Gearing v Director of Public Prosecutions

Factual and Procedural Background

The Appellant appealed against a decision of His Honour Judge Addison, sitting with two Justices, dismissing her appeal against conviction for failing to supply a specimen of breath contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. The incident occurred on 15th March 2005 when the Appellant was observed driving erratically and subsequently failed a roadside breath test. She was arrested and taken to a police station where she requested legal advice multiple times before ultimately refusing to provide a breath specimen. The Appellant was charged on 24th March 2005 and convicted on 7th November 2005. The appeal concerned, among other issues, whether there was a breach of the right to legal advice under section 58(4) of the Police and Criminal Evidence Act 1984 and whether the evidence of the breath test should be excluded under section 78 of the same Act. The Appellant also sought an extension of time for filing her notice of appeal, which was refused due to a substantial delay caused by loss of contact between solicitor and client.

Legal Issues Presented

1. Whether the judge was entitled to conclude that there had been no breach of the Appellant's rights under section 58 of the Police and Criminal Evidence Act 1984.
2. Whether the judge was entitled to exercise discretion to refuse to exclude the evidence of the breath test procedure pursuant to section 78 of the Police and Criminal Evidence Act 1984.

Arguments of the Parties

Appellant's Arguments

• The judge erred in his interpretation of the case of Kennedy v DPP, which provides the current law post-human rights developments.
• Section 58 must be complied with, and legal advice should be provided where sought, provided it does not cause substantial delay.
• Police should have contacted the duty solicitor's call centre promptly to ascertain the availability of legal advice before proceeding with the breath test.
• The failure to contact the call centre constituted a breach of section 58 rights.
• The delay of approximately 23 minutes before the solicitor gave advice was not significant enough to justify proceeding without legal consultation.
• Under section 78, the remedy for breach of section 58 should be exclusion of the breath test evidence.
• If legal advice had been given promptly, the Appellant would have complied and not committed the offence.

Respondent's Arguments

• It is well known that a suspect who fails a roadside breath test will be required to take a further test at the police station without undue delay.
• The Appellant was informed of the consequences of refusal, and there was no substantial delay in the procedure.
• The 23-minute period for obtaining legal advice was reasonable given the public interest in prompt breath testing.
• The distinction between this case and Kennedy was clear, with the public interest in timely testing outweighing the delay caused by legal consultation.
• The officer acted properly and was entitled to proceed as he did.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DPP v Billington [1988] 1 WLR 535	Established that police are not required to delay taking a breath specimen under section 58 and failure to allow immediate consultation is not a reasonable excuse for non-compliance.	The court reaffirmed this principle, noting the special nature of breath test procedures and the need to avoid delay that could vitiate the process.
Kennedy v DPP [2004] RTR 77	Qualified Billington by emphasizing that section 58 requires consultation "as soon as is practicable" but allows for balancing public interest and individual rights; minor delays may not breach rights if prompt consultation is not practicable.	The court applied Kennedy to find that although there was a breach of section 58, the delay was not significant enough to exclude evidence under section 78, and the public interest in prompt testing justified proceeding.

Court's Reasoning and Analysis

The court considered the tension between the statutory right to legal advice under section 58 of the Police and Criminal Evidence Act 1984 and the public interest in prompt breath testing under the Road Traffic Act 1988. It acknowledged that the Appellant requested legal advice multiple times and that the police failed to promptly notify the duty solicitor's call centre at the first request, constituting a breach of section 58. However, the court emphasized that any delay must be measured against the public interest in avoiding significant postponement of the breath test, which could undermine the procedure's integrity.

The court analyzed the facts, noting that the delay between the initial request and the solicitor's advice was approximately 23 minutes, which was considered significant in the context of the need for prompt testing. The Appellant was aware of the consequences of refusal and had no medical or factual challenge to the roadside test. The court balanced the breach against the public interest and concluded that the breach did not warrant exclusion of the breath test evidence under section 78.

Both judges agreed that the police should have notified the call centre promptly but that the subsequent delay justified proceeding with the test. The court rejected the Appellant's submission that any breach of section 58 must lead to exclusion of evidence, stressing the importance of context and proportionality.

Holding and Implications

The court REFUSED THE EXTENSION OF TIME for filing the notice of appeal due to an unjustified and substantial delay.

On the merits, the court DISMISSED THE APPEAL, holding that although there was a breach of section 58 rights by failing to promptly seek legal advice, the breach was not significant enough to exclude the breath test evidence under section 78. The decision underscores the balancing act between individual rights to legal advice and the public interest in prompt breath testing to ensure road safety.

No new precedent was established; the court reaffirmed the principles in DPP v Billington and Kennedy v DPP, clarifying their application in circumstances involving requests for legal advice during breath test procedures.