment”. The procedure was completed at 3.40 a.m.
4. At 3.41 a.m. the duty solicitor call centre was contacted by the police, and at 3.55 a.m. Mr McDade, a solicitor, contacted the police station. At 4.40 a.m. Mr Silver attended the police station as the representative of Mr McDade, and he spoke to the appellant. The appellant then at 5.06 a.m. gave his personal details.
5. In evidence the appellant said that he expected the custody sergeant to telephone a solicitor (soon after he indicated that he would like to have the assistance of a solicitor), and that he would then be allowed to speak to that solicitor, but it does not seem that the appellant said anything to inform the police sergeant of his expectations. He said that he was obstructive because he was waiting to see a solicitor, and that he refused to provide specimens because he was waiting to speak to a solicitor for advice on what he should do. Again there is nothing to suggest that at the police station he gave any explanation for his behaviour. The appellant also said in evidence that had he been advised he could not delay the breath test procedure in order to speak to a solicitor he would have provided the specimens when asked, but it seems that he did not ask if the procedure could be delayed, and the information was available to him on the Notice which he chose not to read.
6. Sergeant McGeoghan accepted in evidence that after the appellant indicated his wish to see a solicitor at 3.20 a.m. (the time found by the justices, although the evidence which they record suggests that it could have been at any time between 3.20 and 3.30 a.m.) there was nothing to prevent one of his colleagues contacting a solicitor prior to 3.41 a.m.

Findings.

7. For present purposes it is not necessary to set out the submissions addressed to the justices. It is sufficient to say that the justices found as a fact that each time the appellant refused to provide a specimen he was fully aware of the consequences, and had no reasonable excuse for failing to provide a specimen.
8. Reliance having been placed on section 58 of the Police and Criminal Evidence Act 1984, and on the Codes of Practice which came into existence under that Act, the justices found that –

(1) There was a breach of the statutory requirements in that a solicitor was not contacted immediately, but -

(2) the breath test procedure cannot be delayed while waiting for a solicitor, and –

(3) the police contacted the solicitor at the first reasonable opportunity after the breath test procedure was completed.

(4) The delay was not significant or substantial and in consequence the evidence as to the consequences of the administration of the breath test procedure was not to be excluded pursuant to section 78 of the 1984 Act.

9. The justices also considered the effect of Article 6 of the European Convention on Human Rights and said –

“We accept the appellant’s right to legal advice has been restricted to legal advice only being available after he failed to provide a specimen. We find there is good cause to restrict his right namely the desire to obtain an accurate reading of the alcohol content of his breath. Taking into account the protection of the public as a whole and to prohibit those who are a danger to other road users from driving, we find this restriction is proportionate.”

10. The attention of the justices was drawn to legislation in Canada and New Zealand, but the wording was found to be more restrictive than section 58 of the 1984 Act, and so in the result the justices found no breach of Article 6 of the European Convention.

Questions.

11. The justices posed the following questions for the consideration of this court –

(1) Were the justices correct in concluding that the breach of section 58 of the Police and Criminal Evidence Act 1984 and the Codes of Practice thereto in relation to the defendant’s request to see a solicitor upon his arrival at the police station was neither significant nor substantial?

(2) Should the custody sergeant have informed the defendant that he could not delay the procedure to seek legal advice?

(3) Were the justices correct in refusing to exercise their discretion to exclude the evidence of Sergeant McGeoghan as to the carrying out the request for specimens of breath having regard to the fact that the defendant stated upon his arrival at the police station that he wished to see a solicitor?

(4) Were the justices correct in concluding that the police had good cause to restrict the defendant’s rights to have access to a solicitor as conferred by Article 6 of the European Convention on Human Rights?

(5) Were the justices correct to convict the defendant for an offence of failing to provide two specimens of breath for analysis by means of an approved device when required to do so in pursuance of section 7 of the Road Traffic Act 1988, contrary to section 7(6) of the Road Traffic Act 1988 and Schedule II of the Road Traffic Offenders Act 1988?”

Having regard to the findings of fact question 3 is not well worded. The words “upon his arrival “ should be replaced by “at 3.20 a.m”.

Domestic Law.

12. Initially, under the Road Safety Act 1967 a person in the position of the present appellant, brought to a police station under suspicion of having driven a motor vehicle with alcohol in his blood in excess of the prescribed limit, committed an offence if “without reasonable excuse” he failed to provide a specimen of blood or urine for a laboratory test. In R v Lennard [1973] RTR 252 it was made clear by Lawton LJ at 255 that –

“No excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health.”

On more than one occasion it was contended unsuccessfully that the desire to speak first with a lawyer might amount to a reasonable excuse, and an agreement to provide specimens when a lawyer arrived was treated as a refusal.

13. In 1984 Parliament enacted the Police and Criminal Evidence Act, section 58 of which, so far as relevant, reads -

“(1) a person arrested and held in custody in a police station ... shall be entitled, if he so requests, to consult a solicitor privately at any time.

(4) If a person makes such a request he must be permitted to consult a solicitor as soon as is practicable .....”

Under the 1984 Act is a Code of Practice which deals with the Detention, Treatment and Questioning of Persons by Police Officers, and in the current version C:6 deals with Rights to Legal Advice. It begins –

“C:6.1. Subject to the provisos in Annex B (which for present purposes is not relevant) all people in police detention must be informed that they may at any time consult and communicate privately, whether in person, in writing or by telephone with a solicitor, and that independent legal advice is available free of charge from the duty solicitor.”

In the present case it is not suggested that there was any failure to comply with C:6.1, so I can go to C:6.5 which, so far as material, provides –

“The exercise of the right of access to legal advice may be delayed only in accordance with Annex B to this Code. When legal advice is requested (and unless Annex B applies) the custody officer must act without delay to secure the provision of such advice to the person concerned.”

Mr Anthony Jennings QC, for the appellant, drew our attention to the use of the words “must act without delay”.

14. A failure to comply with the requirements of section 58 or some provision of the Code does not automatically result in evidence being excluded, but section 78 of the 1984 Act enables the court to refuse to allow evidence upon which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
15. After the 1984 Act became law this court in DPP v Billington [1988] 1 WLR 535 assessed the impact of the new Act. At 549 Lloyd LJ set out the pre-existing position –

“1. A defendant is not in general entitled to impose a condition on his willingness to provide a specimen under section 8 of the Act of 1972. If, for example, he says that he will only provide a specimen after he has seen his solicitor or if his solicitor is present, that is treated by the courts as tantamount to a refusal.

2. If, on the other hand, a defendant says that he is willing to provide a specimen but asks if he can see his solicitor first, that is not tantamount to a refusal since he is not in those circumstances imposing a condition. He is seeking a favour. It is then up to the police to decide, in the exercise of their discretion, whether to grant the favour or not.

3. Since the distinction between imposing a condition and asking a favour is one which may be narrow and may depend upon the precise language used by the defendant when asked to provide a specimen, justices should find as the fact what the defendant has said when asked to provide a specimen and, if possible, give his answer verbatim.

4. Whether circumstances are capable of amounting to a reasonable excuse within section 8(7) of the Act is a question of law: whether they do amount to a reasonable excuse in any particular case is a question of fact.

5. The fact that a defendant wishes to see or consult with a solicitor before providing a specimen is incapable in law of amounting to a reasonable excuse.

6. In general a defendant will only be held to have a reasonable excuse within section 8(7) if he is physically or mentally incapable of providing a specimen. But that test is for guidance only. It is not to be treated as if it were part of the statute.”

Lloyd LJ then referred to section 58 and the then current version of Part C of the Code, and the argument that, in the light of the new legislation, a defendant must be afforded access to a solicitor if he requires it before he could be said to have failed or refused to provide a specimen without reasonable excuse. That argument was rejected. At 551 Lloyd LJ said –

“All that the Act requires is that the defendant is to be permitted to consult a solicitor as soon as practicable. There is nothing in the Act which requires the police, whether expressly or by implication, to delay the taking of a specimen under section 8 of the Act in the meantime.”

After referring to the Code he concluded –

“I would hold that there is nothing in the Act itself, nor in the Code, to change or affect in any way the section 8 procedure as considered in the line of cases to which I have referred.”

16. In DPP v Ward [1999] RTR 11 a motorist aged 17 who had asked to see a solicitor gave specimens of breath but the analysis of the lower specimen was such that he was entitled to have it replaced with a sample of blood or urine. He decided against replacement. It was contended that had he had an opportunity to consult a solicitor he would have decided the other way, and the justices excluded the evidence produced by the Intoximeter machine in the exercise of their discretion under section 78 of the 1984 Act. That decision was overturned by this court. At 20B Brooke LJ said –

“This court in Billington has made it quite clear that the usual rights under section 58 of the Act of 1984 are excluded when one is concerned with the operation of, in that case, (what is now) section 7 of the Road Traffic Act 1988.”

A little later, at 20D, he said –

“Parliament has, in my judgment, shown no evidence that it requires a driver, who is being subjected to the statutory procedure, to have legal advice when making quite simple choices which are required under the procedures set out in section 8.”

17. For my part I would not accept that the rights under section 58 have ever been “excluded”. All that was said in Billington was that, in the public interest, those rights cannot delay the operation of the procedures envisaged by the 1988 Act, a position which, as was indicated by Brooke LJ, can easily be understood because, not only do specimens for obvious reaons need to be obtained as soon as possible, but also the decisions which a driver has to make during the implementation of the procedures to obtain specimens involve simple choices, fully explained, in relation to which it is not immediately easy to see why anyone who is competent to drive should actually need legal advice.

ECHR and Commonwealth Authorities.

18. Mr Jennings does not go so far as to concede that prior to the implementation of the Human Rights Act 1998 this appellant had no realistic prospects of persuading any court either to exclude the evidence of his refusal to provide specimens on the basis of fairness pursuant to section 78 of the 1984 Act, or to find that he had a “reasonable excuse” of the kind envisaged by section 7(6) of the 1988 Act for his failure to provide specimens. Mr Jennings does however submit that even under domestic case law there was a need for proof of a real risk of delay to the breath test procedure if that procedure was to proceed before the suspect was afforded the opportunity to take legal advice, and he contends that whatever may have been the position prior to the implementation of the 1988 Act the situation is now different. Section 58 of the 1984 Act and the Code must be re-considered in the light of Article 6(3) of the European Convention which, so far as material, provides that –

“Everyone charged with a criminal offence has the following minimum rights –

(c) to defend himself in person or through legal assistance of his own choosing ....”

19. In Murray v UK [1996] 22 EHRR 29 it was made clear that Article 6 requires that an accused should have access to legal advice at “the initial stages of police interrogation”, but of course in the present case we are not concerned with interrogation, in relation to which, as the court went on in paragraph 66 to point out, different issues arise, because –

“At the beginning of police interrogation, an accused is confronted with a fundamental dilemma relating to his defence. If he chooses to remain silent, adverse inferences may be drawn against him in accordance with the provisions of the Order. On the other hand, if the accused opts to break his silence during the course of interrogation, he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him.”

20. Mr Jennings submitted that a person in the position of the present appellant is also faced with a dilemma, but, as I have already indicated, it is to my mind no more than a simple choice, the implications of which are clearly explained in terms which any one can understand. Mr Jennings recognises that in Murray at paragraph 63, the European Court of Human Rights recognised that even the right to legal assistance at the initial stages of police interrogation can be restricted by National laws “for good cause”, but he submits that there was no good cause for any restriction in the present case. Once the appellant indicated a desire to have the assistance of a solicitor a few minutes delay while he spoke to a solicitor on the telephone before any request was made to provide specimens would not have any adverse effect on the progress of the inquiry, and might well have resulted in the appellant adopting a more cooperative stance.
21. So far as we are aware there is no European authority which deals with the sort of situation with which we are confronted with in this case, where what is being sought by the police is not an interview but simply the provision of specimens which for good reason and under pain of a criminal sanction the law requires a suspect to provide. But Mr Jennings contends that assistance as to the proper interpretation of Article 6 in such a situation can be obtained from decisions in Canada and New Zealand.
22. Section 10 of the Canadian Charter of Rights and Freedoms provides that –

“Everyone has the right on arrest or detention ...

(b) to retain and instruct counsel without delay and to be informed of that right”

Section 24(2) of the Charter provides –

“Where .... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Mr Jennings submits that there is an obvious similarity between those provisions and the provisions of section 58 and section 78 of the Police and Criminal Evidence Act, and Code C:6.5. But of course the English statutory words, as applied to road safety legislation have already been the subject of interpretation by English courts, and although that interpretation may have been effected by the implementation by the Human Rights Act 1998 it cannot be directly affected by the jurisprudence even of the Supreme Court of Canada.

23. In R v Bartle [1994] 118 DLR (4^th) 83 the defendant was told of his right to legal advice, but not of the availability of a 24 hour legal advice service. That was held to amount to an infringement of his rights under section 10(b) of the Charter, and it was found that therefore the evidence should have been excluded. In R v Prosper [1994] 118 DLR (4^th) the facts were almost identical.
24. In the New Zealand Bill of Rights Act 1990 the relevant provision is section 23 which, so far as material, reads –

“Rights of Persons arrested or detained –

(1) Everyone who is arrested or who is detained under any enactment –

(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right.”

In Ministry of Transport v Noort [1992] 3 NZLR 260 the Court of Appeal in Wellington considered the inter-action between that provision and sections 58B, 58C and 58D of the Transport Act 1962. At 274 Cooke P. said –

“There is no solid ground for inferring that the administration of the Transport Act will be substantially impaired or the road toll substantially reduced by the time required to give drivers who have duly been brought in for further tests, usually after a positive breath-screening test, a limited opportunity of making telephone contact with a lawyer and taking advice.”

A little later he continued –

“The opportunity is to be limited but reasonable. It is not necessarily restricted to one call, but there must be no unreasonable delay. The driver who cannot immediately contact his or her lawyer should normally be allowed to try one or two others. If, despite a reasonable opportunity, no lawyer can be contacted (perhaps because of the hour of night) the tests need not be delayed further. Rosters of lawyers available to undertake this work at an appropriate fee, may be prepared by the law society, the police or the Ministry, but that is outside the control of the Court. Hard and fast rules cannot be laid down for all circumstances. Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.”

25. Mr Jennings submits that as a result of the implementation of the Human Rights Act English courts should now adopt a similar approach to the provisions of the 1984 Act and of the Code. He points out that if, as he submits, Article 6 of the European Convention was infringed then, because the police are a public authority, there was a contravention of section 6(1) of the 1998 Act, which renders it unlawful for a public authority to act in a way which is incompatible with a Convention right. The right to legal advice is a fundamental right, and because it was not granted the appellant was, Mr Jennings submits, deprived of the opportunity to make a informed choice in relation to the requirement that he provide a specimen of breath, so in fairness under section 78 the evidence of his decision should have been excluded.

Campbell v DPP.

26. On 31^st May 2002 Goldring J, in the Administrative Court, delivered judgment in this appeal by way of case stated, and addressed the question of whether, as he put it, Billington is still good law, having regard to Article 6(3) of the European Convention. The facts were similar to those we are considering. The driver was informed of his rights at Dewsbury Police Station at 1.35 a.m. He requested a duty solicitor at that time. At 1.40 a.m. the procedure to obtain specimens was commenced, and at 1.42 a.m. an officer not involved in that procedure contacted the duty solicitor scheme. The driver refused to provide specimens. The procedure was completed at 1.48 a.m. when the driver was returned to the cell area, and at 1.54 a.m. the duty solicitor contacted the police station and spoke to the driver. On his behalf it was submitted that because he did not receive legal assistance before being asked to provide specimens the evidence of his response should be excluded. Goldring J did not agree. At paragraph 35 of his judgment he said –

“Article 6(3) does not impose a blanket requirement that each time a person is detained legal advice must be obtained for him before he can be asked to do or say anything; Murray makes that clear. In each case a balancing exercise must be carried out. It is now trite law to say it; there must be a proper balance between the protection of the interests of the individual on the one hand and the interests of the community at large on the other. The interests of the individual may only be curtailed to the extent necessary to pursue the community’s legitimate aims. In other words the restriction on any right in relation to Article 6(3) must be proportionate to the aim sought to be achieved. If it is, then it is lawful. If it is not there is a breach of Article 6(3).”

The judge went on to point out that the interests of the community are self-evident, namely “the suppression of drink driving in order to save lives and prevent serious injury to its members.” He then said that such interests represent a desirable and proportionate aim, and that it is proportionate to that aim to permit a police officer in its pursuance to require a member of the community to provide a specimen albeit the member of the community may have requested legal advice and not received it, because, self evidently, delay in obtaining a specimen could be prejudicial to the aim, however short the delay. A procedure which left it to individual officers in police stations to perform some sort of balancing exercise would, it was said, be unworkable.

27. In relation to the issue of proportionality the judge pointed out that account can be taken of the protections afforded to a driver within the procedure for taking and requiring breath specimens, which I need not rehearse, and he further pointed out in paragraph 42 that on the facts of the case which he was considering the driver had certain difficulties –

“He did not suggest he needed to consult as to whether he may have had a reasonable excuse for not providing a specimen. In such circumstances it was perfectly reasonable for the officer to go through the process of seeking to obtain a specimen. It was not necessary for him to wait for an uncertain time for a solicitor to be spoken to on the telephone or to arrive.”

The judge’s conclusion was that Billington and the authorities based on it are still good law.

28. Not surprisingly Mr Everett, who appears for the respondent before us, places considerable reliance on the decision in Campbell. Mr Jennings points out that in Campbell’s case, in contrast to the present case, it was held that there was sufficient compliance with the obligation to provide access to legal advice, and that there was no breach of section 58. Furthermore the court in Campbell’s case was not referred to Canadian and New Zealand law, or to the obligation under the European Convention to protect the essence of a Convention right (see Heaney and McGuiness v Ireland [2000] 33 EHRR 264, where the appellant was refused access to a lawyer for the first 24 hours of his police detention).

Submissions.

29. Mr Jennings makes what are in effect three submissions –

(1) that section 7(6) of the 1988 Act and Schedule II of the Road Traffic Offenders Act 1988 (which deals only with mode of trial and penalties) must be read to give effect to the right of access to legal advice guaranteed by section 58 of the Police and Criminal Evidence Act and Article 6(3) of the European Convention.

(2) There should be a limited but reasonable right to legal advice prior to the commencement of the breath specimen procedure, so that suspects facing such a procedure can make an informed choice.

(3) The practice, if it be a practice, of not initiating contact with a solicitor until the breath test procedure has been completed is a breach of section 58 and Article 6(3) and therefore in the present case the police acted unlawfully (see section 6(1) of the Human Rights Act).

30. Mr Everett submits that –

(1) Although the effect of the Human Rights Act incorporating Article 6 of the Convention is to re-enforce the right of a suspect at a police station to have legal advice, a right already recognised by section 58 of the 1984 Act and part C of the Code, existing authorities demonstrate that it is not a contravention of English law, and it is entirely proportionate to the aims of Article 6, to permit a police officer to require a suspect to undergo the breath test procedure even though the suspect may have requested legal advice and not yet received it. Depending upon circumstances of any individual case such a requirement might well not amount to a breach of any part of domestic law, including Article 6 of the European Convention, now incorporated into domestic law by the 1998 Act (see Campbell).

(2) Furthermore it is still the law that a refusal to provide a specimen pending legal advice cannot amount to a reasonable excuse for the purposes of section 7(6) of the 1988 Act.

(3) Accordingly in the context of this case the justices were right, having found a breach of section 58 of the Police and Criminal Evidence Act to say that it was neither significant nor substantial. Even if the custody sergeant had telephoned the call centre as soon as the appellant indicated a desire to see a solicitor the probability was that no solicitor would have returned that call before the booking in procedure was complete and the police were ready to proceed with the procedure designed to obtain specimens of breath, a procedure which in the public interest should not be delayed. The procedure is simple, it safeguards the person undergoing it, and presents him with simple choices, which are fully explained.

Conclusion.

31. I accept that the right to a fair trial enshrined in Article 6 of the Convention can be said to be in play from the outset of a police investigation, but that right does not spell out a right to legal advice at any particular stage. For that it is necessary to go to domestic legislation which, to my mind, fully satisfies the requirements of Article 6. Section 58(1) of the 1984 Act entitles a person arrested and held in custody at a police station to consult a solicitor if he asks to do so, and where a request is made (as it was in this case, albeit in response to an invitation) he must be permitted to consult a solicitor as soon as is practicable (section 58(4)). The custody officer, it is said in the Code at C:6.5 “must act without delay” to secure the provision of legal advice. For present purposes I can ignore the special circumstances provided for by section 58 when delay in access to a solicitor is permitted. In such circumstances it may be necessary to consider, in terms of Article 6, whether there is good cause to restrict the right and whether the restriction is proportionate. But in the ordinary case how are the statutory requirements to be interpreted in reality? Having asked the question on the charge sheet in relation to legal advice is the custody officer entitled to go on with the remaining questions, or must he at once, as soon as the suspect indicates that he would like to have legal advice pick up the telephone and ring the call centre? Plainly, as it seems to me, it is a question of fact and degree in any given case whether the custody officer has acted without delay to secure the provision of legal advice, and whether the person held in custody has been permitted to consult a solicitor as soon as is practicable. Where the matter under investigation is a suspected offence contrary to section 5 of the Road Traffic Act 1988 it is really conceded by Mr Jennings, and in my view rightly conceded, that in this jurisdiction the public interest requires that the obtaining of breath specimens part of the investigation cannot be delayed to any significant extent in order to enable a suspect to take legal advice. That, to my mind, means this – that if there happens to be a solicitor in the charge office whom the suspect says that he wants to consult for a couple of minutes before deciding whether or not to provide specimens of breath he must be allowed to do so. Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor in question is immediately available. But where, as here, the suspect does no more than indicate a general desire to have legal advice, I see no reason why the custody officer should not simply continue to take details, and alert the solicitors’ call centre at the first convenient opportunity. That will probably mean that, as the justices in this case found, the call centre should be alerted before the next stage of the investigation, but in this case if a call had been made at 3.30 a.m. it is inconceivable that the appellant would have received any legal advice prior to committing the offence contrary to section 7(6) of the 1988 Act. The breach of the statutory requirement was, as the justices found, neither significant nor substantial, and could not properly lead to any exclusion of evidence pursuant to section 78 of the 1984 Act.
32. Accordingly I would answer the questions posed by the justices as follows –

(1) Yes

(2) He did so by the Notice to Detained Persons, and that was sufficient.

(3) Yes – to the question in its revised form, see paragraph 11 above.

(4) As explained above I do not consider this to be a case in which it is necessary to consider whether there was, for the purposes of Article 6, good cause to restrict rights of access.

(5) Yes.

I would therefore dismiss this appeal.

Mr Justice Pitchers:

33. I agree.