The custody sergeant's breach of s.58 Police and Criminal Evidence Act 1984 in delaying securing the provision of legal advice by seven minutes was neither significant nor substantial.Appeal by way of case stated against the decision of a Magistrates' Court to convict the appellant (K) of failing to provide a breath specimen contrary to s.7 Road Traffic Act 1988. K had been arrested for being in charge of a vehicle whilst unfit through drink and arrived at the police station at 10.30pm on the night of the arrest. K requested legal advice at 11.03pm after being read his rights by the custody officer. The solicitor was contacted at 11.10pm and K received advice from the duty solicitor at 11.29pm. Between these times K refused to provide two specimens of breath. The magistrates concluded that the police had been in breach of s.58 Police and Criminal Evidence Act 1984 (PACE) and para.6.5 Code C of the Codes of Practice for police officers investigating suspected offences in that there had been a delay in securing legal advice for K. However, the magistrates considered that the breach was neither significant nor substantial and declined to exclude the evidence of the request for a breath specimen. K appealed and the following two questions were presented: (1) whether, having found that there was a breach of s.58 PACE 1984 and the Codes of Practice with regard to the appellant's request to see a solicitor at the police station, the magistrates had erred in law by refusing to exercise their discretion to exclude the evidence of the request for a breath specimen; (2) whether it was correct to convict the appellant for failing to provide specimens of breath for analysis by means of an approved device when required to do so pursuant to s.7 Road Traffic Act 1988.HELD: The seven minute delay which gave rise to the breach was so short a period that it only just constituted a breach of s.58 PACE 1984 and the Codes of Practice. There was no duty on the police to delay taking a specimen of breath until K had obtained legal advice (Kennedy v DPP (2002) EWHC 2297 Admin followed). The police were fully entitled to commence that procedure at 11.10pm. The magistrates' exercise of discretion under s.78 PACE could not be faulted. The answers to both questions in the stated case were yes.Appeal dismissed.

[2003] EWHC 2354 (Admin)

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